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HomeMy WebLinkAboutBANK OF NEW YORK MELLON TRUST COMPANY, N.A., THE (2).A- 2014 -133 -A SITE AND FACILITY LEASE THIS SITE AND FACILITY LEASE (this "Site and Facility Lease "), dated as of June 1, 2014, is by and between the CITY OF SANTA ANA, a municipal corporation and chartered city 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 organized and existing under and by virtue of the laws of the State of California (the "Authority "), as lessee; WITNESSETH: WHEREAS, pursuant to this Site and Facility Lease, the City proposes to lease those certain parcels of real property situated in Orange County, State of California, more particularly described in Exhibit A attached hereto and made a part hereof (the "Site "), and those certain improvements thereon, more particularly described in Exhibit B hereto (the "Facility" and, with the Site, the "Property "), to the Authority, all for the purpose of assisting the City in undertaking (a) the defeasance of $33,550,000 (50 %) of the outstanding Santa Ana Financing Authority Police Administration and Holding Facility Lease Revenue Bonds, Series 1994A, issued to finance the costs of the construction and equipping of a police administration building and holding facility, and (b) the current refunding of the outstanding City of Santa Ana Certificates of Participation (1998 City Hall Expansion Project), delivered to finance the costs of the construction and equipping of an expansion of the Santa Ana City Hall; WHEREAS, the Authority proposes to lease the Property back to the City pursuant to that certain Lease Agreement, dated as of June 1, 2014, a memorandum of which is recorded concurrently herewith (the "Lease Agreement') and to assign all of its rights, title and interest in, to and under this Site and Facility Lease and the Lease Agreement, including its right to receive lease payments under the Lease Agreement (the "Lease Payments "), its right to enforce payment of the Lease Payments and otherwise to enforce its interest and rights under the Lease Agreement in the event of a default thereunder by the City, to U.S. Bank National Association, as agent (the "Agent'), on behalf of TPB Investments, Inc., a wholly owned subsidiary of Western Alliance Bank, an Arizona corporation, Compass Mortgage Corporation, an Alabama corporation, and Capital One Public Funding, LLC (collectively, the "Assignees "), pursuant to that certain assignment agreement, dated as of June 1, 2014, by and between the Authority and the Agent (the "Assignment Agreement'), and recorded concurrently herewith; NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED, as follows: Section 1. Definitions. Capitalized terms used, but not otherwise defined, in this Site and Facility Lease shall have the meanings ascribed to them in the Lease Agreement. Section 2. Site and Facility Lease. The City hereby leases to the Authority and the Authority hereby leases from the City, on the terms and conditions hereinafter set forth, the Property. Section 3. Term. The term of this Site and Facility Lease shall commence on the date of recordation of this Site and Facility Lease in the Office of the County Recorder of the County of Orange, State of California, and shall end on January 1, 2028, unless such term is extended or sooner terminated as hereinafter provided. If, on January 1, 2028, the aggregate amount of Lease Payments (as defined in and as payable under the Lease Agreement) shall not have been paid by reason of abatement, default or otherwise, or provision shall not have been made for their payment in accordance with the Lease Agreement, then the term of this Site and Facility Lease shall be extended until such Lease Payments shall be fully paid or provision made for such payment, but in no event later than July 1, 2038. If, prior to January 1, 2028, all Lease Payments shall be fully paid or provision made for such payment in accordance with the Lease Agreement, the term of this Site and Facility Lease shall end. Section 4. Advance Rental Payment. The City agrees to lease the Property to the Authority in consideration of the payment by the Authority of an advance rental payment of $45,060,000. The City and the Authority agree that by reason of the assignment of the Lease Payments to the Assignees under and pursuant to 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 Property solely for the purpose of leasing the Property 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. Section 6. City's Interest in the Property. The City covenants that it is the owner in fee of the Property. Section 7. City Representations and Certifications to the Authority and the Assignees. The City hereby certifies and represents, warrants, covenants and agrees as follows: (a) This Site and Facility Lease is in full force and effect, and there have been no amendments, modifications, changes or additions since its execution. (b) To the best of the City's knowledge, the Authority is not and will not be, in any respect, in default under the terms and provisions of this Site and Facility Lease. Further, to the best of City's knowledge, City knows of no event which would, currently or with the passage of time or giving of notice, or both, constitute a default under the terms of this Site and Facility Lease by either the Authority or the City. (c) The City has not currently encumbered its fee interest in the Property to any lender or financial institution, whether by way of mortgage, deed of trust or other security instruments, except for this Site and Facility Lease and the Lease Agreement which is being recorded concurrently herewith and Permitted Encumbrances (as defined in the Trust Agreement). (d) The City acknowledges hereby consents to the Lease Agreement (e) Upon the Event of Default under the Lease Agreement, the City will standstill and allow the Authority or the Assignees to pursue any and all remedies available to the Authority or Assignees under either this Site and Facility Lease or the Lease Agreement. (f) Except for the rental payment referenced in Section 4, no additional rent is or will be due under this Site and Facility Lease by the Authority through the term of this Site and Facility Lease and the Authority has satisfied all of its obligations under this Site and Facility Lease. (g) During the term of the Site and Facility Lease, the City will not consent to any amendment, modification or termination of this Site and Facility Lease without the prior written consent of the Assignees. (h) During the term of this Site and Facility Lease, the City will not encumber its interest in the Site without the prior written consent of the Assignees. -2- (i) The City acknowledges that this Site and Facility Lease cannot be terminated by the City for any reason, except according to Section 3. (j) Notwithstanding any Site and Facility Lease provisions to the contrary, policies of fire, casualty, and extended coverage insurance shall be carried and maintained by the City in accordance with the terms of the Lease Agreement covering the building or buildings constructed on the Site, with a loss payable clause to Assignees. Section 8. Assignments and Subleases. Unless the City shall be in default under the Lease Agreement, the Authority may not assign its rights under this Site and Facility Lease or sublet the Property, except as provided in the Lease Agreement and the Assignment Agreement, without the written consent of the City and the Assignees. The City consents to the assignment of the Authority's interest in this Site and Facility Lease to the Assignees. If the City is in default under the Lease Agreement, the Assignees (including their successors and assigns under the Lease Agreement) may fully and freely assign and sublease the Property or any portion thereof, subject to this Site and Facility Lease. Section 9. Right of Entry. The City reserves the right for any of its duly authorized representatives to enter upon the Property at any reasonable time to inspect the same or to make any repairs, improvements or changes necessary for the preservation thereof. Section 10. Termination. The Authority agrees, upon the termination of this Site and Facility Lease, to quit and surrender the Property 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, and agrees that any permanent improvements and structures existing upon the Site at the time of the termination of this Site and Facility Lease shall remain thereon and title thereto shall vest in the City. Section 11. 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 and Facility Lease, which default continues for thirty (30) days following notice and demand for correction thereof to the Authority, the City may exercise any and all remedies granted by law, except that no merger of this Site and Facility Lease and of the Lease Agreement shall be deemed to occur as a result thereof and the City shall have no right to terminate this Site and Facility Lease as a remedy for such default. Notwithstanding the foregoing, so long as the Lease Agreement remains in effect, the City will continue to pay the Lease Payments to the Assignees. In the event of the occurrence of an Event of Default under the Lease Agreement or a breach or default of the certifications and representations, warranties and covenants of the City contained in Section 7, the Authority and /or the Assignees may (i) exercise the remedies provided in the Lease Agreement, (ii) use the Property for any lawful purpose, subject to any applicable legal limitations or restrictions, and (iii) exercise all options provided herein. Section 12. Quiet Enjoymen t. The Authority, at all times during the term of this Site and Facility Lease, shall peaceably and quietly have, hold and enjoy all of the Property subject to the provisions of the Lease Agreement. Section 13. Waiver of Personal Liability. All liabilities under this Site and Facility Lease on the part of the Authority are solely liabilities of the Authority and the City hereby releases each and every Boardmember, director, officer, employee and agent of the Authority of and from any personal or individual liability under this Site and Facility Lease. No Boardmember, director, officer, employee or agent of the Authority shall at any time or under any circumstances be individually or personally liable under th s Site and Facility Lease for anything done or omitted to be done by the Authority hereunder. -3- Section 14. Taxes. All assessments of any kind or character and all taxes, including possessory interest taxes, levied or assessed upon the Property or the Authority's interest in the Property created by this Site and Facility Lease (including both land and improvements) will be paid by the City in accordance with the Lease Agreement. Section 15. Eminent Domain. In the event the whole or any part of the Property is taken by eminent domain proceedings, the interest of the Authority shall be recognized and is hereby determined to be the amount of the then unpaid principal component of the Lease Payments, any then unpaid interest component of the Lease Payments and any premium due with respect to the prepayment of lease Payments to the date such amounts are remitted to the Authority or its assignee, and, subject to the provisions of the Lease Agreement, the balance of the award, if anv, shah be paid to the City. The City hereby waives, to the extent permitted by law, any and all rights that it has or may hereafter have to acquire the interest of the Authority in and to the Property through the eminent domain powers of the City. However, the City hereby agrees, to the extent permitted by law, that the compensation to be paid in any condemnation proceedings brought by or on behalf of the City with respect to the Property shall be in an amount not less than the total unpaid principal component of Lease Payments, the interest component of Lease Payments accrued to the date of payment of all Lease Payments and any premium due with respect to the prepayment of Lease Payments under the Lease Agreement. Section 16. 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 Property pursuant to Section 2 serves the public purposes of the City. Section 17. Attorneys' Fees. Costs and Expenses. In any civil action or proceeding arising from or relating to this Site and Facility Lease or a party's performance under this Site and Facility Lease, the prevailing party shall be awarded its reasonable attorneys' fees, costs and expenses, including the reasonable attorneys' fees, costs and expenses incurred in collecting or executing upon any judgment, order or award. Section 18. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site and Facility 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 and Facility Lease shall be affected thereby, and each provision of this Site and Facility Lease shall be valid and enforceable to the fullest extent permitted by law. Section 19. 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, at the addresses set forth in the Lease Agreement, or to such other addresses as the respective parties may from time to time designate by notice in writing. Section 20. Binding Effect. This Site and Facility Lease shall inure to the benefit of and shall be binding upon the City and the Authority and their respective successors and assigns. The Assignees are hereby made third party beneficiaries Hereunder with all rights of a third party beneficiary. Section 21. Ai.nendment. This Site and Facility Lease may not be amended except as permitted under the Lease Agreement. -4- Section 21. 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 and Facility Lease. Section 22. Applicable Law. This Site and Facility Lease shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in California. Section 23. No Merger. Neither this Site and Facility Lease, the Lease Agreement nor any provisions hereof or thereof shall be construed to effect a merger of the title of the City to the Property under this Site and Facility Lease and the City's leasehold interest therein under the Lease Agreement. Section 24. Execution in Counterparts. This Site and Facility 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. -5- [NOTARY ACKNOWLEDGMENTS TO BE ATTACHED] EXHIBIT A DESCRIPTION OF THE SITE All that certain real property situated in Orange County, State of California, described as follows: Those portions of Lots 4 and 5 in Block B, Lots 1 through 5, inclusive, in Block C, and Lots 1, 2 and 3 in Block F, all of the Ross Addition to Santa Ana as shown on the map filed in Book 3, Pages 534 and 535 of Miscellaneous Records, in the office of the County Recorder of Los Angeles County, California; together with those portions of Lots 1 through 5, inclusive, and Lots 12 through 16, inclusive, all of Stout's Addition to Santa Ana, as shown on the map filed in Book 6, Page 28 of Miscellaneous Maps, in the office of the County Recorder of Orange Coinity, California; together with those portions of Lots 1 through 4, inclusive, and Lots 21 through 24, inclusive, all of Geo. W. Ford's Addition to Santa Ana as shown on the map filed in Book 25, Pages 62 of said Miscellaneous Records of Los Angeles County; together with those portions of Lots 1 through 4, inclusive of the Chilton Tract Addition to Santa Ana as shown on the map filed in Book 34, Page 93 of said Miscellaneous Records of Los Angeles County; together with those portions of Sixth Sheet, Van Ness Street, Parton Street and the alley within said Geo. W. Ford's Addition to Santa Ana as abandoned by City Resolutions, all being in the City of Santa Ana, County of Orange, State of California, described as a whole as follows: Commencing at the centerline intersection of Ross Street and Civic Center Drive as said intersection is shown on Record of Survey 95 -1031 as filed in Book 149, Pages 49 and 50 of Records of Survey, in said office of the County Recorder of Orange County, California; thence along said centerline of Ross Street South 0 °37'23" East 943.49 feet to the centerline intersection of Ross Street and Santa Ana Boulevard as shown on said Record of Survey; thence leaving said centerline of Ross Street, along said centerline of Santa Ana Boulevard, the following courses: South 49 °02'03" West 248.90 feet to the beginning of a curve concave Northwesterly having a radius of 800.00 feet, and Southwesterly 79.51 feet along said curve through a central angle of 5 °41'39'; thence leaving said centerline non - tangent North 35 016'18" West 54.00 feet to the Northwesterly right -of -way line of said Santa Ana Boulevard, said point also being the most Southerly corner of the land as described in the Grant Deed to the State of California recorded September 26, 2007 as Instrument No. 2007000582904 of Official Records, in the office of said County Recorder of Orange County; thence along the Westerly and Northerly lines of said Grant Deed, the following courses: North 0 °37'23" West 342.65 feet, North 89 °22'37" East 66.00 feet and North 0 °3723" West 43.99 feet to the TRUE POINT OF BEGINNING; thence continuing along said Westerly and Northerly lines and the general Northwesterly line of said Grant Deed, the following courses: North 0 °37'23" West 7.09 feet to the beginning of a non - tangent curve concave Northwesterly having a radius of 33.00 feet, a radial line of said curve to said point bears South 574722" East, Northeasterly and Northerly 19.53 feet along said curve through a central angle of 3354'20 ", North 1 °41'42" West 5.71 feet to the beginning of a curve concave Southeasterly having a radius of 18.00 feet, Northerly and Northeasterly 14.69 feet along said curve through a central angle of 46 °44'51 ", North 45 °03'09" East 31.20 feet to the beginning of a curve concave Westerly having a radius of 26.00 feet, Northeasterly, Northerly and Northwesterly 32.33 feet along said curve through a central angle of 71 °14'38 ", non - tangent North 45 *01 '29" East 0.66 feet and North 89 °57'38" East 138.81 feet to the Westerly right -of -way line of said Ross Street, said Westerly right - of -way line being parallel with and 40.00 feet Westerly of said centerline of Ross Street; thence leaving said Northerly line along said Westerly right -of -way line North 0 °37'23" West 253.01 feet to the Northerly line of said Lot 5 of Stout's Addition to Santa Ana; thence leaving said Westerly right -of -way line along said Northerly line of Lot 5 and its Westerly prolongation South 89 °57'41" West 220.00 feet to a line being parallel with and 220.00 feet Westerly of said Westerly right -of -way line of Ross Street; thence leaving said Westerly prolongation along said parallel line South 0 °37'23" East 100.00 feet; thence leaving said parallel line South 89 °5741" West 500.00 feet; thence South 0 °02' 19" East 250.00 feet to a line bearing North 89 °57'41" East and passing through the TRUE POINT OF BEGINNING; thence North 89 °57'41" East 545.08 feet to the TRUE POINT OF BEGINNING. Containing an area of 4.292 acres, more or less. Exhibit A EXHIBIT B DESCRIPTION OF THE FACILITY The Facility consists of Santa Ana City Hall, an 8 -story building, 127,302 square feet, current value of $33,523,899, and the Ross Annex, a 4 -story building, 68,823 square feet, valued at $18,624,187. Santa Ana City Hall houses many of the City's General Service departments such as City Manager's Office, Mayor and City Council offices, City Attorney, HR, Finance Department as well as grant related department such as Community Development and Housing Authority. Furthermore, City Hall houses critical infrastructure necessary for the day -to -day operations of the City such as the main IT data center, Telecommunications, Traffic Management Center, main electrical switch, facility security systems, cashiering systems, just to mention a few. The Ross Annex houses the Planning and Building Agency including its permit and plan check counters (including Fire and PD related permits). It also houses the Finance Departments' Applications and Micro Tech Support Division. Additionally, the Ross Annex houses Public Works Agency capital projects and administration divisions, PWA /PBA data center (including GIS) and other enterprise related divisions. Furthermore, the Ross Annex houses critical revenue collection related systems, infrastructure and staff associated with municipal utility billing, business licensing, hotel visitors tax, and utility users tax. Exhibit B IN WrrNESS WHEREOF, the City and the Authority have caused this Site and Facility Lease to be executed by their respective officers thereunto duly authorized, all as of the day and year first above written. Attest: Attest: Maria D. Huizar Clerk of the Council, Maria D. Huizar Secretary -6- CITY OF SANTA ANA By � _- David Cavazo City Manager SANTA ANA FINANCING AUTHORITY By r avid Cavazos Executive Director State of California County of Orange SS City of Santa Ana On this 11th day of June, 2014, before me, Maria D. Huizar , Notary Public, personally appeared David Cavazos City Manager who proved to me on the basis of satisfactory evidence to be the person /persons whose6ihe /namesris /are - subscribed to the within instrument and acknowledged to me that bSetshefthey executed the same in hi�7herttheir authorized c�,, ",t cap`arcities and that byEFE' /herlthei si 'tarelsignat"ures on the instrument the er�san1persons, or the entity upon behalf of which the pror`/persons acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing is true and correct. Witness my hand and official seal. NOTARY SEAL rA MARIA D HUIZAR Commission # 4874202 & �; Notary Public - California z Orange County ' My Comm, Ex Tres Apr 5, 2016 CAPACITY CLAIMED BY SIGNER: ❑ Individual(s) ❑ Corporate _ ❑ Officers Title(s) ❑ Partner(s) ❑ General Partner of a Limited ❑ Partnership ❑ Attorney -in -Fact ❑ Trustee (s) ❑ Subscribing Witness ❑ Guardian /Conservator ❑ Other: Witness my hand and official seal. Signature of Notary SIGNER IS REPRESENTING: THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED TO THE BELOW: RE: BOND REFINANCE TITLE OR TYPE OF DOCUMENT: SITE AND FACILITY LEASE NUMBER OF PAGES: DATE OF DOCUMENT: SIGNER (S) OTHER THAN NAMED ABOVE: