Jones Hall Draft of Aug. 21, 2023
RECORDING REQUESTED BY:
City of Alameda
AND WHEN RECORDED RETURN TO:
Jones Hall, A Professional Law Corporation
Attn: James A. Wawrzyniak, Jr., Esq.
475 Sansome Street, Suite 1700
San Francisco, California 94111
THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX UNDER SECTION 11929 OF THE CALIFORNIA REVENUE AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM RECORDING FEES UNDER SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE.
SITE LEASE
This SITE LEASE (this “Site Lease”), dated as of October 1, 2023, is between the CITY OF ALAMEDA, a municipal corporation duly organized and existing under the Constitution and laws of the State of California , as lessor (the “ City”), and the CITY OF ALAMEDA FINANCING AUTHORITY, a joint powers authority duly organized and existing under the laws of the State of California, as lessee (the “Authority”).
B A C K G R O U N D :
1. The City desires to move forward with the construction of an aquatic center within the City, which will provide benefit to the City and its citizens.
2. To that end, the City is leasing certain real property and improvements thereon owned by the City, consisting of the City’s police department facility and its site located at 1555 Oak Street in the City (as described in Appendix A attached hereto, the “Leased Property”), to the Authority under this Site Lease in consideration of the payment by the Authority of an upfront rental payment (the “ Site Lease Payment”). The Leased Property subject to this Site Lease may be substituted and/or released in whole or in part in accordance with the provisions set forth in Sections 3.2 and 3.3 of the Lease (defined below).
3. The Authority has authorized the issuance of its City of Alameda Financing Authority 2023 Lease Revenue Bonds (Aquatic Center) (the “Bonds”), under an Indenture of Trust dated as of October 1, 2023 (the “Indenture”) by and between the Authority and U.S. Bank Trust Company, National Association , as trustee (the “ Trustee”), for the purpose of providing the funds to enable the Authority to pay the Site Lease Payment to the City in accordance with this Site Lease.
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4. In order to provide revenues to enable the Authority to pay debt service on the Bonds, the Authority is leasing the Leased Property back to the City under a Lease Agreement dated as of October 1, 2023 and recorded concurrently herewith (the “Lease”), under which the City has agreed to pay semiannual Lease Payments as the rental for the Leased Property thereunder.
5. The lease payments made by the City under the Lease have been assigned by the Authority to the Trustee for the security of the Bonds under an Assignment Agreement, dated as of October 1 , 2023 , between the Authority as assignor and the Trustee as assignee, and recorded concurrently herewith.
A G R E E M E N T :
In consideration of the above premises and of the mutual promises and covenants herein contained and for other valuable consideration, the parties hereto do hereby agree as follows:
SECTION 1. Lease of Property to Authority. The City hereby leases the Leased Property to the Authority and the Authority hereby leases the Leased Property fro m the City, on the terms and conditions hereinafter set forth.
SECTION 2. Term; Possession . The term of this Site Lease commences on the Closing Date and ends on the date on which the Indenture is discharged in accordance with Section 10.03 thereof, but under any circumstances not later than May 1, 20____.
The provisions of this Section 2 are subject in all respects to any other provisions of this Site Lease relating to the termination hereof.
SECTION 3. Rental . The Authority shall pay to the City as and for rental of the Leased Property hereunder, the sum of $___________ (the “Site Lease Payment”). The Site Lease Payment is due and payable upon the issuance of the Bonds and the execution and delivery hereof, and will be paid from the proceeds of the Bonds. The Authority and the City hereby find and determine that the total amount of the Site Lease Payment does not exceed the fair market rental value of the leasehold interest in the Leased Property which is conveyed hereunder by the City to the Authority. No other amount of rental is due and payable by the Authority for the use and occupancy of the Leased Property under this Site Lease.
SECTION 4. Leaseback to City. The Authority shall lease the Leased Property back to the City under the Lease.
SECTION 5. Assignments and Subleases. Unless the City is in default under the Lease, the Authority may not assign its rights under this Site Lease or sublet all or any portion of the Leased Property, except as provided in the Assignment Agreement and in the Lease, without the prior written consent of the City.
SECTION 6. Substitution or Release of P roperty. If the City exercises its option under Section 3.2 of the Lease to substitute property for the Leased Property in whole or in part, such substitution shall also operate to substitute property for the Leased Property that is leased hereunder. If the City exercises its option under Section 3.3 of the Lease to release a portion of the Leased Property from the Lease, such substitution shall also -3-
operate to release such portion of the Leased Property hereunder. The description of the Leased Property which is leased under the Lease shall conform at all times to the description of the Leased Property which is leased hereunder.
SECTION 7. Right of Entry. The City reserves the right for any of its duly authorized representatives to enter upon the Lease d Property, or any portion thereof, at any reasonable time to inspect the same or to make any repairs, improvements or changes necessary for the preservation thereof.
SECTION 8. Termination. The Authority agrees, upon the termination of this Site Lease, to quit and surrender the Leased Property in the same good order and condition as the Leased Property was in at the time of commencement of the term hereof, reasonable wear and tear excepted, and agrees that all buildings, improvements and structures then existing upon the Leased Property shall remain thereon and title thereto shall vest thereupon in the City for no additional consideration.
SECTION 9. Default. If the Authority defaults in the performance of any obligation on its part to be performed under the terms of this Site Lease, which default continues for 30 days following 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 Lease and of the Lease shall be deemed to occur as a result thereof and no such remedy may include termination hereof; provided, however, that so long as the Lease remains in effect, the Lease Payments payable by the City under the Lease shall continue to be paid to the Trustee.
SECTION 10. 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 Leased Property, subject to the provisions of the Lease and subject only to Permitted Encumbrances (a s that term is defined in the Indenture).
SECTION 11. Waiver of Personal Liability . All liabilities under this Site Lease on the part of the Authority are solely corporate liabilities of the Authority as a public entity, and the City hereby releases each and every member and officer of the Authority of and from any personal or individual liability under this Site Lease. No member or officer of the Authority or its governing board 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 hereunder.
SECTION 12. Taxes. The City covenants and agrees to pay any and all assessments of any kind or character and also all taxes, including possesso ry interest taxes, levied or assessed upon the Leased Property and any improvements thereon.
SECTION 13. Eminent Domain. If the whole or any part of the Leased Property or any improvements thereon 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 Lease Payments payable under the Lease and the balance of the award, if any, shall be paid to the City.
SECTION 14. Partial Invalidity . If any one or more of the terms, provisions, covenants or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent -4-
jurisdiction, the finding or order or decree of which becomes final , none of the remaining terms, provisions, covenants and conditions of this Site Lease shall be affected thereby, and each provision of this Site Lease shall be valid and enforceable to the fullest extent permitted by law.
SECTION 15. Notices . Any notic e, request, complaint, demand or other communication under this Site Lease shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopy, telex or other form of telecommunication, at its number set forth below. Notice shall be effective either (a) upon transmission by facsimile transmission or other form of telecommunication, (b) 48 hours after deposit in the United States mail, postage prepaid, or (c) in the case of personal delivery t o any person, upon actual receipt. The City, the Authority and the Trustee may, by written notice to the other parties, from time to time modify the address or number to which communications are to be given hereunder.
If to the City: City of Alameda
2263 Santa Clara Avenue
Alameda, California 94501
Attention: Director of Finance
If to the Authority: City of Alameda Financing Authority 2263 Santa Clara Avenue
Alameda, California 94501
Attention: Treasurer
If to the Trustee: U.S. Bank Trust Company, National Association One California Street, Suite 1000
San Francisco, California 94111
Attention: Global Corporate Trust
SECTION 16. Amendment of this Site Lease . The Authority and the City may at any time amend or modify any of the provisions of this Site Lease, but only (a) with the prior written consent of the Owners of a majority in aggregate principal amount of the Outstanding Bonds; or (b) without the consent of any of the Bond Owners, but only if such amendment or modification is for any one or more of the following purposes:
(i) to make cure any ambiguity, or to cure, correct or supplement any defective provision contained herein, or in any other respect whatsoever as the Authority and the City may deem necessary or desirable, provided that, in the opinion of Bond Counsel, such modifications or amendments do not materially adversely affect the interests of the Owners of the Bonds;
(ii) to amend any provision hereof relating to the Tax Code, to any extent whatsoever but only if and to the extent such amendment will not adversely affect the exclusion from gross income of interest on the Bonds under the Tax Code, in the opinion of Bond Counsel;
(iii) to conform to any amendment of the Indenture which is made thereto in accordance with Section 9.01 of the Indenture or any amendment to the Lease which is made in accordance with Section 7.05 of the -5-
Lease, including without limitation to facilitate the issuance of additional obligations for which additional amounts of rental are pledged or assigned under the Lease as provided in Section 7.5(b)(v) thereof; or
(iv) for the purpose of effectuating any substitution or release of property under Section 6.
SECTION 17. Governing Law. This Site Lease shall be construed in accordance with and governed by the Constitution and laws of the State of California.
SECTION 18. Third Party Beneficiary. The Trustee is hereby made a third-party beneficiary under this Site Lease with all rights of a third-party beneficiary.
SECTION 19. Binding Effect. This Site Lease inures to the benefit of and is binding upon the Authority, the City and their respective successors and assigns, subject, however, to the limitations contained herein.
SECTION 20. Section Headings . All section headings contained he rein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Site Lease.
SECTION 21. 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 lease. It is also agreed that separate counterparts of this Site Lease may be separately executed by the Authority and the City, all with the same force and effect as though the same counterpart had been executed by both the Authority and the City.
SECTION 22. Defined Terms. All capitalized terms used herein and not otherwise defined have the respective meanings given those terms in the Indenture.
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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 ALAMEDA, as lessor
By:
Margaret L. O’Brien
Director of Finance
Attest:
Lara Weisiger
City Clerk
CITY OF ALAMEDA FINANCING
AUTHORITY, as lessee
By:
Margaret L. O’Brien
Treasurer
Attest:
Lara Weisiger
Secretary
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APPENDIX A
DESCRIPTION OF THE LEASED PROPERTY
The Leased Property consists of that certain real property situated in the State of California, County of Alameda, City of Alameda and described as follows: