Attachment 4Attachment 4TO BE RECORDED AND WHEN RECORDED Attachment 4
Attachment 4
RETURN TO:
Jones Hall
A Professional Law Corporation
475 Sansome Street, Suite 1700
San Francisco, California 94111
Attention: Christopher K. Lynch, Esq.
Leasehold Less Than 35 Years
THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX PURSUANT TO SECTION 11922 OF THE CALIFORNIA REVENUE AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE.
SITE AND FACILITIES LEASE
by and between
CITY OF HESPERIA,
as Lessor
and the
HESPERIA JOINT PUBLIC FINANCE AUTHORITY,
as Lessee
Dated as of [Month of Closing Date] 1, 2023
Relating to
$[Principal Amount]
HESPERIA JOINT PUBLIC FINANCE AUTHORITY
2023 Refunding Lease Revenue Bonds
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. 3
Section 1.02. Article and Section Headings. 3
Section 1.03. References to Agreement. 3
Section 1.04. Number and Gender. 3
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.01. Representations, Covenants and Warranties of the City. 4 Section 2.02. Representations, Covenants and Warranties of Authority. 4
ARTICLE III
AGREEMENT TO LEASE; TERM OF SITE LEASE; SITE LEASE PAYMENT Section 3.01. Lease. 5
Section 3.02. Term. 5
Section 3.03. Site Lease Payment. 5
Section 3.04. Title. 5
Section 3.05. No Merger. 5
Section 3.06. Substitution, Addition or Removal of Leased Property. 5
ARTICLE IV
EMINENT DOMAIN; NET PROCEEDS
Section 4.01. Eminent Domain. 6
Section 4.02. Application of Net Proceeds. 6
ARTICLE V
MISCELLANEOUS
Section 5.01. Liens. 7
Section 5.02. Assignment and Subleasing by the Authority. 7 Section 5.03. Amendment. 7
Section 5.04. Notices. 7
Section 5.05. Binding Effect. 7
Section 5.06. Severability. 7
Section 5.07. Further Assurances and Corrective Instruments. 7 Section 5.08. Execution in Counterparts. 8
Section 5.09. Applicable Law. 8
Section 5.10. Captions. 8
EXHIBIT A DESCRIPTION OF THE SITE
SITE AND FACILITY LEASE
THIS SITE AND FACILITIES LEASE (the “Site Lease”), dated as of [Month of Closing Date] 1, 2023, by and between the CITY OF HESPERIA, a municipal corporation duly organized and existing under the Constitution and laws of the State of California, as lessor (the “City”), and the HESPERIA JOINT PUBLIC FINANCE AUTHORITY, a joint powers agency duly organized and existing under the laws of the State of California (the “Authority”), as lessee; and W I T N E S S E T H:
WHEREAS, the Authority is a joint exercise of powers authority duly organized and existing under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”), and is authorized pursuant to Article 4 of the Act (the “Bond Law”) to borrow money for the purpose, among other things, of financing and refinancing public capital projects for the City; WHEREAS, in order to finance acquisition and construction of a new Civic Plaza and related on-site improvements, the City previously caused execution and delivery of its 2005 Variable Rate Demand Certificates of Participation (Civic Plaza Financing) (the “2005 Certificates”) pursuant to a Trust Agreement, dated as of May 1, 2005, among the City, the Hesperia Public Financing Authority (the “Financing Authority”) and a corporate trustee; the 2005 Certificates represented interests in lease payments made by the City to the Financing Authority pursuant to a Lease Agreement, dated as of May 1, 2005; and WHEREAS, for the purpose of refinancing the 2005 Certificates, the City subsequently caused the Authority to issue its 2013 Lease Revenue Bonds (Refinancing of 2005 Civic Plaza Financing) in the aggregate principal amount of $12,445,000 (the “2013 Bonds”), under an Indenture dated as of October 1, 2013; the 2013 Bonds are payable from lease payments made by the City under a Property Lease dated as of October 1, 2013 (the “2013 Lease Agreement”), between the Authority as lessor and the City as lessee; and WHEREAS, the 2013 Bonds maturing on or after October 1, 2024 are subject to optional redemption, without premium, prior to maturity on any date on or after October 1, 2023, at the option of the Authority; and WHEREAS, in order to achieve cash flow savings, the City wishes to prepay the lease payments payable by the City under the 2013 Lease Agreement and to cause the Authority to defease and redeem the 2013 Bonds; and WHEREAS, in order to accomplish the proposed prepayment and refinancing transaction, the City wishes to lease to the Authority certain real property (the “Site”) and the improvements thereon (the “Facilities” and together with the Site, the “Leased Property”), which Site is described in Exhibit A and incorporated herein by reference; and WHEREAS, in order to obtain the necessary funds to lease the Leased Property from the City pursuant to this Site Lease and, thereby provide to the City funds to prepay the lease payments under the 2013 Lease Agreement, the Authority will issue its Hesperia Joint Public Finance Authority 2023 Refunding Lease Revenue Bonds (the “2023 Bonds”), pursuant to an Indenture, dated as of [Month of Closing Date] 1, 2023 (the “Indenture”), by and between the Authority and U.S. Bank Trust Company, National Association, as trustee, which Indenture is evidenced by a Memorandum of Indenture recorded concurrently herewith and the provisions of Articles 10 and 11 of Chapter 3 of Part 1 of Division 2 of Title 5 of the Government Code of the State of California (the “Law”); and WHEREAS, the City will lease back the Leased Property from the Authority pursuant to a Property Lease dated as of [Month of Closing Date] 1, 2023, by and between the Authority, as lessor, and the City, as lessee (the “Property Lease”), which Property Lease is evidenced by a Memorandum of Property Lease which is being recorded concurrently herewith, and will pay to the Authority base rental payments and additional rental pursuant to the Property Lease sufficient to pay principal of and premium and interest, if any, on the 2023 Bonds and certain related expenses, all as provided in the Property Lease and the Indenture; WHEREAS, the Authority and the City have duly authorized the execution and delivery of this Site Lease; NOW, THEREFORE, in consideration of the above premises and of the mutual covenants hereinafter contained and for other good and valuable consideration, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. All terms specifically defined in the Indenture and in the Property Lease shall have the same respective meanings when used herein.
Section 1.02. Article and Section Headings. Unless otherwise specified, references to Articles, Sections, and other subdivisions of this Site Lease are to be designated Articles, Sections, and other subdivisions of this Site Lease as originally executed. The headings or titles of the several articles and sections, and the table of contents appended to copies hereof, shall be solely for convenience of reference and shall not affect the meaning, construction or effect of the provisions hereof.
Section 1.03. References to Agreement. The words “hereof”, “herein”, “hereunder”, and words of similar import refer to this Site Lease as a whole.
Section 1.04. Number and Gender. The singular form of any word used herein, including terms defined as provided in Section 1.01, shall include the plural, and vice versa. The use of a word of any gender shall include all genders.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.01. Representations, Covenants and Warranties of the City. The City represents, covenants and warrants to the Authority and the Trustee as follows:
(a) Due Organization and Existence. The City is a general law city and municipal corporation duly organized and existing under the Constitution and laws of the State. (b) Authorization. The laws of the State authorize the City to enter into this Site Lease and to enter into the transactions contemplated by and to carry out its obligations under this Site Lease, and the City has duly authorized and executed this Site Lease. (c) No Violations. Neither the execution and delivery of this Site Lease nor the fulfillment of or compliance with the terms and conditions hereof nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrances whatsoever upon any of the property or assets of the City, or upon the Leased Property, except Permitted Encumbrances. (d) Title to Leased Property. The City has fee simple title to the Leased Property, subject only to Permitted Encumbrances.
Section 2.02. Representations, Covenants and Warranties of Authority. The Authority represents, covenants and warrants to the City and the Trustee as follows:
(a) Due Organization and Existence. The Authority is a joint exercise of powers authority duly formed, operating and existing under the laws of the State; has power to enter into the Site Lease; is possessed of full power to sublease real and personal property; and has duly authorized the execution and delivery of this Site Lease. (b) Authorization. The laws of the State authorize the Authority to enter into this Site Lease and to enter into the transactions contemplated by and to carry out its obligations under this Site Lease, and the Authority has duly authorized and executed this Site Lease. (c) No Violations. Neither the execution and delivery of this Site Lease nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby, 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, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Authority, or upon the Leased Property, except Permitted Encumbrances.
ARTICLE III
AGREEMENT TO LEASE; TERM OF
SITE LEASE; SITE LEASE PAYMENT
Section 3.01. Lease. The City hereby leases the Leased Property to the Authority, and the Authority hereby leases the Leased Property from the City, upon the terms and conditions set forth in this Site Lease, subject in each case to the Permitted Encumbrances, as defined in the Property Lease.
Section 3.02. Term. The term hereof shall commence on the date of recordation hereof, and shall end on November 1, _____, or, if Additional Bonds have been issued under the Indenture, the last day that precedes the final maturity of Additional Bonds (if later than November 1, _____). If on November 1, _____, or on such later date determined pursuant to the preceding sentence, the Indenture shall not be discharged by its terms, then the term of the Site Lease shall be extended until the Indenture shall be discharged by its terms, except that the term of the Property Lease shall in no event be extended beyond November 1, _______ or the date that is ten (10) years after such later date determined pursuant to the preceding sentence. If prior to November 1, _____ or such later date the Indenture shall be discharged by its terms, then the term of the Site Lease shall automatically terminate ten (10) days at the same time as the Indenture is discharged.
Section 3.03. Site Lease Payment. The Authority hereby agrees to pay to the City, as rental for Leased Property during the Term, the amount of $___________, which amount is the remaining proceeds of the 2023 Bonds (after providing for the payment of certain amounts, as provided in Section 3.02 of the Indenture), and which amount shall be due and payable and shall, pursuant to Section 3.02 of the Indenture, be deposited in the Refunding Fund on the date of delivery of the 2023 Bonds.
Section 3.04. Title. The City hereby covenants that it has insurable fee title in the Leased Property, and during the Term, the City shall hold title to the Leased Property, subject to the Permitted Encumbrances.
Section 3.05. No Merger. It is the express intention of the parties hereto that this Site Lease and the obligations of the parties hereunder shall be and remain separate and distinct from the Property Lease and the obligations of the parties thereunder, and that during the term of the Property Lease no merger of title or interest occur or be deemed to occur as a result of the position of the City as fee owner of the Leased Property, as lessee under the Property Lease and as lessor under this Site Lease, or the position of the Authority as lessee under this Site Lease and Lessor under the Property Lease.
Section 3.06. Substitution, Addition or Release of Leased Property. The Leased Property may be substituted, added to or removed in part in implementation of the provisions of Section 12.01, Section 12.02 or Section 12.03, as applicable, of the Property Lease, and in such event, Exhibit A hereto shall be revised accordingly.
ARTICLE IV
EMINENT DOMAIN; NET PROCEEDS
Section 4.01. Eminent Domain. If all of the Leased 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 shall cease as of the day possession shall be so taken. If less than all of the Leased Property shall be taken permanently, or if all of the Leased Property or any part thereof shall be taken temporarily, under the power of eminent domain, this Site Lease 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.
Section 4.02. Application of Net Proceeds. The net proceeds of any insurance award resulting from any damage to or destruction of the Leased Property by fire or other casualty, and the net proceeds of any eminent domain award resulting from any event described in Section 4.01 hereof, shall be applied as set forth in the Property Lease and the Indenture. All such net proceeds shall be paid to the City or the Trustee as their interests may appear under the Property Lease, and the Authority hereby waives any and all right, title and interest which it may have in and to any such net proceeds by virtue of its estate in the Leased Property under this Site Lease.
ARTICLE V
MISCELLANEOUS
Section 5.01. Liens. The Authority shall not, directly or indirectly, create, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Leased Property, other than the respective rights of the Authority and the City as herein provided and Permitted Encumbrances.
Section 5.02. Assignment and Subleasing by the Authority. For the purpose of providing funds to enable the Authority to aid the City in refinancing certain lease payment obligations of the City, the Authority has leased the Leased Property to the City pursuant to the Property Lease. The Authority shall not have the right to further sublease or to assign any of its interests under this Site Lease in and to the Leased Property or any portion thereof other than as set forth in the Indenture.
Section 5.03. Amendment. Without the prior written consent of the Trustee, the Authority and the City will not alter, modify or cancel, or agree or consent to alter, modify or cancel this Site Lease, except as is required in connection with the amendment of the Property Lease.
Section 5.04. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed to have been received 48 hours after deposit in the United States mail in registered or certified form with postage fully prepaid:
If to the City or the Authority: 9700 Seventh Ave.
Hesperia, CA 92345
Attn: City Manager
If to the Trustee: U.S. Bank Trust Company, National Association 633 West Fifth Street, 24th Floor
Los Angeles, CA 90071
Attention: Global Corporate Trust
Email: [email protected]
The Authority, the Trustee and the City, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent.
Section 5.05. Binding Effect. This Site Lease shall inure to the benefit of and shall be binding upon the Authority and the City and their respective successors and assigns.
Section 5.06. Severability. In the event any provision of this Site Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
Section 5.07. 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 Leased Property hereby leased or intended so to be or for carrying out the expressed intention of this Site Lease.
Section 5.08. Execution in Counterparts. This Site Lease 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 5.09. Applicable Law. This Site Lease shall be governed by and construed in accordance with the laws of the State.
Section 5.10. Captions. The captions or headings in this Site Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Section of this Site Lease. * * * * *
IN WITNESS WHEREOF, the Authority has caused this Site Lease to be executed in its name by its duly authorized officer; and the City has caused this Site Lease to be executed in its name by its duly authorized officer, all as of the date first above written.
CITY OF HESPERIA, as Lessor
Attest
By:
By:
City Clerk
City Manager
HESPERIA JOINT PUBLIC FINANCE AUTHORITY, as Lessee
Attest
By:
By:
Secretary
Executive Director
[attach Notary acknowledgment]
EXHIBIT A
DESCRIPTION OF THE SITE
The land described herein is situated in the State of California, County of San Bernardino, City of Hesperia, and is described as follows:
Civic Plaza Park
Parcel 4 of Parcel Map No. 19153, in the City of Hesperia, County of San Bernardino, State of California, as per Map filed in Book 238 Pages 42 and 43 of Parcel Maps, in the office of the County Recorder of said County.
Hesperia City Hall
Parcel 5 of Parcel Map No. 19153, in the City of Hesperia, County of San Bernardino, State of California, as per Map filed in Book 238 Pages 42 and 43 of Parcel Maps, in the Office of the County Recorder of said County. i
2 [Signature Page - Site and Facilities Lease dated as of [Month of Closing Date] 1, 2023] A-1