Norton Rose Fulbright US LLP draft of 11/5/23
56855320.3
AFTER RECORDATION PLEASE RETURN TO:
Norton Rose Fulbright US LLP
555 South Flower Street, Suite 4100
Los Angeles, California 90071
Attention: Stepan A. Haytayan, Esq.
SITE AND FACILITY LEASE
Dated as of December 1, 2023
by and between
CITY OF RIALTO
and
RIALTO PUBLIC FINANCING AUTHORITY
Relating to the
$[PAR AMOUNT]
Rialto Public Financing Authority
Lease Revenue Bonds, 2023 Series A
(Police Station Project)
THIS IS A FINANCING DOCUMENT.
NO DOCUMENTARY TRANSFER TAX IS DUE PURSUANT
TO REVENUE AND TAXATION CODE SECTION 11922
AND THIS DOCUMENT IS EXEMPT FROM RECORDING FEES
PURSUANT TO GOVERNMENT CODE SECTION 27383
TABLE OF CONTENTS
Page
i
SECTION 1. DEFINITIONS ................................................................................................. 1 SECTION 2. SITE LEASE .................................................................................................... 1 SECTION 3. TERM .............................................................................................................. 2 SECTION 4. RENTAL .......................................................................................................... 2 SECTION 5. TITLE .............................................................................................................. 2 SECTION 6. DEFAULT ....................................................................................................... 2 SECTION 7. EMINENT DOMAIN ...................................................................................... 3 SECTION 8. RIGHT OF ENTRY ......................................................................................... 3 SECTION 9. TERMINATION .............................................................................................. 3 SECTION 10. QUIET ENJOYMENT BY THE AUTHORITY ............................................. 3 SECTION 11. ASSIGNMENTS AND SUBLEASES ............................................................ 3 SECTION 12. WAIVER OF PERSONAL LIABILITY ......................................................... 3 SECTION 13. TAXES ............................................................................................................. 4 SECTION 14. GOVERNING LAW ........................................................................................ 4 SECTION 15. NOTICES ......................................................................................................... 4 SECTION 16. VALIDITY AND SEVERABILITY ............................................................... 4 SECTION 17. THE LEASED PROPERTY ............................................................................ 5 SECTION 18. WAIVER OF DEFAULT ................................................................................ 5 SECTION 19. SECTION HEADINGS ................................................................................... 5 SECTION 20. AMENDMENTS ............................................................................................. 5 SECTION 21. EXECUTION ................................................................................................... 6
EXHIBIT A — DESCRIPTION OF THE LEASED PROPERTY
56855320.3
SITE AND FACILITY LEASE
This SITE AND FACILITY LEASE, dated as of December 1, 2023 (this “Site Lease”), is made by and between the CITY OF RIALTO, a general law city duly organized and existing under the Constitution and laws of the State of California (the “City”), as lessor, and the RIALTO PUBLIC FINANCING AUTHORITY , a joint exercise of powers authorit y, duly organized and existing under the laws of the State of California (the “Authority”), as lessee.
RECITALS:
WHEREAS, the City is leasing the property more particularly described in Exhibit A attached hereto (the “Leased Property”) to the Authority; and WHEREAS, the Authority has determined to issue its $[PAR AMOUNT] Lease Revenue Bonds, 2023 Series A (Police Station Project ) (the “Bonds”) pursuant to an Indenture, dated as of December 1, 2023 (the “Indenture”), by and between the Authority and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”); and WHEREAS, the Authority, concurrently with the execution of this Site Lease, will sublease the Leased Property described in Exhibit A to the City, in consideration for base rental payments to be made by the City pursuant to a Lease Agreement, dated as of December 1, 2023 (the “Lease”), by and between the City and the Authority , that correspond in timing and amounts of base rental payments to the payment of principal and interest scheduled to come due with respect to the Bonds; and
WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the executio n and entering into of this Site Lease do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the parties hereto are now duly authorized to execute and enter into this Site Lease;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements and covenants contained herein , and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby agree as follows:
SECTION 1. DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meanings ascribed to them in the Indenture or the Lease, as applicable.
SECTION 2. SITE LEASE
The City hereby leases the Leased Property to the Authority and the Authority hereby leases the Leased Property from the City, on the terms and conditions hereinafter set forth.
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SECTION 3. TERM
The term of this Site Lease shall commence on [____], 2023. This Site Lease shall constitute a lease of the City’s interest in the Leased Property.
The term of this Site Lease shall expire on the earliest of (i) the Expiration Date; (ii) the date the last base rental payment is made under the provisions of the Lease (i.e. June 1, 20[__]); or (iii) the date of discharge of the Indenture pursuant to Section 10.03 thereof.
Notwithstanding the foregoing, the term of this Lease shall automatically be extended for a period of ten (10) years, if, on the Expiration Date, the Indenture has not been fully discharged, and shall terminate on the date when the Indenture has been fully discharged.
SECTION 4. RENTAL
The Authority agrees to pay , or cause to be paid, to the Trustee, on the Closing Date, the net proceeds of the Bonds in the amount set forth in Section 3.02 of the Indenture , as advance rental for the use and right to possessi on of the Leased Property for the term of this Site Lease. The rental shall be applied by the Trustee as provided in the Indenture.
SECTION 5. TITLE
Throughout the term of this Site Lease, title to the Leased Property shall remain in the City.
SECTION 6. DEFAULT
(a) If the Authority shall fail to keep, observe or perform any term, covenant or condition contained herein to be kept or performed by the Authority, or (b) if (1) the Authority’s interest in this Site Lease or any part thereof is assigned or transferred without the written consent of the City, either voluntarily or by operation of law or otherwise, except as provided in Section 11 hereof, or (2) any proceeding under the United States Bankruptcy Code or any federal or state bankruptcy, insolvency or similar law or any law providing for the appointment of a receiver, liquidator, trustee or similar official of the Authority or of all or substantially all of its assets is instituted by or with the consent of the Authority, or is instituted without its consent and is not permanently stayed or dismissed within sixty (60) days, or if the Authority offers to the Authority’s creditors to effect a composition or extension of time to pay the Authority’s debts, or asks, seeks or prays for a reorganization or to effect a plan of reorganization or for readjustment of the Authority’s debts, or if the Authority shall make a general assignment or any assignment for the benefit of the Authority’s creditors, then the Authority shall be deemed to be in default hereunder and it shall be lawful for the City to exercise any and all rights and remedies available pursuant to law; provided however, that: (i) no merger of this Site Lease and of the Lease shall be deemed to occur as a result thereof; and (ii) so long as any Bonds remain outstanding the City shall have no power to terminate this Site Lease by reason of any default on the part of the Authority if such termination would prejudice the exercise of the remedies provided in Section 11 (captioned “DEFAULT”) of the Lease.
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Neither the City nor the Authority shall in any event be in default in the performance of any of its obligations hereunder or imposed by law unless and until the City or the Authority (as the case may be) shall have failed to perform such obligations within sixty (60) days after notice by the Authority or the City to the nonperforming party properly specifying wherein such party has failed to perform any such obligation.
SECTION 7. EMINENT DOMAIN
If the whole or any part of the Leased Property shall be taken under the power of eminent domain, the interest of the Authority shall be recognized and is hereby determined to be the amount of the unpaid principal components of base rental payments due under the Lease, and all accrued interest thereon, and the amount of the unpaid Additi onal Rental Payments due under the Lease and such amount shall be paid to the Trustee as assignee of the Authority, and the balance of the award, if any, shall be paid to the City.
SECTION 8. RIGHT OF ENTRY
The City and its assignees shall have the right to enter the Leased Property during reasonable business hours (and in emergencies at all times) (a) to inspect the same, (b) for any purpose connected with the City’s or the Authority’s rights or obligations under this Site Lease and (c) for all other lawful purposes.
SECTION 9. 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 same were in at the time of commencement of the term hereunder, reasonable wear and tear excepted, and the Authority and the City agree that any permanent improvements and structures existing upon the Leased Property at the time of the termination of this Site Lease shall remain thereon and title thereto shall be vested in the City.
SECTION 10. QUIET ENJOYMENT BY THE AUTHORITY
The Authority shall at all times during the term of this Site Lease peaceably and quietly have, hold and enjoy the Leased Property without suit, trouble or hindrance from the City, subject to the Authority’s compliance with the terms and provisions hereof and of the Lease.
SECTION 11. ASSIGNMENTS AND SUBLEASES
The Authority shall not assign, mortgage, hypothecate or otherwise encumber this Site Lease or any rights hereunder or the leasehold created hereby by trust agreement, indenture or deed of trust or otherwise or sublet the Leased Property without the written consent of the City, except as provided by the Lease and as security for the Bonds.
SECTION 12. WAIVER OF PERSONAL LIABILITY
All liabilities hereunder on the part of the Authority shall be solely liabilities of the Authority as a separate legal entity, and no member, officer or employee of the Authority shall at
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any time or under any circumstances be individually or personally l iable hereunder for anything done or omitted to be done by the Authority hereunder.
SECTION 13. TAXES
The City agree s and covenant s to pay, any and all assessments of any kind or character and also all taxes, including possessory interest taxes, levied or assessed upon the Leased Property (including both land and improvements thereon).
SECTION 14. GOVERNING LAW
This Site Lease shall be governed by and construed in accordance with the laws of the State of California.
SECTION 15. NOTICES
All notices, statements, demands, consents, approvals, au thorizations, 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 or certified mail, return receipt requested, postage pre -paid, and,
if to the City:
City of Rialto
150 South Palm Avenue
Rialto, California 92376
Attention: Interim City Manager
if to the Authority:
Rialto Public Financing Authority
c/of City of Rialto
150 South Palm Avenue
Rialto, California 92376
Attention: Interim Executive Director
or to such other addresses as the respective parties may from time to time designate by notice in writing.
SECTION 16. VALIDITY AND SEVERABILITY
If any one or more of the terms, provisions, covenants or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Site Lease shall be
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affected thereby, and each provision of this Site Lease shall be valid and enforceable to the fullest extent permitted by law.
If for any reason this Site Lease shall be held by a court of competent jurisdiction to be void, voidable, or unenforceable by the City or by the Authority, or if for any reason it is held by such a court that any of the covenants and conditions of the Authority here under is unenforceable for the full term hereof, then and in such event this Site Lease is and shall be deemed to be a lease from year to year and all of the rental and other terms, provisions and conditions of this Site Lease, except to the extent that su ch terms, provisions and conditions are contrary to or inconsistent with such holding, shall remain in full force and effect.
SECTION 17. THE LEASED PROPERTY
The City represents, warrants and covenants that it has good and indefeasible marketable fee simple to the real property and all building, property and improvements comprising the Lease Property. The City covenants and agrees to hold and maintain clean and marketable title to all of the Leased Property during the term of this Site Lease. If necessary to maintain clear and marketable title to the leased properties, the City shall take all actions necessary, including eminent domain or condemnation proceedings, to ensure that title to the Leased Property is clear and marketable.
The Authority covenants that during th e term of this Site Lease, it shall use the Leased Property for the purposes described in the Lease and for such other purposes as may be incidental thereto.
SECTION 18. WAIVER OF DEFAULT
Failure of the City to take advantage of any default on the part of the Authorit y shall not be, or be construed as, a waiver thereof, nor shall any custom or practice which may grow up between the parties in the course of administering this Site Lease be construed to waive or to lessen the right of the City to insist upon performance by the Authority of any term, covenant or condition hereof, or to exercise any rights given the City on account of such default. A waiver of a particular default shall not be deemed to be a waiver of the same or any subsequent default. The acceptance of rent hereunder shall not be, nor be construed to be, a waiver of any term, covenant or condition of this Site Lease.
SECTION 19. SECTION HEADINGS
All section headings contained are for convenience of reference only and are not intended to define or limit the scope of any provision of this Site Lease.
SECTION 20. AMENDMENTS
This Site Lease may be amended in writing as may be mutually agreed by the Authority and the City.
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SECTION 21. EXECUTION
This Site Lease may be executed in any number of counterparts, each of which shall be deemed to an ori ginal, but all together shall constitute but one and the same Site Lease. It is also agreed that separate counterparts of this Site Lease may separately be executed by the City and the Authority, all with the same force and effect as though the same count erpart had been executed by both the City and the Authority.
[Remainder of page intentionally left blank.]
56855320.3 S-1
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.
RIALTO PUBLIC FINANCING AUTHORITY
By __________________________________
Henry Garcia
Interim Executive Director
ATTEST:
By __________________________________
Barbara McGee
Secretary
CITY OF RIALTO
By __________________________________
Henry Garcia
Interim City Manager
ATTEST:
By __________________________________
Barbara McGee
City Clerk
56855320.3
A NOTARY PUBLIC OR OTHER OFFICER COMPLETING THIS CERTIFICATE
VERIFIES ONLY THE IDENTITY OF THE INDIVIDUAL WHO SIGNED THE
DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED, AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT.
STATE OF CALIFORNIA )
) ss:
COUNTY OF SAN BERNARDINO )
On ______________________________ before me,__________________________(insert name of the officer), Notary Public, personally appeared _________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________ [Seal]
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A NOTARY PUBLIC OR OTHER OFFICER COMPLETING THIS CERTIFICATE
VERIFIES ONLY THE IDENTITY OF THE INDIVIDUAL WHO SIGNED THE
DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED, AND NOT THE TRUTHFULNESS, ACCURACY, OR VALIDITY OF THAT DOCUMENT.
STATE OF CALIFORNIA )
) ss:
COUNTY OF SAN BERNARDINO )
On ______________________________ before me,__________________________(insert name of the officer), Notary Public, personally appeared _________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
_________________________________ [Seal]
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EXHIBIT A
DESCRIPTION OF THE LEASED PROPERTY
PARCEL 1 OF PARCEL MAP NO. 13781, IN THE CITY OF RIALTO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 167, PAGE 11 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
[Excepting therefrom all of the minerals and mineral ores of every kind, including all petroleum, oil, natural gas and other hydrocarbon substances and products together with rights of ingress and egress beneath the surface of said land below the surface of 500 feet by Deed recorded August 5, 1966 in Book 6675 Page 129 of Official Records.]
APN: 0130-191-11-0-000