HomeMy WebLinkAboutCalifornia Infrastructure and Economic Development Bank 2017-08-21COU No. 1718-088
Recording Requested By and Return To:
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK
Attention: Loan Program Manager
1325 J Street, Suite 1823
Sacramento, CA 95814
This document is recorded for the benefit of the CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK and the recording is fee -exempt under Section 27383 of
the California Government Code.
SITE LEASE
by and between the
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK
and the
CITY OF UKIAH
Agreement No. ISRF 18-119
Dated as of August 1, 2017
SITE LEASE
THIS SITE LEASE (the "Site Lease"), is dated as of August 1, 2017 and is
effective and binding on the Parties (defined below) as of the Effective Date (as defined in the
Financing Lease, defined below), by and between CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK (hereinafter referred to as "IBank" or "Site Lessee").
duly organized and existing pursuant to the Bergeson -Peace Infrastructure and Economic
Development Bank Act, constituting Division I of Title 6.7 of the California Government Code
(commencing at section 63000 thereof) as now in effect and as it may from time to time hereafter
be amended (the "Act") and the City Of Ukiah, a municipal corporation (the "Site Lessor"). IBank
and the Site Lessor are hereinafter collectively referred to at time as the "Parties" and individually
as a "Party."
WITNESSETH:
WHEREAS, IBank intends to assist the Site Lessor pursuant to the Act by
financing the design, acquisition, construction, improvement and installation of the Facility (as
defined in the Financing Lease, defined below);
WHEREAS, the Site Lessor owns the real property located in Mendocino County,
California, commonly known as 300 Seminary Avenue, Ukiah, California, and commonly
referred to as the "City Hall," said real property being more particularly described in Exhibit A
attached hereto and incorporated herein (as defined in the Financing Lease, the "Site");
WHEREAS, the Site and all buildings and other improvements located thereon
are collectively referred to as the "Leased Asset;"
WHEREAS, IBank intends to lease the Leased Asset from the Site Lessor
pursuant to this Site Lease;
WHEREAS, upon execution of this Site Lease and lease of the Leased Asset to
IBank, IBank intends to lease the Leased Asset back to the Site Lessor pursuant to a financing
lease between the Parties of even date herewith (herein called the "Financing Lease");
WHEREAS, the Site Lessor intends to enter into this Site Lease and the Financing
Lease with IBank, and perform its obligations hereunder and thereunder, as material
consideration for IBank's agreement to finance the design, acquisition, construction,
improvement and installation of the Facility for and on behalf of the Site Lessor;
WHEREAS, all terms with their initial letter or letters capitalized used, but not
otherwise defined, herein shall have the meanings given to them in the Financing Lease;
WHEREAS, IBank has issued, and may issue, Proceeds Bonds, the proceeds of
which may be used to provide all or a portion of the Facility Funds;
WHEREAS, IBank may pledge its rights, including the rights to receive
payments, under the Financing Lease and this Site Lease to secure the Secured Bonds that it has
issued, or that it may issue, for the benefit of its programs; and
WHEREAS, the Site Lessor acknowledges that the issuance or existence of both
the Secured Bonds and Proceeds Bonds impacts its rights and obligations hereunder and under
the Financing Lease.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER GOOD AND VAULABLE CONSIDERATION, THE RECEIPT AND ADEQUACY
OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO DO HEREBY
AGREE AS FOLLOWS:
SECTION 1. Leased Asset.
The Site Lessor hereby leases to IBank and IBank hereby leases from the Site
Lessor, on the terms and conditions hereinafter set forth, the Leased Asset.
SECTION 2. Assignment by IBank.
In connection with the Proceeds Bonds and the Secured Bonds, the Site Lessor
acknowledges that certain of the rights of IBank hereunder may be assigned, in IBank's sole and
absolute discretion, to one or more Trustees under one or more indentures. The Site Lessor
agrees to execute all documents which may be requested by IBank or any such Trustees to
protect their interests hereunder during the term hereof.
SECTION 3. Term.
The term of this Site Lease shall commence on the Effective Date, and shall end
on the Expiry Date, unless the Expiry Date is extended, or is sooner terminated, as provided in
the Financing Lease. If on the Expiry Date the rental payable under the Financing Lease shall
not be fully paid, or if the rental payable under the Financing Lease shall have been abated at any
time and for any reason, then the term of this Site Lease shall, automatically and without
amendment, be extended until the new Expiry Date as shall be defined under the Financing
Lease. If, prior to the Expiry Date, all amounts payable under the Financing Lease and this Site
Lease have been fully paid in accordance with the terms of the Financing Lease and this Site
Lease, respectively, the term of the Site Lease shall end.
SECTION 4. Rental.
IBank shall pay to the Site Lessor as and for rental for the entire term hereunder
the sum of One Dollar ($1), all of which rental shall be payable as an offset to amounts owed by
the Site Lessor to IBank under the Financing Lease. In addition to the foregoing rental payment,
IBank may pay to the Site Lessor as and for rental hereunder such surplus moneys, if any, as
shall be paid over to the Site Lessor pursuant to the Financing Lease.
SECTION 5. Purpose.
IBank shall use the Leased Asset solely for the purpose of leasing the Leased
Asset to the Site Lessor pursuant to the Financing Lease and for such purposes as may be
incidental thereto, provided, that in the event of default by the Site Lessor under the Financing
Lease, [Bank may exercise the rights and remedies provided in the Financing Lease.
SECTION 6. Right of Entry.
The Site Lessor reserves the right for any of its duly authorized representatives or
designees to enter upon the Leased Asset at any reasonable time to inspect the same or to make
any repairs, improvements or changes necessary for the preservation thereof.
SECTION 7. Termination.
IBank agrees, upon the termination or expiration of this Site Lease, to quit and
surrender the Leased Asset in its "as -is" condition to the Site Lessor, and agrees that any
permanent improvements and structures existing upon the Leased Asset at the time of such
termination or expiration of this Site Lease shall remain thereon and title thereto shall vest in the
Site Lessor. IBank shall have no responsibility to maintain, repair. or reconstruct the Leased
Asset.
SECTION 8. Default.
In the event IBank defaults in the performance of any material obligation on its
part to be performed under the terms of this Site Lease, which default continues for sixty (60)
days following notice and demand for correction thereof made to IBank by the Site Lessor, the
Site Lessor may exercise any and all remedies granted to it by law, except that no merger of this
Site Lease and of the Financing Lease shall be deemed to occur as a result thereof; provided,
however, that the Site Lessor shall have no power to terminate this Site Lease by reason of any
default on the part of IBank if such termination would affect or impair any assignment or
sublease of all or any part of the Leased Asset then in effect between IBank and any assignee or
subtenant of IBank (other than the Site Lessor under the Financing Lease); and so long as any
assignee or subtenant of IBank shall duly perform the terms and conditions of this Site Lease and
of its then existing sublease (if any), such assignee or subtenant shall be deemed to be and shall
become the tenant of the Site Lessor hereunder and shall be entitled to all of the rights and
privileges granted under any such assignment or sublease; provided further, however, that so
long as the Financing Lease remains in effect, any amounts payable hereunder to IBank or its
assignees (by the terms of such assignment or sublease) shall continue to be paid to IBank or its
assignees. In the event any such default is not reasonably susceptible to cure within said sixty
(60) day period, then IBank shall not be in default hereunder by reason of its failure to cure such
default so long as IBank has commenced efforts to cure such default within said sixty (60) day
period and diligently pursues the cure of such default until correction.
SECTION 9. Quiet Enjoyment.
IBank at all times during the term of this Site Lease, subject to the provisions of
Section 8 hereof, shall peaceably and quietly have, hold and enjoy all of the Leased Asset.
SECTION 10. Waiver of Personal Liability.
All liabilities under this Site Lease on the part of IBank are solely liabilities of
IBank as an entity of the government of the State of California, and the Site Lessor hereby
releases each and every member, officer, agent and employee of IBank of and from any personal
or individual liability for negligence under this Site Lease. All liabilities under this Site Lease on
the part of the Site Lessor are solely liabilities of the Site Lessor as a public instrumentality
under the laws of the State of California, and IBank hereby releases each and every member,
officer, agent and employee of the Site Lessor of and from any personal or individual liability for
negligence under this Site Lease.
SECTION 11. Taxes.
The Site Lessor covenants and agrees 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 Asset (including both land and improvements); provided, however, that the Site Lessor
shall not pay any possessory interest taxes levied as a result of any assignment or sublease of all
or any part of the Leased Asset then in effect between IBank and any assignee or subtenant of
IBank (other than the Site Lessor under the Financing Lease).
SECTION 12. Eminent Domain.
In the event the whole or any part of the Leased Asset is taken permanently or
temporarily under the power of eminent domain, the interest of IBank shall be recognized and is
hereby determined to be the amount of the then unpaid indebtedness incurred or advanced by
IBank to finance or refinance the construction of the Facility under the Financing Lease,
including the unpaid principal and interest components of Base Rental Payments as well as any
Additional Rental Payments payable under the Financing Lease.
SECTION 13. Loss, Damage, or Destruction.
IBank shall not be obligated to procure or maintain any insurance providing
coverage for loss, damage, or destruction to the Leased Asset. IBank shall be under no
obligation or liability for any loss, damage, or destruction to the Leased Asset, and shall not be
obligated to repair, rehabilitate, or maintain, the Leased Asset, unless IBank is solely responsible
by reason of its direct, active, conduct for such loss, damage, or destruction.
SECTION 14. Covenant to Enter into a Replacement Site Lease and Financing
Lease.
The Site Lessor acknowledges that IBank has issued or may issue Proceeds Bonds
or Secured Bonds subsequent to the Effective Date of this Site Lease, and that, if issued, the Site
Lessor hereby covenants and agrees to enter into a replacement site lease and a replacement
financing lease to replace this Site Lease and the Financing Lease. The Site Lessor understands
and acknowledges that time is of the essence with respect to entry into such replacement site
lease and replacement financing lease as such timing is mandated by Federal tax laws applicable
to IBank's Proceeds Bonds and/or Secured Bonds. So long as the terms of the subsequent site
lease and financing lease are substantially identical to the terms of this Site Lease and the
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Financing Lease, the Site Lessor hereby covenants and agrees to timely execute the new
documents, cooperate with IBank in good faith and provide related certifications and other
documents in a timely manner.
SECTION 15. License to Access Leased Asset; Utilities and Parkin.
The Site Lessor hereby irrevocably grants to IBank and IBank hereby accepts
from the Site Lessor, during the term of this Site Lease, a license for ingress and egress to and
from the Leased Asset.
The Site Lessor agrees to provide or cause to be provided to IBank and its assigns
or sublessees, for their use, benefit, and enjoyment, throughout the term of this Site Lease,
adequate parking spaces and such utility services, including electricity, gas, water, sewer,
garbage disposal, heating, ventilating, air conditioning, telephone, cable, data, internet, and
communications, as are available for use in the Leased Asset as of the Effective Date.
SECTION 16. Notices.
All written notices to be given hereunder shall be given by first class mail to the Party
entitled thereto at its address set forth below, or at such other address as such Party may provide
to the other Parties in writing from time to time, namely:
If to IBank:
California Infrastructure and Economic Development Bank
Attn: Loan Servicing Manager, Loan No. ISRF 18-119
P.O. Box 2830
Sacramento, CA 95812-2830
For overnight mail or personal delivery only:
California Infrastructure and Economic Development Bank
Attn: Loan Servicing Manager, Loan No. ISRF 18-119
1325 J Street, Suite 1823
Sacramento, CA 95814
If to the Site Lessor:
City of Ukiah
Attn: Shannon Riley, Deputy City Manager/Visit Ukiah
Administrator
300 Seminary Ave., Ukiah, CA 95482-5400
SECTION 17. Contact Persons.
(a) The Executive Director of IBank or such other person as designated in
writing by IBank shall manage this Site Lease for IBank and shall have authority to make
determinations and findings with respect to each controversy arising under or in connection with
the interpretation or performance under this Site Lease.
(b) The Site Lessor's contact person shall be its Deputy City Manager/Visit
Ukiah Administrator or such other person as may be designated in writing by the Site Lessor.
The Site Lessor's Deputy City Manager/Visit Ukiah Administrator shall be the Site Lessor's
representative for the administration of this Site Lease and shall have full authority to act on
behalf of the Site Lessor and may designate in writing another person or persons authorized to
act on behalf of the Site Lessor. All communications given to the Site Lessor's Deputy City
Manager/Visit Ukiah Administrator shall be as binding as if given to the Site Lessor.
SECTION 18. Binding.
This Site Lease shall inure to the benefit of and shall be binding upon IBank and the Site
Lessor and their respective successors and assignees, as permitted under the Financing Lease.
SECTION 19. Third Party Beneficiaries.
The Trustee is hereby expressly designated as a third party beneficiary hereunder for the purpose
of enforcing any of the rights hereunder assigned to the Trustee and for the purpose of the
Trustee enforcing its own rights. Nothing in this Site Lease, expressed or implied, is intended to
give to any person other than IBank, the Site Lessor, and the Trustee, any right, remedy, or claim
under or by reason of this Site Lease. All covenants, stipulations, promises, or agreements
contained in this Site Lease by and on behalf of the Site Lessor shall be for the sole and
exclusive benefit of IBank, the Trustee and their permitted assigns.
SECTION 20. Amendments to Site Lease.
No term or provision of this Site Lease may be waived or otherwise modified except by a
written agreement signed by the Parties. The Parties acknowledge and agree that the previous
sentence shall be interpreted, enforced, and adhered to strictly, notwithstanding any legal
doctrine, rule, statute, or case law that may permit oral modification of this Site Lease, or that
may find under certain circumstances the portion of this Section 20 requiring all modifications to
this Site Lease be in writing is waived orally or by the Parties' conduct. To the greatest extent
permissible under the law, the Parties hereby agree to waive any legal doctrine, rule, statute, or
case law that permits, or could be construed to permit, modification of this Site Lease by means
other than a writing signed by both Parties.
SECTION 21. Expectations.
The undersigned is an authorized representative of the Site Lessor acting for and on
behalf of the Site Lessor in executing this Site Lease. To the best of the knowledge and belief of
0
the undersigned, there are no other facts, estimates or circumstances that would materially
change the expectations as set forth herein, and said expectations are reasonable.
SECTION 22. Partial Invalidi
The illegality, unenforceability, or invalidity of any provision of this Site Lease with
regard to any Party or circumstance shall not render that provision illegal, unenforceable, or
invalid with regard to any other Party or circumstance. All provisions of this Site Lease, in all
other respects, shall remain legal, enforceable, and valid to the fullest extent permitted by law. If
any provision of this Site Lease is held to be illegal, unenforceable, or invalid by a court of
competent jurisdiction, then such provision shall be deemed severed from this Site Lease and this
Site Lease shall be construed and enforced as if such illegal, unenforceable, or invalid provision
had never been part hereof.
SECTION 23. California Law; Venue.
This Site Lease shall be governed by and construed and interpreted in accordance with
the laws of the State. Any proceeding arising out of or pertaining to this Site Lease shall be filed
in the Superior Court of Sacramento County, unless otherwise expressly agreed to by IBank in its
sole and absolute discretion.
SECTION 24. 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 hereof.
SECTION 25. No Merger.
This Site Lease shall not operate as a merger of the Site Lessor's Fee estate in the Leased
Asset and its leasehold estate in the Leased Asset pursuant to the Financing Lease.
SECTION 26. No Personal Liabili
No member, director, officer, attorney, agent, or employee of IBank shall be individually
or personally liable for the performance of any obligation under this Site Lease; but nothing
herein contained shall relieve any such member, director, officer, agent, or employee from the
performance of any official duty provided by law.
SECTION 27. Arm's Length Transaction.
The Site Lessor acknowledges and agrees that (i) the transaction contemplated by IBank
pursuant to this Site Lease is an ann's-length commercial transaction, (ii) in connection
therewith and with the discussions, undertakings and procedures leading up to the consummation
of such transaction, IBank is and has been acting solely as a principal and is not acting as the
agent or fiduciary of or in any way advising the Site Lessor, (iii) IBank has not assumed an
advisory or fiduciary responsibility in favor of the Site Lessor with respect to the transaction
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contemplated hereby or the discussions, undertakings and procedures leading thereto
(irrespective of whether IBank has provided other services or is currently providing other
services to the Site Lessor on other matters) and IBank has no obligation to the Site Lessor with
respect to the transaction contemplated hereby except the obligations expressly set forth in this
Site Lease and (iv) the Site Lessor has consulted its own legal, financial and other advisors to the
extent it has deemed appropriate.
SECTION 28. Entire Agreement.
Except as expressly stated herein, this Site Lease, together with the exhibits and
attachments hereto, and together with the Financing Lease, constitutes the entire agreement
among IBank and the Site Lessor. Except as expressly stated herein, there are no
understandings, agreements, representations or warranties, express or implied, not specified
herein or therein regarding this Site Lease. Any terms and conditions of any document submitted
by the Site Lessor in connection with this Site Lease which are in addition to or inconsistent with
the terms and conditions of this Site Lease will not be binding on IBank and will not apply to this
Site Lease.
SECTION 29. Time of the Essence.
Subject to the remainder of this Section 29, time is of the essence with respect to this Site
Lease and the performance of each obligation contained in this Site Lease. Whenever the time
for performance of any obligation under this Site Lease, or if under this Site Lease a Party must
act by a particular time or date, or if an act is effective only if done by a particular time or date,
and the last date for performance of such obligation or the doing or effectiveness of such act falls
on a Saturday, Sunday, or legal holiday in the State or holiday of the Trustee, the time for
performance of such obligation or the doing or effectiveness of such act shall be extended to the
next day that is not a Saturday, Sunday, or a legal holiday in the State or a holiday of the Trustee.
The first day shall be excluded and the last day shall be included when computing the time in
which an obligation is to be performed or an act is to be done under this Site Lease. Unless
otherwise provided herein all time periods shall end at 5:00 p.m. California time.
SECTION 30. Form of Documents.
The form and substance of all documents and instruments to be delivered to IBank under
the terins of this Site Lease, if any, shall be at all times subject to IBank's approval, in its
reasonable discretion. No document or instrument delivered to IBank, or to be delivered to
IBank, or which is subject to the approval of IBank, shall be amended, modified, superseded, or
terminated in any respect whatsoever without IBank's prior written approval.
SECTION 31. Actions.
IBank shall have the right to commence, appear in or defend any action or proceeding
purporting to effect the Leased Asset or the rights, duties, or liabilities of IBank or the Site
Lessor under this Site Lease. In exercising such right, IBank may incur and pay costs and
expenses, including, but not limited to, attorney's fees and court costs. The Site Lessor agrees to
pay to IBank upon demand all such expenses incurred or paid by IBank together with interest at
the legal rate, from the date such expenses were incurred or paid by IBank.
SECTION 32. Waiver of Consequential Damages.
To the fullest extent permitted by law, the Site Lessor shall not assert, and hereby waives,
any claim against IBank on any theory of liability, for special, indirect, consequential, or punitive
damages (as opposed to direct actual damages) arising from, or in connection with, this Site
Lease.
SECTION 33. Execution in Counterparts.
This Site Lease may be executed and entered into in several counterparts, each of which
shall be deemed an original, and all of which shall constitute but one and the same instrument.
[The remainder of this page is intentionally left blank]
W
IN WITNESS WHEREOF, the Site Lessor and IBank 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.
Attest
By
CITY OF UKIAH, as Site Lessor
By71✓'
-1-1 1444,10 -
Name K i,STi./I/G (AIA44.%R
Title Ct1l( CLeta
Attest
By
ilham D. d, Jr.
Secretary of the Board of Directors
Sage Sangiacomo
City Manager
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK, as Site
Lessee
10
Nancee Trombley,
Chief Deputy Executive Dire
ACKNOWLEDGMENT
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 Califomia
County of Aft\Anoint)
On A0434 Z1, 201. -
before me
Ashy Com, De.pu
(insert harne and title of the officer)
personally appeared Sa.te &k.hy; t r.j (`_.4j Mr.. nGsc r
who proved to me on the basis of satisfactory evidence fo be the person(,ajwhose name(o) is/0r0
subscribed to the within instrument and acknowledged to me that(5'lyaey executed the same in
his/tr/ttir authorized capacity(ies), and that by hisllaef/their signature(sOn the instrument the
person( j, or the entity upon behalf of which the person(s1 acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of Califomia that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Coeiga
cc
z
(Seal)
ASHLEY COCCO
COMM. #2140748 z
Notary Public . California o
Mendocino County
Comm. fires Jan. 24, 2020
ACKNOWLEDGMENT
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
County of 644Aj
On Ay)5 Z3 2D / 7 before me.
" 49•1/1t4 No
(insert name and title of the officer)
personally appeared /v Lc n C.Z e 7/ow►%'/€7'
who proved to me on the basis of satisfactory evidence to be the person(;,rj whose name(S1 is/ay4
subscribed to the within instrument and acknowledged to me that lye. she'thm executed the same in
I hertheif authorized capacity(), and that by hi;rher•thetf signatureC4 on the instrument the
person( j. or the entity upon behalf of which the person(a) 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.
Signature
Z I.
(Seal)
JOHN A. BELMONT
Comm. #2120797 ,,,
Notary Public • California n
Sacramento County
Comm. Expires Jul 25,2019
EXHIBIT A
LEGAL DESCRIPTIONS OF THE SITE
Legal description of the real property comprising the Site:
Street address: 300 Seminary Avenue, Ukiah, CA 95482
Legal Description:
Real property in the City of Ukiah, County of Mendocino, State of California, described as follows:
PARCEL ONE:
COMMENCING at the Southeast comer of Clay and Dora Streets in said Ukiah City and running thence
Easterly along the South line of Clay Street one hundred and fifty (150) feet; thence at right angles
Southerly two hundred and fifty (250) feet; thence at right angles Westerly and parallel with Clay Street
one hundred and fifty (150) feet to Dora Street and thence Northerly along the East line of Dora Street
two hundred and fifty (250) feet to the point of beginning.
APN: 002-255-02
PARCEL TWO:
BEGINNING at the intersection of the Southerly line of Clay Street and the Easterly line of Dora Street;
thence Easterly along the Southerly line of Clay Street 761.60 feet to the Westerly line of Oak Street;
thence Southerly along said Westerly line of Oak Street 456.5 feet to the Northerly line of the North half
of Jones Addition, the map of which was filed June 11, 1909 in Map Case 1, Drawer 3, Page 36,
Mendocino County Records; thence Westerly along said Northerly line 728 feet to the Easterly line of
Dora Street; thence Northerly along said Easterly line 445 feet to the point of beginning.
EXCEPTING therefore the following:
COMMENCING at the Southeast comer of Clay and Dora Streets in said Ukiah City and running thence
Easterly along the South line of Clay Street one hundred and fifty (150) feet; thence at right angles
Southerly two hundred and fifty (250) feet; thence at right angles Westerly and parallel with Clay Street
one hundred and fifty (150) feet to Dora Street and thence Northerly along the East line of Dora Street
two hundred and fifty (250) feet to the point of beginning.
APN: 002-255-03
A-1