HomeMy WebLinkAbout967322RECEIVED 10/11/2012 at 11:07 AM
RECEIVING 967322
BOOK: 796 PAGE: 47
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
LINCOLN COUNTY, WYOMING
as Lessor
and
LINCOLN COUNTY BUILDING CORPORATION
as Lessee
GROUND LEASE
Relating to
$10,365,000
Lincoln County Building Corporation
Lease Revenue Bonds
Series 2012
(County Jail Project)
Dated as of October 11, 2012
00047
The interest of the Lincoln County Building Corporation in this Ground Lease has been assigned
to U.S. Bank National Association, as trustee, under the Indenture of Trust and a Leasehold
Mortgage, Assignment of Rents, Security Agreement and Fixture Filing, each dated as of
October 11, 2012, from the Lincoln County Building Corporation to U.S. Bank National
Association, as trustee and mortgagee, and is subject to the security interest of U.S. Bank
National Association, as tnistee and mortgagee.
Section 1.
Section 2.
Section 3.
Section 4.
Section 5.
Section 6.
Section 7.
Section 8.
Section 9.
Section 10.
Section 11.
Section 12.
Section 13.
Section 14.
Section 15.
Section 16.
Section 17.
Section 18.
Section 19.
TABLE OF CONTENTS
Page
GROUND LEASE 1
RECITALS 1
Lease of Property 2
No Merger 2
Lease Term 2
Rent 2
Use of the Property 2
Grant of Access 3
Utilities 3
Additions, Alterations and Improvements 3
Amendments, Changes and Modifications 3
Condemnation 3
The Corporation's Right to Assign and Sublet 4
The County's Refutation of Claims for Services 4
Default 4
Notices 5
Binding Effect 5
Severability 5
Limitation of Liability 5
Applicable Law 6
Execution in Counterparts 6
EXHIBIT A
Legal Description of the Property A -1
EXHIBIT B
Description of Access Easement B -1
00048
GROUND LEASE
000
THIS GROUND LEASE (the "Ground Lease dated as of October 11, 2012, is between
Lincoln County, Wyoming (the "County a political subdivision of the state of Wyoming
organized and existing under the constitution and laws of the State of Wyoming, as Lessor, and
the Lincoln County Building Corporation (the "Corporation a non- profit corporation
organized and existing under the laws of the State of Wyoming, as Lessee.
RECITALS
A. The County is a political subdivision of the State of Wyoming, organized and
existing under the constitution and laws of the state of Wyoming; and
B. The Corporation is a non- profit corporation duly organized, existing, and in good
standing under the laws of the state of Wyoming, duly qualified to do business in the state of
Wyoming, and authorized under its articles of incorporation and bylaws to finance, construct,
and lease real and personal property to be used by the County; and
C. The County is the owner of certain land located within Lincoln County,
Wyoming, the legal description of which is set forth in Exhibit A hereto (the "Property and
D. The County desires to lease the Property to the Corporation and the Corporation
desires to lease the Property from the County, under the terms and conditions set forth herein;
and
E. Pursuant to that certain Facilities Lease Agreement of even date herewith (the
"Facilities Lease the Corporation has subleased the Property and the facilities to be
constructed thereon (herein the "Facilities back to the County; and
F. Pursuant to that certain Indenture of Trust of even date herewith (the "Indenture
by and between the Corporation as Grantor and U.S. Bank National Association, in St. Paul,
Minnesota, as Trustee (the "Trustee and that certain Leasehold Mortgage, Assignment of
Rents, Security Agreement and Fixture Filing of even date herewith (the "Mortgage granted by
the Corporation, as mortgagor, in favor of the Trustee, as mortgagee, the Corporation will assign
all of its right, title and interest in, to, and under this Ground Lease and the Facilities Lease to the
Trustee; and
G. The Corporation will, concurrently with the delivery hereof, issue its Lease
Revenue Bonds, Series 2012 in the aggregate principal amount of $10,365,000 (the "Bonds
under and pursuant to the Indenture; and
H. A portion of the proceeds from the sale of the Bonds will be disbursed by the
Trustee to pay for the construction, improvement and equipping of the Facilities; and
1
2
00
I. The execution and performance of this Ground Lease and the Facilities Lease
have been authorized and approved by all necessary actions of the Corporation and the County.
NOW THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the County and the Corporation accordingly hereby covenant and agree as
follows:
Section 1. Lease of Property. The County hereby demises and leases the Property to
the Corporation and the Corporation hereby hires, takes and leases the Property from the County,
for the term, at the rental and on the conditions set forth herein, subject to Permitted
Encumbrances as defined in the Facilities Lease. The County is not hereby leasing to the
Corporation any of its personal property acquired before or after the execution of this Ground
Lease; provided that property peituanently affixed to the Property and property acquired with
proceeds of the Bonds shall be demised to the Corporation pursuant to the terms of this Ground
Lease.
Section 2. No Merger. The County and the Corporation intend that the legal doctrine
of merger shall have no application to this Ground Lease and that neither the execution and
delivery of the Facilities Lease by the Corporation and the County nor the exercise of any
remedies under this Ground Lease or the Facilities Lease shall operate to terminate or extinguish
this Ground Lease or the Facilities Lease, except as specifically provided herein and therein.
Section 3. Lease Term. The lease tern for this Ground Lease shall commence as of
the date of this Ground Lease and shall extend until 11:59 p.m. on June 30, 2042, provided that
the lease tern shall automatically terminate earlier after the occurrence of the events described
under Sections 3.4(a) or (b) of the Facilities Lease. Upon any termination of this Ground Lease,
the Corporation and the Trustee will execute and deliver to the County such appropriate
instruments of release as the County may reasonably request and will surrender all rights to
possession of the Property to the County.
Section 4. Rent. The County hereby acknowledges receipt from the Corporation
concun with the execution and delivery of this Ground Lease of the sum of $10,365,000,
which sum constitutes the entire rental for the Property for the lease term during such period as
the Facilities Lease remains in effect.
Section 5. Use of the Property. So long as neither the Facilities Lease nor the
County's right of possession as Lessee thereunder have been terminated by the Corporation
pursuant to the Facilities Lease, the Corporation shall hold and use the Property only for lease to
the County under the Facilities Lease and shall not sell or assign its rights hereunder nor the
leasehold estate hereby created except to the extent that the same is assigned to the Trustee
pursuant to the Indenture. Upon any such termination, the Corporation may use the Property for
any lawful purpose, may assign its rights hereunder or the leasehold estate hereby created to any
person or persons without the consent of the County, and may enter upon the Property for
purposes of taking possession thereof Upon the termination of the Facilities Lease, the
Corporation shall insure the Property as provided in Section 5.2 of the Facilities Lease and shall
maintain the Property and all property thereon in good repair to the extent revenues are available
00051.
for such purposes from the use or subleasing of the Property. If revenues are not sufficient for
the Corporation to so maintain and insure the Property after termination of the Facilities Lease,
the Corporation shall notify the County in writing. The County may thereafter at its option
provide such revenues as are needed to maintain and insure the Property, and the Corporation
shall apply such revenues solely for such purposes.
Section 6. Grant of Access. The County hereby also grants to the Corporation, and
its successors and assigns, a perpetual non- exclusive easement of access for ingress and egress to
the Property from the nearest public road, over and across land of the County, as described on
Exhibit B hereto. The County covenants that it will, within thirty (30) days of the date of this
Ground Lease, execute and deliver to the Corporation an easement in recordable form for the
access rights described herein.
Section 7. Utilities. The County shall, at the request and option of the Corporation,
provide utilities to the Property, including such utilities as gas, electric, water, sewer,
telecommunications, cable television and such other utilities available to the County. In
consideration of the provision of any utilities requested by the Corporation, the Corporation shall
pay the County an amount equal to the sum of (i) the costs incurred by the County in providing
such utilities, and (ii) a commercially reasonable charge for overhead and administration to be
determined by the County, not to exceed 15% of the cost of the utilities services.
Section 8. Additions, Alterations and Improvements. Subject to the provisions of the
Facilities Lease, the Corporation shall have the right at such times as the Corporation is in
possession of the Property to make such changes, additions, deletions, improvements and
alterations, structural or otherwise, to the improvements on the Property as the Corporation shall
deem necessary or desirable, provided that any such items affecting the structure of the building
on the Property or that are otherwise permanent in nature must be approved in writing by the
County.
Section 9. Amendments, Changes and Modifications. This Ground Lease may not be
amended, changed, modified, altered or terminated nor may any provision be waived hereunder
without the written consent of the Corporation, and of any assignee, mortgagee and sublessee
from the Corporation or the Trustee of the Ground Lease leasehold estate, except as provided in
Section 3 above. Any attempted amendment or termination in violation of this Section 7 shall be
void.
Section 10. Condemnation.
(a) Section 5.3(c) of the Facilities Lease shall govern in the event of damage,
destruction or condemnation to the Property during the term of the Lease.
(b) If the Facilities Lease is no longer in effect, or if proceeds remain from an
award after the satisfaction of Section 5.3(c) of the Facilities Lease, the County and the
Corporation shall share in the award in the following order of priority:
3
(i) The County shall be entitled to receive that portion of the award, with
interest thereon, as shall represent compensation for the value of the Property, as
improved with whatever improvements, existing when the Lease Tenn
commenced, still exist, such value being hereinafter referred to as the "Land
Value." The County shall also be entitled to costs awarded in the condemnation
proceeding proportionately attributable to such Land Value.
(ii)
(A) During the Lease Tenzer, except the last five years of the Lease
Term, the Corporation shall be entitled to the balance of the award (the "Award
Balance
(B) If the taking or condemnation as above set forth shall occur at any
time during the last five years of the Lease Term, the Corporation shall be entitled
to receive out of the award, with interest thereon, the award balance diminished
by twenty percent (20 of such Award Balance for each full year (and in
proportion for a fraction of a year) that elapses from the first day of said five -year
period to the date of the vesting of title in the condemnor; the remaining Award
Balance and interest thereon, as well as the award for Land Value and interest
thereon, shall belong to the County.
Section 11. The Corporation's Right to Assign and Sublet. Except as may be provided
otherwise in the Facilities Lease and the Indenture, the Corporation and the Trustee have the
unrestricted right to assign and sublet, from time to time, all or any part of this Ground Lease and
the leasehold estate hereby created, to any one or more persons, firms or entities irrespective of
financial responsibility. Upon an assignment of this Ground Lease, the assignee shall thereupon
be subrogated to all the rights of the former lessee under this Ground Lease whereupon: (i) the
former lessee shall have no further rights or obligations hereunder; and (ii) such assignee shall
forthwith be obligated to assume and perform each and all of the former lessee's obligations and
covenants hereunder, except the Trustee, to the extent provided otherwise in the Indenture and in
Section 15 of this Ground Lease.
The Corporation may enter into the Facilities Lease to the County and the assignment of the
Corporation's leasehold estate in this Ground Lease to the Trustee on the terms provided in the
Indenture.
Section 12. The County's Refutation of Claims for Services. Nothing contained in this
Ground Lease shall constitute any consent or request by the County, express or implied, for the
performance of any labor or services or the furnishing of any materials or other property in
respect of the Property or any part thereof.
Section 13. Default. If any default by either party under this Ground Lease not
relating to the right to possession shall be continuing for more than 15 days after written notice
of default by the other party, or in the event any default relating to the right of possession to the
Property shall be continuing for five days after notice of default, the other party may enforce the
provisions of this Ground Lease and may enforce and protect its right by a suit or suits in equity
4
or at law for the specific performance of any covenant or agreement contained herein or for the
enforcement or any other appropriate legal or equitable remedy; provided, however, that this
Ground Lease cannot be terminated except as provided in Section 3 above.
Section 14. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed given when mailed by registered mail, postage prepaid,
addressed as follows:
(a) If to the Corporation:
(b) If to the County:
Lincoln County Building Corporation
801 Pine Avenue
Kemmerer, WY 83101
Attention: President
Board of County Commissioners
Lincoln County, Wyoming
925 Sage Avenue, Suite 302
Kemmerer, WY 83101
Attention: Chairman
5
00®`
(c) A duplicate copy of each notice, certificate or other communication given
hereunder by either the Corporation or the County to the other shall also be given to the Trustee
addressed as follows:
U.S. Bank National Association
60 Livingston Avenue
St. Paul, MN 55107
Attention: Corporate Trust Department
The Corporation, the County and the Trustee may, by notice given hereunder, designate any
further or different addresses to which subsequent notices, certificates or other conununications
shall be sent.
Section 15. Binding Effect. This Ground Lease shall inure to the benefit of and shall
be binding upon the Corporation and the County and their respective successors and assigns.
Section 16. Severability. In the event any provision of this Ground 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 17. Limitation of Liability. To the extent permitted by law, the County hereby
releases the Corporation and indemnifies and holds harmless the Corporation, its officers,
members or employees from liability for any and all losses, injuries, claims, damages or injuries
to persons or property, demands and expenses, including legal expenses, of whatsoever kind and
nature and by whomsoever made, arising during the existence of the Facilities Lease from the
Corporation to the County, except as provided in the Facilities Lease. It is expressly understood
and agreed that any covenant, undertaking or agreement of the Corporation expressed or implied
from this Ground Lease shall bind only the Property, and that no liability or responsibility is
assumed by nor shall at any time be enforceable against the Corporation or the Trustee, all such
liability, if any, being waived as to the Corporation and the Trustee, but not as to their successors
after mortgage or assignment to the extent provided in Section 9 of this Ground Lease.
Section 18. Applicable Law. This Ground Lease shall be governed exclusively by the
applicable laws of the State of Wyoming.
Section 19. Execution in Counterparts. This Ground 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.
IN WITNESS WHEREOF, the County and the Corporation have caused this Ground
Lease to be executed in their respective corporate names and attested by their duly authorized
officers, all as of the date first above written.
[SEAL]
r 9
p
Attest:
Attest` .'(CM(
County Clerk
LINCOLN COUNTY, WYOMING
By:
LINCOLN COUNTY BUILDING
CORPORATION
B
M.
Paula M. Bowling, President
6
000
(2,,,A04
Kent Connelly
Chairman, Board of County Co issioners
STATE OF WYOMING
ss:
COUNTY OF LINCOLN
The foregoing instrument was acknowledged before me this iC day of October,
2012, by Kent Connelly, as Chairman of the Board of County Commissioners of Lincoln
County, Wyoming.
[SEAL]
WITNESS my hand and official seal.
oft
ti C,> Commission Expires AGE
C �..:.�a.. <�^..fi`w'•'6:w �o+�raM�a'Oac'^ar�+Ya.,y*,y V.
My commission expires: �S
STATE OF WYOMING
ss:
COUNTY OF LINCOLN
The foregoing instrument was acknowledged before me this /day of October, 2012,
by Paula M. Bowling, as President of the Lincoln County Building Corporation.
[SEAL]
WITNESS my hand and official seal.
)1^ vYr "UBLIC
CouNTY OF
UitiCOI?f STATE OF
i WYOMING
MY Comisskiv fames
My commission expires:
7
r
Not. y Public for the State of Wyoming
blic for the State of Wyoming
000;x~
DESCR
OF THE JUSTICE CENTER JAIL TRACT
To -wit:-
1
0
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
TION FOR COUNTY OF LINCOLN
That pa t of the SE1 /4SW1 /4 and GLO Lot 6 of Section 15, T21N, R116W, within the
Incorpor: ted Limits of the City of Kemmerer, Lincoln County, Wyoming, being part of that tract
of recor in the Office of the Clerk of Lincoln County in Book 778 of Photostatic Records on
page 605, described as follows:
COMM NCING at the southwest comer of said Section 15;
thence '89 °43'54 "E, the BASIS OF BEARING, 1926.25 feet, along the south line of said
Section 5 to the southeast point of the County of Lincoln Combined Parcels A B;
thence 25 °13'25 "W, 525.50 feet, along the northeast line of said Combined Parcels to the
POSITI
N OF BEGINNING;
thence S 0°57'57"W, 240.97 feet, to a position;
thence N.9 °38'28 "W, 199.93 feet, to a position;
thence 0 °21'32 "E, 41.77 feet, to the PT of a designed back of curb;
thence S ►5 °43'32 "E, 29.53 feet, to a 90° angle in said back of curb;
thence N.1 °38'39 "E, 28.00 feet, along said back of curb to a 90° angle;
thence 12 °18'22 "W, 22.26 feet, to a 90° angle in said back of curb;
thence 8 °21'21 "W, 25.00 feet, along said back of curb to a 90° angle;
thence 50 °39'01 "E, 15.10 feet, to an angle point in a designed court building;
thence N63 °47' 17 "E, 29.82 feet, along said face to an angle in said retaining wall;
A -1
OO O
thence S 1 °09'35 "E, 21.05 feet, along a wall of said building to the centerline of a party wall
between aid building and a designed jail building;
thence 18 °50'25 "E, 42.97 feet, along said centerline and its northeasterly prolongation to the
face of a retaining wall;
thence N16 °12'43 "W, 141.94 feet, along said face and its northeasterly prolongation to a
position;
0001
thence N63 °50'25 "E, 180.80 feet, along the face of a retaining wall and its southwesterly and
northeasterly prolongations to said northeast line of said Combined Parcels;
thence S25 °13'25 "E, 347.82 feet, along said northeasterly line to the POSITION OF
BEGINNING;
ENCOMPASSING an area of 2.12 acres, more or less;
each "corner" marked as described in a Corner Record on file in said Office;
each "point" marked by a 5/8" x 24" steel reinforcing rod with an aluminum cap inscribed:
"SURVEYOR SCHERBEL LTD BIG PINEY WY PLS3889" and other appropriate details set
this survey;
each "position" being a calculated position with no monument found or set;
that this description is prepared for a temporary division of said Combined Parcels only; that,
therefore, no permanent monuments other than those specifically noted above were set during
this survey and this description should not be used for a permanent division of the described
land;
all in accordance with the map prepared to be filed in said Office titled: "MAP OF SURVEY OF
THE LINCOLN COUNTY JUSTICE CENTER TRACT WITHIN THE INCORPORATED
LIMITS OF THE CITY OF KEMMERER WITHIN SE1 /4SW1 /4 GLO LOT 6 SECTION 15
T21N R1 16W LINCOLN COUNTY, WYOMING" dated 22 August 2012 as revised.
A survey map of the described parcel of land is attached hereto for illustration purposes only.
C:n
n.-40o
oqtt
CI
A-3
TRACT NO. 79
U 0 5 S
To- wit:
EXHIBIT B
DESCRIPTION OF ACCESS EASEMENT
000"
A strip of land, twenty -five (25) feet in width, within the SE1 /4SW1 /4 of Section 15, T21N,
R116W, within the Incorporated Limits of the City of Kemmerer, Lincoln County, Wyoming,
twelve and half (12.50) feet each side of the following described centerline:
BEGINNING at a position on the northwesterly line of the County of Lincoln Combined Parcels
A B identical in part with the southerly right -of -way line of U.S. Highway 30N,
S63 °59'38 "W, 66.69 feet, of the northeast point of said Combined Parcels;
thence S63 °05' 17 "E, 17.24 feet, to a position at the beginning of a circular curve to the right;
thence southeasterly, 48.02 feet, along the arc of said curve, through a central angle of
27 °30'50 having a radius of 100.00 feet, with a chord bearing S49 °19'52 "E, 47.56 feet, to a
position;
thence S35 °34'27 "E, 41.50 feet, to a position at the beginning of a circular curve to the right;
thence southeasterly, 5.00 feet, along the arc of said curve, through a central angle of 9 °32'25
having a radius of 30.00 feet, with a chord bearing S30 °48' 14 "E, 4.99 feet, to a position;
thence S26 °02'02 "E, 21.40 feet, to a position on the northerly line of the Jail Tract,
S63 °50'25 "W, 28.34 feet, of the northeast position of said Tract;
with the easterly and westerly right -of -way lines being extended or shortened as necessary to
intersect said northerly line and said southerly right -of -way line;
each "point" marked by a 5/8" x 24" steel reinforcing rod with an aluminum cap inscribed:
"SURVEYOR SCHERBEL LTD BIG PINEY WY PLS3889" and other appropriate details set
this survey;
each "position" being a calculated position with no monument found or set;
that this description follows the centerline of a designed access road; should the actual road be
built in a different location, this easement automatically adjusts to the actual as -built centerline
of the road;
all in accordance with the map prepared to be filed in said Office titled: "MAP OF SURVEY OF
THE LINCOLN COUNTY JUSTICE CENTER TRACT WITHIN THE INCORPORATED
LIMITS OF THE CITY OF KEMMERER WITHIN SE1 /4SW1/4 GLO LOT 6 SECTION 15
T21N R1 16W LINCOLN COUNTY, WYOMING" dated 22 August 2012 as revised.
As shown on the attached survey map, which is attached hereto for illustration purposes only.
B -1.
CURVE
LENGTH
DELTA
RADIUS
CHORD BEARING
CHORD
TANGENT
C1
48.02'
27'30'50"
100.00'
54919'52 "E
47.56'
24.48'
C2
5.00'
9'32'25"
30.00'
530'48'14 "E
4.99'
2.50'
CURVE TABLE
LEGEND
Indicates a 5/8" steel reinforcing rod with on aluminum cop
inscirbed: SURVEYOR SCHERBEL LTD BIG PINEY WY
PLS3889" and other appropriate details, set this survey.
Indicates a calculated position with no monument found or set.
x— Indicates a fence line.
LINCOLN COUNTY
COMBINED PARCELS A B
40-
Revised: .10/3/2012
D,4 11 Septernber 2012
ORA$lV BY.T Scott Scherbel
CALCULA7E0 BY.• Sic tt_`.A. Scherbel'
C9 6ORY/Pc3?Z EXH /KNER— LINCOL CO
F /ELO BOOK KM2 n`69
C0f/PU7Z7? f7 LE J C Ac4e
s Fase.oro
JAIL TRACT
B -2
0' JO' 60'
SCALE 1" 30'
EXHIBIT OF ACCESS EASEMENT
TO THE JAIL TRACT
WITHIN
SE1 /4S.W1 /4 SECTION 15
T21N R116W
LINCOLNCOUN'fl WYOMING
Copyright Q 2012 by Surveyor S,cherbel LTD. All.rlghts reserved.
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