Agenda packet — Brisbane City Council, March 3, 2022 (part 1 of 2)

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CITYof BRISBANE
Thursday, March 3, 2022 at 7:30 PM ● Virtual Meeting
This meeting is compliant with the Ralph M. Brown act as amended by California Assembly Bill No. 361 effective September 16, 2021 providing for a public health emergency exception to the standard teleconference rules required by the Brown Act. The purpose of this is to provide a safe environment for the public, staff and Councilmembers/Authority Members, while allowing for public participation. The public may address the Council/Authority using exclusively remote public comment options. The Council/Authority may take action on any item listed in the agenda.

PUBLIC MEETING VIDEOS
Members of the public may view this meeting by logging into the Zoom Webinar listed below. City Council Meetings can also be viewed live and/or on-demand via the City’s YouTube Channel, www.youtube.com/brisbaneca, or on Comcast Channel 27. Archived videos can be replayed on the City’s website, http://brisbaneca.org/meetings .

TO ADDRESS THE COUNCIL/AUTHORITY
This meeting will be an exclusively virtual meeting. The agenda materials may be viewed online at www.brisbaneca.org at least 24 hours prior to a Special Meeting, and at least 72 hours prior to a Regular Meeting.

Remote Public Comments:

Meeting participants are encouraged to submit public comments in writing in advance of the meeting. Aside from commenting while in the Zoom webinar the following email and text line will be also monitored during the meeting and public comments received will be noted for the record during Oral Communications 1 and 2 or during an Item.

Email: [email protected]
Text: 628-219-2922
Join Zoom Webinar: zoom.us (please use the latest version: zoom.us/download) brisbaneca.org/cc-zoom
Webinar ID: 991 9362 8666
Passcode: 123456
Call In Number: 1 (669) 900 9128

SPECIAL ASSISTANCE
If you need special assistance to participate in this meeting, please contact the City Clerk at (415) 508-2113.

Notification in advance of the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

WRITINGS THAT ARE RECEIVED AFTER THE AGENDA HAS BEEN POSTED Any writings that are received after the agenda has been posted but before 2 p.m. of the day of the meeting will be available for public inspection at the front lobby in City Hall and on the internet (www.brisbaneca.org/meetings). Any writings that are received after the agenda has been posted but after 2 p.m. of the day of the meeting will be available on the internet at the start of the meeting (www.brisbaneca.org/meetings), at which time the materials will be distributed to the Council/Authority.

Joint City Council, Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority and Brisbane Housing Authority Meeting Agenda
1 March 3, 2022 - 2 - 7:30 PM

1. 7:30 P.M. CALL TO ORDER – PLEDGE OF ALLEGIANCE

2. ROLL CALL

3. ADOPTION OF AGENDA

4. ORAL COMMUNICATIONS NO. 1

5. CONSENT CALENDAR
A. Approve Minutes of Housing Authority Special Meeting of September 23, 2021 B. Approve Minutes of Joint City Council and Housing Authority Closed Session Meeting of August 5, 2021
C. Approve Minutes of Housing Authority Closed Session Meeting of July 15, 2021 D. Accept Investment Report as of January 2022
E. Introduce an Ordinance, Waiving First Reading, Adopting a Military Equipment Use Policy per California Assembly Bill 481
F. Introduce an Ordinance, Waiving First Reading, Repealing Chapter 8.19 of the Brisbane Municipal Code and Adopting a New Chapter 8.19 Regulating the Use of Disposable Food Service Ware by Food Facilities to Align with State Law G. Adopt Resolutions to Update Hourly Pay Scale and Amend the Master Pay Schedule (The purpose of this item is to meet the new state minimum wage effective January 1, 2022)
H. Adopt a Resolution Opposing Initiative 21-0042A1 State Ballot Measure Restricting Voters’ Input and Local Taxing Authority

6. WORKSHOP
I. Affordable Housing Strategic Plan Goal Setting Workshop and Housing Element Update (The purpose of this item is to provide the following:1) a status report regarding the ongoing Housing Element update; and 2) an update on the Affordable Housing Strategic Plan (AHSP) and solicit feedback on affordable housing goals and objectives to further inform the development of the AHSP)
2 March 3, 2022 - 3 - 7:30 PM

7. NEW BUSINESS
J. Acquisition of the Building and land of the Former Bank of America Branch Located At 70 Old County Road in Brisbane
i. Consider Adoption of City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with acquisition of the building and land of the former Bank of America Branch located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto. ii. Consider Adoption of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Resolution approving the form and authorizing the execution of certain lease financing documents in connection with the financing by the City of Brisbane of a portion of the costs associated with acquisition of the building and land of the former Bank of America Branch Located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto.

8. STAFF REPORTS
K. City Manager’s Report on Upcoming Activities

9. MAYOR/COUNCIL MATTERS
L. Countywide Assignments and Subcommittee Reports
M. Written Communications

10. ORAL COMMUNICATIONS NO. 2

11. ADJOURNMENT
3 File Attachments for Item:

A. Approve Minutes of Housing Authority Special Meeting of September 23, 2021 4 A.

CITY OF BRISBANE HOUSING AUTHORITY SPECIAL MEETING
THURSDAY, SEPTEMBER 23, 2021

BRISBANE CITY HALL LARGE CONFERENCE ROOM, VIRTUAL MEETING 7:30 P.M. CALL TO ORDER
Authority Chair Cunningham called the meeting to order at 7:37 p.m.

A. Roll Call
Authority Members Present: Authority Members Davis, Lentz, Mackin, O’Connell and Chair Cunningham

Absent: None
B. Approval of the Housing Authority Special Meeting Agenda Authority Member Davis made a motion, seconded by Authority Member Mackin to approve the Housing Authority Special Meeting Agenda as it stands. The motion passed unanimously by all present.

Ayes: Authority Members Davis, Lentz, Mackin, O’Connell and Chair Cunningham Noes: None

Absent: None
Abstain: None
C. Consider Adoption of Resolution No. HA 2021-02 Approving Sale of 4.21 Acres (vacant) Owned by the Brisbane Housing Authority and repealing Resolution No. HA 2021-01 (It is being recommended to re-approve the sale of 4.21 acres of vacant land owned by the Brisbane Housing Authority for $2.2 million and authorize the Executive Director to sign a Vacant Land Purchase Agreement, an Addendum, and related documents in a final form as approved by the General Counsel) 5
A.

Authority Executive Director Holstine reported that because of the property’s location and topography, those challenges led to the request to this purchaser to reduce the sales price from $2.35 million to $2.2 million. Staff concludes this request is reasonable and recommends the Housing Authority Board reapprove the sale.

Authority Member Lentz clarified that all the terms of sale for the property was the same except for the price reduction.

No member of the public wished to make public comment.

After no Council discussion, Authority Member O’Connell made a motion, seconded by Authority Member Lentz, to Adoption of Resolution No. HA 2021-02 Approving Sale of 4.21 Acres (vacant) Owned by the Brisbane Housing Authority and repealing Resolution No. HA 2021-01. The motion passes unanimously by all present.

Ayes: Authority Members Davis, Lentz, Mackin, O’Connell and Chair Cunningham Noes: None

Absent: None
Abstain: None

ADJOURNMENT
Authority Chair Cunningham adjourned the meeting at 7:42 p.m. ____________________________________
Ingrid Padilla, Authority Clerk
6 A.

File Attachments for Item:

B. Approve Minutes of Joint City Council and Housing Authority Closed Session Meeting of August 5, 2021
7 B.

JOINT CITY OF BRISBANE CITY COUNCIL AND BRISBANE HOUSING

AUTHORITY CLOSED SESSION MEETING
THURSDAY, AUGUST 5, 2021

VIRTUAL MEETING

1. 6:00 P.M. CLOSED SESSION
A. Approval of the Closed Session Agenda
B. Public Comment. Members of the public may address the members of the City Council/Housing Authority on any item on the closed session agenda
C. Adjournment into Closed Session
Authority Chair Cunningham called the meeting to order. No members of the public were present and Authority Chair Cunningham adjourned into Closed Session.

D. CONFERENCE WITH REAL PROPERTY NEGOTIATOR UNDER GOVERNMENT CODE SECTION 54956.8
PROPERTY: 70 Old County Road, Brisbane
NEGOTIATOR: City Manager/Executive Director, Clay Holstine NEGOTIATING PARTIES: Bank of America
UNDER NEGOTIATION: Price and terms of payment

2. RECONVENE BACK TO OPEN SESSION AND REPORT OUT
Authority Counsel McMorrow reported that direction was given to staff regarding Item D.

3. ADJOURNMENT
Chair Cunningham adjourned the meeting at 6:50 p.m.
____________________________________
Ingrid Padilla, City Clerk/Authority Clerk
8 B.

File Attachments for Item:

C. Approve Minutes of Housing Authority Closed Session Meeting of July 15, 2021 9 C.

CITY OF BRISBANE HOUSING AUTHORITY CLOSED SESSION MEETING THURSDAY, JULY 15, 2021

VIRTUAL MEETING

1. 6:30 P.M. CLOSED SESSION
A. Approval of the Closed Session Agenda
B. Consider Approval of Minutes of Housing Authority Closed Session Meeting on April 15, 2021 C. Consider Approval of Minutes of Housing Authority Closed Session Meeting on June 3, 2021 D. Consider Approval of Minutes of Housing Authority Workshop on June 3, 2021 E. Public Comment. Members of the public may address the members of the Housing Authority on any item on the closed session agenda
Authority Chair Cunningham called the meeting to order. After the Closed Session Agenda was approved, Authority Member O’Connell made a motion, seconded by Authority Member Lentz to approve items B, C, and D. The motion passes unanimously by all present.

Ayes: Authority Members Davis, Lentz, Mackin, O’Connell and Mayor Cunningham Noes: None

Absent: None
Abstain: None
Authority Clerk Padilla acknowledged receipt of Council Correspondence from Linda Dettmer regarding Item G.

Alex Lau asked questions about the status of the sale of Item H, notification of residence, and the sale’s effect of private roads and wildlife.

Johnetta Richards asked when residents would have an opportunity to be a part of the discussion on the sale and development of the property regarding Item H.

Daisy Somstrom voiced concerns about wild life, the forest, and the creek within the property regarding Item H.
10 C.

F. Adjournment into Closed Session
G. CONFERENCE WITH REAL PROPERTY NEGOTIATOR UNDER GOVERNMENT CODE SECTION 54956.8
PROPERTY: 70 Old County Road, Brisbane
NEGOTIATOR: Executive Director, Clay Holstine
NEGOTIATING PARTIES: Bank of America
UNDER NEGOTIATION: Price and terms of payment
H. CONFERENCE WITH REAL PROPERTY NEGOTIATOR UNDER GOVERNMENT CODE SECTION 54956.8
PROPERTY: Four contiguous, vacant, lots, with a total land area of approximately 4.22 acres, located immediately south of the intersection of San Bruno Avenue and Gladys Avenue in Brisbane, CA. The lots are identified by the County Assessor as Parcel Numbers 007-556-010, 007-560-130, -140 and -120
NEGOTIATOR: Executive Director, Clay Holstine
NEGOTIATING PARTIES: Pei-Hsung Hu and or Assignees
UNDER NEGOTIATION: Price and terms of sale

2. RECONVENE BACK TO OPEN SESSION AND REPORT OUT
City Attorney McMorrow reported that direction was given to staff regarding items G and H.

3. ADJOURNMENT
The meeting was adjourned by Chair Cunningham at 8:05 p.m. ____________________________________
Ingrid Padilla, Authority Clerk
11 C.

File Attachments for Item:

D. Accept Investment Report as of January 2022
12 D.

FACE CARRY MARKET COUPON

INVESTMENT DATE OF VALUE OF VALUE OF VALUE OF INTEREST MATURITY RATING/ NAME OF DEPOSITORY TYPE INVESTMENT INVESTMENT INVESTMENT INVESTMENT RATE % DATE COLLATERAL WELLS FARGO Checking A/C $ 5,611,340 $ 5,611,340 $ 5,611,340 0.000 STATE FUND (LAIF) Deposit on call continuous $ 18,627,685 $ 18,627,685 $ 18,627,685 0.260 on call no rating Other Investments
Sallie Mae Bank 5/9/2019 $ 245,000 $ 245,000 $ 246,498 2.550 05/09/2022 Morgan Stanley 6/6/2019 $ 245,000 $ 245,000 $ 246,857 2.550 06/06/2022 Comenity Capital Bank 4/28/2019 $ 248,000 $ 248,000 $ 253,041 2.650 04/28/2023 Morgan Stanley 5/2/2019 $ 245,000 $ 245,000 $ 249,920 2.650 05/02/2023 Goldman Sachs 5/1/2019 $ 246,000 $ 246,000 $ 253,642 2.750 05/01/2024 FHLB 12/31/2021 $ 1,000,000 $ 1,000,000 $ 993,600 1.000 09/30/2024 FHLB 12/31/2021 $ 1,000,000 $ 1,000,000 $ 992,260 1.300 09/30/2025 BNY Mellon Treasury Obligations continuous $ 6,426,634 $ 6,426,634 $ 6,426,634 0.010 on call 110% collateral Sub-total $ 9,655,634 $ 9,655,634 $ 9,662,452
U.S. Bank 2014 BGPGA Bond (330) Improvements Fed Treas Obl 10031 Reserve Fund Fed Treas Obl $ 1 10032
Revenue Fund Fed Treas Obl $ - 10034
Expense Fund Fed Treas Obl $ - 10035
Principal Fed Treas Obl $ 1 10036
Interest Fund Fed Treas Obl $ 0 10037
U.S. Bank 2015 Utility Capital (545) Improvements Fed Treas Obl $ 0 10031 Reserve Fed Treas Obl $ 1 10032
Expense Fund Fed Treas Obl $ 0 10035
PARS OPEB Trust Trust Cash Investments $ 3,972,445 13050 PARS Retirement Trust Trust Cash Investments $ 1,390,848 13050 Sub-total Cash with Fiscal Agents $ 5,363,296
Total other investments $ 9,655,634 $ 15,018,930 $ 9,662,452 TOTAL INVESTMENTS & CASH BALANCES $ 33,894,659 $ 39,257,955 $ 33,901,477 Outstanding Loans to Department Heads
Date of loan Amount Amount Remaining Interest Rate
Stuart Schillinger 4/1/2002 318,750 $ 318,750 Based on Sales Price Clay Holstine (1) 7/8/2008 300,000 $ - Paid off 12/28/2016 Clay Holstine (2) 9/10/2008 200,000 $ 200,000 Secured by other funds Randy Breault 10/22/2001 320,000 $ 12,881 1.20%
FFCB - Federal Farm Credit Bank
FHLB - Federal Home Loan Bank
FHLM - Federal Home Loan Mortage Corporation
FNMA -Federal National Mortgage Association
Two year Treasury 1.18%
Weighted Interest 0.31%
Weighted maturity 0.26 Years

TREASURER'S CERTIFICATE
These are all the securities in which the city funds, including all trust funds and oversight agencies funds, are invested and that (excluding approved deferred compensation plans) all these investments are in securities as permitted by adopted city policy.

It is also certified that enough liquid resources (including maturities and anticipated revenues) are available to meet the next six months' cash flow.

Carolina Yuen

CITY TREASURER

CITY OF BRISBANE

CASH BALANCES & INVESTMENTS

SOURCE OF FUNDING
January 31, 2022
13 D.

File Attachments for Item:

E. Introduce an Ordinance, Waiving First Reading, Adopting a Military Equipment Use Policy per California Assembly Bill 481
14 E.

Adoption of a Military Equipment Use Policy Page 1 of 4

CITY COUNCIL AGENDA REPORT
Meeting Date: March 3, 2022
From: Lisa Macias, Police Chief
Subject: Adoption of a Military Equipment Use Policy
Recommendation:

City Council waive first reading and introduce (and then adopt on March 17) the attached uncodified ordinance adopting the Police Department’s Military Equipment Use Policy in accordance with state law.

Background
On September 30, 2021, Assembly Bill 481 (AB 481), was signed in law, relating to the use of military equipment by law enforcement agencies. AB 481, codified at California Government Code sections 7070 through 7075, requires law enforcement agencies, prior to taking certain actions relating to the funding, acquiring or using military equipment, have the governing body of the local jurisdiction at a regular meeting held pursuant to open meeting laws, adopt, through an ordinance, a Military Equipment Use Policy.

California Government Code §7070(d) describes a Military Equipment Use Policy as a publicly released, written document that includes, at a minimum, all of the following:

1. A description of each type of Military Equipment, the quantity sought, its capabilities, expected lifespan, and product descriptions from the manufacturer of the Military Equipment.

2. The purposes and authorized uses for which the law enforcement agency or the state agency proposes to use each type of Military Equipment.

3. The fiscal impact of each type of Military Equipment, including the initial costs of obtaining the equipment and estimated annual costs of maintaining the equipment.

4. The legal and procedural rules that govern each authorized use.

5. The training, including any course required by the Commission on Peace Officer Standards and Training, that must be completed before any officer, agent, or employee of the law enforcement agency or the state agency is allowed to use each specific type of Military Equipment to ensure the full protection of the public's welfare, safety, civil rights, and civil liberties and full adherence to the Military Equipment use policy.

6. The mechanisms to ensure compliance with the Military Equipment use policy, including which independent persons or entities have oversight authority, and, if applicable, what legally enforceable sanctions are put in place for violations of the policy.

7. For a law enforcement agency, the procedures by which members of the public may register complaints or concerns or submit questions about the use of each specific type of Military Equipment, and how the law enforcement agency will ensure that each complaint, concern, or question receives a response in a timely manner.

California Government Code § 7070(c) defines Military Equipment as any of the following:

1. Unmanned, remotely piloted, powered aerial or ground vehicles. 15 E.

Adoption of a Military Equipment Use Policy Page 2 of 4

2. Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. However, police versions of standard consumer vehicles are specifically excluded from this subdivision.

3. High mobility multipurpose wheeled vehicles (HMMWV), commonly referred to as Humvees, two and one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. However, unarmored all-terrain vehicles (ATVs) and motorized dirt bikes are specifically excluded from this subdivision.

4. Tracked armored vehicles that provide ballistic protection to their occupants and utilize a tracked system instead of wheels for forward motion.

5. Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units.

6. Weaponized aircraft, vessels, or vehicles of any kind.

7. Battering rams, slugs, and breaching apparatuses that are explosive in nature. However, items designed to remove a lock, such as bolt cutters, or a handheld ram designed to be operated by one person, are specifically excluded from this subdivision.

8. Firearms of .50 caliber or greater. However, standard issue shotguns are specifically excluded from this subdivision.

9. Ammunition of .50 caliber or greater. However, standard issue shotgun ammunition is specifically excluded from this subdivision.

10. Specialized firearms and ammunition of less than .50 caliber, including assault weapons as defined in Sections 30510 and 30515 of the Penal Code, with the exception of standard issue service weapons and ammunition of less than .50 caliber that are issued to officers, agents, or employees of a law enforcement agency or a state agency.

11. Any firearm or firearm accessory that is designed to launch explosive projectiles.

12. "Flashbang" grenades and explosive breaching tools, "tear gas," and "pepper balls," excluding standard, service-issued handheld pepper spray.

13. Taser Shockwave, microwave weapons, water cannons, and the Long Range Acoustic Device (LRAD).

14. The following projectile launch platforms and their associated munitions: 40mm projectile launchers, "bean bag," rubber bullet, and specialty impact munition (SIM) weapons.

15. Any other equipment as determined by a governing body or a state agency to require additional oversight.

16. Notwithstanding paragraphs (1) through (15), "Military Equipment" does not include general equipment not designated as prohibited or controlled by the federal Defense Logistics Agency.

Discussion
The Police Department has prepared and published the attached Military Equipment Use Policy, embodied in Police Department General Order 709. The Policy contains all the required elements of Government Code section 7070 (d) set forth above. California Government Code section 7071(b) requires that the Police Department post to its website the Military Equipment Use Policy that it plans to propose to City Council, at least 30 days prior to any public hearing concerning the policy, for any comments, questions or concerns from the public. The Police Department complied with this requirement by posting the policy being proposed this evening on our website on January 30, 2022. As of the time this agenda report is published, February 25, 2022, we have not received any comments, 16 E.

Adoption of a Military Equipment Use Policy Page 3 of 4 questions or concerns from the public on the Policy. The Policy references two types of qualifying equipment.

Section One lists qualifying equipment that is owned and/or utilized by the Brisbane Police Department.

Section Two lists qualifying equipment that is not owned or regularly utilized by the Brisbane Police Department, but which is known to be owned and/or utilized by law enforcement units with which the Brisbane Police Department collaborates and/or participates for law enforcement purposes. The Brisbane Police Department participates in a regional Special Weapons and Tactics team, North Central Regional Response Team (NCR). NCR possesses and utilizes additional types of equipment that is not owned, purchased or maintained by the Brisbane Police Department but is included in the proposed Military Equipment Use Policy as it could be used in the City of Brisbane if NCR SWAT is deployed in extreme circumstances such as an active shooter incident, hostage situation and the execution of highrisk search and arrest warrants.

In order for the City Council to approve and adopt this Policy, the Council must make certain determinations as follows:

1. The military equipment identified in Brisbane Police General Order 709 is necessary because there are no reasonable alternatives that can achieve the same objectives of officer and civilian safety.

2. Brisbane Police General Order 709 will safeguard the public’s welfare, safety, civil rights, and civil liberties.

3. The military equipment identified in Brisbane Police Department General Order 709 is reasonably cost effective compared to available alternatives that can achieve the same objectives of officer and civilian safe.

In addition, pursuant to California Government Code 7070(d)(6), and in accordance with California Government Code 7072m, the Police Department is responsible for delivering to the City Council an Annual Military Equipment Report as a mechanism to ensure the Brisbane Police Department is in compliance with this Military Equipment Use Policy. The report will also assist the City Council in determining whether to approve, revise, or revoke components of the Military Equipment Use Policy for the subsequent year. The annual report will be made publicly available on the Police Department’s website. The Annual Military Equipment Report will include the following information for the immediately preceding calendar year for each type of military equipment:

1. A summary of how the military equipment was used and the purpose of its use.

2. A summary of any complaints or concerns received concerning the military equipment.

3. The results of any internal audits, any information about violations of the military equipment use policy, and any actions taken in response.

4. The total annual cost for each type of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the military equipment in the calendar year following submission of the annual military equipment report.

5. The quantity possessed for each type of military equipment. 17 E.

Adoption of a Military Equipment Use Policy Page 4 of 4

6. If the law enforcement agency intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment.

Moreover, pursuant to California Government Code §7070(d)(7), the proposed Military Equipment Use Policy also provides the avenues through which members of the public may register complaints, concerns or submit questions about the use of each specific type of Military Equipment in the policy.

They can do so via email, physical mail or by phone to our designated Military Equipment Use officer, Commander Mario Garcia.

In addition, the Police Department will have on its website (under “Military equipment” policies and procedures concerning enforcement of the Ordinance and remedies for violations. For example, although there is no private right of action for any person or entity to seek injunctive relief against the City or any employee unless that person or entity has first provided written notice to the City Manager regarding the specific alleged violations of this Ordinance, if, following the submission of a violation, the City does not remedy a specific alleged violation within 90 days of that written notice, a person or entity may seek injunctive relief in a court of competent jurisdiction. Moreover, if the City substantiates and then cures an alleged violation, the Police Department shall post a notice in a conspicuous manner on the Department’s website that describes, to the extent permissible by law, the corrective measures taken to address the violation. If the City does not substantiate or cure an alleged violation and, in a subsequent court action the person or entity proves that the violation occurred as a result of arbitrary or capricious action by the City or an employee of the City acting in the employee’s official capacity, the Court may award to such person or entity reasonable attorney’s fees in an amount not to exceed $15,000.

For the reasons set forth in this agenda report and in the Policy itself, Council may make these determinations and introduce ordinance X.XX (to be adopted on March 17) to approve and adopt the military equipment use policy as set forth in the Police Department’s General Order 709.

Fiscal Impact
There is no fiscal impact in adopting this ordinance and the military equipment use policy. ____________________________ ______________________________ Lisa Macias, Police Chief Clay Holstine, City Manager
Attachments: Uncodified Ordinance Adopting a Military Equipment Use Policy Brisbane Police Department General Order 709
Lisa Macias
18 E.
1 ORDINANCE NO. X.XX

AN UNCODIFIED ORDINANCE OF THE CITY OF BRISBANE ADOPTING A MILITARY EQUIPMENT USE POLICY
The City Council of the City of Brisbane ordains as follows:

Section 1. Findings.

The City Council finds:

A. On September 30, 2021, the Governor signed into law Assembly Bill 481, relating to the use of military equipment by law enforcement agencies.

B. Assembly Bill 481, codified at California Government Code sections 7070 through 7075, requires law enforcement agencies to obtain approval of the applicable governing body, by an ordinance adopting a “military equipment” use policy, at a regular meeting held pursuant to the open meeting laws, prior to taking certain actions relating to the funding, acquiring, or using military equipment. The term “military equipment” is defined in Government Code, section 7070.

C. Assembly Bill 481 allows the governing body of the city to approve the funding, acquiring or using military equipment within its jurisdiction only if it makes certain specified determinations.

D. The proposed military equipment use policy is found within the Brisbane Police Department General Order 709.

E. Brisbane Police Department General Order 709 was published on the Brisbane Police Department’s internet website on February 2, 2022. The Brisbane Police Department General Order 709 was presented to the Brisbane City Council on March 3, 2022.

F. The Brisbane Police Department General Order 709 meets the requirements of Government Code, Section 7070, subdivision (d).

Section 2. Determinations
Based on the findings above, in addition to information provided to the City Council at the public meeting, the City Council determines as follows:

2. Brisbane Police General Order 709 will safeguard the public’s welfare, safety, civil rights, and civil liberties.

4. Brisbane Police General Order 709 setting forth the City’s Military Equipment Use Policy is approved and adopted.
19 E.
2 Section 3. Severability
A. If any section, subsection, sentence, clause, phrase, or word of this Ordinance, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of this Ordinance.

B. The City Council hereby declares that it would have passed this Ordinancde and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this Ordinance or application thereof would be subsequently declared invalid or unconstitutional.

Section 4. Effective Date.

This Ordinance shall be effective 30 days after its adoption.

Coleen Mackin, Mayor
The above ordinance was regularly introduced on March 3, 2022 and adopted on March 17, 2022 at a regular meeting of the City Council of the City of Brisbane by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:

Ingrid Padilla, City Clerk
Approved as to form:

Thomas R. McMorrow, City Attorney
20 E.

Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 1 Published with permission by Brisbane Police Department Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
709.1 PURPOSE AND SCOPE
The purpose of this policy is to provide guidelines for the approval, acquisition, and reporting requirements of military equipment (Government Code § 7070; Government Code § 7071; Government Code § 7072).
709.1.1 DEFINITIONS
Definitions related to this policy include (Government Code § 7070):

Governing body – The elected or appointed body that oversees the Department Military equipment – Includes but is not limited to the following:
• Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected (MRAP) vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles (HMMWV), two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached. • Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram.
• Firearms and ammunition of_.50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition.
• Specialized firearms and ammunition of less than_.50 caliber, including firearms and accessories identified as assault weapons in Penal Code § 30510 and Penal Code § 30515, with the exception of standard-issue firearms.
• Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray.
• TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices (LRADs).

Policy
709
21 E.

Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 2 Published with permission by Brisbane Police Department • Kinetic energy weapons and munitions.
• Any other equipment as determined by a governing body or a state agency to require additional oversight.
709.2 POLICY
It is the policy of the Brisbane Police Department that members of this department comply with the provisions of Government Code § 7071 with respect to military equipment. 709.3 MILITARY EQUIPMENT COORDINATOR
The Chief of Police should designate a member of this department to act as the military equipment coordinator. The responsibilities of the military equipment coordinator include but are not limited to:
(a) Acting as liaison to the governing body for matters related to the requirements of this policy.
(b) Identifying department equipment that qualifies as military equipment in the current possession of the department, or the equipment the department intends to acquire that requires approval by the governing body.
(c) Conducting an inventory of all military equipment at least annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of the Brisbane Police Department (Government Code § 7071). (e) Preparing for, scheduling, and coordinating the annual community engagement meeting to include:

1. Publicizing the details of the meeting.

2. Preparing for public questions regarding the department's funding, acquisition, and use of equipment.
(f) Preparing the annual military equipment report for submission to the Chief of Police and ensuring that the report is made available on the department website (Government Code § 7072).
(g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment, and how the department will respond in a timely manner.
709.4 MILITARY EQUIPMENT INVENTORY
Qualifying Equipment / Owned by the Brisbane Police Department:
22 E.

Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 3 Published with permission by Brisbane Police Department Qualifying Equipment known to be owned and/or utilized by law enforcement units with which the Brisbane Police Department collaborates and/or participates for law enforcement purposes
23 E.

Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 4 Published with permission by Brisbane Police Department 24 E.

Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 5 Published with permission by Brisbane Police Department 709.5 APPROVAL
The Chief of Police or the authorized designee shall obtain approval from the governing body by way of an ordinance adopting the military equipment policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed military equipment policy is submitted to the governing body and is available on the department website at least 30 days prior to any public hearing concerning the military equipment at issue (Government Code § 7071). The military equipment policy must be approved by the governing body prior to engaging in any of the following (Government Code § 7071):
(a) Requesting military equipment made available pursuant to 10 USC § 2576a. (b) Seeking funds for military equipment, including but not limited to applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers.
(c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
(d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this department. (e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the governing body.
25 E.

Brisbane Police Department
Brisbane PD Policy Manual
Military Equipment
Copyright Lexipol, LLC 2022/02/03, All Rights Reserved. ***DRAFT*** Military Equipment - 6 Published with permission by Brisbane Police Department (f) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of military equipment.
(g) Acquiring military equipment through any means not provided above. 709.6 USE IN EXIGENT CIRCUMSTANCES
In exigent circumstances and with the approval of the Chief of Police or his/her designee, the Police Department may acquire, borrow and/or use Military Equipment that is not included in the Military Equipment Use Policy.

If the Police Department acquires, borrows, and/or uses Military Equipment in exigent circumstances, in accordance with this section, it must take all of the following actions:
• Provide written notice of that acquisition or use to the City Council within 30 days following the commencement of such Exigent Circumstance, unless such information is confidential or privileged under local, state or federal law. • If it is anticipated that the use will continue beyond the Exigent Circumstance, submit a proposed amended Military Equipment Use Policy to the City Council within 90 days following the borrowing, acquisition and/or use, and receive approval, as applicable, from the City Council.
• Include the Military Equipment in the Police Department's next annual Military Equipment Report.
709.7 COORDINATION WITH OTHER JURISDICTIONS
Military equipment should not be used by any other law enforcement agency or member in this jurisdiction unless the military equipment is approved for use in accordance with this policy. 709.8 ANNUAL REPORT
Upon approval of a military equipment policy, the Chief of Police or the authorized designee should submit a military equipment report to the governing body for each type of military equipment approved within one year of approval, and annually thereafter for as long as the military equipment is available for use (Government Code § 7072).

The Chief of Police or the authorized designee should also make each annual military equipment report publicly available on the department website for as long as the military equipment is available for use. The report shall include all information required by Government Code § 7072 for the preceding calendar year for each type of military equipment in department inventory. 709.9 COMMUNITY ENGAGEMENT
Within 30 days of submitting and publicly releasing the annual report, the department shall hold at least one well-publicized and conveniently located community engagement meeting, at which the department should discuss the report and respond to public questions regarding the funding, acquisition, or use of military equipment.
26 E.

File Attachments for Item:

F. Introduce an Ordinance, Waiving First Reading, Repealing Chapter 8.19 of the Brisbane Municipal Code and Adopting a New Chapter 8.19 Regulating the Use of Disposable Food Service Ware by Food Facilities to Align with State Law 27 F.

Disposable Foodware Ordinance Amendment Page 1 of 3

CITY COUNCIL AGENDA REPORT
Meeting Date: March 3, 2022
From: Adrienne Etherton, Sustainability Manager
Subject: Disposable Foodware Ordinance Amendment
Community Goal/Result
Ecological Sustainability - Brisbane will be a leader in setting policies and practicing service delivery innovations that promote ecological sustainability Purpose
Align the City’s Disposable Foodware Ordinance with the County of San Mateo’s in response to new state laws.

Recommendation
Introduce an Ordinance, waiving first reading, repealing Chapter 8.19 of the Brisbane Municipal Code and adopting a new chapter 8.19 regulating the use of disposable food service ware by food facilities to align with state law.

Background
In April 2021, the City Council passed Ordinance 660 to extend regulations passed by the County of San Mateo on the use of disposable foodware within the City of Brisbane. The effective date of that regulation was March 25, 2022.

In 2018, California adopted Assembly Bill (AB) 1884 requiring that full-service restaurants only provide single-use plastic straws upon consumer request only. The State expanded on this law by passing AB 1276 on October 5, 2021. Under AB 1276, food facilities must go beyond just plastic straws and require consumers to request additional foodware accessories such as utensils, stirrers, splash sticks, and condiment packets. The State also directed local governments to authorize an enforcement agency to enforce these statutes by June 1, 2022.

The law, however, does not provide a specific implementation date. Furthermore, AB 1276 allows local governments to adopt more restrictive requirements at their discretion.

On October 5, 2021, Governor Newsom signed into law AB 1200, which prohibits the sale or distribution of single-use foodware comprised of paper or other plant-based natural fiber that contains intentionally added PFAS (per-and polyfluoroalkyl substances). This law goes into effect on January 1, 2023. The new legislation does not direct a specific entity to be the enforcement agency.

The County of San Mateo adopted an ordinance on February 8, 2022 to update their ordinance in alignment with these new state laws, and the City must now follow suit so the County may continue to enforce these regulations within our jurisdiction. 1 28
F.

Disposable Foodware Ordinance Amendment Page 2 of 3
Discussion
The City and County’s prior Ordinances include provisions that are well aligned with many of the requirements in AB 1276 and AB 1200, however, some discrepancies exist.

To align with the new state requirements of AB 1276, the following changes are recommended:

Current Ordinance
Requirement
New AB 1276 Requirement Change to Local Ordinance
All food facilities may offer
single-use foodware
accessories to consumers.

Food facilities can offer
single-use foodware
accessories only at drivethroughs and public airports.

Amended so that only food
facility drive-throughs and
food facilities at public
airports can offer accessories
to consumers.

Food facilities may distribute
foodware accessories using
dispensers and have them
available at self-serve areas,
including in open
bins/containers for
consumers to grab-and-go.

Open bins/containers are
not allowed for distribution
of accessories. Consumers
must request them from the
employee and/or food
facilities may have them
available at refillable
dispensers that dispense
accessories one at a time.

Amended so that food
facilities cannot have
available accessories in open
bins/containers at self-serve
areas for consumers to graband-go, and explicitly state that dispensers can only
dispense accessories one
item at a time.

Food facilities are not
prohibited from using selfserve, refillable bulk
condiment dispensers (there
is no reference to bulk
condiment dispensers in the
existing Ordinance).

Food facilities are explicitly
allowed to use self-serve,
refillable bulk condiment
dispensers to distribute
condiments.

Amended to explicitly allow
for use of refillable bulk
condiment dispensers.

The PFAS requirements in AB 1200 go into effect on January 1, 2023 and supersede those of the existing Ordinance. Therefore, the recommendation is to sunset the local PFAS requirements on December 31, 2022. The City and County will look to the State to assume responsibility for implementing and enforcing the new requirements starting on January 1, 2023.

The amendment also changes the enforcement start date from March 25, 2022 to October 1, 2022 to align with the County and provide additional time for food facilities to come into compliance with the new state requirements, especially those associated with AB 1276.

The City and County adopted an MOU in 2021 for the County to lead enforcement of the disposable foodware ordinance. County staff has indicated that the existing MOU can continue to be utilized since the intent of the MOU along with the expectations and roles of the City and County have not changed.
2 29
F.

Disposable Foodware Ordinance Amendment Page 3 of 3
Fiscal Impact
There is no net City cost associated with this Ordinance amendment.

Measure of Success
A local disposable foodware ordinance aligned with state and county regulations.

Attachments

1. Proposed Ordinance
___________________________________
Adrienne Etherton, Sustainability Manager
___________________________________ ___________________________________ Randy Breault, Public Works Director Clay Holstine, City Manager 3 30
F.

Ordinance No. xxx 1
ORDINANCE NO. XXX

AN ORDINANCE OF THE CITY OF BRISBANE
REPEALING CHAPTER 8.19 OF THE BRISBANE MUNICIPAL CODE
AND ADOPTING A NEW CHAPTER 8.19 REGULATING THE USE OF

DISPOSABLE FOOD SERVICE WARE BY FOOD FACILITIES

TO ALIGN WITH NEW STATE LAWS
The City Council of the City of Brisbane hereby ordains as follows:

SECTION 1. Findings.

The City Council finds and determines that:

A. This Council adopted Ordinance No. 590 prohibiting the use of polystyrene based disposable food service ware by food vendors in November 2014.

B. This Council repealed and replaced City Ordinance No. 590 with Ordinance No. 660, also known as the “Disposable Food Service Ware Ordinance,” hereafter referred to as the “Ordinance,” on April 15, 2021. The Ordinance focuses on reducing single-use plastic and other food service ware waste, improving the health and safety of Brisbane community members, and helping the city keep its waterways clean and safe.

C. The Ordinance went into effect in May 2021, with the mandatory provisions scheduled to become operative and subject to enforcement on March 25, 2022.

D. On October 5, 2021, AB 1276 was signed into law by Governor Gavin Newsom. AB 1276 restricts the distribution of single-use foodware accessories (e.g., utensils, straws, stirrers, condiment packets, etc.) by restaurants and other food facilities.

E. On October 5, 2021, AB 1200 was also signed into law by the Governor. AB 1200 mandates that no person shall distribute, sell, or offer for sale in the state any food packaging (including single-use foodware) that contains regulated perfluoroalkyl and polyfluoroalkyl substances (PFAS).

F. The Ordinance includes requirements that are well aligned with many of the requirements on foodware in AB 1276 and AB 1200. However, some discrepancies exist. As such, the Ordinance must be amended to ensure alignment with requirements in both State bills.

G. This Council does, accordingly, find and declare that it should repeal and replace in its entirety Chapter 8.19 of the Brisbane Municipal Code to ensure the City’s requirements around single-use foodware accessories distribution and PFAS regulation in single-use foodware align with the State of California’s requirements. 4 Attachment 1
31 F.

Ordinance No. xxx 2
SECTION 2. Chapter 8.19 of the Brisbane Municipal Code is hereby repealed and replaced in its entirety by a new Chapter 8.19 to be numbered and entitled and to read as follows:

CHAPTER 8.19 REGULATING THE USE OF DISPOSABLE FOOD SERVICE WARE §8.19.010 – Application of Chapter.

This section intentionally left blank.
§8.19.020 – Definitions.

For purposes of this Chapter, the following terms have the following meanings:

A. “Aluminum Foil-based” means any Disposable Food Service Ware composed entirely of aluminum, including but not limited to aluminum tray liners, aluminum foil, and aluminum foil baskets.

B. “Compostable” means that an item or material:

1. Meets standards for compostability from a certified/approved independent third-party approved by the County Manager or designee, in collaboration with local waste processors, haulers, and/or other entities, as needed; and/or

2. Is any variation of acceptable materials that will break down or otherwise become part of usable compost in a safe and timely manner as determined by the County Manager or designee, in collaboration with local waste processors, haulers, and/or other entities, as needed; and

3. Is Natural Fiber-based. Compostable items may include those that are made entirely of Natural Fiber or Natural Fiber-based items that are coated or lined with biologically based polymer, such as, but not limited to corn or other plant sources (e.g., compostable plastics), if certified/approved by independent third parties approved by the County Manager or designee.
“Compostable” does not include items made entirely/primarily of biologically based polymer (e.g., PLA, PHA, or other compostable plastic), even if labeled or certified as compostable.

C. “Disposable” means designed to be discarded after a single or limited number of uses and not designed or manufactured for longer-term multiple reuse.

D. “Food Service Ware” means food contact products used for serving, distributing, holding, packaging, and/or transporting Prepared Food including, but not limited to plates, cups, bowls, trays, clamshell containers, boxes, utensils, straws, lids, and food contact paper (e.g., wraps, bags, tray liners, etc.). The term "Food Service Ware" includes Food Service Ware Accessories and Standard Condiment in Disposable packaging.

E. “Food Service Ware Accessories” include different types of Food Service Ware such as straws, stirrers, Utensils, condiment cups and packets, cocktail sticks/picks, toothpicks, napkins, cup spill plugs, cup sleeves, and other similar accessory or accompanying Food 5 32
F.

Ordinance No. xxx 3
Service Ware used as part of food or beverage service or packaging. Detachable lids for beverage cups and food containers are not considered a Food Service Ware Accessory.

F. “Perfluoroalkyl and Polyfluoroalkyl substances (PFAS)" means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

G. "Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) Restrictions” mean either of the following:

1. PFAS has not been intentionally added to a product or product component.

2. The presence of PFAS in a product or product component is below 100 parts per million, as measured in total organic fluorine.

H. “Food Facility” means an operation that stores, prepares, packages, serves, vends, or otherwise provides food to the public for human consumption, as defined by the California Health and Safety Code Section 113789 or successor. It includes both permanent and temporary food facilities. Public schools are exempt from the provisions of this Chapter.

I. “Food Scrap Composting Method” means (1) self-hauling of food scraps to a permitted composting facility or a transfer station that accepts food scraps that will be transferred to a permitted composting facility for on-site compost processing, (2) food scrap compost collection service provided by a curbside hauler, or (3) on-site food scrap composting.

J. “Healthcare Facilities” mean places that provide healthcare to the public. Healthcare Facilities includes, but is not limited to hospitals, clinics, outpatient care centers, nursing homes, psychiatric care centers, medical offices, hospice homes, mental health and addiction treatment centers, orthopedic and other rehabilitation centers, urgent care, birth centers, etc.

K. “Natural Fiber/Natural Fiber-based” means a plant or animal-based, non-synthetic fiber, including but not limited to products made from paper, sugarcane, bamboo, wheat stems/stalk, hay, wood, etc.

L. “Non-Compostable” means not meeting the definition of Compostable set forth in this Chapter.

M. “Polystyrene-based” means and includes expanded polystyrene, which is a thermoplastic petrochemical material utilizing a styrene monomer and processed by any number of techniques including, but not limited to fusion of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion-blow molding (extruded foam polystyrene). The term “polystyrene” also includes polystyrene that has been expanded or blown using a gaseous blowing agent into a solid foam (expanded polystyrene [EPS]) and clear or solid polystyrene known as oriented polystyrene.

N. “Prepackaged Food” means any properly labeled processed food, prepackaged to prevent any direct human contact with the food product upon distribution from the manufacturer and prepared at an approved source.

O. “Prepared Food” means food or beverages that undergo a cooking or food preparation technique on the Food Facility’s premises for consumption by the public. Cooking or food preparation technique includes, but is not limited to the following:
6 33
F.

Ordinance No. xxx 4

1. Cooking methods, utilizing the application of heat, such as steaming, microwaving, simmering, boiling, broiling, grilling, frying, or roasting.

2. Beverage preparation, such as blending, brewing, steeping, juicing, diluting, or pouring.

3. Food preparation techniques, such as defrosting, rinsing, washing, diluting, cutting, portioning, mixing, blending, assembling, coating, dipping, garnishing, decorating, or icing.

4. Prepared Food does not include raw eggs or raw, butchered meats, fish, and/or poultry sold from a butcher case, a refrigerator case, or similar retail appliance.

P. “Standard Condiment” means relishes, spices, sauces, confections, or seasonings that require no additional preparation and that are usually used on a food item after preparation, and includes different types such as ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper, and sugar/sugar substitutes.

Q. “Takeout Food” means Prepared Food that is purchased to be consumed off a Food Facility’s premises. Takeout Food includes Prepared Food delivered by a Food Facility or by a thirdparty Takeout Food Delivery Service.

R. “Takeout Food Delivery Service” is a service for online food ordering and delivery of Prepared Food from a Food Facility to a customer. This service can be provided directly by the Food Facility or by a third-party.

S. “Utensils” include different types of instruments used to assist the consumption of food, specifically, forks, knives, spoons, sporks, chopsticks, and tongs. §8.19.030 – Distribution of Disposable Food Service Ware Accessories and Standard Condiment.

A. Except as provided in Subsections B and C, Food Facilities, for on-premise dining and offpremise dining (e.g., Takeout Food Delivery Service, catering off-site, etc.), shall not provide any Disposable Food Service Ware Accessories or Standard Condiment in Disposable packaging to a consumer unless the specific type of Disposable Food Service Ware Accessory (including different types of Utensils) or specific type of Standard Condiment is requested by the consumer.

B. Food Facilities may ask a drive-through consumer if the consumer wants a specific type of Disposable Food Service Ware Accessory (including different types of Utensils), if the item is necessary for the consumer to consume Prepared Food or to prevent spills of or safely transport Prepared Food.

C. Food Facilities that are located entirely within a public use airport, as defined in Section 77.3 of Title 14 of the Code of Federal Regulations, may ask a walk-through consumer if the consumer wants a specific type of Disposable Food Service Ware Accessory (including different types of Utensils), if the item is necessary for the consumer to consume Prepared Food or to prevent spills of or safely transport Prepared Food.

D. Disposable Food Service Ware Accessories and Standard Condiment in Disposable packaging provided by Food Facilities for use by consumers shall not be bundled or packaged in a manner that prohibits a consumer from taking only the type of Disposable 7 34
F.

Ordinance No. xxx 5
Food Service Ware Accessory (including different types of Utensils) or type of Standard Condiment desired without also having to take a different type of Disposable Food Service Ware Accessory or type of Standard Condiment. Food Facilities cannot distribute Disposable Utensils that are bundled or packaged together. Each type of Utensil (e.g., fork, spoon, knife, etc.) must be specifically requested by the consumer in order for a Food Facility to provide the item(s).

E. Nothing in this Chapter shall prohibit a Food Facility from making unwrapped Disposable Food Service Ware Accessories available to a consumer using refillable self-service dispensers that dispense different types of Disposable Food Service Ware Accessories one item at a time to allow for Disposable Food Service Ware Accessories to be obtained.

F. Nothing in this Chapter shall prohibit a Food Facility from making Standard Condiment available to a consumer using refillable self-service dispensers to allow for Standard Condiment to be obtained. Food Facilities that offer Standard Condiment are encouraged to use bulk dispensers for the condiments rather than condiments packaged for single-use.

G. Takeout Food Delivery Services shall provide consumers with the option to proactively request the different types of available Disposable Food Service Ware Accessories (including different types of Utensils) and the different types of Standard Condiment from a Food Facility serving Prepared Food. The default option on the digital ordering/point-of-sale platforms of Takeout Food Delivery Services shall be that no Disposable Food Service Ware Accessories or Standard Condiment are requested.

H. Takeout Food Delivery Services shall provide Food Facilities the ability to tailor the digital ordering/point-of-sale platforms so that Food Facilities can customize and itemize the different types of available Disposable Food Service Ware Accessories (including different types of Utensils) and the different types of available Standard Condiments for consumers to proactively select.

I. If a Food Facility uses any Takeout Food Delivery Service, the Food Facility shall customize its menu with an itemized list and/or provide options of the different types of available Disposable Food Service Ware Accessories (including different types of Utensils) and the different types of available Standard Condiments for consumers to proactively select. Only those specific types of Disposable Food Service Ware Accessories (including different types of Utensils) or specific types of Standard Condiment proactively requested by the consumer shall be provided by the Food Facility. If a consumer does not request any Disposable Food Service Ware Accessories or Standard Condiment, no Disposable Food Service Ware Accessories or Standard Condiment shall be provided by the Food Facility for delivery of Prepared Food. Pursuant to Subsection D, each type of Utensil (e.g., fork, spoon, knife, etc.) offered by the Food Facility shall also be listed individually, unbundled on the menu and provided by the Food Facility for delivery along with the Prepared Food only if requested by the consumer.
§8.19.040 – Standards and Required Use of Disposable Food Service Ware.

A. No Food Facility shall use Polystyrene-based Disposable Food Service Ware when providing Prepared Food.
8 35
F.

Ordinance No. xxx 6
B. Food Facilities shall only provide Disposable straws, stirrers, utensils, and cocktail/toothpicks (and the packaging that these individual items are wrapped in, if any) that are Compostable.

C. Nothing in this Chapter shall conflict or be construed to conflict with the Americans with Disabilities Act or any other applicable law concerning the rights of individuals with disabilities. In particular, nothing in this Chapter shall restrict, or be construed to restrict, the provision by Food Facilities of Disposable Non-Compostable straws to individuals who may request the use of Disposable Non-Compostable straws to accommodate medical needs or disabilities. Healthcare Facilities may distribute Disposable Non-Compostable straws with or without request by a patient at the discretion of the Healthcare Facility staff based on the physical or medical needs of the patient.

D. Food Facilities shall use Compostable items for the below Disposable Food Service Ware when providing Prepared Food:

1. Plates

2. Bowls (of all sizes including, but not limited to soup and salad bowls)

3. Cups (of all sizes including, but not limited to beverage and accessory cups for Standard Condiments)

4. Food trays and food boats

5. Boxes

6. Hinged or lidded containers (e.g., clamshells), deli containers, and other containers used for the sale and/or distribution of Prepared Food
E. Commencing on the effective date of this Chapter up until December 31, 2022, for the Compostable Disposable Food Service Ware listed in Subsection D, Food Facilities shall use items that meet Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS) Restrictions. To verify the PFAS Restrictions, Food Facilities shall use items that are certified/approved by independent third parties approved by the County Manager or designee, in collaboration with local waste processors and haulers, as needed.

F. For all other Disposable Food Service Ware not listed in Subsections B and D, Food Facilities shall use only Disposable Food Service Ware that can be composted by the Food Scrap Composting method utilized by the Food Facility and/or accepted for recycling by the Food Facility’s recycling collection service, unless a feasible alternative does not exist.

G. The County shall maintain a list of approved Disposable Food Service Ware and/or references to resources that maintain regularly updated lists of products that meet the requirements detailed in Subsections A, B, D, and E of this Section. This information shall be made public by the Office of Sustainability. If a product is not included on the approved list, the Food Facility wishing to use a product as Disposable Food Service Ware shall establish to the County Manager or designee’s satisfaction that the product complies with the requirements detailed in Subsections A, B, D and E.
§8.19.050 – Recordkeeping and Inspection.
9 36
F.

Ordinance No. xxx 7
A. Food Facilities shall keep complete and accurate record or documents of the purchase of the acceptable Disposable Food Service Ware evidencing compliance with this Chapter for a minimum period of three years from the date of purchase.

B. The record shall be made available for inspection at no cost to the County during regular business hours by County employee or County-designated staff authorized to enforce this Chapter. Unless an alternative location or method of review is mutually agreed upon, the records or documents shall be made available at the Food Facility address.

C. The provision of false or incomplete information, records, or documents to the County shall be a violation of this Chapter.
§8.19.060 – Automatic Exemptions.

A. Prepackaged Food is exempt from the provisions of this Chapter.

B. Polystyrene coolers and ice chests intended for reuse are exempt from the provisions of this Chapter.

C. Disposable Food Service Ware that is entirely Aluminum Foil-based or recyclable glass is exempt from the provisions of this Chapter.

D. If the County determines that a reasonably feasible Disposable Food Service Ware that complies with Section 8.19.040 A, B, D and E of this Chapter does not exist, these items will be exempt from all or select requirements of the abovementioned provisions of this Chapter until the County determines that a reasonably feasible alternative is available on the market for purchase. The County will have a current list of these temporarily exempted Disposable Food Service Ware made public by the Office of Sustainability.

E. Temporary exemptions due to an emergency are automatic without the submission of a request for an exemption. An emergency is defined as a sudden, unexpected occurrence posing a clear and imminent danger that requires immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. Examples of an emergency include, but are not limited to natural disasters, emergencies due to the release of hazardous materials, emergencies associated with loss of power and/or water, or emergency medical response.
§8.19.070 – Case-by-Case Consideration of Requests for Hardship Exemption.

A. Grounds for an exemption.

An exemption from any of the provisions of this Chapter may be granted by the County Manager or designee upon demonstration by a Food Facility to the satisfaction of the County that strict application of the requirements would cause undue hardship. An “undue hardship” includes, but is not limited to the following:

1. A situation unique to the Food Facility where a suitable alternative that conforms with the requirements detailed in Section 8.19.040 A, B, D, and E does not exist for a specific application.
10 37
F.

Ordinance No. xxx 8

2. Imposing the provisions of this Chapter would cause significant economic hardship. “Significant economic hardship” may be based on, but not limited to, demonstrating that suitable Disposable Food Service Ware is not available at a commercially reasonable price and the additional cost associated with providing the Disposable Food Service Ware is particularly burdensome to the Food Facility based on the type of operation(s) affected, the overall size of the business/operation, the number, type and location of its facilities, the impact on the overall financial resources of the Food Facility, and other factors.

Reasonable added cost for a suitable item as compared to a similar item that the Food Facility can no longer use shall not by itself constitute adequate grounds to support an exemption for such item. In determining whether a significant economic hardship has been established, the County Manager or designee may consider the following information: ability of the Food Facility to recover the additional expense by increasing its prices; the availability of tax credits and deductions; outside funding; and other options.

B. Request for an exemption. A request for an exemption from the requirements of this Chapter shall include all information deemed necessary by the County to render a decision, including but not limited to documentation showing the factual support for the requested exemption. A request for an exemption may be approved by the County Manager or designee, in whole or in part, with or without conditions. The duration of the exemption, if granted, shall also be determined by the County Manager or designee. Information about the application process for requesting an exemption will be made available to the public by the Office of Sustainability.
§8.19.080 – Enforcement.

A. The San Mateo County Manager or designee is hereby authorized to enforce, on behalf of the City of Brisbane, this Chapter and any amendments thereto, within the jurisdictional boundaries of the City of Brisbane as set forth in Section 4.107.090 of the County of San Mateo Ordinance Code. Such enforcement authority includes, but is not limited to, the authority to hold hearings, issue citations, and assess administrative fines for violations of this Chapter within the geographical limits of the City of Brisbane.

B. A violation of this Chapter is an infraction and is also punishable by administrative fines as set forth in San Mateo County Code of Ordinances Chapter 1.40.

C. Compliance plan.

1. If requested by the County Manager or designee, a Food Facility that is in violation of any of the provisions detailed in this Chapter shall create and submit to the County Manager or designee a compliance plan, which will include information on corrective action(s) that the Food Facility shall undertake to come into compliance. Other requested information may include, and are not limited to, proposed timeline for corrective action(s) and identification of individuals responsible for ensuring compliance.

2. The Food Facility shall create and submit its completed compliance plan within fourteen calendar days (14) from the time of request by the County Manager or designee. 11 38
F.

Ordinance No. xxx 9
D. Violation of this Chapter is a public nuisance subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this ordinance code and state law including, but not limited to, an action for abatement or injunctive relief.

E. This Section shall not be interpreted to limit any otherwise available civil or administrative remedies under law.

SECTION 3. This Ordinance is exempt from the environmental review requirements of CEQA pursuant to Section 15061 (b)(3) of Title 14 of the California Code of Regulations because it can be seen with certainty that there is no possibility that the provisions contained herein may have a significant effect on the environment. Further, the Ordinance is also exempt from the requirements of CEQA pursuant to CEQA Guidelines Sections 15307 and 15308 of Title 14 of the California Code of Regulations as actions taken by regulatory agencies to assure the maintenance, restoration, enhancement of natural resources, or protection of the environment.

SECTION 4. If any provision, section, subsection, sentence, clause, phrase, or word of this Chapter 8.19, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the Chapter. The City Council hereby declares that it would have passed this Chapter, and each provision, section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any portion of this Chapter or application thereof would be subsequently declared invalid or unconstitutional.

SECTION 5. This Ordinance shall be effective thirty (30) days after adoption. However, the mandatory provisions of this Ordinance shall only become operative and subject to enforcement on October 1, 2022.
_____________________________
Coleen Mackin, Mayor
* * * *
The above and foregoing Ordinance was regularly introduced and after the waiting time required by law, was thereafter passed and adopted at a regular meeting of the City Council of the City of Brisbane held on the ________ day of ____________________, 2022, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST:
12 39
F.

Ordinance No. xxx 10
_____________________________
Ingrid Padilla, City Clerk
APPROVED AS TO FORM:
_____________________________
Thomas C. McMorrow, City Attorney
13 40
F.

File Attachments for Item:

G. Adopt Resolutions to Update Hourly Pay Scale and Amend the Master Pay Schedule (The purpose of this item is to meet the new state minimum wage effective January 1, 2022) 41 G.

Adopt Resolutions to Update the Hourly Pay Scale and Amend the Master Pay Schedule Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: March 3, 2022
From: Abby Partin, Human Resources Administrator
Subject: Adopt Resolutions to Update Hourly Pay Scale and Amend the Master Pay Schedule.

Community Goal/Result
Fiscally Prudent
Purpose
To meet the new state minimum wage effective January 1, 2022 and to ensure the community continues to receive excellent service by retaining and attracting exceptional employees in a financially prudent manner.

Recommendation
We recommend the City Council adopt the resolutionsto update the Hourly Pay Scale and amend the Master Pay Schedule.

Background and Discussion
On April 4, 2016, the California Legislature approved legislation amending the minimum wage phase-in requirements. This requires the minimum wage to be $15.00 per hour effective January 1, 2022. This change affects four classifications: Cashier, Crossing Guard, Recreational Leader Aide and Special Assistant, which includes starting rates currently below the $15.00 per hour rate. Details regarding these classifications are as follows:
• The Cashier is a classification generally used for temporary or limited duration assignments for the Parks and Recreation Department, to assist in the swim center programs and provide customer service to the public.
• The Crossing Guard is a classification for the Police Department, to ensure safety of elementary age students and involves face-to-face contact with children and parents. • The Recreation Leader Aide is the entry-level position for the Parks and Recreation department, typically filled by high school students to assist with after school programs, summer camps and various city events.

Staff recommends that the current starting salary for all three classifications (Step A) move from $13.78 to $15.00 per hour. In addition, our pay structure typically requires a 5% difference between steps. Because of this, staff is recommending to also adjust the second through fifth salary steps (Steps B through E) as appropriate to keep the 5% differential between steps. • The Special Assistant is a classification generally used for temporary, limited duration assignments and/or special projects. The current starting salary is proposed to move 42 G.

Adopt Resolutions to Update the Hourly Pay Scale and Amend the Master Pay Schedule Page 2 of 2 from $12.00 to $15.00 per hour. As the Special Assistant is a salary range instead of steps, there is no further adjustment necessary.
• The Habitat Restoration Aide is a former grant funded classification which staff does not foresee hiring in the future as we currently still have the Habitat Restoration Lead Worker classification. Staff recommends deleting the position from the Hourly Pay Scale.

Fiscal Impact
In the past year, employees classified as Recreational Leader Aide worked a total of 912.25 hours.

Increasing the rate from $13.78 an hour to $15.00 an hour means, the City will pay an additional $1,200 a year including taxes. The Crossing Guard works 534 hours per year, with a salary change from $15.27 (Step C) to $16.54 (Step C), the incumbent will receive approximately $750 more per year. Affected employees will receive retroactive pay to comply with the State’s minimum wage requirements, with a grand total of $1,232.95. The costs are included in the adopted budget for fiscal year 2021-22.

Measure of Success
The City is able to maintain a stable and high quality workforce.

Attachments
Resolution 2022-__
Resolution 2022-__
_________________________ ________________________
Abby Partin, Human Resources Clay Holstine, City Manager Administrator
43 G.

RESOLUTION NO 2022- ___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

REGARDING THE PAY SCALE FOR THE EMPLOYEES
WHEREAS, the City Manager has recommended the following adjustment to the pay plan for hourly employees:
1) Effective the first full pay after March 1, 2022, the classifications of Cashier, Crossing Guard, Recreation Leader Aide, and Special Assistant will have the following pay scale to meet the January 2022 minimum wage increase:

Job Title Step A Step B Step C Step D Step E
Cashier Hourly $15.00 $15.75 $16.54 $17.36 $18.23
Crossing Guard Hourly $15.00 $15.75 $16.54 $17.36 $18.23 Recreation Leader Aide Hourly $15.00 $15.75 $16.54 $17.36 $18.23 Special Assistant Hourly Minimum $15.00 Maximum $75.00
2) The terms of this resolution shall be subject to review and modification if the State of California or the Federal government through executive or legislative action substantially affects the ability of the City to provide funding for the City Council adopted services. The review and modification may also exercised in the event there is a recession (as declared by the National Bureau of Economic Research);
WHEREAS, the City Council of the City of Brisbane desires to approve and adopt a new pay plan for such employees effective with the first full pay period after March 1, 2022; NOW, THEREFORE, the City Council of the City of Brisbane resolves as follows:

The pay plan for hourly employment be adopted as set forth in Exhibit “A” and is incorporated by reference as though fully set forth herein.

Section 1. Resolution Number 2000-04 is
_____________________
Coleen Mackin, Mayor
I hereby certify that the foregoing Resolution No. 2022-__ was duly and regularly adopted at a regular meeting of the Brisbane City Council on March 3, 2022, by the following vote:

Ayes:

Noes:

Absent: None
Abstain: Non
_____________________
Ingrid Padilla, City Clerk
44 G.

RESOLUTION NO 2022- ___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

AMENDING THE MASTER PAY SCHEDULE FOR ALL EMPLOYEES
WHEREAS, the City of Brisbane contracts with the California Public Employees’ Retirement System (CalPERS) to provide retirement benefits for its employees; and WHEREAS, pursuant to California Code of Regulations, Title 2, Section 570.5, CalPERS requires governing bodies of local agencies contracting with CalPERS to approve and adopt a publicly available pay schedule in accordance with public meeting laws; and
WHEREAS, the pay schedule must identify the position title for every employee position, the pay rate for each position title, and applicable time base for the pay rate; and
WHEREAS, the City Council of the City of Brisbane desires to approve and adopt a publicly available Master Pay Schedule, showing all established employee positions and pay rates, in accordance with the requirement of California Code of Regulations, Title 2 Section 570.5.

NOW, THEREFORE, the City Council of the City of Brisbane resolves as follows:

The Master Pay Schedule is approved as set forth in Exhibit “B” and is incorporated by reference as though fully set forth herein.

Ayes:

Noes:

Absent: None
Abstain: Non
_____________________
Ingrid Padilla, City Clerk
45 G.

Effective Date: 03/03/2022 CITY OF BRISBANE EXHIBIT A
Minimum Wage Increase Hourly Employees
Job Title Step A Step B Step C Step D Step E
Cashier Hourly 15.00 15.75 16.54 17.36 18.23
Crossing Guard Hourly 15.00 15.75 16.54 17.36 18.23
Facility Attendant Hourly 17.67 18.55 19.48 20.46 21.48 Habitat Restoration Lead Worker Hourly 15.00
Head Lifeguard Hourly 21.19 22.25 23.36 24.54 25.76
History Project Assistant Hourly 35.86 37.66 39.54 41.51 43.59 Intern Hourly Minimum 15.00 Maximum 20.00
Lifeguard Hourly 16.08 16.88 17.72 18.61 19.53
Management Analyst (PT) Hourly 39.65 41.65 43.72 45.90 48.20 Marina Maintenance Worker I (PT) Hourly 30.65 32.18 33.79 35.50 37.27 Marina Maintenance Worker II (PT) Hourly 33.70 35.42 37.15 39.00 40.98 Office Assistant Hourly 27.55 28.88 30.33 31.84 33.45
Office Specialist Hourly 32.30 33.90 35.61 37.38 39.25
Parks/Facilities Maintenance Worker I (PT) Hourly 30.65 32.18 33.79 35.50 37.27 Pre-School Teacher Hourly 17.77 18.68 19.61 20.60 21.63 Police Trainee Hourly 33.78
Public Service Aide Hourly 15.82 16.62 17.43 18.30 19.23 Public Works Maintenance Worker I (PT) Hourly 30.65 32.18 33.79 35.50 37.27 Receptionist Hourly 27.51 28.88 30.33 31.84 33.45
Recreation Leader Hourly 17.75 18.63 19.57 20.54 21.57
Recreation Leader Aide Hourly 15.00 15.75 16.54 17.36 18.23 Reserve Police Officer Hourly 32.61 34.24 35.95 37.74 39.64 Senior Recreation Leader Hourly 22.78 23.91 25.11 26.36 27.69 Special Assistant Hourly Minimum 15.00 Maximum 75.00
Swim Instructor Hourly 17.54 18.41 19.34 20.31 21.33
Teen Coordinator Hourly 18.51 19.43 20.41 21.43 22.49
Van Driver Hourly 17.54 18.41 19.34 20.31 21.33
46 G.

Appendix A
Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Accounting Assistant I 25.46$ 26.74$ 28.08$ 29.48$ 30.96$ 7/5/2021 General Employees Non-Exempt Accounting Assistant II 28.03$ 29.44$ 30.91$ 32.45$ 34.07$ 7/5/2021 General Employees Non-Exempt Accounting Systems Analyst 38.49$ 40.52$ 42.55$ 44.67$ 46.91$ 12/9/2021 General Employees Non-Exempt Administrative Assistant 33.68$ 35.37$ 37.13$ 38.99$ 40.94$ 7/5/2021 General Employees Non-Exempt Administrative Management Analyst 42.87$ 45.00$ 47.27$ 49.62$ 52.11$ 7/5/2021 Confidential Employee Exempt Administrative Services Director 86.56$ 90.88$ 95.43$ $ 100.19 $ 105.22 7/5/2021 Confidential Management Exempt Assistant Engineer I 39.22$ 41.19$ 43.24$ 45.41$ 47.67$ 7/5/2021 General Employees Non-Exempt Assistant Engineer II 43.14$ 45.29$ 47.56$ 49.94$ 52.44$ 7/5/2021 General Employees Non-Exempt Assistant City Manager 99.54$ $ 104.51 $ 109.75 $ 115.22 $ 121.00 7/5/2021 Confidential Management Exempt Assistant to the City Manager 66.33$ 69.64$ 73.13$ 76.78$ 80.63$ 7/5/2021 Executive Management Exempt Associate Civil Engineer 51.37$ 53.93$ 56.63$ 59.46$ 62.44$ 7/5/2021 Mid-Management/Professional Exempt Associate Planner 45.38$ 47.66$ 50.05$ 52.55$ 55.18$ 7/5/2021 General Employees Non-Exempt Cashier 14.00$ 14.70$ 14.90$ 16.21$ 17.02$ 3/3/2022 Unrepresented Non-Exempt C/CAG Stormwater Program Director 67.86$ 15.44$ 74.82$ 78.56$ 82.49$ 7/5/2021 Mid-Management/Professional Exempt City Clerk 53.67$ 56.36$ 59.17$ 62.14$ 65.24$ 7/5/2021 Executive Management Exempt City Manager -$ -$ -$ -$ -$ 126.66$ 7/5/2021 Unrepresented Exempt Code Enforcement Officer 36.60$ 38.43$ 40.35$ 42.36$ 44.49$ 7/5/2021 General Employees Non-Exempt Communications Digital and Media Coordinator 34.37$ 36.08$ 37.89$ 39.78$ 41.77$ 7/15/2021 General Employees Non-Exempt Communications Manager 50.14$ 52.78$ 55.55$ 58.48$ 61.55$ 7/5/2021 Mid-Management/Professional Exempt Community Development Director 83.70$ 87.89$ 92.29$ 96.91$ $ 101.76 7/5/2021 Executive Management Exempt Community Development Technician 34.37$ 36.08$ 37.89$ 39.78$ 41.77$ 7/5/2021 General Employees Non-Exempt Community Services Officer 29.96$ 31.90$ 33.49$ 35.17$ 36.92$ 7/5/2021 General Employees Non-Exempt Council Member -$ -$ -$ -$ -$ $ 400.00 7/5/2021 Elected Position Crossing Guard 14.00$ 14.70$ 14.90$ 16.21$ 17.02$ 3/3/2022 Unrepresented Non-Exempt Deputy City Clerk/Executive Assistant 40.35$ 42.37$ 44.49$ 46.72$ 49.05$ 7/5/2021 Confidential Exempt Deputy Director of Public Works 75.81$ 79.60$ 83.59$ 87.77$ 92.15$ 7/5/2021 Mid-Management/Professional Exempt Deputy Finance Director 67.86$ 71.25$ 74.82$ 78.56$ 82.49$ 7/5/2021 Mid-Management/Professional Exempt Director of Marina/Aquatics Services 55.56$ 58.34$ 61.26$ 64.32$ 67.53$ 7/5/2021 Executive Management Exempt Engineering Technician 37.80$ 39.70$ 41.68$ 43.75$ 45.95$ 7/5/2021 General Employees Non-Exempt Executive Administrative Assistant 34.91$ 36.65$ 38.48$ 40.41$ 42.43$ 7/5/2021 General Employees Non-Exempt Facility Attendant 17.33$ 18.19$ 19.10$ 20.06$ 21.06$ 7/5/2021 Unrepresented Non-Exempt Finance Director 82.84$ 86.98$ 91.33$ 95.91$ $ 100.69 7/5/2021 Confidential Management Exempt Financial Services Manager 58.62$ 61.54$ 64.62$ 67.86$ 71.26$ 7/5/2021 Mid-Management/Professional Exempt Fire Captain 40.93$ 42.97$ 45.13$ 47.38$ 49.75$ 7/5/2021 IAFF Local 2400 Non-Exempt Fire Prevention Officer 50.45$ 52.99$ 55.63$ 58.41$ 61.33$ 7/5/2021 IAFF Local 2400 Non-Exempt Fire Trainee -$ -$ -$ -$ -$ 23.85$ 7/5/2021 IAFF Local 2400 Non-Exempt Firefighter 34.25$ 35.96$ 37.76$ 39.64$ 41.62$ 7/5/2021 IAFF Local 2400 Non-Exempt Firefighter/Paramedic 34.25$ 35.96$ 37.76$ 39.64$ 41.62$ 7/5/2021 IAFF Local 2400 Non-Exempt Geographic Information System Manager 50.14$ 52.78$ 55.55$ 58.48$ 61.55$ 12/9/2021 Mid-Management/Professional Exempt City of Brisbane Master Pay Schedule
Approved per Resolution No. 2022-__
Exhibit B
47 G.

Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Habitat Restoration Aide -$ -$ -$ -$ -$ 12.00$ 7/5/2021 Unrepresented Non-Exempt Habitat Restoration Lead Worker -$ -$ -$ -$ -$ 15.00$ 7/5/2021 Unrepresented Non-Exempt Harbormaster 47.27$ 49.62$ 52.11$ 54.71$ 57.45$ 7/5/2021 Mid-Management/Professional Exempt Head Lifeguard 20.77$ 21.82$ 22.90$ 24.06$ 25.25$ 7/5/2021 Unrepresented Non-Exempt History Project Asst 35.16$ 36.92$ 38.76$ 40.70$ 42.74$ 7/5/2021 Unrepresented Non-Exempt Human Resources Administrator 69.24$ 72.71$ 76.34$ 80.16$ 84.17$ 7/5/2021 Confidential Exempt Human Resources Technician 34.37$ 36.08$ 37.89$ 39.78$ 41.77$ 7/5/2021 General Employees Non-Exempt Information Technology & Systems Administrator 51.67$ 54.26$ 56.97$ 59.82$ 62.82$ 7/5/2021 Mid-Management/Professional Exempt Intern -$ -$ -$ -$ -$ $15.00 - $20.00 7/5/2021 Unrepresented Non-Exempt Lifeguard 15.76$ 16.55$ 17.38$ 18.25$ 19.15$ 7/5/2021 Unrepresented Non-Exempt Management Analyst (Part-time) 38.87$ 40.83$ 42.86$ 45.00$ 47.25$ 7/5/2021 Unrepresented Non-Exempt Marina Maintenance Worker I 29.47$ 30.94$ 32.49$ 34.11$ 35.82$ 7/5/2021 General Employees Non-Exempt Marina Maintenance Worker II 32.41$ 34.03$ 35.74$ 37.51$ 39.39$ 7/5/2021 General Employees Non-Exempt Marina Maintenance Worker I ( Part-time) 30.05$ 31.55$ 33.13$ 34.80$ 36.54$ 7/5/2021 Unrepresented Non-Exempt Marina Maintenance Worker II ( Part-time) 33.04$ 34.73$ 36.43$ 38.23$ 40.18$ 7/5/2021 Unrepresented Non-Exempt Marina Services Director 51.93$ 54.53$ 57.26$ 60.11$ 63.13$ 7/5/2021 Executive Management Exempt Office Assistant 27.01$ 28.32$ 29.73$ 31.22$ 32.80$ 7/5/2021 General Employees Non-Exempt Office Assistant (Part-Time) 27.50$ 28.87$ 30.31$ 31.85$ 33.44$ 7/5/2021 Unrepresented Non-Exempt Office Specialist 31.66$ 33.24$ 34.91$ 36.65$ 38.48$ 7/5/2021 General Employees Non-Exempt Office Specialist (Part-Time) 32.30$ 33.90$ 35.60$ 37.39$ 39.26$ 7/5/2021 Unrepresented Non-Exempt Park/Beach/Recreation Commissioner -$ -$ -$ -$ -$ $ 100.00 7/5/2021 Appointed Position Parks & Recreation Director 79.82$ 83.82$ 88.00$ 92.39$ 97.02$ 7/5/2021 Executive Management Exempt Parks/Facilities Maintenance Worker I 29.47$ 30.94$ 32.49$ 34.11$ 35.82$ 7/5/2021 General Employees Non-Exempt Parks/Facilities Maintenance Worker I (Part-Time) 30.05$ 31.55$ 33.13$ 34.80$ 36.54$ 7/5/2021 Unrepresented Non-Exempt Parks/Facilities Maintenance Worker II 32.41$ 34.03$ 35.74$ 37.51$ 39.39$ 7/5/2021 General Employees Non-Exempt Payroll/Utility Billing Technician 34.37$ 36.08$ 37.89$ 39.78$ 41.77$ 7/5/2021 General Employees Non-Exempt Planning Commissioner -$ -$ -$ -$ -$ $ 100.00 7/5/2021 Appointed Position Police Chief 97.69$ $ 102.57 $ 107.69 $ 113.09 $ 118.73 7/5/2021 Police Chief Exempt Police Commander 88.06$ 92.47$ 97.10$ $ 101.95 $ 107.05 7/5/2021 Police Commander Exempt Police Officer 45.65$ 47.93$ 50.33$ 52.85$ 55.49$ 7/5/2021 Brisbane Police Officers Association* Non-Exempt Police Officer - 40 hour shift (Detective/SRO) 47.93$ 50.33$ 52.85$ 55.49$ 58.26$ 7/5/2021 Brisbane Police Officers Association* Non-Exempt Police Sergeant 55.00$ 57.75$ 60.64$ 63.67$ 66.85$ 7/5/2021 Brisbane Police Officers Association* Non-Exempt Police Trainee -$ -$ -$ -$ -$ 33.12$ 7/5/2021 Unrepresented Non-Exempt Pre-School Teacher 17.43$ 18.31$ 19.22$ 20.19$ 21.20$ 7/5/2021 Unrepresented Non-Exempt Principal Analyst 59.97$ 62.98$ 66.12$ 69.41$ 72.89$ 7/5/2021 Confidential Exempt Principal Planner 63.87$ 67.06$ 70.42$ 73.94$ 77.64$ 7/5/2021 Mid-Management/Professional Exempt Program Manager - SMCWPPP 63.17$ 66.34$ 69.66$ 73.14$ 76.80$ 7/5/2021 Mid-Management/Professional Exempt Public Service Aide 15.51$ 16.29$ 17.09$ 17.94$ 18.85$ 7/5/2021 Unrepresented Non-Exempt Public Works Director/City Engineer 98.00$ $ 102.90 $ 108.03 $ 113.45 $ 119.12 7/5/2021 Executive Management Exempt Public Works Inspector 48.36$ 50.79$ 53.32$ 55.98$ 58.79$ 7/5/2021 General Employees Non-Exempt Public Works Lead Maintenance Worker 38.90$ 40.84$ 42.87$ 45.03$ 47.27$ 7/5/2021 General Employees Non-Exempt 48 G.

Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Public Works Maintenance Worker I 29.47$ 30.94$ 32.49$ 34.11$ 35.82$ 7/5/2021 General Employees Non-Exempt Public Works Maintenance Worker I (Part-time) 30.05$ 31.55$ 33.13$ 34.80$ 36.54$ 7/5/2021 Unrepresented Non-Exempt Public Works Maintenance Worker II 32.41$ 34.03$ 35.74$ 37.51$ 39.39$ 7/5/2021 General Employees Non-Exempt Public Works Superintendent 62.87$ 66.01$ 69.32$ 72.79$ 76.42$ 7/5/2021 Mid-Management/Professional Exempt Public Works Supervisor 48.05$ 50.46$ 52.98$ 55.63$ 58.41$ 7/5/2021 Mid-Management/Professional Exempt Public Works Team Leader 43.59$ 45.89$ 48.31$ 50.85$ 53.52$ 7/5/2021 Mid-Management/Professional Exempt Receptionist 26.97$ 28.32$ 29.73$ 31.22$ 32.80$ 7/5/2021 General Employees Non-Exempt Receptionist (Part-time) 27.50$ 28.87$ 30.31$ 31.85$ 33.44$ 7/5/2021 Unrepresented Non-Exempt Recreation Leader 17.40$ 18.27$ 19.19$ 20.14$ 21.15$ 7/5/2021 Unrepresented Non-Exempt Recreation Leader Aide 14.00$ 14.70$ 14.90$ 16.21$ 17.02$ 3/3/2022 Unrepresented Non-Exempt Recreation Manager 59.13$ 62.09$ 65.19$ 68.46$ 71.88$ 7/5/2021 Mid-Management/Professional Exempt Recreation Program Coordinator 29.92$ 31.92$ 33.52$ 35.19$ 36.95$ 7/5/2021 General Employees Non-Exempt Recreation Supervisor 43.68$ 45.89$ 48.17$ 50.57$ 53.11$ 7/5/2021 Mid-Management/Professional Exempt Regional Compliance Program Manager 50.14$ 52.78$ 55.55$ 58.48$ 61.55$ 7/5/2021 Mid-Management/Professional Exempt Reserve Police Officer 31.97$ 33.57$ 35.24$ 37.00$ 38.86$ 7/5/2021 Unrepresented Non-Exempt Senior Accounting Assistant 31.75$ 33.35$ 35.01$ 36.77$ 38.59$ 7/5/2021 General Employees Non-Exempt Senior Civil Engineer 63.17$ 66.34$ 69.66$ 73.14$ 76.80$ 7/5/2021 Mid-Management/Professional Exempt Senior Human Resources Analyst 47.90$ 50.29$ 52.81$ 55.44$ 58.21$ 7/5/2021 Confidential Exempt Senior Management Analyst 46.95$ 49.29$ 51.76$ 54.35$ 57.06$ 7/5/2021 Mid-Management/Professional Exempt Senior Planner 54.02$ 56.72$ 59.55$ 62.54$ 65.66$ 7/5/2021 Mid-Management/Professional Exempt Senior Recreation Leader 22.33$ 23.44$ 24.61$ 25.84$ 27.14$ 7/5/2021 Unrepresented Non-Exempt Sustainability Manager 50.14$ 52.78$ 55.55$ 58.48$ 61.55$ 7/5/2021 Mid-Management/Professional Exempt Special Assistant -$ -$ -$ -$ -$ $14.00-$75.00 3/3/2022 Unrepresented Non-Exempt Spe Coun-Maj Dev Pro -$ -$ -$ -$ -$ 175.04$ 7/5/2021 Confidential Management Exempt Swim Instructor 17.19$ 18.05$ 18.96$ 19.91$ 20.91$ 7/5/2021 Unrepresented Non-Exempt Van Driver 16.17$ 16.99$ 17.84$ 18.74$ 19.68$ 7/5/2021 Unrepresented Non-Exempt Water Quality Technician 32.41$ 34.03$ 35.74$ 37.51$ 39.39$ 7/5/2021 General Employees Non-Exempt 49 G.

Appendix A
Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Accounting Assistant I 25.97$ 27.28$ 28.64$ 30.07$ 31.58$ 1/3/2022 General Employees Non-Exempt Accounting Assistant II 28.59$ 30.02$ 31.53$ 33.10$ 34.76$ 1/3/2022 General Employees Non-Exempt Accounting Systems Analyst 39.26$ 41.33$ 43.40$ 45.57$ 47.84$ 1/3/2022 General Employees Non-Exempt Administrative Assistant 34.35$ 36.07$ 37.87$ 39.76$ 41.76$ 1/3/2022 General Employees Non-Exempt Administrative Management Analyst 43.73$ 45.90$ 48.21$ 50.61$ 53.15$ 1/3/2022 Confidential Employee Exempt Administrative Services Director 88.29$ 92.70$ 97.34$ $ 102.20 $ 107.32 1/3/2022 Confidential Management Exempt Assistant Engineer I 40.00$ 42.01$ 44.11$ 46.32$ 48.63$ 1/3/2022 General Employees Non-Exempt Assistant Engineer II 44.01$ 46.19$ 48.51$ 50.94$ 53.48$ 1/3/2022 General Employees Non-Exempt Assistant City Manager 101.53$ $ 106.60 $ 111.94 $ 117.53 $ 123.42 1/3/2022 Confidential Management Exempt Assistant to the City Manager 67.66$ 71.03$ 74.60$ 78.31$ 82.24$ 1/3/2022 Executive Management Exempt Assistant Fire Marshal 75.65$ 79.43$ 83.41$ 87.58$ 91.95$ 1/20/2022 Brisbane Fire Management Exempt Associate Civil Engineer 52.40$ 55.01$ 57.76$ 60.65$ 63.69$ 1/3/2022 Mid-Management/Professional Exempt Associate Planner 46.29$ 48.61$ 51.05$ 53.60$ 56.28$ 1/3/2022 General Employees Non-Exempt Cashier 15.00$ 15.75$ 16.54$ 17.36$ 18.23$ 3/3/2022 Unrepresented Non-Exempt C/CAG Stormwater Program Director 69.22$ 72.68$ 76.31$ 80.13$ 84.14$ 1/3/2022 Mid-Management/Professional Exempt City Clerk 54.75$ 57.49$ 60.36$ 63.38$ 66.54$ 1/3/2022 Executive Management Exempt City Manager -$ -$ -$ -$ -$ 126.66$ 1/3/2022 Unrepresented Exempt Code Enforcement Officer 37.33$ 39.20$ 41.15$ 43.21$ 45.38$ 1/3/2022 General Employees Non-Exempt Communications Digital and Media Coordinator 35.06$ 36.80$ 38.65$ 40.58$ 42.60$ 1/3/2022 General Employees Non-Exempt Communications Manager 51.14$ 53.83$ 56.66$ 59.65$ 62.78$ 1/3/2022 Mid-Management/Professional Exempt Community Development Director 85.38$ 89.65$ 94.14$ 98.85$ $ 103.79 1/3/2022 Executive Management Exempt Community Development Technician 35.06$ 36.80$ 38.65$ 40.58$ 42.60$ 1/3/2022 General Employees Non-Exempt Community Services Officer 30.56$ 32.53$ 34.16$ 35.87$ 37.66$ 1/3/2022 General Employees Non-Exempt Council Member -$ -$ -$ -$ -$ $ 400.00 1/3/2022 Elected Position Crossing Guard 15.00$ 15.75$ 16.54$ 17.36$ 18.23$ 3/3/2022 Unrepresented Non-Exempt Deputy City Clerk/Executive Assistant 41.16$ 43.22$ 45.38$ 47.66$ 50.03$ 1/3/2022 Confidential Exempt Deputy Director of Public Works 77.33$ 81.19$ 85.26$ 89.53$ 94.00$ 1/3/2022 Mid-Management/Professional Exempt Deputy Finance Director 69.22$ 72.68$ 76.31$ 80.13$ 84.14$ 1/3/2022 Mid-Management/Professional Exempt Director of Marina/Aquatics Services 56.67$ 59.51$ 62.48$ 65.61$ 68.89$ 1/3/2022 Executive Management Exempt Engineering Technician 38.56$ 40.49$ 42.51$ 44.62$ 46.87$ 1/3/2022 General Employees Non-Exempt Executive Administrative Assistant 35.61$ 37.38$ 39.25$ 41.22$ 43.28$ 1/3/2022 General Employees Non-Exempt Facility Attendant 17.67$ 18.55$ 19.48$ 20.46$ 21.48$ 1/3/2022 Unrepresented Non-Exempt Finance Director 84.50$ 88.72$ 93.16$ 97.83$ $ 102.70 1/3/2022 Confidential Management Exempt Financial Services Manager 59.79$ 62.77$ 65.91$ 69.22$ 72.68$ 1/3/2022 Mid-Management/Professional Exempt Fire Captain 41.75$ 43.83$ 46.03$ 48.33$ 50.75$ 1/3/2022 IAFF Local 2400 Non-Exempt Fire Prevention Officer 51.46$ 54.05$ 56.75$ 59.57$ 62.55$ 1/3/2022 IAFF Local 2400 Non-Exempt Fire Trainee -$ -$ -$ -$ -$ 24.33$ 1/3/2022 IAFF Local 2400 Non-Exempt Firefighter 34.94$ 36.68$ 38.52$ 40.43$ 42.45$ 1/3/2022 IAFF Local 2400 Non-Exempt City of Brisbane Master Pay Schedule
Approved per Resolution No. 2022-__
50 G.

Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Firefighter/Paramedic 34.94$ 36.68$ 38.52$ 40.43$ 42.45$ 1/3/2022 IAFF Local 2400 Non-Exempt Geographic Information System Manager 51.14$ 53.83$ 56.66$ 59.65$ 62.78$ 1/3/2022 Mid-Management/Professional Exempt Habitat Restoration Aide -$ -$ -$ -$ -$ 12.00$ 1/3/2022 Unrepresented Non-Exempt Habitat Restoration Lead Worker -$ -$ -$ -$ -$ 15.00$ 1/3/2022 Unrepresented Non-Exempt Harbormaster 48.21$ 50.62$ 53.15$ 55.81$ 58.60$ 1/3/2022 Mid-Management/Professional Exempt Head Lifeguard 21.19$ 22.25$ 23.36$ 24.54$ 25.76$ 1/3/2022 Unrepresented Non-Exempt History Project Asst 35.86$ 37.66$ 39.54$ 41.51$ 43.59$ 1/3/2022 Unrepresented Non-Exempt Human Resources Administrator 70.63$ 74.16$ 77.87$ 81.77$ 85.85$ 1/3/2022 Confidential Exempt Human Resources Technician 35.06$ 36.80$ 38.65$ 40.58$ 42.60$ 1/3/2022 General Employees Non-Exempt Information Technology & Systems Administrator 52.71$ 55.34$ 58.11$ 61.01$ 64.08$ 1/3/2022 Mid-Management/Professional Exempt Intern -$ -$ -$ -$ -$ $15.00 - $20.00 1/3/2022 Unrepresented Non-Exempt Lifeguard 16.08$ 16.88$ 17.72$ 18.61$ 19.53$ 1/3/2022 Unrepresented Non-Exempt Management Analyst (Part-time) 39.65$ 41.65$ 43.72$ 45.90$ 48.20$ 1/3/2022 Unrepresented Non-Exempt Marina Maintenance Worker I 30.06$ 31.56$ 33.14$ 34.79$ 36.54$ 1/3/2022 General Employees Non-Exempt Marina Maintenance Worker II 33.06$ 34.71$ 36.45$ 38.26$ 40.18$ 1/3/2022 General Employees Non-Exempt Marina Maintenance Worker I ( Part-time) 30.65$ 32.18$ 33.79$ 35.50$ 37.27$ 1/3/2022 Unrepresented Non-Exempt Marina Maintenance Worker II ( Part-time) 33.70$ 35.42$ 37.15$ 39.00$ 40.98$ 1/3/2022 Unrepresented Non-Exempt Marina Services Director 52.97$ 55.62$ 58.40$ 61.32$ 64.39$ 1/3/2022 Executive Management Exempt Office Assistant 27.55$ 28.88$ 30.33$ 31.84$ 33.45$ 1/3/2022 General Employees Non-Exempt Office Assistant (Part-Time) 28.05$ 29.45$ 30.92$ 32.48$ 34.10$ 1/3/2022 Unrepresented Non-Exempt Office Specialist 32.30$ 33.90$ 35.61$ 37.38$ 39.25$ 1/3/2022 General Employees Non-Exempt Office Specialist (Part-Time) 32.95$ 34.58$ 36.31$ 38.13$ 40.04$ 1/3/2022 Unrepresented Non-Exempt Park/Beach/Recreation Commissioner -$ -$ -$ -$ -$ $ 100.00 1/3/2022 Appointed Position Parks & Recreation Director 81.41$ 85.49$ 89.76$ 94.24$ 98.96$ 1/3/2022 Executive Management Exempt Parks/Facilities Maintenance Worker I 30.06$ 31.56$ 33.14$ 34.79$ 36.54$ 1/3/2022 General Employees Non-Exempt Parks/Facilities Maintenance Worker I (Part-Time) 30.65$ 32.18$ 33.79$ 35.50$ 37.27$ 1/3/2022 Unrepresented Non-Exempt Parks/Facilities Maintenance Worker II 33.06$ 34.71$ 36.45$ 38.26$ 40.18$ 1/3/2022 General Employees Non-Exempt Payroll/Utility Billing Technician 35.06$ 36.80$ 38.65$ 40.58$ 42.60$ 1/3/2022 General Employees Non-Exempt Planning Commissioner -$ -$ -$ -$ -$ $ 100.00 1/3/2022 Appointed Position Police Chief 99.64$ $ 104.62 $ 109.84 $ 115.35 $ 121.10 1/3/2022 Police Chief Exempt Police Commander 89.83$ 94.32$ 99.04$ $ 103.99 $ 109.19 1/3/2022 Police Commander Exempt Police Officer 45.65$ 47.93$ 50.33$ 52.85$ 55.49$ 1/3/2022 Brisbane Police Officers Association* Non-Exempt Police Officer - 40 hour shift (Detective/SRO) 47.93$ 50.33$ 52.85$ 55.49$ 58.26$ 1/3/2022 Brisbane Police Officers Association* Non-Exempt Police Sergeant 55.00$ 57.75$ 60.64$ 63.67$ 66.85$ 1/3/2022 Brisbane Police Officers Association* Non-Exempt Police Trainee -$ -$ -$ -$ -$ 33.78$ 1/3/2022 Unrepresented Non-Exempt Pre-School Teacher 17.77$ 18.68$ 19.61$ 20.60$ 21.63$ 1/3/2022 Unrepresented Non-Exempt Principal Analyst 61.17$ 64.24$ 67.44$ 70.80$ 74.35$ 1/3/2022 Confidential Exempt Principal Planner 65.15$ 68.40$ 71.83$ 75.42$ 79.19$ 1/3/2022 Mid-Management/Professional Exempt Program Manager - SMCWPPP 64.44$ 67.67$ 71.05$ 74.61$ 78.34$ 1/3/2022 Mid-Management/Professional Exempt Public Service Aide 15.82$ 16.62$ 17.43$ 18.30$ 19.23$ 1/3/2022 Unrepresented Non-Exempt Public Works Director/City Engineer 99.96$ $ 104.96 $ 110.19 $ 115.72 $ 121.50 1/3/2022 Executive Management Exempt 51 G.

Job Classification Hourly
Grade A
Hourly
Grade B
Hourly
Grade C
Hourly
Grade D
Hourly
Grade E Monthly Fixed Hourly Hourly Range Effective Date Bargaining Group FLSA Status Public Works Inspector 49.33$ 51.80$ 54.39$ 57.10$ 59.96$ 1/3/2022 General Employees Non-Exempt Public Works Lead Maintenance Worker 39.68$ 41.66$ 43.73$ 45.93$ 48.21$ 1/3/2022 General Employees Non-Exempt Public Works Maintenance Worker I 30.06$ 31.56$ 33.14$ 34.79$ 36.54$ 1/3/2022 General Employees Non-Exempt Public Works Maintenance Worker I (Part-time) 30.65$ 32.18$ 33.79$ 35.50$ 37.27$ 1/3/2022 Unrepresented Non-Exempt Public Works Maintenance Worker II 33.06$ 34.71$ 36.45$ 38.26$ 40.18$ 1/3/2022 General Employees Non-Exempt Public Works Superintendent 64.13$ 67.33$ 70.70$ 74.24$ 77.95$ 1/3/2022 Mid-Management/Professional Exempt Public Works Supervisor 49.01$ 51.47$ 54.04$ 56.74$ 59.58$ 1/3/2022 Mid-Management/Professional Exempt Public Works Team Leader 44.47$ 46.80$ 49.27$ 51.87$ 54.59$ 1/3/2022 Mid-Management/Professional Exempt Receptionist 27.51$ 28.88$ 30.33$ 31.84$ 33.45$ 1/3/2022 General Employees Non-Exempt Receptionist (Part-time) 28.05$ 29.45$ 30.92$ 32.48$ 34.10$ 1/3/2022 Unrepresented Non-Exempt Recreation Leader 17.75$ 18.63$ 19.57$ 20.54$ 21.57$ 1/3/2022 Unrepresented Non-Exempt Recreation Leader Aide 15.00$ 15.75$ 16.54$ 17.36$ 18.23$ 3/3/2022 Unrepresented Non-Exempt Recreation Manager 60.32$ 63.33$ 66.49$ 69.83$ 73.31$ 1/3/2022 Mid-Management/Professional Exempt Recreation Program Coordinator 30.51$ 32.56$ 34.19$ 35.90$ 37.69$ 1/3/2022 General Employees Non-Exempt Recreation Supervisor 44.56$ 46.80$ 49.13$ 51.58$ 54.17$ 1/3/2022 Mid-Management/Professional Exempt Regional Compliance Program Manager 51.14$ 53.83$ 56.66$ 59.65$ 62.78$ 1/3/2022 Mid-Management/Professional Exempt Reserve Police Officer 32.61$ 34.24$ 35.95$ 37.74$ 39.64$ 1/3/2022 Unrepresented Non-Exempt Senior Accounting Assistant 32.38$ 34.02$ 35.71$ 37.51$ 39.36$ 1/3/2022 General Employees Non-Exempt Senior Civil Engineer 64.44$ 67.67$ 71.05$ 74.61$ 78.34$ 1/3/2022 Mid-Management/Professional Exempt Senior Human Resources Analyst 48.86$ 51.29$ 53.87$ 56.55$ 59.37$ 1/3/2022 Confidential Exempt Senior Management Analyst 47.89$ 50.28$ 52.80$ 55.43$ 58.20$ 1/3/2022 Mid-Management/Professional Exempt Senior Planner 55.10$ 57.85$ 60.74$ 63.79$ 66.97$ 1/3/2022 Mid-Management/Professional Exempt Senior Recreation Leader 22.78$ 23.91$ 25.11$ 26.36$ 27.69$ 1/3/2022 Unrepresented Non-Exempt Sustainability Manager 51.14$ 53.83$ 56.66$ 59.65$ 62.78$ 1/3/2022 Mid-Management/Professional Exempt Special Assistant -$ -$ -$ -$ -$ $15.00-$75.00 3/3/2022 Unrepresented Non-Exempt Spe Coun-Maj Dev Pro -$ -$ -$ -$ -$ 175.04$ 1/3/2022 Confidential Management Exempt Swim Instructor 17.54$ 18.41$ 19.34$ 20.31$ 21.33$ 1/3/2022 Unrepresented Non-Exempt Van Driver 16.49$ 17.33$ 18.20$ 19.12$ 20.07$ 1/3/2022 Unrepresented Non-Exempt Water Quality Technician 33.06$ 34.71$ 36.45$ 38.26$ 40.18$ 1/3/2022 General Employees Non-Exempt 52 G.

File Attachments for Item:

H. Adopt a Resolution Opposing Initiative 21-0042A1 State Ballot Measure Restricting Voters’ Input and Local Taxing Authority
53 H.

Oppose Initiative 21-0042A1 Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: March 3, 2022
From: Carolina Yuen
Subject: Oppose Initiative 21-0042A1 State Ballot Measure Restricting Voters’ Input and Local Taxing Authority
Community Goal/Result
Community Building – Brisbane will honor the rich diversity of our city through community and participation
Fiscally Prudent – Brisbane’s fiscal vitality will reflect sound decisions which also speak to the values of the community
Purpose
To consider taking a formal position on a pending state ballot measure in order to allow the residents of the community the greatest flexibility in determining how the needs of the City are funded.

Recommendation
Approve Resolution 22-___ to oppose Initiative 21-0042A1 and authorize the City to join the No On Initiative 21-0042A1 coalition.

Background
In 2018, the “Tax Fairness, Transparency and Accountability Act” (AG# 17-0050 Amendment #1) was being circulated to qualify for the November 2018 ballot. This initiative would have drastically limited local revenue authority.

Through the successful work and the advocacy of the League of California Cities and its coalition, including the City of Brisbane, the measure’s proponents withdrew the initiative from the ballot in June 2018.

On January 4th of this year, the California Business Roundtable filed the Taxpayer Protection and Government Accountability Act (AG# 21-0042A1), a measure that could drastically reduce vital local and state services to benefit corporations.

The League of California Cities, along with a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses, strongly oppose this initiative.

Discussion
The California League of Cities has taken a formal position to oppose this ballot measure. The concerns include the measure would limit voter authority and accountability, restricts local tax 54 H.

Oppose Initiative 21-0042A1 Page 2 of 2
authority to provide local services by adopting new and stricter rules for raising taxes and fees, thereby restricting local fee authority to provide local services, and makes it more difficult to hold violators of state and local laws accountable.

The League feels that because the association supporting this measure represents California’s wealthiest corporations, the measure shifts the burden from corporations to individual taxpayers to pay more for local infrastructure, our environment, water quality, air quality, and natural resources.

The attached legal and fiscal analyses describe in further detail how the measure may be deceiving and implements additional voter requirements threatening citizen input, while also having the potential of invalidating or sun-setting measures already passed which could lead to significant reductions in existing taxes and fees.

Fiscal Impact
Potentially significant reduction in general fund revenues if this measure were to pass.

Measure of Success
A failure at the voting booths of the proposed measure.

Attachments

1. Resolution No. 2022-___

2. California League of Cities Measure Opposition Fact Sheet

3. Legal Analysis of Initiative 21-0042A1 provided by California League of Cities

4. Fiscal Analysis of Initiative 21-0042A1 provided by CaliforniaCityFinance.com ___________________________________ ___________________________________ Carolina Yuen, Finance Director Clay Holstine, City Manager 55 H.
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RESOLUTION NO. 2022-__

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE OPPOSING INITIATIVE 21-0042A1 AND
AUTHORIZING JOINING THE “NO ON INITIATIVE 21-0042A1” COALITION WHEREAS, an association representing California’s wealthiest corporations is behind a proposition aimed for the November 2022 statewide ballot; and WHEREAS, the measure creates new constitutional loopholes that appear to allow corporations to pay far less in proportion to the impacts they have on California communities, including local infrastructure, or environment, water quality, air quality, and natural resources; and WHEREAS, the measure includes provisions that may make it more difficult for local voters to pass measures needed to fund local services and infrastructure, and would limit voter input by prohibiting local advisory measures where voters provide direction on how they want their local tax dollars spent; and
WHEREAS, the measure appears to make it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect the environment, public health and safety and neighborhoods; and
WHEREAS, the measure puts billions of dollars currently dedicated to state and local services at risk, and may force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services, and more; and
WHEREAS, the measure appears to reduce funding for critical infrastructure like streets and roads, public transportation, drinking water, new schools, sanitation and utilities.

NOW, THEREFORE, IT IS HEREBY RESOLVED, by the City Council of the City of Brisbane that the City opposes Initiative 21-0042A1.

NOW, THEREFORE, IT IS FURTHER RESOLVED that the City of Brisbane will join the “No on Initiative 21-0042A1” coalition, a growing coalition of public safety, labor, local government, infrastructure advocates, and other organizations throughout the state.

The City Manager is hereby directed to email a copy of this adopted resolution to the League of California Cities at [email protected].
________________________________
Colleen Mackin, Mayor
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I hereby certify that the foregoing Resolution No. 2022-___ was duly and regularly adopted at a regular meeting of the Brisbane City Council on March 3, 2022, by the following vote:

AYES:

NOES:

ABSTAIN:

ABSENT:
___________________________________
INGRID PADILLA, City Clerk
57 H.

Stop the Corporate Loopholes Scheme
Deceptive Proposition Allows Major Corporations to Avoid Paying their Fair Share and Evade Enforcement when they Violate Environmental, Health & Safety Laws An association representing California’s wealthiest corporations — including oil, insurance, banks and drug companies — is behind a deceptive proposition aimed for the November 2022 statewide ballot. Their measure would create major new loopholes that allow corporations to avoid paying their fair share for the impacts they have on our communities; while also allowing corporations to evade enforcement when they violate environmental, health, safety and other state and local laws. Here’s why a broad coalition of local governments, labor and public safety leaders, infrastructure advocates, and businesses oppose the Corporate Loophole Scheme:

Gives Wealthy Corporations a Major Loophole to Avoid Paying their Fair Share - Forcing Local Residents and Taxpayers to Pay More • The measure creates new constitutional loopholes that allow corporations to pay far less than their fair share for the impacts they have on our communities, including local infrastructure, our environment, water quality, air quality, and natural resources – shifting the burden and making individual taxpayers pay more.

Allows Corporations to Dodge Enforcement When They Violate Environmental, Health, Public Safety and Other Laws
• The deceptive scheme creates new loopholes that makes it much more difficult for state and local regulators to issue fines and levies on corporations that violate laws intended to protect our environment, public health and safety, and our neighborhoods.

Jeopardizes Vital Local and State Services
• This far-reaching measure puts at risk billions of dollars currently dedicated to critical state and local services.
• It could force cuts to public schools, fire and emergency response, law enforcement, public health, parks, libraries, affordable housing, services to support homeless residents, mental health services and more. • It would also reduce funding for critical infrastructure like streets and roads, public transportation, drinking water, new schools, sanitation, utilities and more.

Opens the Door for Frivolous Lawsuits, Bureaucracy and Red Tape that Will Cost Taxpayers and Hurt Our Communities
• The measure will encourage frivolous lawsuits, bureaucracy and red tape that will cost local taxpayers millions — while significantly delaying and stopping investments in infrastructure and vital services.
58 H.

Undermines Voter Rights, Transparency, and Accountability • This misleading measure changes our constitution to make it more difficult for local voters to pass measures needed to fund local services and local infrastructure.
• It also includes a hidden provision that would retroactively cancel measures that were passed by local voters — effectively undermining the rights of voters to decide for themselves what their communities need.
• It would limit voter input by prohibiting local advisory measures, where voters provide direction to politicians on how they want their local tax dollars spent. 59 H.

The Taxpayer Protection and Government Accountability Act Initiative No. 21-0042A1
January 21, 2022
Summary: The measure limits the voters’ input, adopts new and stricter rules for raising taxes and fees, and makes it more difficult to hold state and local law violators accountable.

Limiting Voter Authority and Accountability
• Limits voter input. Prohibits local voters from providing direction on how local tax dollars should be spent by prohibiting local advisory measures. • Invalidates Upland decision that allows majority of local voters to pass special taxes. Taxes proposed by the Initiative are subject to the same rules as taxes placed on the ballot by a city council. All measures passed between January 2022 and November 2022 would be invalidated unless reenacted within 12 months.

Restricting Local Fee Authority to Provide Local Services • Franchise fees. Sets new standard for fees and charges paid for the use of local and state government property. The standard may significantly restrict the amount oil companies, utilities, gas companies, railroads, garbage companies, cable companies, and other corporations pay for the use of local public property. Rental and sale of local government property must be “reasonable” which must be proved by “clear and convincing evidence.”
• Except for licensing and other regulatory fees, fees and charges may not exceed the “actual cost” of providing the product or service for which the fee is charged. “Actual cost” is the “minimum amount necessary.” The burden to prove the fee or charge does not exceed “actual cost” is changed to “clear and convincing” evidence.

Restricting Authority of State and Local Governments to Issue Fines and Penalties for Violations of Law.
• Requires voter approval of fines, penalties, and levies for corporations and property owners that violate state and local laws unless a new, undefined adjudicatory process is used to impose the fines and penalties. 60 H.

Restricting Local Tax Authority to Provide Local Services • Expanding existing taxes (e.g., UUT, use tax, TOT) to new territory (e.g., annexation) or expanding the base (e.g., new utility service) requires voter approval.
• City charters may not be amended to include a tax or fee. • New taxes can be imposed only for a specific time period. • Taxes adopted after January 1, 2022, that do not comply with the new rules, are void unless reenacted.
• All state taxes require majority voter approval.
• Prohibits any surcharge on property tax rate and allocation of property tax to state.

Other Changes
• No fee or charge or exaction regulating vehicle miles traveled can be imposed as a condition of property development or occupancy. 61 H.

CaliforniaCityFinance.Com
Fiscal and Program Effects of
Initiative 21-0042A1 on Local Governments
If Initiative 21-0042A1 is placed on the ballot and passed by voters, it will result in:
 Billions of local government fee and charge revenues placed at heightened legal peril. Related public service reductions across virtually every aspect of city, county, special district, and school services especially for transportation, and public facility use.  Hundreds of millions of dollars of annual revenues from dozens of tax and bond measures approved by voters between January 1, 2022 and November 9, 2022 subject to additional voter approval if not in compliance with the initiative.
 Indeterminable legal and administrative burdens and costs on local government from new and more empowered legal challenges, and bureaucratic cost tracking requirements.  The delay and deterrence of municipal annexations and associated impacts on housing and commercial development.
 Service and infrastructure impacts including in fire and emergency response, law enforcement, public health, drinking water, sewer sanitation, parks, libraries, public schools, affordable housing, homelessness prevention and mental health services.

1. Local Government Taxes and Services Threatened
With regard to taxes, Initiative 21-0042A1:
 Prohibits advisory, non-binding measures as to use of tax proceeds on the same ballot. o Voters may be less informed and more likely to vote against measures.  Eliminates the ability of special tax measures proposed by citizen initiative to be enacted by majority voter approval (Upland).
o Because the case law regarding citizen initiative special taxes approved by majority vote (Upland) is so recent, it is unknown how common these sorts of measures might be in the future. This initiative would prohibit such measures after the effective date of the initiative. Any such measures adopted after January 1, 2022 through November 8, 2022 would be void after November 9, 2023.
 Requires that tax measures include a specific duration of time that the tax will be imposed. This seems to require that all tax increases or extensions contain a sunset (end date). o This would require additional tax measures to extend previously approved taxes at additional cost to taxpayers.
 Requires that a tax or bond measure adopted after January 1, 2022 and before the effective date of the initiative (November 9, 2022) that was not adopted in accordance with the measure be readopted in compliance with the measure or will be void twelve months after the effective date of the initiative (November 9, 2023).
o If past election patterns are an indication, dozens of tax and bond measures approving hundreds of millions of annual revenues may not be in compliance and would be subject to reenactment.

Most will be taxes without a specific end date. Because there is no regularly scheduled election within the 12 months following the effective date of the initiative, measures not in compliance would need to be placed on a special election ballot for approval before November 9, 2023 or the tax will be void after that date. General tax measures would require declaration of emergency and unanimous vote of the governing board.
2217 Isle Royale Lane • Davis, CA • 95616-6616
Phone: 530.758.3952 • Fax: 530.758.3952
Rev. January 7, 2022
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 Requires voter approval to expand an existing tax to new territory (annexations). This would require additional tax measures and would deter annexations and land development in cities. o If a tax is "extended" to an annexed area without a vote after January 1, 2022, it will be void 12 months later until brought into compliance. Because there is no regularly scheduled election within the 12 months following the effective date of the initiative, such extensions for general taxes would, under current law, each require unanimous vote of the agency board to be placed on a special election ballot or would be void after November 9, 2023.

1.a. Number of Measures and Value of Local Taxes at Risk1 In 2020, voters in California approved 293 local tax and bond measures for cities, counties, special districts and schools (95 in March and 198 in November). The approved measures enacted $3.85 billion in new annual taxes including $1.3 billion for cities, $302 million for counties, $208 million for special districts (fire, wastewater, open space and transit districts), and $2.037 billion for schools (including for school bonds).

Most tax measures go to the ballot during a presidential or gubernatorial primary or general election in an even year. However, some tax measures are decided at other times. During 2019, there were 45 approved tax and bond measures (24 city, 14 special district, 7 school) adopting $154.0 million in new annual taxes ($124.0 million city, $10.5 million special district and $19.2 million school).

Most tax and bond measures comply with the new rules in Initiative 21-0042Amdt#1 except:
 Dozens of taxes would require end dates. This would require additional measures in future years to extend the taxes further. Very few extensions of existing local taxes fail.  Majority vote general tax measures could not be accompanied on the same ballot with an advisory, non-binding measure as to use of tax proceeds.  Special taxes placed on the ballot via citizen initiative would require two-thirds voter approval.

Bond measures have fixed terms. Historically, about 20 percent of other tax measures have included specific durations (i.e. sunsets). Advisory measures as to use of revenues are uncommon. I do not expect the provisions of 21-0042A1 to have any substantial effect on passage rates. However, some 2022 approved measures would likely have to put back on the ballot.

Based on history, a reasonable estimate of the annualized tax revenues estimated to be approved by 1 Source: Compilation and summary of data from County elections offices. 63 H.
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CaliforniaCityFinance.com
voters in 2022 and placed at risk by this initiative is at least $1.5 billion, including $1.0 billion from cities and $500 million from counties and special districts. 2 1.b. Additional Costs and Public Service Effects of the Tax Provisions In addition to service delays and disruption due to new tax revenues placed at greater legal risk, there will be substantial additional costs for legal defense. The deterrence of taxes for annexations will delay and deter municipal annexations.

2. “Exempt Charges” (fees and charges that are not taxes) and Services Threatened With regard to fees and charges adopted after January 1, 2022, Initiative 21-0042A1:
 Subjects new fees and charges for a product or service to a new "actual cost” test defined as “(i) the minimum amount necessary to reimburse the government for the cost of providing the service to the payor, and (ii) where the amount charged is not used by the government for any purpose other than reimbursing that cost. In addition, subjects these same charges to a new, undefined, “reasonable” standard.
 Subjects fees and charges for entrance to local government property; and rental and sale of local government property to a new, undefined, “reasonable” test.  Subjects a challenged fee or charge to new, higher burdens of proof if legally challenged.  Prohibits a levy, charge or exaction regulating or related to vehicle miles traveled, imposed as a condition of property development or occupancy.

2.a. Value on New Local Government Fees and Charges at Risk3 Virtually every city, county, and special district must regularly (e.g., annually) adopt increases to fee rates and charges and revise rate schedules to accommodate new users and activities. Most of these would be subject to new standards and limitations under threat of legal challenge. Based on the current volume of fees and charges imposed by local agencies and increases in those fees simply to accommodate inflation, the amount of local government fee and charge revenue placed at risk is about $1 billion per year including those adopted since January 1, 2022. Of this $1 billion, about $570 million is for special districts, $450 million is cities, and $260 million is counties.4
Major examples of affected fees and charges are:

1. Nuisance abatement charges - such as for weed, rubbish and general nuisance abatement to fund community safety, code enforcement, and neighborhood cleanup programs.

2. Commercial franchise fees.

3. Emergency response fees - such as in connection with DUI.

4. Advanced Life Support (ALS) transport charges.

5. Document processing and duplication fees.

6. Transit fees, tolls, parking fees, public airport and harbor use fees.

7. Facility use charges, fees for parks and recreation services, garbage disposal tipping fees.

In addition to fees and charges, the measure puts fines and penalties assessed for the violation of state and 2 This does not include citizen initiative special tax approved by majority but not two-thirds. Because this approach is new, the number of these measures and amount of revenue involved cannot be estimated. 3 Source: California State Controller Annual Reports of Financial Transactions concerning cities, counties and special districts, summarized with an assumed growth due to fee rate increases (not population) of 2 percent annually. 4 School fees are also affected but the amount is negligible by comparison. 64 H.
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local law at risk, making them taxes subject to voter approval under certain circumstances.

2.b. Additional Costs and Public Service Effects of the Fee/Charge Provisions In addition to service delays and disruptions due to fee and charge revenues placed at greater legal risk, there would be substantial additional costs for legal defense. The risk to fees and charges will make infrastructure financing more difficult and will deter new residential and commercial development. ***********
mc
65 H.

File Attachments for Item:

I. Affordable Housing Strategic Plan Goal Setting Workshop and Housing Element Update (The purpose of this item is to provide the following:1) a status report regarding the ongoing Housing Element update; and 2) an update on the Affordable Housing Strategic Plan (AHSP) and solicit feedback on affordable housing goals and objectives to further inform the development of the AHSP)
66 I.

Affordable Housing Strategic Plan and Housing Element Update Page 1 of 3

CITY COUNCIL AGENDA REPORT
Meeting Date: March 3, 2022
From: Community Development Director
Subject: Affordable Housing Strategic Plan Goal Setting Workshop and Housing Element Update
Community Goal/Result
Community Building - Brisbane will honor the rich diversity of our city (residents, organizations, businesses) through community engagement and participation Purpose
To: 1) provide the City Council a status report regarding the ongoing Housing Element update; and 2) provide the City Council with an update on the Affordable Housing Strategic Plan (AHSP) and solicit Council feedback on affordable housing goals and objectives to further inform the development of the AHSP.

Recommendation
That the City Council provide input it deems appropriate for the AHSP.

Background/Discussion
Affordable Housing Strategic Plan
As authorized by the City Council in May 2021, the City selected consulting firm EcoNorthwest to prepare a citywide Affordable Housing Strategic Plan (AHSP). EcoNorthwest commenced work on the AHSP in August 2021.

As a reminder, the purpose of the AHSP is to focus the City’s efforts to provide new affordable housing and protect existing affordable housing through the following actions:

1. Update and streamline the City’s management of existing affordable housing units and programs to better manage existing and future affordable deed-restricted housing units.

2. Develop affordable housing strategies specifically for the Baylands.

3. Identify city-wide funding priorities for the City’s affordable housing funds.

4. Evaluate options to create an ongoing revenue stream to fund affordable housing.

5. Review the City’s affordable housing requirements in the zoning ordinance to make sure they are feasible, realistic, and will result in the greatest benefit to the community.

Additional background information and discussion points will be provided in tonight’s presentation by EcoNorthwest.
67 I.

Affordable Housing Strategic Plan and Housing Element Update Page 2 of 3 The consultant team will be soliciting feedback from the council regarding strategy prioritization. Topics to be discussed may include:
• The appropriateness of linking affordable housing to commercial development • Value capture strategies to support affordable housing • Appropriate role of land use in supporting affordable housing • The balance of resources dedicated to production, services, and support • Discussion of housing need and populations served
• Location of affordable housing
• Discussion of the City’s unique opportunities and challenges Housing Element Update
Pursuant to state law, the City is required to update its Housing Element every 8 years. The Housing Element must be accepted by the State Department of Housing and Community Development (HCD) and adopted by the City Council by January 31, 2023. The Planning Commission is actively engaged in a series of workshops addressing various issues of concern that must be addressed in the Housing Element. Staff anticipates publication of a draft Housing Element in April 2022 allowing sufficient time for Planning Commission and City Council review along with multiple reviews by HCD.

While the Housing Element has numerous mandatory requirements, a critical component is to identify adequate sites to meet the City’s “fair share” of the region’s housing need as established in the City’s Regional Housing Needs Allocation (RHNA). On February 24, the Planning Commission discussed the lack of capacity in the City’s existing zoning to accommodate the RHNA and the need to rezone sites to make up for the shortfall (see table below),
City of Brisbane RHNA 2023-2031
Housing Units and Existing Zoning Shortfall by Income Categories Very Low Low Moderate Above Moderate
(Market Rate)
Totals
RHNA Housing
Units by Existing
Zoning
254 16 44 129 429
RHNA +20%** 380 220 364 942 1,906
Shortfall for
Rezoning
126 204 320 818 1,477
** 15-30% buffer recommended by HCD. See February 10th PC workshop report for further details.

To address this shortfall, staff has preliminarily identified several sites that might be considered for rezoning. These sites were presented for consideration by the community at large via an online simulation tool called “Balance Brisbane,” which was open from December to February and allowed participants to design their own proposal for rezoning to meet the City’s RHNA. 68 I.

Affordable Housing Strategic Plan and Housing Element Update Page 3 of 3 Results of the Balance simulation can be viewed in the February 24, 2022 Planning Commission agenda report, an excerpt of which is included as an attachment to this report. Most notably, adoption of a specific plan for the Baylands with a residential yield within the range permitted under the General Plan (1800-2200 units) would satisfy the City’s RHNA.

State law obligates the City to complete rezonings to satisfy the RHNA by either January 31, 2024 or January 31, 2026 depending on whether or not the City adopts the Housing Element by the state- mandated deadline.

Attachments

1. Excerpt from February 24, 2022 Planning Commission agenda report regarding Balance Brisbane results
___________________________________ ___________________________________ John Swiecki, Community Development Director Clay Holstine, City Manager Clayton L..Holstine
69 I.

ATTACHMENT E
1 BALANCE BRISBANE
Key:

1. Baylands (Northwest)

2. Levinson (Guadalupe Hills)

3. Peking (Guadalupe Hills)

4. Parkside PAOZ-1 (Parkside)

5. Parkside PAOZ-2 (Parkside)

6. Parkside PAOZ-2 Extension (Parkside)

7. Parkside PAOZ-3 (Parkside)

8. Central Brisbane (SFD/MFD/ADU)

9. Visitacion Ave (Central Brisbane)

10. Lower Thomas Hill (Lower
Acres)

11. Southwest Bayshore (SW)

12. Southeast Bayshore (SE)
aka Former VWR

13. Marina (Sierra Point)
1,800 Units
99 Units
50 Units
39 Units
34 Units
32 Units
25 Units
92 Units
178 Units
36 Units
50 Units
7 Units
16 Units
26 Units

Average Number of Housing Units Submitted by Site
1 70
I.

ATTACHMENT E
3 Figure 1: Percentage of submissions that identified housing by planning area in January and at close.

However, while the submissions showed participants indicated housing could be accommodated within multiple planning areas throughout the City, the quantities of housing units they submitted, excluding those on the Baylands, was fairly low. Figure 2 illustrates the average number of housing units allocated by site. The Baylands received by and far the most average number of housing units. This is in part because Measure JJ allows between 1,800 and

AVERAGE HOUSING UNIT ALLOCATION BY SITE
Results as of
01/27/22
Results as of
02/06/22
Figure 2: Average Housing Unit Allocation by site.
1 71
I.

File Attachments for Item:

J. Acquisition of the Building and land of the Former Bank of America Branch Located At 70 Old County Road in Brisbane
i. Consider Adoption of City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with acquisition of the building and land of the former Bank of America Branch located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto. ii. Consider Adoption of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Resolution approving the form and authorizing the execution of certain lease financing documents in connection with the financing by the City of Brisbane of a portion of the costs associated with acquisition of the building and land of the former Bank of America Branch Located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto.
72 J.

Update on Loan for the Bank of America Land Purchase Page 1 of 4

CITY OF BRISBANE AND BRISBANE GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY

AGENDA REPORT
Meeting Date: 3/3/2022
From: Stuart Schillinger, Assistant City Manager
Subject: City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with acquisition of the building and land of the former Bank of America Branch located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto
Subject: Authority Resolution approving the form and authorizing the execution of certain lease financing documents in connection with the financing by the City of Brisbane of a portion of the costs associated with acquisition of the building and land of the former Bank of America Branch Located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto
Community Goal/Result
Fiscally Prudent
Economic Development
Community Building
Purpose
Purchase property at the corner of Old County Road and Bayshore to ensure community values are taken into account in determining the future development of the site, likely for commercial purposes and/or housing.

Recommendation
Approve the Resolutions described above.

Background
On December 9, 2021 the City Council approved the purchase of the old Bank of America Building located at the corner of Old County Road and Bayshore Drive. The purchase price was $4,250,000. The purchase closed February 22, 2022. The City Council directed staff to use bond financing to pay for the purchase of the property using the new Library for the collateral.

Staff worked with our Financial Advisor (Marty Johnson) and developed the option using a private placement with a bank. Staff presented this option to the City Council’s infrastructure subcommittee. The advantages for this option compared to a public offering are; 1) it allowed 73 J.

Update on Loan for the Bank of America Land Purchase Page 2 of 4 the City to lock in an interest rate more quickly in an increasing interest rate environment, 2) it allows for a shorter call feature, and 3) it allows banks to bid on the debt and currently banks are offering similar or lower overall costs compared to a public placement. Based on feedback from the Infrastructure Committee the City developed a 20-year privately placed debt instrument. The 20 year structure allows the City to lower the overall interest payment compared to 25 or 30 year terms.

Since no determination has been made for the ultimate use of the project the debt instrument will be taxable instead of tax exempt. Tax exempt debt can be used when the purpose of the bond is for governmental purposes. Since it is unknown whether the ultimate use of the land will be for affordable housing, market rate housing, commercial use, or governmental use the City needs to issue the debt instrument as taxable.

Currently, the annual payments for the instrument will be from the General Fund, if at some future date the City Council determines the use of the property will be for affordable housing the City can payback the General Fund for its outlay on the project from the Affordable Housing Fund. If it makes financial sense, a Tax-Exempt refinancing could be done to lower the annual payment.

Discussion
City staff and the City’s Financial Advisor have developed a repayment schedule that wraps this debt around existing debt the General Fund is paying. The idea of wrapping this new debt around existing debt allows the City to minimize the initial impact of the additional debt service. The City currently has two issues outstanding that the General Fund is paying. One is a Pension Obligation Bond which comes due in FY 2023. The second is the City Hall remodel which will be paid off in 2029. The annual payment for the Pension Obligation Bond is about $393,000 for FY 2023 and the annual payment for the City Hall remodel is about $155,000 a year through 2029. There will be no payment due in FY 2022 on the new loan. The payments on the new loan will be structured as interest only in FY 2023 (~$132,400), payments of ~$212,000 through FY 2029 and then payments of $368,000 through maturity in FY 2042. This means through the year 2029 the City will pay a total of $368,000 annually; $155,000 will go towards paying off the Remodel Bond and $213,000 going to pay off the purchase of the Bank of America site loan. After 2029 the City will pay $368,000 to pay off the Bank of America site loan.

The City will pay approximately $136,000 per year in interest for the first 5 years of the loan.

When a decision for the ultimate use of the land is made staff will be able to return to the City Council with additional options that may save the City more money and/or move the payment to a fund other than the General Fund.

If the City Council chooses not borrow the $4,250,000 and instead pay cash from General Fund it would reduce the amount of cash to meet other needs including our Fund Balance Policy. As 74 J.

Update on Loan for the Bank of America Land Purchase Page 3 of 4 stated at the January 20, 2022 Council meeting between required reserves, and committed reserves there is no additional liquid funds available for other projects. Therefore, spending cash instead of borrowing the funds will bring us below the liquid reserves required by our reserve policy. We might not have enough easily accessible funds available if there was an emergency or recession that required us to make up for additional expenses or lost revenue quickly. Reducing the City’s cash balance would also reduce the amount of interest the City could earn.

Fiscal Impact
The annual payment for the privately placed note will increase from $213,000 in FY 2023 to $368,000 in 2042. The note will be paid off after 20 years. The City will be able to call the loan in FY 2028 without penalty. The total amount of interest paid over the life of the loan will be $1,848,800. The interest paid in the first 5 years will be $681,651. A portion of this interest payment can be offset by the interest on the money the City will keep by using financing.

The piece of property that will secure the loan is the new City Library located on Visitacion Avenue. The library’s value exceeds the amount of the issue by over $2,000,000 so there is enough value there to provide the note holders enough collateral for the loan. Additionally, having a facility or building that is of higher value to the community is better than one of less value to the community.

Measure of Success
The community ends up with a use on the property that is acceptable.

Attachments
1) City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with acquisition of the building and land of the former Bank of America Branch located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto 2) : Authority Resolution approving the form and authorizing the execution of certain lease financing documents in connection with the financing by the City of Brisbane of a portion of the costs associated with acquisition of the building and land of the former Bank of America Branch Located at 70 Old County Road in Brisbane and authorizing and directing certain actions thereto
3) Placement Agent Agreement – Entering into an Agreement with Oppenheimer & Co.

Inc.– The placement agent assists the City with finding a purchaser for the City’s debt instrument
75 J.

Update on Loan for the Bank of America Land Purchase Page 4 of 4 4) Letter Agreement for Funding – Bank of the West will loan the City $4,335,000 at a rate of 3.250% per annum. The letter details how the funds will be allocated between the City of Brisbane ($4253,040); Quint and Thimming LLP (City’s Bond Counsel -$28,450); JNA Consulting Group LLC (City’s Financial Advisor - $27,500); Oppenheimer (Placement Agent - $20,000) and Hawkins Delafield and Wood LLP (Counsel to the Bank $20,000) 5) Site and Facility Lease – Details the term of the lease through March 1, 2024. The City leases the facility to the Brisbane/Guadulupe Valley Municipal Improvement Financing Authority for the advance payment of $4,335,000 the City will pay the Financing Authority back overt time on the prearranged payment schedule. 6) Lease Agreement between Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority and the City – The City leases back the Library property as set forth in the terms of this lease agreement. Lease payments from the City to the Financing Authority will budgeted annually from any source legally available to the City to make the payments.
7) Assignment Agreement between the Authority and the Bank whereby the Authority assigns its right to receive lease payment from the City directly to the bank. 8) Supplemental Agreement between the City of Brisbane and The Bank of The West. This provides a direct contract between the Bank and the City and is required by the Bank.

Stuart Schillinger ________________________
Stuart Schillinger, Assistant City Manager Clay Holstine, City Manager 76 J.

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CITY OF BRISBANE
RESOLUTION NO. _____

RESOLUTION APPROVING THE FORM AND AUTHORIZING THE

EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS TO

FINANCE THE COSTS ASSOCIATED WITH ACQUISITION OF THE

BUILDING AND LAND OF THE FORMER BANK OF AMERICA BRANCH
LOCATED AT 70 OLD COUNTY ROAD IN BRISBANE AND

AUTHORIZING AND DIRECTING CERTAIN ACTIONS WITH RESPECT

THERETO
RESOLVED, by the City Council (the “Council”) of the City of Brisbane (the “City”), as follows:

WHEREAS, the City, working with the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”) has determined that, due to prevailing interest rates and for other reasons it is in the best interest of the City at this time to finance the costs associated with the acquisition of the building and land of the former Bank of America branch located at 70 Old County Road in Brisbane for future City use (the “Project”), and to implement a lease financing for such purposes;
WHEREAS, it is in the public interest and for the public benefit that the City authorizes and directs execution of the Lease Agreement (hereinafter defined) and certain other financing documents in connection therewith;
WHEREAS, the documents below specified have been filed with the City and the members of the Council, with the aid of its staff, have reviewed said documents; and WHEREAS, pursuant to section 5852.1 of the California Government Code, which became effective on January 1, 2018 by the enactment of Senate Bill 450, certain information relating to the Lease Agreement is set forth in Exhibit A attached to this Resolution, and such information is hereby disclosed and made public;
NOW, THEREFORE, it is hereby DECLARED and ORDERED, as follows:

Section 1. The Council hereby approves the financing of the Project.

Section 2. The below-enumerated documents, in the forms on file with the City Clerk, be and are hereby approved, and the Mayor, the City Manager, the Assistant City Manager or the Finance Director, or the designee thereof (each, a “Designated Officer”), are hereby authorized and directed to execute said documents, with such changes, insertions and omissions as may be approved by such officials, the execution thereof to be conclusive evidence of such approval, and the City Clerk is hereby authorized and directed to attest to such official’s signature:
(a) a letter agreement for funding, by and among Bank of the West (the “Assignee”), the City and the Authority, whereby the Assignee agrees to acquire certain rights of the Authority, including but not limited to the Lease Payments (hereinafter defined) to be made by the City under the Lease Agreement and the rights of the Authority under the Site and Facility Lease (hereinafter defined);
77 J.
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(b) a site and facility lease, by and between the City, as lessor, and the Authority, as lessee (the “Site and Facility Lease”), pursuant to which the City will lease certain existing real property and the improvements thereon (the “Property”) to the Authority; (c) a lease agreement, by and between the Authority, as lessor, and the City, as lessee (the “Lease Agreement”), pursuant to which the Authority will lease the Property back to the City and pursuant to which the City will agree to make semi-annual lease payments (the “Lease Payments”), so long as the principal amount of the Lease Agreement is not greater than $4,355,000, the maximum annual Lease Payments are not greater than $368,925.00 (subject to the effect of the Default Rate if applicable) and the term of the Lease Agreement does not extend beyond March 1, 2042 (subject to the extension described in the Lease Agreement); (d) a placement agent agreement by and between the City and Oppenheimer & Co. Inc.; and
(e) a supplemental agreement, by and between the City and the Assignee.

Section 3. The Mayor, the City Manager, the Finance Director, the City Clerk, any deputy to the City Clerk and all other appropriate officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates as may be necessary to effect the purposes of this resolution and the financing herein authorized.

Section 5. This Resolution shall take effect upon its adoption by this Council. * * * * * * * * * * * *
I, the undersigned hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the City Council of the City of Brisbane in a regular meeting assembled on the 3rd day of March, 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Mayor
ATTEST:

City Clerk
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EXHIBIT A
GOVERNMENT CODE SECTION 5852.1 DISCLOSURE
The following information consists of estimates that have been provided by the Municipal Advisor which has been represented to have been provided in good faith:
(A) True Interest Cost of the Lease Agreement: 3.250139% (B) Finance Charges: $105,000.00
(C) Net Proceeds to be Received: $4,250,000.00 (net of finance charges) (D) Total Payment Amount through Maturity: $6,204,599.83 The foregoing estimates constitute good faith estimates only and are based on market conditions prevailing at the time of preparation of such estimates.

The principal amount of the Lease Agreement, the true interest cost of the Lease Agreement, the finance charges thereof, the amount of proceeds received therefrom and total payment amount with respect thereto may differ from such good faith estimates due to (a) the actual date of the sale of the Lease Agreement being different than the date assumed for purposes of such estimates, (b) the actual principal amount of Lease Agreement sold being different from the estimated amount used for purposes of such estimates, (c) the actual amortization of the Lease Agreement being different than the amortization assumed for purposes of such estimates, (d) the actual market interest rates at the time of sale of the Lease Agreement being different than those estimated for purposes of such estimates, (e) other market conditions, or (f) alterations in the City’s financing plan, or a combination of such factors. The actual date of sale of the Lease Agreement and the actual principal amount of Lease Agreement sold will be determined by the City based on the timing of the need for proceeds of the Lease Agreement and other factors. The actual interest rates with respect to the Lease Agreement will depend on market interest rates at the time of sale thereof. The actual amortization of the Lease Agreement will also depend, in part, on market interest rates at the time of sale thereof. Market interest rates are affected by economic and other factors beyond the control of the City. 79 J.

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BRISBANE/GUADALUPE VALLEY MUNICIPAL

IMPROVEMENT DISTRICT FINANCING AUTHORITY
RESOLUTION NO. _____

RESOLUTION APPROVING THE FORM AND AUTHORIZING THE

EXECUTION OF CERTAIN LEASE FINANCING DOCUMENTS IN

CONNECTION WITH THE FINANCING BY THE CITY OF BRISBANE OF A

THE COSTS ASSOCIATED WITH ACQUISITION OF THE BUILDING AND LAND OF THE FORMER BANK OF AMERICA BRANCH LOCATED AT 70

OLD COUNTY ROAD IN BRISBANE AND AUTHORIZING AND

DIRECTING CERTAIN ACTIONS WITH RESPECT THERETO
RESOLVED, by the Board of Directors (the “Board”) of the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”), as follows:

WHEREAS, the City of Brisbane (the “City”), working with the Authority, has determined that, due to prevailing interest rates and for other reasons it is in the best interest of the City at this time to finance the costs associated with the acquisition of the building and land of the former Bank of America branch located at 70 Old County Road in Brisbane for future City use (the “Project”), and to implement a lease financing for such purposes WHEREAS, it is in the public interest and for the public benefit that the Board authorize and direct execution of the Lease Agreement (hereinafter defined) and certain other financing documents in connection therewith to implement a lease financing for the purpose of financing the Project;
WHEREAS, the documents below specified shall be filed with the Board and the members of the Board, with the aid of its staff, shall review said documents; NOW, THEREFORE, it is hereby ORDERED and DETERMINED, as follows:

Section 1. The below-enumerated documents, in the forms on file with the Secretary, be and are hereby approved, and the Chair, the Executive Director, the Treasurer, or any designee thereof, is hereby authorized and directed to execute said documents, with such changes, insertions and omissions as may be approved by such official, the execution thereof to be conclusive evidence of such approval and the Secretary is hereby authorized and directed to attest to such official’s signature:
(a) a letter agreement for funding, by and among Bank of the West (the “Assignee”), the City and the Authority, whereby the Assignee agrees to acquire certain rights of the Authority, including but limited to the Lease Payments (hereinafter defined) to be made by the City under the Lease Agreement (hereinafter defined) and the rights of the Authority under the Site and Facility Lease (hereinafter defined);
(b) a site and facility lease, by and between the City, as lessor, and the Authority, as lessee (the “Site and Facility Lease”), pursuant to which the City will lease certain existing real property and the improvements thereon (the “Property”) to the Authority; 80 J.
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(c) a lease agreement, by and between the Authority, as lessor, and the City, as lessee (the “Lease Agreement”), pursuant to which the Authority will lease the Property back to the City and pursuant to which the City will agree to make semi-annual lease payment (the “Lease Payments”); and
(d) an assignment agreement, by and between the Authority and the Assignee, as assignee, pursuant to which the Authority will assign to the Assignee certain of its rights under the Site and Facility Lease and the Lease Agreement, including its right to receive a portion of the Lease Payments thereunder.

Section 2. The Chairperson, the Executive Director, the Assistant Executive Director, the Treasurer/Auditor of the Authority, the Secretary and other officials of the Authority are hereby authorized and directed to execute such other agreements, documents and certificates and to take such other actions as may be necessary to effect the purposes of this resolution and the lease financing herein authorized.

Section 3. This Resolution shall take effect upon its adoption by the Board. * * * * * * * * * * * *
I, the Secretary of the Board of Directors of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority, hereby certify that the foregoing Resolution was duly and regularly adopted and passed by the Board of Directors of the Authority in a regular meeting assembled on the 3rd day of March, 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

Secretary
81 J.

PLACEMENT AGENT AGREEMENT
March 1, 2022
City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Stuart Schillinger, Assistant City Manager
The undersigned, Oppenheimer & Co. Inc. (the “Placement Agent”), offers to enter into the following agreement (this “Agreement”) with the City of Brisbane (the “City”), which, upon acceptance by the City, will be binding upon the City and the Placement Agent.

The City acknowledges and agrees that (i) the placement of the 2022 Lease Agreement (hereinafter defined) pursuant to this Placement Agent Agreement is an arm’s-length commercial transaction between the City and the Placement Agent, (ii) in connection therewith and with the discussion, undertakings and procedures leading up to the consummation of such transaction, the Placement Agent is not acting as a fiduciary of or a financial advisor to the City, (iii) the Placement Agent has not assumed an advisory or fiduciary responsibility in favor of the City with respect to (a) the offering of the 2022 Lease Agreement or the process leading thereto (whether or not the Placement Agent has advised or is currently advising the City on other matters) or (b) any other obligation to the City except the 2022 Lease Agreement expressly set forth in this Placement Agent Agreement, and (iv) the City has consulted with its own legal and other professional advisors to the extent it deemed appropriate in connection with the offering of the 2022 Lease Agreement .

The Lease Agreement, dated as of March 1, 2022 (the “2022 Lease Agreement”), is by and between the City and the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”). Pursuant to an Assignment Agreement, dated as of March 1, 2022, the Authority will assign to Bank of the West (the “Purchaser”), its right to receive lease payments made by the City under the 2022 Lease Agreement and all rights and remedies of the Authority thereunder.

Upon the terms and conditions and upon the basis of the representations, warranties and agreements set forth herein, the Placement Agent and the City hereby agree as follows:

1. Appointment of Placement Agent; Placement of Obligations; Closing. (a) The City hereby appoints the Placement Agent to act, and the Placement Agent hereby agrees to act, as the exclusive placement agent for the City in connection with the private sale of the 2022 Lease Agreement, and the Placement Agent hereby accepts such appointment. As compensation for its services hereunder, the Placement Agent shall charge a fee not in excess of $20,000. At the closing of any such sale, the City shall pay or cause to be paid such fee to the Placement Agent by wire transfer or immediately available funds. The above fee does not include any services the Placement Agent may render in the future to the City with respect to any offering or placement of municipal securities other than the 2022 Lease Agreement. 82 J.
(b) The City understands that the Placement Agent will be acting as the agent of the City in the sale of the 2022 Lease Agreement and agrees that, in connection therewith, the Placement Agent will use its “best efforts” to place the 2022 Lease Agreement. The Placement Agent agrees that, in furtherance of its obligations hereunder, it shall provide substantially accurate and complete information to potential purchasers of the 2022 Lease Agreement to the extent that it is able. (c) The City expressly agrees that nothing in this Agreement evidences or creates any expressed or implied commitment by the Placement Agent to purchase or place the 2022 Lease Agreement.
(d) On the closing date, the City will cause to be delivered (a) a final approving opinion of Quint & Thimmig LLP, as Bond Counsel to the City (“Bond Counsel”), dated the closing date, addressed to or with a reliance letter to the Placement Agent, in a form acceptable to the Placement Agent, to the effect that the 2022 Lease Agreement constitute valid and legally binding obligations of the City payable from and secured by the general fund of the City (b) one or more certificates in form and tenor satisfactory to the Placement Agent evidencing the proper execution and delivery of the 2022 Lease Agreement and receipt of payment therefor, including statements of the City, dated as of the date of such delivery, to the effect that there is no litigation pending or, to the knowledge of the signer or signers thereof, threatened relating to the issuance, sale and delivery of the 2022 Lease Agreement, (c) a letter or certificate of the Purchaser, addressed to the Placement Agent, in form and content acceptable to the Placement Agent.

2. Reliance. The City recognizes that, in providing services under this Agreement, the Placement Agent will rely upon and assume the accuracy and completeness of the financial, accounting, tax and other information discussed with or reviewed by the Placement Agent for such purpose, and the Placement Agent does not assume responsibility for the accuracy and completeness thereof. The Placement Agent will have no obligation to conduct any independent evaluation or appraisal of the assets or the liabilities of the City or any other party or to advise or opine on related solvency issues. Nothing in this Agreement is intended to confer upon any other person (including creditors, employees or other constituencies of the City) any rights or remedies hereunder or by reason hereof.

3. Termination. The Placement Agent’s authorization to carry out its duties hereunder may be terminated by the City or the Placement Agent at any time with or without cause, effective upon receipt of written notice to that effect by the other party. Notwithstanding the foregoing, in the event the City terminates this Agreement and within twelve (12) months after the City sells the 2022 Lease Agreement to an investor identified by the Placement Agent prior to such termination, the amounts payable under Section 1(a) shall be immediately due and payable to the Placement Agent by the City.

4. Notices. Any notice or other communication to be given to any of the parties to this Agreement may be given by delivering the same in writing as follows: to the City at 50 Park Place, Brisbane, CA 94005, Attention: Assistant City Manager, and to the Placement Agent at 580 California Street, Suite 2300, San Francisco, California 94104, Attention: Municipal Capital Markets Group.

5. Survival of Representations, Warranties and Agreements. This Agreement is made solely for the benefit of the City and the Placement Agent, and no other person shall acquire or have any right hereunder or by virtue hereof. All of the representations, warranties and agreements of the 83 J.

City contained in this Agreement shall remain operative and in full force and effect regardless of delivery of any payment for the 2022 Lease Agreement.

6. Counterparts. The Agreement 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.

7. Effectiveness. This Agreement shall become effective upon the execution of the acceptance hereof by duly authorized signatory of the City, which acceptance hereof shall be indicated on the signature page hereof, and shall be valid and enforceable as of the time of such acceptance. This Agreement may be executed by facsimile transmission and in several counterparts, each of which shall be regarded as an original and all of which shall constitute one and the same document.

8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

Very truly yours,
OPPENHEIMER & CO. INC.

By:

Managing Director

CITY OF BRISBANE
By:

Authorized Officer
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LETTER AGREEMENT FOR FUNDING
March 24, 2022
City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: City Manager
Brisbane/Guadalupe Valley
Municipal Improvement District Financing Authority
50 Park Place
Brisbane, CA 94005
Attention: Executive Director
Re: $4,355,000 Lease Agreement, dated as of March 1, 2022, by and between the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority and the City of Brisbane, assigned to Bank of the West
Ladies and Gentlemen:

The undersigned, Bank of the West (the “Bank”), offers, upon the terms and conditions set forth in the Supplemental Agreement (hereinafter defined), to fund $4,355,000 to the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”) , which amount will be paid by the Authority to the City of Brisbane (the “City”) and, in consideration therefor, the City has agreed to cause the Authority to assign (i) the rights, title and interest of the Authority under the Lease Agreement (hereinafter defined), including its rights to receive Lease Payments to be made by the City under the Lease Agreement, dated as of March 1, 2022 (the “Lease Agreement”), by and between the City and the Authority; provided that the Authority’s rights to indemnification and payment or reimbursement for any costs or expenses thereunder have been retained by the Authority to the extent such rights accrue to the Authority and shall have been assigned to the Bank, as assignee, to the extent such rights accrue to the Bank, by entering into an assignment agreement, dated as of March 1, 2022 (the “Assignment Agreement”), with the Authority, and (ii) the rights, title and interest of the Authority under the Site and Facility Lease, dated as of March 1, 2022 (the “Site and Facility Lease”), by and between the City and the Authority.

Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Lease Agreement.

1. Funding; Terms of Corporation’s Obligations. The City and the Authority agree to execute and deliver the Site and Facility Lease and the Lease Agreement, and the Bank agrees to receive the Authority’s rights, title and interest under the Lease Agreement, as described more specifically above and in the Assignment Agreement., at an aggregate funding amount of $4,355,000.
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The City acknowledges that:
(a) The Bank is acting in this transaction solely for its own loan account and not as a fiduciary for the City or in the capacity of broker, dealer, municipal securities underwriter, placement agent, or municipal advisor;
(b) The Bank has not provided, and will not provide, financial, legal (including securities law), tax, accounting or other advice to or on behalf of the City (including to any financial advisor or placement agent engaged by the City) with respect to the structuring of the financing or the execution and delivery of the Lease Agreement; (c) The Bank has no fiduciary duty pursuant to section 15B of the Securities Exchange Act of 1934, as amended, to the City with respect to the transactions relating to the structuring of the financing or the execution and delivery of the Lease Agreement and the discussions, undertakings, and procedures leading thereto; (d) Each of the City, its financial advisor and its placement agent has sought and shall seek and obtain financial, legal (including securities law), tax, accounting and other advice (including as it relates to structure, timing, terms and similar matters) with respect to the lease financing transaction from its financial, legal, and other advisors (and not the Bank or its affiliates) to the extent that the City, its financial advisor or its placement agent (if any) desires to, should, or needs to obtain such advice;
(e) The Bank has expressed no view regarding the legal sufficiency of its representations for purposes of compliance with any legal requirements applicable to any other party, including but not limited to the City’s financial advisor or placement agent (if any), or the correctness of any legal interpretation made by counsel to any other party, including but not limited to counsel to the City’s financial advisor or placement agent, with respect to any such matters; and
(f) the transaction between the City and the Bank is an arm’s length, commercial transaction in which the Bank is acting and has acted solely as a principal and for its own interest, and the Bank has not made recommendations to the City with respect to the transactions relating to the Lease Agreement.

2. Use of Funds. The amount paid by the Bank shall be used by the City to (a) finance the renovation of a site and the structures thereon to replace the existing Brisbane City Hall (the “Project”), and (b) pay the costs related to the preparation, execution and delivery of the Lease Agreement, the Site and Facility Lease and the Assignment Agreement.

3. Disposition of Proceeds. On March 24, 2022, or at such other time or on such earlier or later date as the Bank, the Authority and the City mutually agree upon (the “Closing Date”), the Bank shall transfer, via wire transfer, the amount of $4,355,000, as follows:
(a) to the City, the sum of $[4,253,050.00] to be deposited in a segregated fund and applied to finance the Project and to pay the remaining costs of the financing transaction, including payment by the City of the fee of the California Debt and Investment Advisory Commission;
(b) to Quint & Thimmig LLP, as bond counsel, the sum of $28,450.00; (c) to JNA Consulting Group, LLC, the municipal advisor, the sum of $27,500.00; (d) to Oppenheimer & Co. Inc., the placement agent, the sum of $20,000.00; (e) to Hawkins Delafield & Wood LLP, as a counsel to the Bank, the sum of $20,000.00; and
86 J.
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(f) to Stewart Title Guaranty Company, as title insurer, the sum of $[6,000.00].

4. Lease Payments; Interest Rate. The Lease Payments shall be as set forth in Exhibit A hereto and as shall be shown in Exhibit C to the Lease Agreement. Interest with respect to the principal components is computed at the rate of 3.250% per annum.

5. Closing. At 8:00 A.M. Pacific Daylight time, on the Closing Date, the City will deliver (or cause to be delivered) the Site and Facility Lease and the Lease Agreement executed by the City and the Authority, and the Assignment Agreement executed by the Authority and the Bank, and the Bank will fund $4,355,000 for the assignment of the Authority’s rights, title and interest in the Site and Facility Lease and the Lease Agreement as set forth in Section 1 hereof in federal or other immediately available funds.

6. Representations and Warranties of the City. The City represents and warrants to the Bank that:
(a) The City is a municipal corporation and general law city organized and existing under the Constitution and the laws of the State of California (the “State”), and has all necessary power and authority to enter into and perform its duties under this Agreement and the Site and Facility Lease, the Lease Agreement and the Supplemental Agreement (collectively, the “City Documents”).
(b) To the best knowledge of the City, neither the execution and delivery of the City Documents, or the execution of this Agreement, and compliance with the provisions on the City’s part contained therein, nor the consummation of any other of the transactions herein and therein contemplated, nor the fulfillment of the terms hereof and thereof, materially conflicts with or constitutes a material breach of or default under nor materially contravenes any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject, nor does any such execution, delivery, adoption or compliance result in the security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the City under the terms of any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument, except as provided by the City Documents. (c) The City Documents have been duly authorized by the City, and, assuming due authorization, execution and delivery by the other parties thereto, will constitute legal, valid and binding agreements of the City enforceable in accordance with their respective terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, moratorium, reorganization, fraudulent conveyance or other laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles if sought and by the limitations on legal remedies imposed on actions against cities in the State. (d) There is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory agency having jurisdiction over the City required for the execution and delivery of the City Documents or the consummation by the City of the other transactions contemplated by the City Documents.
(e) To the best knowledge of the City, there is, and on the Closing Date (as hereinafter defined) there will be, no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened against the City to restrain or enjoin the payments to be made pursuant to the Lease Agreement, or in any way contesting or affecting the validity of the City Documents or the authority of the City to approve this Agreement, or enter into the City Documents or contesting the powers of the City to enter into 87 J.
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or perform its obligations under any of the foregoing or in any way contesting the powers of the City in connection with any action contemplated by this Agreement or to restrain or enjoin the payment of Lease Payments, nor is there any basis for any such action, suit, proceeding or investigation.
(f) By official action of the City prior to or concurrently with the execution hereof, the City has duly authorized and approved the execution and delivery of, and the performance by the City of the obligations on its part contained in the City Documents and the consummation by it of all other transactions contemplated by this Agreement. (g) The City is not in breach of or default under any material applicable law or administrative regulation of the State or the United States or any material applicable judgment or decree or any loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the City is a party or is otherwise subject and in connection with which the City is obligated to make payments from its own funds, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument the consequence of which could be to materially and adversely affect the performance of the City under the City Documents. (h) The City will deliver all opinions, certificates, letters and other instruments and documents reasonably required by the Bank and this Agreement. (i) Any certificate of the City delivered to the Bank shall be deemed a representation and warranty by the City to the Bank as to the statements made therein. (j) The financial statements of, and other financial information regarding the City delivered to the Bank fairly present the financial position and results of the operations of the City as of the dates and for the periods therein set forth and the audited financial statements have been prepared in accordance with generally accepted accounting principles consistently applied.
(k) Between the date of this Agreement and the Closing Date, the City will not, without the prior written consent of the Bank, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by a lien on the City’s general fund.
(l) The City acknowledges that the Bank will treat the funding and assignment of the Authority’s rights in the Lease Agreement described above as a loan and not a security.

7. Representations and Warranties of the Authority. The Authority represents, warrants, covenants and agrees with the Bank as follows:
(a) The Authority is a joint exercise of powers authority organized and existing under the constitution and laws of the State and the Board of Directors of the Authority, by adoption of a resolution of the Board of Directors of the Authority (the “Authority Resolution”), has duly approved the execution and delivery of the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, and the Authority has full right, power and authority to execute, deliver and perform its obligations under the Site and Facility Lease, the Lease Agreement and the Assignment Agreement and to carry out and consummate the transactions contemplated by the Site and Facility Lease, the Lease Agreement and the Assignment Agreement. (b) The Authority has, on or before the date hereof, duly adopted the Authority Resolution and taken all action necessary to be taken by it prior to such date for (i) the execution 88 J.
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and delivery of the Site and Facility Lease, the Lease Agreement and the Assignment Agreement and performance of its obligations thereunder, and (ii) the carrying out of, giving effect to, consummating and performing the transactions and obligations contemplated to be performed by it by the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, provided that no representation is made with respect to compliance with the securities or “Blue Sky” laws of the various states of the United States, and the Resolution has not been amended, modified or repealed and is in full force and effect on the date hereof. (c) The execution and delivery by the Authority of the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, the compliance by it with the terms, conditions or provisions hereof and thereof, and the consummation on its part of the transactions herein and therein contemplated do not and will not, in any respect material for the performance by the Authority of its obligations under the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, conflict with or constitute a breach of or a default under nor contravene any law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, resolution, agreement or other instrument to which the Authority is a party or is otherwise subject, nor does any such execution, delivery, adoption or compliance result in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any of the properties or assets of the Authority under any such law, administrative regulation, judgment, decree, loan agreement, indenture, bond, note, deed of trust, resolution, agreement or other instrument in any respect material to the performance by the Authority of its obligations under the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, except as provided in the Site and Facility Lease, the Lease Agreement and the Assignment Agreement.
(d) Except as may be required under Blue Sky or other securities laws of any state, there is no consent, approval, authorization or other order of, or filing with, or certification by, any regulatory authority having jurisdiction over the Authority required for the consummation by the Authority of the transactions contemplated by the Site and Facility Lease, the Lease Agreement and the Assignment Agreement, which has not been duly obtained or made on or prior to the date hereof.
(e) There is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending against or, to the best knowledge of the Authority, threatened against or affecting the Authority wherein an unfavorable decision, ruling or finding would adversely affect (i) the validity or enforceability of, or the authority or ability of the Authority to perform its obligations under, the Site and Facility Lease, the Lease Agreement and the Assignment Agreement or (B) the transactions contemplated to be performed by it under the Site and Facility Lease, the Lease Agreement and the Assignment Agreement. (f) The Authority covenants that it will not take any action which would cause interest payable with respect to the Lease Agreement to become subject to State personal income taxes. (g) Any certificate of the Authority delivered to the Bank in connection with the transactions contemplated by this Letter Agreement for Funding shall be deemed a representation by the Authority to the Bank as to the statements made therein. (h) All representations and warranties of the Authority in the Site and Facility Lease and the Lease Agreement are true and correct as of the date hereof.

8. Conditions Precedent to the Closing. The City agrees to satisfy the closing conditions set forth in Section 3.01 of that certain Supplemental Agreement, dated as of March 1, 2022, by and 89 J.
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between the City and the Bank (the “Supplemental Agreement”), together with the delivery by the Bank of a Bank letter in form and substance as attached hereto as Exhibit B.

9. Events Permitting the Bank to Terminate. The Bank may terminate its obligation to fund for the assignment of the Authority’s rights, title and interest under the Site and Facility Lease and the Lease Agreement before the Closing Date if any of the following occurs:
(a) any legislative, executive or regulatory action (including the introduction of legislation) or any court decision that, in the judgment of the Bank, casts sufficient doubt on the legality of or the tax-exempt status of the interest component of obligations such as those represented by the Lease Agreement and the Lease Payments so as to materially impair the credit quality of such obligations, in the reasonable opinion of the Bank; (b) any action by the Securities and Exchange Commission or a court that would require registration of the Lease Agreement under the Securities Act of 1933, as amended; (c) any event occurs or becomes known that has a material adverse effect on the financial condition of the City or on the ability of the City or the Authority to perform under the Site and Facility Lease, the Lease Agreement or the Assignment Agreement; or (d) any of the representations or warranties of the City made in this Letter Agreement for Funding are determined by the Bank to be untrue or materially inaccurate.

10. Supplemental Agreement to Control. To the extent any provision of this Agreement conflicts with a similar provision in the Supplemental Agreement, the Supplemental Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto have executed and entered into this Letter Agreement for Funding by their officers thereunto duly authorized as of the day and year first above written.

BANK OF THE WEST
By
Name
Title
The foregoing is hereby agreed to and
accepted as of the date first above written:

CITY OF BRISBANE
By
Clayton L. Holstine
City Manager

BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT

FINANCING AUTHORITY
By
Clayton L. Holstine
Executive Director
91 J.

Exhibit A

EXHIBIT A

SCHEDULE OF THE PRINCIPAL COMPONENT OF LEASE PAYMENTS
Lease Total
Payment Principal Interest Lease
Date Component Component Payment
9/1/22 — $ 61,726.08 $ 61,726.08
3/1/23 — 70,768.75 70,768.75
9/1/23 $ 35,000 70,768.75 105,768.75
3/1/24 35,000 70,200.00 105,200.00
9/1/24 38,000 69,631.25 107,631.25
3/1/25 38,000 69,013.75 107,013.75
9/1/25 38,000 68,396.25 106,396.25
3/1/26 38,000 67,778.75 105,778.75
9/1/26 38,000 67,161.25 105,161.25
3/1/27 40,000 66,543.75 106,543.75
9/1/27 43,000 65,893.75 108,893.75
3/1/28 43,000 65,195.00 108,195.00
9/1/28 44,000 64,496.25 108,496.25
3/1/29 44,000 63,781.25 107,781.25
9/1/29 122,000 63,066.25 185,066.25
3/1/30 122,000 61,083.75 183,083.75
9/1/30 126,000 59,101.25 185,101.25
3/1/31 126,000 57,053.75 183,053.75
9/1/31 131,000 55,006.25 186,006.25
3/1/32 130,000 52,877.50 182,877.50
9/1/32 134,000 50,765.00 184,765.00
3/1/33 135,000 48,587.50 183,587.50
9/1/33 139,000 46,393.75 185,393.75
3/1/34 139,000 44,135.00 183,135.00
9/1/34 143,000 41,876.25 184,876.25
3/1/35 144,000 39,552.50 183,552.50
9/1/35 148,000 37,212.50 185,212.50
3/1/36 148,000 34,807.50 182,807.50
9/1/36 153,000 32,402.50 185,402.50
3/1/37 153,000 29,916.25 182,916.25
9/1/37 158,000 27,430.00 185,430.00
3/1/38 158,000 24,862.50 182,862.50
9/1/38 164,000 22,295.00 186,295.00
3/1/39 163,000 19,630.00 182,630.00
9/1/39 168,000 16,981.25 184,981.25
3/1/40 169,000 14,251.25 183,251.25
9/1/40 174,000 11,505.00 185,505.00
3/1/41 174,000 8,677.50 182,677.50
9/1/41 180,000 5,850.00 185,850.00
3/1/42 180,000 2,925.00 182,925.00
Total $4,355,000 $1,849,599.83 $6,204,599.83
92 J.

Exhibit B

Page 1 ends

EXHIBIT B
FORM OF BANK’S LETTER
City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: City Manager
Brisbane/Guadalupe Valley
Municipal Improvement District Financing Authority
50 Park Place
Brisbane, CA 94005
Attention: Executive Director
Re: $4,355,000 Lease Agreement, dated as of March 1, 2022, by and between the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority and the City of Brisbane, assigned to Bank of the West
Ladies and Gentlemen:

The undersigned, Bank of the West (the “Bank”), has agreed, upon the terms and conditions set forth in the Supplemental Agreement, dated as of March 1, 2022, by and between the City of Brisbane (the “City”) and the Bank, to fund $4,355,000 to the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”), which amount will be paid by the Authority to the City and, in consideration therefor, the City has agreed to cause the Authority to assign its rights, title and interest under the Site and Facility Lease, dated as of March 1, 2022, by and between the City and the Authority (the “Site and Facility Lease”), and the Lease Agreement, dated as of March 1, 2022 (the “Lease Agreement”), by and between the City and the Authority, including its rights to receive lease payments to be made by the City under the Lease Agreement. In connection with such purchase, the Bank hereby agrees and certifies to the Authority and the City that:
(a) The Bank has sufficient knowledge and experience in financial and business matters, including purchase and ownership of municipal and other obligations of a nature similar to the Lease Agreement to be able to evaluate the risks and merits of the extension of credit represented by the funding and assignment described above. (b) The Bank is extending credit as represented by the funding and assignment described above for its own account and not with a view to, or for sale in connection with, any distribution thereof or any part thereof. The Bank has not offered to sell, solicited offers to buy, or agreed to sell the rights, title and interest of the Authority under the Lease Agreement or any part thereof, and the Bank has no current intention of reselling or otherwise disposing of such rights, title and interest under the Lease Agreement provided, however, such representation shall not preclude the Bank from transferring or selling of the rights, title and interest under the Lease Agreement in accordance with the Lease Agreement. The Bank is not acting in a brokerdealer capacity in connection with the extension of credit represented by the funding and assignment described above.
(c) As a sophisticated financial institution, the Bank has made its own credit inquiry and analysis with respect to the City and the Lease Agreement and has made an independent credit 93 J.

Exhibit B

Page 2 ends

decision based upon such inquiry and analysis and in reliance on the truth, accuracy, and completeness of the representations and warranties of the City set forth in the Lease Agreement and in the information set forth in any materials submitted to the Bank by the City. The City has furnished to the Bank all the information which the Bank, as a reasonable investor, has requested of the City as a result of the Bank having attached significance thereto in making its credit decision with respect to the Lease Agreement, and the Bank has had the opportunity to ask questions of and receive answers from knowledgeable individuals concerning the City and the Lease Agreement. The Bank is able and willing to bear the economic risk of the extension of credit represented by the funding and assignment described above. (d) The Bank understands that the Lease Agreement has not been registered under the United States Securities Act of 1933 or under any state securities laws. The Bank agrees that it will comply with any applicable state and federal securities laws then in effect, if any, with respect to any disposition of the rights, title and interest of the Authority under the Lease Agreement by it, and further acknowledges that any current exemption from registration of the Lease Agreement does not affect or diminish such requirements. (e) The Bank has authority to execute any instruments and documents required to be executed by the Bank in connection with the funding and assignment described above. The undersigned is a duly appointed, qualified, and acting officer of the Bank and is authorized to cause the Bank to make the representations and warranties contained herein on behalf of the Bank.
(f) The Bank acknowledges that rights, title and interest of the Authority under the Lease Agreement are transferable with certain requirements, as described in the Lease Agreement. (g) The Bank acknowledges that the Lease Agreement is exempt from the requirements of Rule 15c2-12 of the Securities and Exchange Commission and that the City has not undertaken to provide any continuing disclosure with respect to the Lease Agreement but that the City has agreed to provide other ongoing information to the Bank. (h) The Bank intends to treat the funding and assignment of the Authority’s rights in the Lease Agreement described above as a loan and not a security.

BANK OF THE WEST
By
Name
Title
94 J.

Quint & Thimmig LLP 01/27/22
02/18/22
02014.10
AFTER RECORDATION PLEASE RETURN TO:

Quint & Thimmig LLP
900 Larkspur Landing Circle, Suite 270
Larkspur, CA 94939-1726
Attention: Brian D. Quint, Esq.

THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX PURSUANT TO SECTION 11929 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 FACILITY LEASE
Dated as of March 1, 2022
by and between the
CITY OF BRISBANE, as Lessor
and the

BRISBANE/GUADALUPE VALLEY MUNICIPAL
IMPROVEMENT DISTRICT FINANCING AUTHORITY, as Lessee
95 J.

SITE AND FACILITY LEASE
THIS SITE AND FACILITY LEASE (this “Site and Facility Lease”), dated as of March 1, 2022, is by and between the CITY OF BRISBANE, a municipal corporation and general law city organized and existing under and by virtue of the laws of the State of California (the “City”), as lessor, and the BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY, a joint exercise of powers authority organized and existing under and by virtue of the laws of the State of California (the “Authority”), as lessee; WITNESSETH:

WHEREAS, pursuant to this Site and Facility Lease, the City proposes to lease those certain parcels of real property situated in San Mateo County, State of California, more particularly described in Exhibit A attached hereto and made a part hereof (the “Site”), and those certain improvements thereon, more particularly described in Exhibit B hereto (the “Facility” and, with the Site, the “Property”), to the Authority, all for the purpose of enabling the City to finance the costs associated with the acquisition of the building and land of the former Bank of America branch located at 70 Old County Road in Brisbane for future City use; WHEREAS, the Authority proposes to lease the Property back to the City pursuant to that certain Lease Agreement, dated as of March 1, 2022, a memorandum of which is recorded concurrently herewith (the “Lease Agreement”) and to assign all of its rights, title and interest in, to and under this Site and Facility Lease and the Lease Agreement, including its right to receive lease payments under the Lease Agreement (the “Lease Payments”), its right to enforce payment of the Lease Payments and otherwise to enforce its interest and rights under the Lease Agreement in the event of a default thereunder by the City, to Bank of the West (the “Assignee”), pursuant to that certain assignment agreement, dated as of March 1, 2022, by and between the Authority and the Assignee (the “Assignment Agreement”), and recorded concurrently herewith;
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED, as follows:

Section 1. Definitions. Capitalized terms used, but not otherwise defined, in this Site and Facility Lease shall have the meanings ascribed to them in the Lease Agreement.

Section 2. Site and Facility Lease. The City hereby leases to the Authority and the Authority hereby leases from the City, on the terms and conditions hereinafter set forth, the Property.

Section 3. Term. The term of this Site and Facility Lease shall commence on the date of recordation of this Site and Facility Lease in the Office of the County Recorder of the County of San Mateo, State of California, and shall end on March 1, 2042, unless such term is extended or sooner terminated as hereinafter provided. If, on March 1, 2042, the aggregate amount of Lease Payments or Additional Payments (each as defined in and as payable under the Lease Agreement) shall not have been paid by reason of abatement, default or otherwise, or provision shall not have been made for their payment in accordance with the Lease Agreement, then the term of this Site and Facility Lease shall be extended until such Lease Payments and Additional Payments shall be fully paid or provision made for such payment, but in no event later than March 1, 2052. If, prior to March 1, 2042, all Lease Payments and Additional Payments shall be fully paid or provision made for such payment in accordance with the Lease Agreement, the term of this Site and Facility Lease shall end.
96 J.
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Section 4. Advance Rental Payment. The City agrees to lease the Property to the Authority in consideration of the payment by the Authority of an advance rental payment of $4,355,000. The City and the Authority agree that by reason of the assignment of the Lease Payments to the Assignee under and pursuant to the Assignment Agreement, the advance rental payment referenced in the preceding sentence shall be deemed to have been paid.

Section 5. Purpose. The Authority shall use the Property solely for the purpose of leasing the Property to the City pursuant to the Lease Agreement and for such purposes as may be incidental thereto; provided, however, that in the event of default by the City under the Lease Agreement, the Authority and its assigns may exercise the remedies provided in the Lease Agreement.

Section 6. City’s Interest in the Property. The City covenants that it is the owner in fee of the Property.

Section 7. City Representations and Certifications to the Authority and the Assignee. The City hereby certifies and represents, warrants, covenants and agrees as follows:
(a) This Site and Facility Lease is in full force and effect, and there have been no amendments, modifications, changes or additions since its execution. (b) To the best of the City’s knowledge, the Authority is not and will not be, in any respect, in default under the terms and provisions of this Site and Facility Lease. Further, to the best of the City’s knowledge, the City knows of no event which would, currently or with the passage of time or giving of notice, or both, constitute a default under the terms of this Site and Facility Lease by either the Authority or the City.
(c) The City has not currently encumbered its fee interest in the Property to any lender or financial institution, whether by way of mortgage, deed of trust or other security instruments, except for this Site and Facility Lease and the Lease Agreement which is being recorded concurrently herewith and Permitted Encumbrances (as defined in the Trust Agreement).
(d) The City acknowledges and hereby consents to the Lease Agreement. (e) Upon the Event of Default under the Lease Agreement, the City will standstill and allow the Authority or the Assignee to pursue any and all remedies available to the Authority or Assignee under either this Site and Facility Lease or the Lease Agreement. (f) Except for the rental payment referenced in Section 4, no additional rent is or will be due under this Site and Facility Lease by the Authority through the term of this Site and Facility Lease and the Authority has satisfied all of its obligations under this Site and Facility Lease. (g) During the term of the Site and Facility Lease, the City will not consent to any amendment, modification or termination of this Site and Facility Lease without the prior written consent of the Assignee.
(h) During the term of this Site and Facility Lease, the City will not encumber its interest in the Site without the prior written consent of the Assignee. (i) The City acknowledges that this Site and Facility Lease cannot be terminated by the City for any reason, except according to Section 3.
97 J.
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(j) Notwithstanding any Site and Facility Lease provisions to the contrary, policies of fire, casualty, and extended coverage insurance shall be carried and maintained by the City in accordance with the terms of the Lease Agreement covering the building or buildings constructed on the Site, with a loss payable clause to Assignee.

Section 8. Assignments and Subleases. Unless the City shall be in default under the Lease Agreement, the Authority may not assign its rights under this Site and Facility Lease or sublet the Property, except as provided in the Lease Agreement and the Assignment Agreement, without the written consent of the City and the Assignee. The City consents to the assignment of the Authority’s interest in this Site and Facility Lease to the Assignee. If the City is in default under the Lease Agreement, the Assignee (including their successors and assigns under the Lease Agreement) may fully and freely assign and sublease the Property or any portion thereof, subject to this Site and Facility Lease.

Section 9. Right of Entry. The City reserves the right for any of its duly authorized representatives to enter upon the Property at any reasonable time to inspect the same or to make any repairs, improvements or changes necessary for the preservation thereof.

Section 10. Termination. The Authority agrees, upon the termination of this Site and Facility Lease, to quit and surrender the 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 agrees that any permanent improvements and structures existing upon the Site at the time of the termination of this Site and Facility Lease shall remain thereon and title thereto shall vest in the City.

Section 11. Default. In the event the Authority shall be in default in the performance of any obligation on its part to be performed under the terms of this Site and Facility Lease, which default continues for thirty (30) days following notice and demand for correction thereof to the Authority, the City may, with the consent of the Assignee, exercise any and all remedies granted by law, except that no merger of this Site and Facility Lease and of the Lease Agreement shall be deemed to occur as a result thereof and the City shall have no right to terminate this Site and Facility Lease as a remedy for such default. Notwithstanding the foregoing, so long as the Lease Agreement remains in effect, the City will continue to pay the Lease Payments to the Assignee.

In the event of the occurrence of an Event of Default under the Lease Agreement or a breach or default of the certifications and representations, warranties and covenants of the City contained in Section 7, the Authority and/or the Assignee may (i) exercise the remedies provided in the Lease Agreement, (ii) use the Property for any lawful purpose, subject to any applicable legal limitations or restrictions, and (iii) exercise all options provided herein.

Section 12. Quiet Enjoyment. The Authority, at all times during the term of this Site and Facility Lease, shall peaceably and quietly have, hold and enjoy all of the Property subject to the provisions of the Lease Agreement.

Section 13. Waiver of Personal Liability. All liabilities under this Site and Facility Lease on the part of the Authority are solely liabilities of the Authority and the City hereby releases each and every Boardmember, director, officer, employee and agent of the Authority of and from any personal or individual liability under this Site and Facility Lease. No Boardmember, director, officer, employee or agent of the Authority shall at any time or under any circumstances be individually or personally liable under this Site and Facility Lease for anything done or omitted to be done by the Authority hereunder. 98 J.
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Section 14. Taxes. All assessments of any kind or character and all taxes, including possessory interest taxes, levied or assessed upon the Property or the Authority’s interest in the Property created by this Site and Facility Lease (including both land and improvements) will be paid by the City in accordance with the Lease Agreement.

Section 15. Eminent Domain. In the event the whole or any part of the Property 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 principal component of the Lease Payments, any then unpaid interest component of the Lease Payments and any premium due with respect to the prepayment of Lease Payments to the date such amounts are remitted to the Authority or its assignee, and, subject to the provisions of the Lease Agreement, the balance of the award, if any, shall be paid to the City. The City hereby waives, to the extent permitted by law, any and all rights that it has or may hereafter have to acquire the interest of the Authority in and to the Property through the eminent domain powers of the City. However, the City hereby agrees, to the extent permitted by law, that the compensation to be paid in any condemnation proceedings brought by or on behalf of the City with respect to the Property shall be in an amount not less than the total unpaid principal component of Lease Payments, the interest component of Lease Payments accrued to the date of payment of all Lease Payments and any premium due with respect to the prepayment of Lease Payments under the Lease Agreement.

Section 16. Use of the Proceeds. The City and the Authority hereby agree that the lease to the Authority of the City’s right and interest in the Property pursuant to Section 2 serves the public purposes of the City.

Section 17. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site and Facility Lease shall, to any extent, be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding, order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Site and Facility Lease shall be affected thereby, and each provision of this Site and Facility Lease shall be valid and enforceable to the fullest extent permitted by law.

Section 18. Notices. All notices, statements, demands, consents, approvals, authorizations, 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 mail, return receipt requested, postage prepaid, at the addresses set forth in the Lease Agreement, or to such other addresses as the respective parties may from time to time designate by notice in writing.

Section 19. Binding Effect. This Site and Facility Lease shall inure to the benefit of and shall be binding upon the City and the Authority and their respective successors and assigns.

The Assignee is hereby made a third party beneficiary hereunder with all rights of a third party beneficiary.

Section 20. Amendment. This Site and Facility Lease may not be amended except as may be required to conform to amendment made pursuant to Section 7.6 of the Lease Agreement.

Section 21. 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 of this Site and Facility Lease.

Section 22. Applicable Law. This Site and Facility Lease shall be governed by and construed in accordance with the laws of the State of California applicable to contracts made and performed in California.
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Section 23. No Merger. Neither this Site and Facility Lease, the Lease Agreement nor any provisions hereof or thereof shall be construed to effect a merger of the title of the City to the Property under this Site and Facility Lease and the City’s leasehold interest therein under the Lease Agreement.

Section 24. Execution in Counterparts. This Site and Facility 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 instrument.
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IN WITNESS WHEREOF, the City and the Authority have caused this Site and Facility Lease to be executed by their respective officers thereunto duly authorized, all as of the day and year first above written.

CITY OF BRISBANE
By
Clayton L. Holstine
City Manager

BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT

FINANCING AUTHORITY
By
Clayton L. Holstine
Executive Director
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[NOTARY ACKNOWLEDGMENTS TO BE ATTACHED]
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Exhibit A

Page 1 ends

EXHIBIT A

DESCRIPTION OF THE SITE
The land referred to herein is situated in the State of California, County of San Mateo, City of Brisbane, and described as follows:

PARCEL ONE:

LOTS 8, 9 AND 10, BLOCK 7, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "AMENDED MAP OF SUBDIVISION NOS. 1, 2 AND 3 OF THE CITY OF VISITACION, CALIFORNIA", FILED IN THE

OFFICE OF THE RECORDER OF THE COUNTY OF SAN MATEO, STATE OF CALIFORNIA ON OCTOBER 14, 1908 IN BOOK 6 OF MAPS AT PAGE 45.

ASSESSOR'S PARCEL NOS. 007-281-070 and 007-281-080
JOINT PLANT NOS. 007-028-281-07A and 007-028-281-08A
PARCEL TWO:

LOTS 13 AND 14, BLOCK 7, AS SHOWN ON THAT CERTAIN MAP ENTITLED, "AMENDED MAPS OF SUBDIVISION NOS. 1, 2 AND 3, OF THE CITY OF VISITACION, CALIFORNIA", FILED IN THE

OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA ON OCTOBER 14, 1908, IN BOOK 6 OF MAPS AT PAGE 45.

ASSESSOR'S PARCEL NO. 007-281-100
JOINT PLANT NO.007-028-281-10A
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Exhibit B

EXHIBIT B

DESCRIPTION OF THE FACILITY
The Facility consists of the new 7,670-square-foot Brisbane Public Library located at 163 Visitacion Avenue in the City constructed in 2021. The library includes a Children’s Area, Teen Space, History Room, Community Room and Makerspace, complete with 3D printer, GoPro camera kits and more.
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Quint & Thimmig LLP 01/27/22
02/18/22
02014.10

LEASE AGREEMENT
Dated as of March 1, 2022
by and between the

BRISBANE/GUADALUPE VALLEY MUNICIPAL
IMPROVEMENT DISTRICT FINANCING AUTHORITY, as Sublessor
and the
CITY OF BRISBANE, as Sublessee
105
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-iTABLE OF CONTENTS

ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1. Definitions ....................................................................................................................................................................2 Section 1.2. Interpretation ...............................................................................................................................................................5

ARTICLE II

COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 2.1. Covenants, Representations and Warranties of the City .......................................................................................6 Section 2.2. Covenants, Representations and Warranties of the Authority ............................................................................8

ARTICLE III

DEPOSIT AND APPLICATION OF FUNDS
Section 3.1. Deposit of and Application of Funds .....................................................................................................................10

ARTICLE IV
LEASE OF PROPERTY; LEASE PAYMENTS
Section 4.1. Sublease of Property by the Authority Back to the City ......................................................................................11 Section 4.2. Term 11
Section 4.3. Lease Payments .........................................................................................................................................................11 Section 4.4. Quiet Enjoyment ........................................................................................................................................................13 Section 4.5. Title ............................................................................................................................................................................13 Section 4.6. Release of Excess Property .......................................................................................................................................13 Section 4.7. Substitution of Property ...........................................................................................................................................14

ARTICLE V
MAINTENANCE; TAXES; INSURANCE; AND OTHER MATTERS
Section 5.1. Maintenance, Utilities, Taxes and Assessments ...................................................................................................15 Section 5.2. Modification of Property ..........................................................................................................................................15 Section 5.3. Public Liability Insurance ........................................................................................................................................15 Section 5.4. Casualty Insurance ....................................................................................................................................................16 Section 5.5. Rental Interruption Insurance .................................................................................................................................16 Section 5.6. Worker’s Compensation Insurance ........................................................................................................................16 Section 5.7. Recordation Hereof; Title Insurance .......................................................................................................................16 Section 5.8. Insurance Net Proceeds; Form of Policies .............................................................................................................17 Section 5.9. Installation of City’s Personal Property .................................................................................................................17 Section 5.10. Liens ..........................................................................................................................................................................17 Section 5.11. Advances ..................................................................................................................................................................17 Section 5.12. Environmental Covenants .....................................................................................................................................17 Section 5.13. City Consents to Assignment Agreement ...........................................................................................................18

ARTICLE VI
EMINENT DOMAIN; USE OF NET PROCEEDS
Section 6.1. Eminent Domain .......................................................................................................................................................19 Section 6.2. Application of Net Proceeds ....................................................................................................................................19 Section 6.3. Abatement of Lease Payments in the Event of Damage or Destruction ...........................................................21

ARTICLE VII

OTHER COVENANTS OF THE CITY
Section 7.1. Disclaimer of Warranties ..........................................................................................................................................22 Section 7.2. Access to the Property; Grant and Conveyance of Right of Entry .....................................................................22 Section 7.3. Release and Indemnification Covenants ................................................................................................................22 Section 7.4. Assignment by the Authority ..................................................................................................................................23 Section 7.5. Assignment and Subleasing by the City ................................................................................................................23 Section 8.3. Amendment of Lease Agreement ...........................................................................................................................23 106
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-iiSection 7.7. Financial Statements; Budgets; Other Information ..............................................................................................25 Section 7.8. Records and Accounts ..............................................................................................................................................25 Section 7.9. Observance or Laws and Regulations ....................................................................................................................25 Section 7.10. Notices ......................................................................................................................................................................25

ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined ........................................................................................................................................27 Section 8.2. Remedies on Default .................................................................................................................................................27 Section 8.3. No Remedy Exclusive ...............................................................................................................................................29 Section 8.4. No Additional Waiver Implied by One Waiver ...................................................................................................29 Section 8.5. Assignee to Exercise Rights .....................................................................................................................................29

ARTICLE IX

PREPAYMENT OF LEASE PAYMENTS
Section 9.1. Security Deposit ........................................................................................................................................................30 Section 9.2. Optional Prepayment ...............................................................................................................................................30 Section 9.3. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain .............................................30

ARTICLE X

MISCELLANEOUS
Section 10.1. Notices ......................................................................................................................................................................32 Section 10.2. Binding Effect ...........................................................................................................................................................32 Section 10.3. Severability ...............................................................................................................................................................32 Section 10.4. Net-net-net Lease ....................................................................................................................................................32 Section 10.5. Supplemental Agreement to Control ...................................................................................................................32 Section 10.6. Further Assurances and Corrective Instruments ...............................................................................................32 Section 10.7. Execution in Counterparts .....................................................................................................................................33 Section 10.8. Applicable Law ........................................................................................................................................................33 Section 10.9. Captions ....................................................................................................................................................................33

EXHIBIT A DESCRIPTION OF THE SITE

EXHIBIT B DESCRIPTION OF THE FACILITY
EXHIBIT C-1 SCHEDULE OF LEASE PAYMENTS
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LEASE AGREEMENT
THIS LEASE AGREEMENT (this “Lease Agreement”), dated as of March 1, 2022, is by and between the BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY, a joint exercise of powers authority organized and existing under the laws of the State of California, as lessor (the “Authority”), and the CITY OF BRISBANE, a municipal corporation and general law city organized and existing under and by virtue of the laws of the State of California, as lessee (the “City”); WITNESSETH:

WHEREAS, pursuant to that certain Site and Facility Lease, dated as of March 1, 2022 (the “Site and Facility Lease”), the City has leased those certain parcels of real property situated in San Mateo County, State of California, more particularly described in Exhibit A attached hereto and made a part hereof (the “Site”), and those certain improvements thereon, more particularly described in Exhibit B hereto (the “Facility” and, with the Site, the “Property”), to the Authority, all for the purpose of enabling the City to finance the costs associated with the acquisition of the building and land of the former Bank of America branch located at 70 Old County Road in Brisbane for future City use (the “Project”); WHEREAS, the Authority proposes to lease the Property back to the City pursuant to this Lease Agreement and to assign all of its rights, title and interest in, to and under this Lease Agreement, including its right to receive lease payments under this Lease Agreement (the “Lease Payments”), its right to enforce payment of the Lease Payments and otherwise to enforce its interest and rights under this Lease Agreement in the event of a default hereunder by the City and its rights under the Site and Facility Lease, to Bank of the West (the “Assignee”), pursuant to that certain assignment agreement, dated as of March 1, 2022, by and between the Authority and the Assignee; and
WHEREAS, the City and the Authority have agreed to enter into this Lease Agreement providing for Lease Payments with an aggregate principal component in the amount of up to $4,355,000 for the purpose of implementing the financing transactions described above.

AGREEMENT:

NOW, THEREFORE, for and in consideration of the premises and the covenants hereinafter contained, the parties hereto hereby formally covenant, agree and bind themselves as follows:
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ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION
Section 1.1. Definitions. All terms defined in this Section 1.1 have the meanings herein specified for all purposes of this Lease Agreement.
“Additional Payments” means the amounts specified as such in Section 4.3(b) of this Lease Agreement.
“Applicable Environmental Laws” means and shall include, but shall not be limited to, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 USC Sections 9601 et seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 USC Sections 6901 et seq.; the Federal Water Pollution Control Act, 33 USC Sections 1251 et seq.; the Clean Air Act, 42 USC Sections 7401 et seq.; the California Hazardous Waste Control Law (“HWCL”), California Health & Safety Code Sections 25100 et seq.; the Hazardous Substance Account Act (“HSAA”), California Health & Safety Code Sections 25300 et seq.; the PorterCologne Water Quality Control Act (the “Porter-Cologne Act”), California Water Code Sections 1300 et seq.; the Air Resources Act, California Health & Safety Code Sections 3900 et seq.; the Safe Drinking Water & Toxic Enforcement Act, California Health & Safety Code Sections 25249.5 et seq.; and the regulations under each thereof; and any other local, state, and/or federal laws or regulations, whether currently in existence or hereafter enacted, that govern:
(a) the existence, cleanup, and/or remedy of contamination on property; (b) the protection of the environment from spilled, deposited, or otherwise emplaced contamination;
(c) the control of hazardous wastes; or
(d) the use, generation, transport, treatment, removal, or recovery of Hazardous Substances, including building materials.
“Applicable Law” means (a) all applicable common law and principles of equity and (b) all applicable provisions of all (i) constitutions, statutes, rules, regulations and orders of all Governmental Authorities, (ii) Applicable Environmental Laws, (iii) applicable seismic building code requirements at the time of construction, and (iv) orders, decisions, judgments, writs, injunctions and decrees of all courts (whether at law or in equity) and arbitrators. “Assignee” means initially, Bank of the West, and its successors and assigns, as assignee of all rights, title and interests of the Authority hereunder, and (b) any other entity to whom the rights of the Authority hereunder are assigned, including subsequent assignees of the Assignee. “Assignment Agreement” means the Assignment Agreement, dated as of March 1, 2022, by and between the Authority, as assignor, and the Assignee, as originally executed or as thereafter amended under any duly authorized and executed amendments thereto. “Authority” means the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority, a joint exercise of powers authority, organized and existing under the laws of the State.
“Authority Representative” means the Chairman, the Executive Director, the Assistant Executive Director or the Treasurer/Auditor or the designee of any such official, or any other 109
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person authorized by resolution of the Authority delivered to the Assignee to act on behalf of the Authority under or with respect to the Site and Facility Lease, the Lease Agreement and the Assignment Agreement.
“Business Day” means a day other than a Saturday, Sunday or legal holiday, on which banking institutions are not closed in the State.
“Closing Date” means the date this Lease Agreement or a memorandum thereof is recorded in the office of the County Recorder of the County of San Mateo. “Contract” means any indenture, trust agreement, contract, agreement (other than this Lease Agreement), other contractual restriction, lease, mortgage or instrument. “City” means the City of Brisbane, a municipal corporation and general law city organized and existing under the laws of the State.
“City Representative” means the Mayor, the City Manager, the Finance Director, or the designee of any such official, or any other person authorized by resolution delivered to the Authority and the Assignee to act on behalf of the City under or with respect to the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement. “Default Rate” means 4.250% per annum.
“Event of Default” means any of the events of default as defined in Section 8.1 and in Section 6.01 of the Supplemental Agreement.
“Facility” means those certain existing facilities more particularly described in Exhibit B to the Site and Facility Lease and in Exhibit B to the Lease Agreement. “Federal Securities” means any direct general non-callable obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), or obligations the timely payment of principal of and interest on which are directly guaranteed by the United States of America. “Fiscal Year” means each twelve-month period during the Term of this Lease Agreement commencing on July 1 in any calendar year and ending on June 30 in the next succeeding calendar year, or any other twelve-month period selected by the City as its fiscal year period. “Governmental Authority” means any governmental or quasi-governmental entity, including any court, department, commission, board, bureau, agency, administration, central bank, service, city or other instrumentality of any governmental entity or other entity exercising executive, legislative, judicial, taxing, regulatory, fiscal, monetary or administrative powers or functions of or pertaining to government, or any arbitrator, mediator or other person with authority to bind a party at law.
“Hazardous Substance” means any substance that shall, at any time, be listed as “hazardous” or “toxic” in any Applicable Environmental Law or that has been or shall be determined at any time by any agency or court to be a hazardous or toxic substance regulated under Applicable Environmental Laws; and also means, without limitation, raw materials, building components, the products of any manufacturing, or other activities on the Property, wastes, petroleum, and source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 USC Sections 3011 et seq.). 110
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“Interest Period ” has the meaning set forth in the Supplemental Agreement. “Lease Agreement ” means this Lease Agreement, dated as of March 1, 2022, between the Authority and the City.
“Lease Payment Date” means March 1 and September 1 in each year, commencing September 1, 2022, and continuing to and including the date on which the Lease Payments are paid in full.
“Lease Payments” means all payments required to be paid by the City under Section 4.3, including any prepayment thereof under Sections 9.2 or 9.3. “Material Adverse Effect” means an event or occurrence which adversely affects in a material manner (a) the assets, liabilities, condition (financial or otherwise), business, facilities or operations of the City, (b) the ability of the City to carry out its business in the manner conducted as of the date of this Lease Agreement or to meet or perform its obligations under this Lease Agreement on a timely basis, (c) the validity or enforceability of this Lease Agreement, or (d) the exemption of the interest component of the Lease Payments for state income tax purposes.
“Material Litigation” means any action, suit, proceeding, inquiry or investigation against the City in any court or before any arbitrator of any kind or before or by any Governmental Authority, (a) if determined adversely to the City, may have a Material Adverse Effect, (b) seek to restrain or enjoin any of the transactions contemplated by this Lease Agreement, or (c) may adversely affect (i) the exemption of the interest component of the Lease Payments for state income tax purposes or (ii) the ability of the City to perform its obligations under this Lease Agreement.
“Net Proceeds” means any insurance or eminent domain award (including any proceeds of sale to a governmental entity under threat of the exercise of eminent domain powers), paid with respect to the Property, to the extent remaining after payment therefrom of all expenses incurred in the collection thereof.
“Permitted Encumbrances” means, as of any time: (a) liens for general ad valorem taxes and assessments, if any, not then delinquent, or which the City may permit to remain unpaid under Article VI of this Lease Agreement; (b) the Site and Facility Lease, this Lease Agreement and the Assignment Agreement; (c) any right or claim of any mechanic, laborer, materialman, supplier or vendor not filed or perfected in the manner prescribed by law; (d) the exceptions disclosed in the title insurance policy issued with respect to the Property issued as of the Closing Date; and (e) any easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record and which the City certifies in writing will not materially impair the use of the Property for its intended purposes.
“Project” means the acquisition of the building and land of the former Bank of America branch located at 70 Old County Road in Brisbane for future City use to be financed from the proceeds of the Lease Agreement from the Assignee.
“Property” means, collectively, the Site and the Facility. “Rental Period” means each period during the Term of the Lease commencing on and including March 2 in each year and extending to and including the next succeeding March 1.

The first Rental Period begins on the Closing Date and ends on March 1, 2023. 111
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“Site” means that certain real property more particularly described in Exhibit A to the Site and Facility Lease and in Exhibit A to the Lease Agreement. “Site and Facility Lease” means the Site and Facility Lease, dated as of March 1, 2022, by and between the City, as lessor, and the Authority, as lessee, together with any duly authorized and executed amendments thereto.
“Special Counsel” means (a) Quint & Thimmig LLP, or (b) any other attorney or firm of attorneys of nationally recognized expertise with respect to legal matters relating to obligations of municipal entities.
“State” means the State of California.
“Supplemental Agreement” means that certain Supplemental Agreement, dated as of March 1, 2022, by and between the City and the Assignee, together with any duly authorized and executed amendments thereto.
“Term of this Lease Agreement” or “Term” means the time during which this Lease Agreement is in effect, as provided in Section 4.2.

Section 1.2. Interpretation.
(a) Unless the context otherwise indicates, words expressed in the singular include the plural and vice versa and the use of the neuter, masculine, or feminine gender is for convenience only and include the neuter, masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof are solely for convenience of reference, do not constitute a part hereof and do not affect the meaning, construction or effect hereof.
(c) All references herein to “Articles,” “Sections” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Lease Agreement; the words “herein,” “hereof,” “hereby,” “hereunder” and other words of similar import refer to this Lease Agreement as a whole and not to any particular Article, Section or subdivision hereof. 112
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ARTICLE II

COVENANTS, REPRESENTATIONS AND WARRANTIES
Section 2.1. Covenants, Representations and Warranties of the City. The City makes the following covenants, representations and warranties to the Authority as of the date of the execution and delivery of this Lease Agreement:
(a) Due Organization and Existence. The City is a municipal corporation and general law city, organized and existing under and by virtue of the laws of the State, has full legal right, power and authority under the laws of the State to enter into the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement and to carry out and consummate all transactions on its part contemplated hereby and thereby, and by proper action the City has duly authorized the execution and delivery by the City of the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement.
(b) Due Execution. The representative of the City executing the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement has been fully authorized to execute the same by a resolution duly adopted by the City Council of the City. (c) Valid, Binding and Enforceable Obligations. The Site and Facility Lease, this Lease Agreement and the Supplemental Agreement have been duly authorized, executed and delivered by the City and constitute the legal, valid and binding agreements of the City enforceable against the City in accordance with their respective terms. (d) No Conflicts. The execution and delivery of the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement, the consummation of the transactions therein and herein contemplated and the fulfillment of or compliance with the terms and conditions thereof and hereof, do not and will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, lease, contract or other agreement or instrument to which the City is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the City, which conflict, violation, breach, default, lien, charge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site and Facility Lease or this Lease Agreement or the financial condition, assets, properties or operations of the City.
(e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the City or of the voters of the City, and no consent, permission, authorization, order or license of, or filing or registration with, any Governmental Authority is necessary in connection with the execution and delivery of the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement, or the consummation of any transaction therein and herein contemplated, except as have been obtained or made and as are in full force and effect. (f) No Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court or federal, state, municipal or other Governmental Authority pending and notice of which has been served on the City or, to the knowledge of the City after reasonable investigation, threatened against or affecting the City or the assets, properties or operations of the City which, if determined adversely to the City or its interests, would have a Material Adverse Effect upon the consummation of the transactions contemplated by or the validity of 113
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the Site and Facility Lease, this Lease Agreement and the Supplemental Agreement or upon the financial condition, assets, properties or operations of the City, and the City is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other Governmental Authority, which default might have consequences that would have a Material Adverse Effect on the consummation of the transactions contemplated by this Lease Agreement, or the financial condition, assets, properties or operations of the City.
(g) Sufficient Funds. The City reasonably believes that sufficient funds can be obtained to make all Lease Payments and all other amounts required to be paid pursuant to this Lease Agreement.
(h) No Defaults. The City has never non-appropriated or defaulted under any of its payment or performance obligations or covenants, either under any financing lease of the same general nature as this Lease Agreement, or under any of its bonds, notes, or other debt obligations.
(i) Fee Title. The City is the owner in fee of title to the Property. No lien or encumbrance on the Property materially impairs the City’s use of the Property for the purposes for which it is, or may reasonably be expected to be, held.
(j) Use of the Property. During the term of this Lease Agreement, the Property will be used by the City only for the purpose of performing one or more governmental or proprietary functions of the City consistent with the permissible scope of the City’s authority. (k) Change in Financial Condition. The City has experienced no material change in its financial condition since June 30, 2021.
(l) Hazardous Substances. To the best of the City’s knowledge, the Property is free of all Hazardous Substances, and the City is in full compliance with all Applicable Environmental Laws.
(m) Flooding Risk. The Property is not located in a 100-year flood zone and has never been subject to material damage from flooding.
(n) Value of Property. The value of the Property (property replacement cost), excluding the value of the land, is not less than $5,000,000.
(o) Essential to City Operations. The Property is essential to the City’s efficient and economic operations and the lease thereof for use by the City is in the best interest of the City. (p) Financial Statements. The statement of financial position of the City as of June 30, 2014, and the related statement of activities and statement of cash flows and changes in financial position for the year then ended and the auditors’ reports with respect thereto, copies of which have heretofore been furnished to the Assignee, are complete and correct and fairly present the financial condition, changes in financial position and results of operations of the City at such date and for such period, and were prepared in accordance with generally accepted accounting principles. Since the period of such statements, there has been no (i) change which would have a Material Adverse Effect and (ii) no material increase in the indebtedness of the City. 114
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(q) No Material Adverse Change. Since the most current date of the information, financial or otherwise, supplied by the City to the Assignee:
(i) There has been no change in the assets, liabilities, financial position or results of operations of the City which might reasonably be anticipated to cause a Material Adverse Effect.
(ii) The City has not incurred any obligations or liabilities which might reasonably be anticipated to cause a Material Adverse Effect. (iii) The City has not (A) incurred any material indebtedness, other than the Lease Payments, and trade accounts payable arising in the ordinary course of the City’s business and not past due, or (B) guaranteed the indebtedness of any other person. (r) Accuracy of Information. All information, reports and other papers and data furnished by the City to the Assignee were, at the time the same were so furnished, complete and accurate in all material respects and insofar as necessary to give the Assignee a true and accurate knowledge of the subject matter and were provided in expectation of the Assignee’s reliance thereon in entering into the transactions contemplated by this Lease Agreement. No fact is known to the City which has had or, so far as the City can now reasonably foresee, may in the future have a Material Adverse Effect, which has not been set forth in the financial statements previously furnished to the Assignee or in other such information, reports, papers and data or otherwise disclosed in writing to the Assignee prior to the Closing Date. Any financial, budget and other projections furnished to the Assignee by the City or its or their agents were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair and reasonable in light of the conditions existing at the time of delivery of such financial, budget or other projections, and represented, and as of the date of this representation, represent the City’s best estimate of its future financial performance. No document furnished nor any representation, warranty or other written statement made to the Assignee in connection with the negotiation, preparation or execution of this Lease Agreement contains or will contain any untrue statement of a material fact or omits or will omit to state (as of the date made or furnished) any material fact necessary in order to make the statements contained herein or therein, in light of the circumstances under which they were or will be made, not misleading. (s) Facility. The Facility complies with all applicable restrictive covenants, zoning ordinances, building laws and other Applicable Laws (including without limitation, the Americans with Disabilities Act, as amended).
(t) No CUSIP Number; No Rating. A CUSIP number will not be obtained for the Lease Agreement. No credit rating has been or will be assigned to the Lease Agreement.

Section 2.2. Covenants, Representations and Warranties of the Authority. The Authority makes the following covenants, representations and warranties to the City as of the date of the execution and delivery of this Lease Agreement:
(a) Due Organization and Existence. The Authority is a joint exercise of powers authority, duly organized and existing under the laws of the State, has full legal right, power and authority to enter into the Site and Facility Lease, this Lease Agreement and the Assignment Agreement and to carry out and consummate all transactions on its part contemplated hereby and thereby, and by proper action the Authority has duly authorized the execution and delivery by the Authority of the Site and Facility Lease, this Lease Agreement and the Assignment Agreement.
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(b) Due Execution. The representative of the Authority executing the Site and Facility Lease, this Lease Agreement and the Assignment Agreement is fully authorized to execute the same under official action taken by the Board of Directors of the Authority. (c) Valid, Binding and Enforceable Obligations. The Site and Facility Lease, this Lease Agreement and the Assignment Agreement have been duly authorized, executed and delivered by the Authority and constitute the legal, valid and binding agreements of the Authority, enforceable against the Authority in accordance with their respective terms. (d) No Conflicts. The execution and delivery of the Site and Facility Lease, this Lease Agreement and the Assignment Agreement, the consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof and thereof, do not and will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any indenture, mortgage, deed of trust, lease, contract or other agreement or instrument to which the Authority is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority, which conflict, violation, breach, default, lien, charge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site and Facility Lease, this Lease Agreement and the Assignment Agreement or the financial condition, assets, properties or operations of the Authority.
(e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the Authority, and no consent, permission, authorization, order or license of, or filing or registration with, any Governmental Authority is necessary in connection with the execution and delivery of the Site and Facility Lease, this Lease Agreement or the Assignment Agreement, or the consummation of any transaction herein or therein contemplated, except as have been obtained or made and as are in full force and effect. (f) No Litigation. There is no action, suit, proceeding, inquiry or investigation before or by any court or federal, state, municipal or other Governmental Authority pending and notice of which has been served on the Authority or, to the knowledge of the Authority after reasonable investigation, threatened against or affecting the Authority or the assets, properties or operations of the Authority which, if determined adversely to the Authority or its interests, would have a material and adverse effect upon the consummation of the transactions contemplated by or the validity of the Site and Facility Lease, this Lease Agreement or the Assignment Agreement, or upon the financial condition, assets, properties or operations of the Authority, and the Authority is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other Governmental Authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site and Facility Lease, this Lease Agreement or the Assignment Agreement or the financial condition, assets, properties or operations of the Authority.
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ARTICLE III

DEPOSIT AND APPLICATION OF FUNDS
Section 3.1. Deposit of and Application of Funds. On the Closing Date, from the amounts funded by the Assignee pursuant to the Supplemental Agreement, the Authority shall cause the amount of $4,355,000 to be transferred to the City and applied to the financing of the Project and to pay financing costs of the transaction. Such amounts shall be derived from amounts funded by the Assignee under the Supplemental Agreement.
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ARTICLE IV
LEASE OF PROPERTY; LEASE PAYMENTS
Section 4.1. Sublease of Property by the Authority Back to the City. (a) The Authority hereby subleases the Property to the City, and the City hereby subleases the Property from the Authority, upon the terms and conditions set forth in this Lease Agreement.
(b) The leasing of the Property by the City to the Authority pursuant to the Site and Facility Lease shall not affect or result in a merger of the City’s subleasehold estate pursuant to this Lease Agreement and its fee estate as lessor under the Site and Facility Lease.

Section 4.2. Term. The Term of this Lease Agreement commences on the date of recordation of this Lease Agreement or a memorandum hereof and ends on March 1, 2042, or the date on which all of the Lease Payments and Additional Payments have been paid in full pursuant to the terms of this Lease Agreement. If on March 1, 2042, the Lease Payments payable hereunder shall have been abated at any time and for any reason and not otherwise paid from rental interruption insurance or other sources, or the City shall have defaulted in its payment of Lease Payments or Additional Payments hereunder or any Event of Default has occurred and continues without cure by the City, then the term of this Lease Agreement shall be extended for the actual period of abatement or for so long as the default remains uncured, as necessary to accommodate the final payment of all Lease Payments and Additional Payments due hereunder, not to exceed ten (10) years. The provisions of this Section 4.2 are subject to the provisions of Section 6.1 relating to the taking in eminent domain of the Property or any portion thereof. Any abated Lease Payments shall be paid at the earliest opportunity or otherwise during the extended term described above.

Section 4.3. Lease Payments.
(a) Obligation to Pay. Subject to the provisions of Sections 6.1 and 6.3 and the provisions of Article IX, the City agrees to pay to the Authority, its successors and assigns, the Lease Payments (denominated into components of principal and interest) in the amounts specified in Exhibit C attached hereto and in the respective interest amounts computed in accordance with the rate of 3.250% per annum, to be due and payable in immediately available funds on each of the respective Lease Payment Dates specified in Exhibit C; provided, however, that if any Lease Payment Date is not a Business Day, such Lease Payment shall be due on the next succeeding Business Day. The Lease Payments payable in any Rental Period with respect to the Property shall be for the use of the Property during such Rental Period. Upon the making of each subsequent advance from the Bank to the City, Exhibit C to this Lease Agreement shall be amended to increase the principal component of the Lease Payments due under this Lease Agreement to the revised aggregate principal amount. Advances to be made after the first advance on the Closing Date shall be made only on the first Business Day of a month, upon five Business Days’ notice to the Assignee. Any payment of the principal component of the Lease Payments shall be accompanied by payment of the amount set forth in Section 4.3(b)(v) and Section 2.02(c) of the Supplemental Agreement.
(b) Additional Payments. In addition to the Lease Payments set forth herein, the City agrees to pay as Additional Payments all of the following:
(i) all taxes and assessments of any nature whatsoever, including but not limited to excise taxes, ad valorem taxes, ad valorem and specific lien special assessments and 118
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gross receipts taxes, if any, levied upon the Property or upon any interest of the Authority therein or in this Lease Agreement; provided, however, the City may, at the City’s expense and in its name, in good faith contest any such taxes and assessments and, in the event of such contest, may permit such taxes and assessments to remain unpaid during the period of such contest and appeal therefrom unless the Authority shall notify the City that, in the opinion of Special Counsel, by nonpayment of any such items, the interest of the Authority in the Property will be materially endangered or the Property, or any portion thereof, will be subject to loss or forfeiture, in which event the City shall promptly pay such taxes and assessments or provide the Authority with full security against any loss which may result from nonpayment, in form satisfactory to the Authority;
(ii) insurance premiums, if any, on all insurance required under the provisions of Article V hereof;
(iii) any other reasonable fees, costs or expenses incurred by the Authority in connection with the execution, performance or enforcement of this Lease Agreement or any of the transactions contemplated hereby or related to the Property, including, without limitation, any amounts which may become due; provided, however, the City shall not be responsible for any costs incurred by the Authority associated with any assignment made by the Assignee; and
(iv) any amount required to reimburse the Assignee pursuant to Section 2.02(d) of the Supplemental Agreement, if any.

Amounts constituting Additional Payments payable hereunder shall be paid by the City directly to the person or persons to whom such amounts shall be payable. The City shall pay all such amounts when due or at such later time as such amounts may be paid without penalty or, in any other case, within 60 days after notice in writing from the Authority to the City stating the amount of Additional Payments then due and payable and the purpose thereof. (c) Effect of Prepayment. If the City prepays the Lease Payments in part but not in whole under Section 9.3, the principal components of the remaining Lease Payments will be reduced on a pro rata basis; and the interest component of each remaining Lease Payment will be reduced on a pro rata basis.
(d) Rate Upon Event of Default. If the City fails to make any of the payments required in this Section 4.3, the payment in default will continue as an obligation of the City until the amount in default has been fully paid, and the City agrees to pay a rate equal to the Default Rate.
(e) Fair Rental Value. The Lease Payments coming due and payable during each Rental Period constitute the total rental for the Property for such Rental Period, and will be paid by the City in each Rental Period for and in consideration of the right of the use and occupancy of, and the continued quiet use and enjoyment of the Property during each Rental Period. The parties hereto have agreed and determined that the total Lease Payments due during each Rental Period are not in excess of the fair rental value of the Property during such Rental Periods. In making this determination, consideration has been given to the estimated fair market value of the Property, the estimated replacement cost of the Property, the uses and purposes which may be served by the Property and the benefits therefrom which will accrue to the City and the general public.
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(f) Source of Payments; Budget and Appropriation. The Lease Payments are payable from any source of legally available funds of the City, subject to the provisions of Sections 6.1, 6.3 and

9.1. The City covenants to take such action as may be necessary to include all Lease Payments and Additional Payments in each of its annual budgets during the Term of this Lease Agreement and to make the necessary annual appropriations for all such Lease Payments and Additional Payments. The covenants on the part of the City herein contained constitute duties imposed by law and it is the duty of each and every public official of the City to take such action and do such things as are required by law in the performance of the official duty of such officials to enable the City to carry out and perform the covenants and agreements in this Lease Agreement agreed to be carried out and performed by the City. (g) Allocation of Lease Payments. All Lease Payments received shall be applied first to the interest components of the Lease Payments due hereunder, then to the principal components of the Lease Payments due hereunder, but no such application of any payments that are less than the total rental due and owing shall be deemed a waiver of any default hereunder. (h) No Offsets. Notwithstanding any dispute between the Authority, or Assignee as the Authority’s assignee, and the City, the City shall make all Lease Payments when due without deduction or offset of any kind and shall not withhold any Lease Payments pending the final resolution of such dispute.
(i) Assignment Agreement. The City understands and agrees that all Lease Payments have been assigned by the Authority to the Assignee under the Assignment Agreement executed concurrently herewith, and the City hereby consents to such assignment. The Authority hereby directs the City, and the City hereby agrees, to pay to the Assignee, all payments payable by the City under this Section 4.3 and all amounts payable by the City under Article IX. Lease Payments shall be paid to the Assignee pursuant to an invoice to be transmitted to the City by the Assignee not less than twenty (20) days prior to each Lease Payment Date.

Section 4.4. Quiet Enjoyment. Throughout the Term of this Lease Agreement, the Authority will provide the City with quiet use and enjoyment of the Property and the City will peaceably and quietly have and hold and enjoy the Property, without suit, trouble or hindrance from the Authority, except as expressly set forth in this Lease Agreement. The Authority will, at the request of the City and at the City’s cost, join in any legal action in which the City asserts its right to such possession and enjoyment to the extent the Authority may lawfully do so.

Notwithstanding the foregoing, the Authority and the Assignee have the right to inspect the Property as provided in Sections 5.12(c) and 7.2.

Section 4.5. Title. At all times during the Term of this Lease Agreement, the City shall hold title to the Property, including all additions which comprise fixtures, repairs, replacements or modifications thereto, subject to Permitted Encumbrances and subject to the provisions of Section 7.2.

Upon the termination of this Lease Agreement (other than under Section 8.2(b) hereof), all right, title and interest of the Authority in and to the Property shall be transferred to and vested in the City. Upon the payment in full of all Lease Payments allocable to the Property, or upon the deposit by the City of security for such Lease Payments as provided in Section 9.1, all right, title and interest of the Authority in and to the Property shall be transferred to and vested in the City. The Authority agrees to take any and all steps and execute and record any and all documents reasonably required by the City to consummate any such transfer.

Section 4.6. Release of Excess Property. The City may, at any time and from time to time, release any portion of the Property (the “Released Property”) from the Lease, with the prior 120
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written consent of the Assignee, which consent shall be at the Assignee’s sole discretion, and upon satisfaction of all of the following requirements which are conditions precedent to such release:
(a) The City shall certify to the Authority and the Assignee that no Event of Default has occurred and is continuing, and no event giving rise to an abatement of Lease Payments under Section 6.3 has occurred or is continuing with respect to the Property to be remaining following release of the Released Property;
(b) The City shall file with the Authority and the Assignee, and cause to be recorded in the office of the San Mateo County Recorder, an amendment to this Lease Agreement which deletes the Released Property from the description of the Property; (c) The City shall file with the Authority and the Assignee a written certificate of the City stating the City’s determination that the estimated value of the real property which will remain leased under this Lease Agreement following such release is at least equal to the remaining principal components of the Lease Payments and upon request of the Assignee, the City shall provide to the Assignee additional information and documents to evidence the value of the remaining portion of the Property;
(d) The City shall file with the Authority and the Assignee a written certificate of the City stating the City’s determination that the estimated fair rental value, for each remaining Rental Period and in the aggregate, of the Property remaining after release of the Released Property is at least equal to the remaining Lease Payments for each remaining Rental Period and in the aggregate; and
(e) The City shall file with the Authority and the Assignee such other information, documents and instruments as the Authority or the Assignee shall reasonably request, including (if requested by the Assignee) evidence of the insurable value of the Property to be remaining following release of the Released Property, indicating that such value is in excess of the then unpaid principal component of the Lease Payments and such endorsements to the title policy delivered on the Closing Date.

Upon the satisfaction of all such conditions precedent, the Term of this Lease Agreement will thereupon end as to the Released Property. The City is not entitled to any reduction, diminution, extension or other modification of the Lease Payments whatsoever as a result of such release. The Authority and the City shall execute, deliver and cause to be recorded all documents required to discharge this Lease Agreement of record against the Released Property.

Section 4.7. Substitution of Property. (a) In the event of damage or destruction of the Property due to earthquake or other uninsured casualty for which rental interruption insurance is not available or in the event that following the condemnation of all or a portion of the Property the fair rental value of the Property remaining after such condemnation is less than the remaining Lease Payments due under this Lease Agreement, the City shall substitute under the Site and Facility Lease and this Lease Agreement one or more parcels of unimpaired and unencumbered real property, the fair rental value of which, for each remaining Rental Period and in the aggregate, shall be at least equal to the remaining Lease Payments hereunder. (b) If for any reason the City is unable to so substitute real property for the Property with a fair rental value at least equal to the remaining Lease Payments hereunder, the City shall use its best efforts to obtain other financing in an amount necessary to prepay the principal component of the Lease Payments not supported by the fair rental value of the substituted property, if any.
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ARTICLE V
MAINTENANCE; TAXES; INSURANCE; AND OTHER MATTERS
Section 5.1. Maintenance, Utilities, Taxes and Assessments. Throughout the Term of this Lease Agreement, as part of the consideration for the rental of the Property, all improvement, repair and maintenance of the Property are the sole responsibility of the City, and the City will pay for or otherwise arrange for the payment of all utility services supplied to the Property, which may include, without limitation, janitor service, security, power, gas, telephone, light, heating, water and all other utility services, and shall pay for or otherwise arrange for the payment of the cost of the repair and replacement of the Property resulting from ordinary wear and tear or want of care on the part of the City or any assignee or sublessee thereof. In exchange for the Lease Payments herein provided, the Authority agrees to provide only the Property, as hereinbefore more specifically set forth. The City waives the benefits of subsections 1 and 2 of Section 1932, Section 1933(4) and Sections 1941 and 1942 of the California Civil Code, but such waiver does not limit any of the rights of the City under the terms of this Lease Agreement.

The City will pay or cause to be paid all taxes and assessments of any type or nature, if any, charged to the Authority or the City affecting the Property or the respective interests or estates therein; provided that with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, the City is obligated to pay only such installments as are required to be paid during the Term of this Lease Agreement as and when the same become due.

The City may, at the City’s expense and in its name, in good faith contest any such taxes, assessments, utility and other charges and, in the event of any such contest, may permit the taxes, assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom unless the Authority shall notify the City that, in its reasonable opinion, by nonpayment of any such items the interest of the Authority in the Property will be materially endangered or the Property or any part thereof will be subject to loss or forfeiture, in which event the City will promptly pay such taxes, assessments or charges or provide the Authority with full security against any loss which may result from nonpayment, in form satisfactory to the Authority. The City shall promptly notify the Assignee of any tax, assessment, utility or other charge it elects to contest.

Section 5.2. Modification of Property. The City has the right, at its own expense, to make additions, modifications and improvements to the Property or any portion thereof. All additions, modifications and improvements to the Property will thereafter comprise part of the Property and become subject to the provisions of this Lease Agreement. Such additions, modifications and improvements may not in any way damage the Property, or cause the Property to be used for purposes other than those authorized under the provisions of state and federal law; and the Property, upon completion of any additions, modifications and improvements made thereto under this Section, must be of a value which is not substantially less than the value thereof immediately prior to the making of such additions, modifications and improvements.

Section 5.3. Public Liability Insurance. The City shall maintain or cause to be maintained throughout the Term of this Lease Agreement a standard comprehensive general liability insurance policy or policies in protection of the City, the Assignee and their respective members, officers, agents, employees and assigns. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by reason of the operation of the Property. Such policy or policies must provide coverage with limits of at least $1,000,000 per 122
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occurrence, $3,000,000 in the aggregate, for bodily injury and property damage coverage, and excess liability umbrella coverage of at least $5,000,000, and in all events in form and amount (including any deductibles) satisfactory to the Assignee. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City (including, with Assignee’s prior written consent, a self-insurance program), and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance. The City will apply the proceeds of such liability insurance toward extinguishment or satisfaction of the liability with respect to which such proceeds have been paid.

Section 5.4. Casualty Insurance. The City will procure and maintain, or cause to be procured and maintained, throughout the Term of this Lease Agreement, casualty insurance against loss or damage to all buildings situated on the Property and owned by the City, in an amount at least equal to the greater of the replacement value of the insured buildings and the aggregate principal amount of the Lease Payments outstanding, with a lender’s loss payable endorsement. Such insurance must, as nearly as practicable, cover loss or damage by all “special form” perils. Such insurance shall be subject to a deductible of not to exceed $250,000. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City (including, with the Assignee’s prior written consent, a self-insurance program), and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance. The City will apply the Net Proceeds of such insurance as provided in Section 6.2.

Section 5.5. Rental Interruption Insurance. The City will procure and maintain, or cause to be procured and maintained, throughout the Term of this Lease Agreement, rental interruption or use and occupancy insurance to cover loss, total or partial, of the use of the Property and the improvements situated thereon as a result of any of the hazards covered in the insurance required by Section 5.4, in an amount at least equal to the maximum Lease Payments coming due and payable during any future 24 month period assuming an interest rate of 3.25% per annum. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City, and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance; provided that such rental interruption insurance shall not be self-insured by the City.

The City will apply the Net Proceeds of such insurance towards the payment of the Lease Payments allocable to the insured improvements as the same become due and payable.

Section 5.6. Worker’s Compensation Insurance. If required by applicable California law, the City shall carry worker’s compensation insurance covering all employees on, in, near or about the Property and, upon request, shall furnish to the Authority certificates evidencing such coverage throughout the Term of this Lease Agreement. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City (including a self insurance program), and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance.

Section 5.7. Recordation Hereof; Title Insurance. On or before the Closing Date, the City shall, at its expense, (a) cause this Lease Agreement, the Site and Facility Lease and the Assignment Agreement, or a memorandum hereof or thereof in form and substance approved by Special Counsel, to be recorded in the office of the San Mateo County Recorder with respect to the Property, and (b) obtain a CLTA title insurance policy satisfactory to the Assignee insuring the Assignee’s interests in the leasehold estate established under the Site and Facility Lease and hereunder in the Property, subject only to Permitted Encumbrances, in an amount equal to the original principal components of the Lease Payments. The City will apply the Net Proceeds of such insurance as provided in Section 6.2.
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Section 5.8. Insurance Net Proceeds; Form of Policies. All insurance policies (or riders) required by this Article V and provided by third party insurance carriers shall be taken out and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State, and shall contain a provision that the insurer shall not cancel or revise coverage thereunder without giving written notice to the insured parties at least ten days before the cancellation or revision becomes effective. Each insurance policy or rider required by Sections 5.3, 5.4 and 5.5 and provided by third party insurance carriers shall name the City and the Assignee as insured parties and the Assignee as loss payees and shall include a lender’s loss payable endorsement for the benefit of the Assignee. In the case of coverage pursuant to Section 5.3, the Authority and the Assignee shall be added as additional insureds. Prior to the Closing Date, the City will deposit with the Assignee policies (and riders and endorsements, if applicable) evidencing any such insurance procured by it, or a certificate or certificates of the respective insurers stating that such insurance is in full force and effect. Before the expiration of any such policy (or rider), the City will furnish to the Assignee evidence that the policy has been renewed or replaced by another policy conforming to the provisions of this Article V unless such insurance is no longer obtainable, in which event the City shall notify the Assignee of such fact.

Section 5.9. Installation of City’s Personal Property. The City may at any time and from time to time, in its sole discretion and at its own expense, install or permit to be installed other items of equipment or other personal property in or upon the Property. All such items shall remain the sole property of the City, in which the Authority has no interest, and may be modified or removed by the City at any time. The City must repair and restore any and all damage to the Property resulting from the installation, modification or removal of any such items. Nothing in this Lease Agreement prevents the City from purchasing or leasing items to be installed under this Section under a lease or conditional sale agreement, or subject to a vendor’s lien or security agreement, as security for the unpaid portion of the purchase price thereof, provided that no such lien or security interest may attach to any part of the Property.

Section 5.10. Liens. The City will not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Property, other than as herein contemplated and except for such encumbrances as the City certifies in writing to the Assignee do not materially and adversely affect the leasehold estate in the Property hereunder and for which the Assignee provides its prior written approval, which approval shall be at Assignee’s sole discretion. Except as expressly provided in this Article V, the City will promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim, for which it is responsible, if the same shall arise at any time. The City will reimburse the Assignee for any expense incurred by it in order to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim.

Section 5.11. Advances. If the City fails to perform any of its obligations under this Article V, the Authority may take such action as may be necessary to cure such failure, including the advancement of money, and the City shall be obligated to repay all such advances as additional rental hereunder, with interest at the rate set forth in Section 4.3(c).

Section 5.12. Environmental Covenants.
(a) Compliance with Laws; No Hazardous Substances. The City will comply with all Applicable Environmental Laws with respect to the Property and will not use, store, generate, treat, transport, or dispose of any Hazardous Substance thereon or in a manner that would 124
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cause any Hazardous Substance to later flow, migrate, leak, leach, or otherwise come to rest on or in the Property.
(b) Notification of Assignee. The City will transmit copies of all notices, orders, or statements received from any governmental entity concerning violations or asserted violations of Applicable Environmental Laws with respect to the Property and any operations conducted thereon or any conditions existing thereon to the Assignee, and the City will notify the Assignee in writing immediately of any release, discharge, spill, or deposit of any Hazardous Substance that has occurred or is occurring that in any way affects or threatens to affect the Property, or the people, structures, or other property thereon, provided that no such notification shall create any liability or obligation on the part of the Assignee. (c) Access for Inspection. The City will permit the Assignee, its agents, or any experts designated by the Assignee to have full access to the Property during reasonable business hours for purposes of such independent investigation of compliance with all Applicable Environmental Laws, provided that the Assignee has no obligation to do so, or any liability for any failure to do so, or any liability should it do so.

Section 5.13. City Consent to Assignment Agreement. The Authority’s rights under this Lease Agreement (excluding the right to receive notices, the right to reimbursement of costs and to indemnification), including the right to receive and enforce payment of the Lease Payments, and the Site and Facility Lease, are being assigned to the Assignee pursuant to the Assignment Agreement. The City hereby consents to such assignment and to any additional assignment of such rights by the Assignee or its assignees. The City agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements, which may be reasonably requested by the Assignee or its assignees to protect their interests in the Property and in this Lease Agreement.
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ARTICLE VI
EMINENT DOMAIN; USE OF NET PROCEEDS
Section 6.1. Eminent Domain. If all of the Property shall be taken permanently under the power of eminent domain or sold to a governmental entity threatening to exercise the power of eminent domain, the Term of this Lease Agreement shall cease as of the day possession shall be so taken. If less than all of the Property shall be taken permanently, or if all of the Property or any part thereof shall be taken temporarily under the power of eminent domain, (1) this Lease Agreement 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, and (2) there shall be a partial abatement of Lease Payments in an amount equal to the application of the Net Proceeds of any eminent domain award to the prepayment of the Lease Payments hereunder, in an amount to be agreed upon by the City and the Assignee such that the resulting Lease Payments represent fair consideration for the use and occupancy of the remaining usable portion of the Property.

Section 6.2. Application of Net Proceeds.
(a) From Insurance Award.
(i) Any Net Proceeds of insurance against damage to or destruction of any part of the Property collected by the City in the event of any such damage or destruction shall be deposited by the City promptly upon receipt thereof in a special fund with the Assignee designated as the “Insurance and Condemnation Fund.” (ii) Within ninety (90) days following the date of such deposit, the City shall determine and notify the Authority and the Assignee in writing of its determination either (A) that the replacement, repair, restoration, modification or improvement of the Property is not economically feasible or in the best interest of the City and the Net Proceeds, together with other moneys available therefor, may be applied to the prepayment of Lease Payments pursuant to subparagraph (iii) below, or (B) that all or a portion of such Net Proceeds are to be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Property and the fair rental value of the Property following such repair, restoration, replacement, modification or improvement will at least equal the unpaid principal component of the Lease Payments.
(iii) In the event the City’s determination is as set forth in clause (A) of subparagraph (ii) above, such Net Proceeds and other available moneys shall be promptly applied to the prepayment of Lease Payments and other amounts pursuant to Section 9.3 of this Lease Agreement; provided, however, that in the event of damage or destruction of the Property in full, such Net Proceeds may be so applied only if sufficient, together with other moneys available therefor, to cause the prepayment of the principal components of all unpaid Lease Payments, all accrued and unpaid interest, Prepayment Premiums described in Section 9.2, and all other costs related to such prepayments pursuant to Section 9.3 of this Lease Agreement and otherwise such Net Proceeds shall be applied to the prompt replacement, repair, restoration, modification or improvement of the Property; provided further, however, that in the event of damage or destruction of the Property in part, such Net Proceeds may be applied to the prepayment of Lease Payments only if the resulting Lease Payments following such prepayment from Net Proceeds represent fair consideration for the remaining portions of the Property and otherwise such Net Proceeds shall be applied to the prompt 126
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replacement, repair, restoration, modification or improvement of the Property, evidenced by a certificate signed by a City Representative. (iv) In the event the City’s determination is as set forth in clause (B) of subparagraph (ii) above and the City certifies to the Assignee that such repair or replacement can be completed within 24 months, such Net Proceeds shall be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Property by the City, and until the Property has been restored to its prior condition, the City shall not place any lien or encumbrance on the Property that is senior to this Lease Agreement without the prior written consent of the Assignee, at its sole discretion.
(b) From Eminent Domain Award. If all or any part of the Property shall be taken by eminent domain proceedings (or sold to a government threatening to exercise the power of eminent domain) the Net Proceeds therefrom shall be deposited by the City in the Insurance and Condemnation Fund and shall be applied and disbursed as follows:
(i) If the City has given written notice to the Authority and the Assignee of its determination that (A) such eminent domain proceedings have not materially affected the operation of the Property or the ability of the City to meet any of its obligations with respect to the Property under this Lease Agreement, and (B) such proceeds are not needed for repair or rehabilitation of the Property, the City shall so certify to the Authority and the Assignee, and the City shall credit such proceeds towards the prepayment of the Lease Payments pursuant to Section 9.3 of this Lease Agreement. (ii) If the City has given written notice to the Authority and the Assignee of its determination that (A) such eminent domain proceedings have not materially affected the operation of the Property or the ability of the City to meet any of its obligations with respect to the Property under this Lease Agreement, and (B) such proceeds are needed for repair, rehabilitation or replacement of the Property, the City shall so certify to the Authority and the Assignee, and the City shall apply such amounts for such repair or rehabilitation.
(iii) If less than all of the Property shall have been taken in such eminent domain proceedings or sold to a government threatening the use of eminent domain powers, and if the City has given written notice to the Authority and the Assignee of its determination that such eminent domain proceedings have materially affected the operation of the Property or the ability of the City to meet any of its obligations with respect to the Property under the Lease Agreement. The City shall either apply such proceeds (A) to the prepayment of the Lease Payments pursuant to Section 9.3 of this Lease Agreement only if the resulting Lease Payments following such prepayment represent fair consideration for the use and occupancy of the remaining usable portion of the Property, or (B) together with other legally available funds, to the repair or rehabilitation of the Property only if the resulting Lease Payments following such repair or rehabilitation represent fair consideration for the use and occupancy of the remaining usable portion of the Property.
(iv) If all of the Property shall have been taken in such eminent domain proceedings, then the City shall credit such proceeds towards the prepayment of the Lease Payments pursuant to Section 9.3 of this Lease Agreement. (v) In making any determination under this Section 6.2(b), the City may, but shall not be required to, obtain at its expense, the report of an independent engineer or other 127
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independent professional consultant, a copy of which shall be filed with the Authority and the Assignee. Any such determination by the City shall be final. (c) From Title Insurance. The Net Proceeds from a title insurance award shall be deposited by the City in the Insurance and Condemnation Fund and credited towards the prepayment of Lease Payments required to be paid pursuant to Section 9.3 of this Lease Agreement.

Section 6.3. Abatement of Lease Payments in the Event of Damage or Destruction. Lease Payments shall be abated during any period in which, by reason of damage or destruction, there is substantial interference with the use and occupancy by the City of the Property or any portion thereof to the extent to be agreed upon by the City and the Assignee. The parties agree that the amounts of the Lease Payments under such circumstances shall not be less than the amounts of the unpaid Lease Payments as are then set forth in Exhibit C, unless such unpaid amounts are determined to be greater than the fair rental value of the portions of the Property not damaged or destroyed, based upon an appropriate method of valuation, in which event the Lease Payments shall be abated such that they represent said fair rental value. Such abatement shall continue for the period commencing with such damage or destruction and ending with the substantial completion of the work of repair or reconstruction as evidenced by a Certificate of a City Representative to the Authority and the Assignee. In the event of any such damage or destruction, this Lease Agreement shall continue in full force and effect and the City waives any right to terminate this Lease Agreement by virtue of any such damage and destruction.

Notwithstanding the foregoing, there shall be no abatement of Lease Payments under this Section 6.3 to the extent that (a) the proceeds of rental interruption insurance or (b) amounts in the Insurance and Condemnation Fund are available to pay Lease Payments which would otherwise be abated under this Section 6.3, it being hereby declared that such proceeds and amounts constitute special funds for the payment of the Lease Payments. 128
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ARTICLE VII

OTHER COVENANTS OF THE CITY
Section 7.1. Disclaimer of Warranties. THE AUTHORITY MAKES NO AGREEMENT,

WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,

DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR

PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF THE PROPERTY

OR ANY PORTION THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROPERTY OR ANY PORTION THEREOF. THE CITY ACKNOWLEDGES

THAT THE CITY LEASES THE PROPERTY AS-IS, IT BEING AGREED THAT ALL OF THE AFOREMENTIONED RISKS ARE TO BE BORNE BY THE CITY. In no event is the Authority liable for incidental, indirect, special or consequential damages, in connection with or arising out of this Lease Agreement for the existence, furnishing, functioning or use of the Property by the City.

Section 7.2. Access to the Property; Grant and Conveyance of Right of Entry. The City agrees that the Authority, and the Authority’s successors or assigns, has the right at all reasonable times, following at least 48 hours written notice provided to the City, to enter upon and to examine and inspect (to the extent permitted by law and public policy) the Property or any part thereof. The City further agrees that the Authority, and the Authority’s successors or assigns shall have such rights of access to the Property or any component thereof, following at least 48 hours written notice provided to the City, as may be reasonably necessary to cause the proper maintenance of the Property if the City fails to perform its obligations hereunder.

Neither the Authority nor any of its assigns has any obligation to cause such proper maintenance.

The City further grants, conveys and confirms to the Authority, for the use, benefit and enjoyment of the Authority, its successors and assigns in interest to the Property, including the Assignee, and its sublessees, and their respective employees, invitees, agents, independent contractors, patrons, customers, guests and members of the public visiting the Property, a right of entry which shall be irrevocable for the Term of this Lease Agreement over, across and under the property of the City adjacent to the Property to and from the Property for the purpose of: (a) ingress, egress, passage or access to and from the Property by pedestrian or vehicular traffic; (b) installation, maintenance and replacement of utility wires, cables, conduits and pipes; and (c) other purposes and uses necessary or desirable for access to and from and for operation and maintenance of the Property.

Section 7.3. Release and Indemnification Covenants. The City hereby indemnifies the Authority, the Assignee and their respective directors, officers, agents, employees, successors and assigns against all claims, losses and damages, including legal fees and expenses, arising out of (a) the use, maintenance, condition or management of, or from any work or thing done on the Property by the City or the City’s employees, agents, contractors, invitees or licensees, (b) any breach or default on the part of the City in the performance of any of its obligations under this Lease Agreement, (c) any negligence or willful misconduct of the City or of any of its agents, contractors, servants, employees or licensees with respect to the Property, (d) any intentional misconduct or negligence of any sublessee of the City with respect to the Property, (e) the acquisition, construction, improvement and equipping of the Property, (f) the clean-up of any Hazardous Substances or toxic wastes from the Property, or (g) any claim alleging violation of any Applicable Environmental Laws, or the authorization of payment of the costs thereof. No indemnification is made under this Section 7.3 or elsewhere in this Lease Agreement for willful misconduct or gross negligence under this Lease Agreement by the Authority, the Assignee, or their respective officers, agents, employees, successors or assigns. The City and the Authority 129
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each agree to promptly give notice to each other and the Assignee of any claim or liability hereby indemnified against following learning thereof.

Section 7.4. Assignment by the Authority. The Authority’s rights, title and interests under this Lease Agreement, including the right to receive and enforce payment of the Lease Payments to be made by the City hereunder, have been assigned to the Assignee; provided that the Authority’s rights to indemnification and payment or reimbursement for any costs or expenses hereunder have been retained by the Authority to the extent such rights accrue to the Authority and shall have been assigned to the Assignee to the extent such rights accrue to the Assignee. The City hereby consents to such assignment. Whenever in this Lease Agreement any reference is made to the Authority, such reference shall be deemed to refer to the Assignee (including its assignees).

The Assignee may make additional assignments of its rights, title and interests herein, but no such assignment will be effective as against the City unless and until the Assignee has filed with the City at least five (5) Business Days’ prior written notice thereof and an executed copy of a bank’s letter addressed to the City and the Authority substantially in the form of the letter delivered by the Assignee on the Closing Date. The City shall pay all Lease Payments hereunder to the Assignee, as provided in Section 4.3(h) hereof, or under the written direction of the assignee named in the most recent assignment or notice of assignment filed with the City.

During the Term of this Lease Agreement, the City will keep a complete and accurate record of all such notices of assignment.

Section 7.5. Assignment and Subleasing by the City. This Lease Agreement may not be assigned, mortgaged, pledged or transferred by the City. The City may sublease the Property, or any portion thereof, with the prior written consent of the Assignee, at the Assignee’s sole discretion, subject to all of the following conditions:
(a) This Lease Agreement and the obligation of the City to make Lease Payments and Additional Payments hereunder shall remain obligations of the City, and any sublease shall be subject and subordinate to this Lease Agreement.
(b) The City shall, within 30 days after the delivery thereof, furnish or cause to be furnished to the Authority and the Assignee a true and complete copy of such sublease. (c) No such sublease by the City may cause the Property to be used for a purpose other than as may be authorized under the provisions of the laws of the State. (d) The City shall furnish the Authority and the Assignee with a written opinion of Special Counsel stating that such sublease does not cause the interest components of the Lease Payments to become subject to personal income taxation by the State. (e) Any such sublease shall be subject and subordinate in all respects to the Site and Facility Lease and this Lease Agreement.

Notwithstanding the foregoing, in connection with any sublease entered into for financing purposes, the principal component of the then remaining Lease Payments plus the principal component of the sublease payments shall not exceed the fair market value of the Property.

Section 7.6. Amendment of Lease Agreement.
(a) Substitution of Site or Facility. The City shall have, and is hereby granted, the option at any time and from time to time during the Term of the Lease Agreement to substitute other 130
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land (a “Substitute Site”) and/or a substitute facility (a “Substitute Facility”) for the Site (the “Former Site”), or a portion thereof, and/or the Facility (the “Former Facility”), or a portion thereof, with the prior written consent of the Assignee, at the Assignee’s sole discretion, provided that the City shall satisfy all of the following requirements (to the extent applicable) which are hereby declared to be conditions precedent to such substitution:
(i) If a substitution of the Site, the City shall file with the Assignee an amended Exhibit A to the Site and Facility Lease which adds thereto a description of such Substitute Site and deletes therefrom the description of the Former Site; (ii) If a substitution of the Site, the City shall file with the Assignee an amended Exhibit A to this Lease Agreement which adds thereto a description of such Substitute Site and deletes therefrom the description of the Former Site; (iii) If a substitution of the Facility, the City shall file with the Assignee an amended Exhibit B to the Site and Facility Lease which adds thereto a description of such Substitute Facility and deletes therefrom the description of the Former Facility; (iv) If a substitution of the Facility, the City shall file with the Assignee an amended Exhibit B to this Lease Agreement which adds thereto a description of such Substitute Facility and deletes therefrom the description of the Former Facility; (v) The City shall certify in writing to the Assignee that such Substitute Site and/or Substitute Facility serve the purposes of the City, constitutes property that is unencumbered, subject to Permitted Encumbrances, is essential to the City and constitutes property which the City is permitted to lease under the laws of the State; (vi) The City delivers to the Assignee evidence (which may be insurance values or any other reasonable basis of valuation and need not require an appraisal) that the value of the Property following such substitution is equal to or greater than the unpaid principal amount of this Lease Agreement;
(vii) The Substitute Site and/or Substitute Facility shall not cause the City to violate any of its covenants, representations and warranties made herein and in the Supplemental Agreement;
(viii) The City shall obtain an amendment to the title insurance policy required pursuant to Section 5.7 hereof which adds thereto a description of the Substitute Site and deletes therefrom the description of the Former Site and that such title insurance is otherwise not affected by such substitution; and
(ix) The City shall furnish the Assignee with a written opinion of Special Counsel stating that such substitution does not cause the interest components of the Lease Payments to become subject to State personal income taxes. (b) Release of Site. The City shall have, and is hereby granted, the option at any time and from time to time during the Term of the Lease Agreement to release any portion of the Site, with the prior written consent of the Assignee, at the Assignee’s sole discretion, provided that the City shall satisfy all of the following requirements which are hereby declared to be conditions precedent to such release:
(i) The City shall file with the Assignee an amended Exhibit A to the Site and Facility Lease which describes the Site, as revised by such release; 131
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(ii) The City shall file with the Assignee an amended Exhibit A to this Lease Agreement which describes the Site, as revised by such release; (iii) The City delivers to the Assignee evidence (which may be insurance values or any other reasonable basis of valuation and need not require an appraisal) that the value of the Property, as revised by such release, is equal to or greater than the unpaid principal amount of this Lease Agreement;
(iv) Such release shall not cause the City to violate any of its covenants, representations and warranties made herein and in the Supplemental Agreement; and (v) The City shall obtain an amendment to the title insurance policy required pursuant to Section 5.7 hereof which describes the Site, as revised by such release and that such title insurance is otherwise not affected by such release. (d) Generally. The Authority and the City may at any time amend or modify any of the provisions of this Lease Agreement, but only with the prior written consent of the Assignee.

Section 7.7. Financial Statements; Budgets; Other Information. Within two hundred forty (240) days following the end of each Fiscal Year of the City during the Term of this Lease Agreement, the City will provide the Authority and the Assignee with a copy of its audited financial statements for such Fiscal Year. Such audited financial statements shall include the City’s Comprehensive Annual Financial Report (“CAFR”), including such information as is required by applicable Government Accounting Standards Board pronouncements and applicable State law. Within sixty (60) days of the end of each fiscal year, the City will provide the Assignee with a copy of its annual budget. The City hereby agrees to provide the Assignee with such other information as may be reasonably requested by the Assignee.

Section 7.8. Records and Accounts. The City covenants and agrees that it shall keep proper books of record and accounts of its operations in accordance with GASB, in which complete and correct entries shall be made of all transactions relating to the City. Said books and records shall at all reasonable times be subject to the inspection of the Assignee upon 72 hours’ prior notice.

Section 7.9. Observance of Laws and Regulations. The City will well and truly keep, observe and perform or cause to be kept, observed and performed all valid and lawful obligations, regulations or Applicable Laws now or hereafter imposed on it by contract, or prescribed by any law of the United States, or of the State, or by any officer, board, commission or Governmental Authority having jurisdiction or control, as a condition of the continued enjoyment of any and every right, privilege or franchise now owned or hereafter acquired and enjoyed by the City, including the City’s right to exist and carry on business as a municipal corporation and general law city, to the end that such rights, privileges and franchises shall be maintained and preserved, and shall not become abandoned, forfeited or in any manner impaired.

Section 7.10. Notices. During the Term of this Lease Agreement, the City shall provide to the Assignee
(a) immediate notice by telephone, promptly confirmed in writing, of any event, action or failure to take any action which constitutes an Event of Default under this Lease Agreement, together with a detailed statement by a City Representative of the steps being taken by the City to cure the effect of such Event of Default.
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(b) prompt written notice of any Material Litigation, or any investigation, inquiry or similar proceeding by any Governmental Authority.
(c) with reasonable promptness, such other information respecting the City, and the operations, affairs and financial condition of the City as the Assignee may from time to time reasonably request.
(d) Notices of filings with the Municipal Securities Regulatory Board’s EMMA system, other than regular annual filings.
(e) Notice of an event that could cause a Material Adverse Effect. 133
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ARTICLE VIII

EVENTS OF DEFAULT AND REMEDIES
Section 8.1. Events of Default Defined. Any one or more of the following events constitutes an Event of Default hereunder:
(a) Failure by the City to pay any Lease Payment, Additional Payment or other payment required to be paid hereunder at the time specified herein. (b) Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed hereunder, other than as referred to in the preceding clause (a) of this Section, for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to the City by the Assignee. However, if in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 30-day period, the Authority and the Assignee shall not unreasonably withhold their consent to an extension of such time (for a period not to exceed 60 days) if corrective action is instituted by the City within such 30-day period and diligently pursued until the default is corrected.
(c) The filing by the City of a voluntary petition in bankruptcy, or failure by the City promptly to lift any execution, garnishment or attachment, or adjudication of the City as a bankrupt, or assignment by the City for the benefit of creditors, or the entry by the City into an agreement of composition with creditors, or the approval by a court of competent jurisdiction of a petition applicable to the City in any proceedings instituted under the provisions of the Federal Bankruptcy Code, as amended, or under any similar federal or State act now existing or which may hereafter be enacted.
(d) Any statement, representation or warranty made by the City in or pursuant to this Lease Agreement or its execution, delivery or performance shall have been false, incorrect, misleading or breached in any material respect on the date when made. (e) Any default occurs under any other agreement for borrowing money, lease financing of property or otherwise receiving credit under which the City is an obligor, if such default (i) arises under any other agreement for borrowing money, lease financing of property or provision of credit provided by the Assignee or any affiliate of the Assignee, or (ii) arises under any obligation under which there is outstanding, owing or committed an aggregated amount in excess of $500,000.
(f) Any default by the City to observe any covenant, condition or agreement on its part to be observed or performed under the Site and Facility Lease. (g) Any court of competent jurisdiction shall find or rule that the Site and Facility Lease or this Lease Agreement is not valid or binding against the City. (h) The City abandons any part of the Property.
(i) The occurrence of an Event of Default as defined in Section 6.01 of the Supplemental Agreement.

Section 8.2. Remedies on Default. Whenever any Event of Default has happened and is continuing, the Authority may exercise any and all remedies available under law or granted under this Lease Agreement; provided, however, that notwithstanding anything herein to the 134
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contrary, there shall be no right under any circumstances to accelerate the Lease Payments or otherwise declare any Lease Payments not then in default to be immediately due and payable.

Each and every covenant hereof to be kept and performed by the City is expressly made a condition and upon the breach thereof the Authority may exercise any and all rights granted hereunder; provided, that no termination of this Lease Agreement shall be effected either by operation of law or acts of the parties hereto, except only in the manner herein expressly provided. Upon the occurrence and during the continuance of any Event of Default, the Authority may exercise any one or more of the following remedies:
(a) Enforcement of Payments Without Termination. If the Authority does not elect to terminate this Lease Agreement in the manner hereinafter provided for in subparagraph (b) hereof, the City agrees to and shall remain liable for the payment of all Lease Payments and Additional Payments and the performance of all conditions herein contained and shall reimburse the Authority for any deficiency arising out of the re-leasing of the Property, or, if the Authority is unable to re-lease the Property, then for the full amount of all Lease Payments and Additional Payments to the end of the Term of this Lease Agreement, but said Lease Payments, Additional Payments and/or deficiency shall be payable only at the same time and in the same manner as hereinabove provided for the payment of Lease Payments and Additional Payments hereunder, notwithstanding such entry or re-entry by the Authority or any suit in unlawful detainer, or otherwise, brought by the Authority for the purpose of effecting such re-entry or obtaining possession of the Property or the exercise of any other remedy by the Authority. The City hereby irrevocably appoints the Authority as the agent and attorney-in-fact of the City to enter upon and re-lease the Property upon the occurrence and continuation of an Event of Default and to remove all personal property whatsoever situated upon the Property, to place such property in storage or other suitable place in San Mateo County for the account of and at the expense of the City, and the City hereby exempts and agrees to save harmless the Authority from any costs, loss or damage whatsoever arising or occasioned by any such entry upon and re-leasing of the Property and the removal and storage of such property by the Authority or its duly authorized agents in accordance with the provisions herein contained. The City agrees that the terms of this Lease Agreement constitute full and sufficient notice of the right of the Authority to re-lease the Property in the event of such re-entry without effecting a surrender of this Lease Agreement, and further agrees that no acts of the Authority in effecting such releasing shall constitute a surrender or termination of this Lease Agreement irrespective of the term for which such re-leasing is made or the terms and conditions of such re-leasing, or otherwise, but that, on the contrary, in the event of such default by the City the right to terminate this Lease Agreement shall vest in the Authority to be effected in the sole and exclusive manner hereinafter provided for in subparagraph (b) hereof. The City agrees to surrender and quit possession of the Property upon demand of the Authority for the purpose of enabling the Property to be re-let under this paragraph. Any rental obtained by the Authority in excess of the sum of Lease Payments and Additional Payments plus costs and expenses incurred by the Authority for its services in re-leasing the Property shall be paid to the City. (b) Termination of Lease. If an Event of Default occurs and is continuing hereunder, the Authority at its option may terminate this Lease Agreement and re-lease all or any portion of the Property, subject to the Site and Facility Lease. If the Authority terminates this Lease Agreement at its option and in the manner hereinafter provided due to a default by the City (and notwithstanding any re-entry upon the Property by the Authority in any manner whatsoever or the re-leasing of the Property), the City nevertheless agrees to pay to the Authority all costs, loss or damages howsoever arising or occurring payable at the same time and in the same manner as is herein provided in the case of payment of Lease Payments and Additional Payments. Any surplus received by the Authority from such re-leasing shall be applied by the Authority to Lease Payments and Additional Payments due under this Lease Agreement. Neither notice to pay rent or to deliver up possession of the premises given under 135
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law nor any proceeding in unlawful detainer taken by the Authority shall of itself operate to terminate this Lease Agreement, and no termination of this Lease Agreement on account of default by the City shall be or become effective by operation of law, or otherwise, unless and until the Authority shall have given written notice to the City of the election on the part of the Authority to terminate this Lease Agreement. The City covenants and agrees that no surrender of the Property, or of the remainder of the Term hereof or any termination of this Lease Agreement shall be valid in any manner or for any purpose whatsoever unless stated or accepted by the Authority by such written notice.
(c) Proceedings at Law or In Equity. If an Event of Default occurs and continues hereunder, the Authority may take whatever action at law or in equity may appear necessary or desirable to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its rights hereunder.
(d) Remedies under the Site and Facility Lease. If an Event of Default occurs and continues hereunder, the Authority may exercise its rights under the Site and Facility Lease.

Section 8.3. No Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon the occurrence of any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the Authority to exercise any remedy reserved to it in this Article VIII it shall not be necessary to give any notice, other than such notice as may be required in this Article VIII or by law.

Section 8.4. No Additional Waiver Implied by One Waiver. If any agreement contained in this Lease Agreement is breached by either party and thereafter waived by the other party, such waiver is limited to the particular breach so waived and will not be deemed to waive any other breach hereunder.

Section 8.5. Assignee to Exercise Rights. Such rights and remedies as are given to the Authority under this Article VIII have been assigned by the Authority to the Assignee, to which assignment the City hereby consents.
136
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ARTICLE IX

PREPAYMENT OF LEASE PAYMENTS
Section 9.1. Security Deposit. Notwithstanding any other provision of this Lease Agreement, upon payment in full of any Additional Payments due and payable, the City may on any date secure the payment of the Lease Payments in whole or in part by depositing with the Assignee or a fiduciary reasonably satisfactory to the Assignee, in trust, an amount of cash, which shall be held in a segregated trust or escrow fund under a trust or escrow agreement that is in form and content acceptable to the Assignee, which cash so held is either (a) sufficient to pay such Lease Payments, including the principal and interest components thereof, in accordance with the Lease Payment schedule set forth in Exhibit C, or (b) invested in whole in non-callable Federal Securities maturing not later than the dates such funds will be required to make Lease Payments or any prepayment in an amount which is sufficient, in the opinion of an independent certified public accountant (which opinion must be in form and substance, and with such an accountant, as shall be acceptable to the Assignee, and addressed and delivered to the Assignee), together with interest to accrue thereon and without reinvestment and together with any cash which is so deposited, to pay such Lease Payments when due under Section 4.3(a) or when due on any optional prepayment date under Section 9.2, as the City instructs at the time of said deposit. In the event of a security deposit under this Section with respect to all unpaid Lease Payments, (i) the Term of this Lease Agreement shall continue, (ii) all obligations of the City under this Lease Agreement, and all security provided by this Lease Agreement for said obligations, shall thereupon cease and terminate, excepting only (A) the obligation of the City to make, or cause to be made, all of the Lease Payments from such security deposit and, to the extent of any deficiency, as rent payable from other legally available funds of the City, and (B) the release and indemnification obligations of the City under subparagraphs (f) and (g) of Section 7.3, and (iii) under Section 4.5, the Authority’s leasehold interest in the Property will vest in the City on the date of said deposit automatically and without further action by the City or the Authority. The City hereby grants a first priority security interest in and lien on said security deposit and all proceeds thereof in favor of the Assignee. Said security deposit shall be deemed to be and shall constitute a special fund for the payment of Lease Payments in accordance with the provisions of this Lease Agreement and, notwithstanding anything to the contrary herein, Lease Payments therefrom shall not be subject to abatement under Section 6.3 hereof to the extent payable from the funds held by the Assignee or the fiduciary as described in the first sentence of this Section 9.1.

Section 9.2. Optional Prepayment. The City may exercise its option to prepay the principal components of the Lease Payments in whole or in part on any Lease Payment Date, upon 30 days’ notice to the Assignee, by paying a prepayment price equal to the aggregate principal components of the Lease Payments to be prepaid, together with the interest component of the Lease Payment required to be paid on or accrued to such date together with the premium set forth in the following table:

Prepayment Period Prepayment Premium
Closing Date through February 28, 2027 1
March 1, 2027 and thereafter 0
Section 9.3. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain. The City shall be obligated to prepay the unpaid principal components of the Lease Payments in whole or in part in such order of prepayment as shall be selected by the City on any date, together with any accrued and unpaid interest, and any other costs related to such prepayment, from and to the extent of any proceeds of insurance award or condemnation award with respect to the Property to be used for such purpose under Section 6.2. The City and 137
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the Authority hereby agree that such proceeds, to the extent remaining after payment of any delinquent Lease Payments, shall be credited towards the City’s obligations under this Section

9.3. 138
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ARTICLE X

MISCELLANEOUS
Section 10.1. Notices. Any notice, request, complaint, demand or other communication under this Lease Agreement shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or by facsimile transmission 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 of America first class mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The Authority, the City and the Assignee 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 Authority: Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority
c/o City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Assistant City Manager
Phone: (415) 508-2151
If to the City: City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Assistant City Manager
Phone: (415) 508-2151
If to the Assignee: Bank of the West
180 Montgomery Street, 9th Floor
San Francisco, CA 94104
Attention: ___________
Phone: (415) ___-____
Section 10.2. Binding Effect. This Lease Agreement inures to the benefit of and is binding upon the Authority, the City and their respective successors and assigns. The Assignee is a third party beneficiary of this Lease Agreement.

Section 10.3. Severability. If any provision of this Lease Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof.

Section 10.4. Net-net-net Lease. This Lease Agreement is a “net-net-net lease” and the City hereby agrees that the Lease Payments are an absolute net return to the Authority, free and clear of any expenses, charges or set-offs whatsoever.

Section 10.5. Supplemental Agreement to Control. To the extent any provision of this Lease Agreement conflicts with a similar provision in the Supplemental Agreement, the Supplemental Agreement shall control. The Authority hereby agrees to the provisions of Section

8.04 of the Supplemental Agreement as if such provisions were set forth herein.

Section 10.6. 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 139
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Property hereby leased or intended to be so or for carrying out the expressed intention of this Lease Agreement.

Section 10.7. Execution in Counterparts. This Lease Agreement may be executed in several counterparts, each of which is an original and all of which constitutes one and the same instrument.

Section 10.8. Applicable Law. This Lease Agreement is governed by and construed in accordance with the laws of the State.

Section 10.9. Captions. The captions or headings in this Lease Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or section of this Lease Agreement.
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IN WITNESS WHEREOF, the Authority and the City have caused this Lease Agreement to be executed in their respective names by their duly authorized officers, all as of the date first above written.

BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT

FINANCING AUTHORITY
By
Clayton L. Holstine
Executive Director

CITY OF BRISBANE
By
Clayton L. Holstine
City Manager
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Exhibit A

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Brisbane City CouncilMarch 3, 2022

Brisbane City Council
March 3, 2022