Agenda packet — Brisbane City Council, June 1, 2023 (part 1 of 3)

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CITYof BRISBANE
Thursday, June 1, 2023 at 7:30 PM ● Hybrid Meeting 50 Park Place, Brisbane, CA The public may observe/participate in City Council meetings using remote public comment options or attending in person. Members of the City Council shall attend in person unless remote participation is permitted by law. The City Council may take action on any item listed in the agenda.

TO ADDRESS THE COUNCIL

IN PERSON
Location: 50 Park Place, Brisbane, CA 94005, Community Meeting Room Masking is not required, but the California Department of Public Health recommends people at higher risk for severe illness consider masking. Similarly, to help maintain public health and safety, we respectively request that people not attend public meetings in-person if they are experiencing symptoms associated with COVID-19 or are otherwise ill and likely contagious (e.g., respiratory illnesses).

To address the City Council on any item – whether on the posted agenda or not – please fill out a Request to Speak Form located in the Community Meeting Room Lobby and submit it to the City Clerk. Speakers are not required to submit their name or address.

REMOTE PARTICIPATION
Members of the public may participate in the City Council meeting by logging into the Zoom Webinar identified below. City Council meetings may also be viewed live and/or on-demand via the City’s YouTube Channel, youtube.com/brisbaneca, or on Comcast Ch. 27. Archived videos may be replayed on the City’s website, brisbaneca.org/meetings. Please be advised that if there are technological difficulties, the meeting will nevertheless continue if remote participation is available.

The agenda materials may be viewed online at brisbaneca.org at least 72 hours prior to a Regular Meeting, and at least 24 hours prior to a Special Meeting.

Remote Public Comments:

Remote meeting participants may address the City Council. We also encourage remote participants to submit public comments in writing in advance of a meeting. Aside from commenting personally while in the Zoom Webinar, the following email and text line will be monitored during the meeting and public comments received will be noted for the record during Oral Communications 1 and 2 or during an agenda item.

Email: [email protected] or 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
Call In Number: 1 (669) 900-9128
Joint City Council & Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Meeting
Agenda
1 June 1, 2023 - 2 - 7:30 PM
Note: Callers dial *9 to “raise hand” and dial *6 to mute/unmute.

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 4pm of the day of the meeting will be available for public inspection at the front lobby in City Hall and on the internet (brisbaneca.org/meetings). Any writings that are received after 4pm of the day of the meeting will be available on the internet at the start of the meeting (brisbaneca.org/meetings), at which time the materials will be distributed to the Council.
7:30 P.M. CALL TO ORDER – PLEDGE OF ALLEGIANCE

ROLL CALL
A. Consider any request of a City Councilmember to attend the meeting remotely under the “Emergency Circumstances” of AB 2449

ADOPTION OF AGENDA
ORAL COMMUNICATIONS NO. 1

AWARDS AND PRESENTATIONS
B. Proclamation June as Pride Month

CONSENT CALENDAR
C. Approve Minutes of City Council Meeting of May 18, 2023 D. Approve Minutes of City Council Closed Session Meeting of May 18, 2023 E. Adopt an Ordinance, Waiving Second Reading, to Amend Section 10.24.050 of Chapter

10.24 of the Brisbane Municipal Code pertaining to “Stopping, Standing and Parking.” (The purpose of this item is to modify a section of the city’s municipal code that is inconsistent with state law.)
F. Introduce an Ordinance, Waiving First Reading, to amend the electric vehicle (EV) Charging Infrastructure Requirements for New Multifamily Residential Development Within the City of Brisbane to Align with the State’s New Minimum Requirements 2 June 1, 2023 - 3 - 7:30 PM
and finding that this Ordinance is Categorically Exempt From Environmental Review Under CEQA Guidelines Section 15308, Actions By Regulatory Agencies for Protection of the Environment
G. Adopt a Resolution Authorizing the City’s Participation in the Age-Friendly Communities’ Network
H. Authorize Staff to Publish the Public Art Master Plan Request for Proposals (RFP) as Recommended by the Public Art Advisory Committee
(The RFP denotes not to exceed amount of $75,000 for a Master Planning consultant and the Public Art Advisory Committee is also recommending a 20% contingency (or $15,000) to draw from as needed to support master planning efforts.) I. Authorize Selecting a Land Management and Permitting System Vendor (The purpose of this item is to Authorize the City Manager to select a land management and permitting system vendor, negotiate a contract for system implementation, and execute a contract with the chosen vendor. The submitted vendor proposals include a range of pricing estimates, with initial one-time implementation costs ranging from $100,000-$650,000 and ongoing costs ranging from $40,000-$140,000 annually.) J. Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024 i. Adopt a Resolution, “Appointing Attorney for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”
ii. Adopt a Resolution, “Appointing Engineer for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”
iii. Adopt a Resolution, “A Resolution of Preliminary Approval of Engineer's Report - Fiscal Year 2023-2024 - Sierra Point Landscaping and Lighting District” iv. Adopt a Resolution, “A Resolution of Intention to order the levy and collection of assessments pursuant to the Landscaping and Lighting Act of 1972 - Fiscal Year 2023-2024 - Sierra Point Landscaping and Lighting District”

PUBLIC HEARING
K. Park Development Impact Fees [PUBLIC HEARING AS TO THIS ITEM CANCELLED] i. Consider Adoption of a Resolution Adopting and approving the NBS Government Finance Group’s Nexus Study
ii. Consider Introduction of an ordinance establishing fees iii. Consider Adoption of a resolution establishing the fees. (At the request of staff, this item has been removed from the agenda and the public hearing items cancelled.)
3 June 1, 2023 - 4 - 7:30 PM
L. Consider Adoption of a Resolution of the Board of Directors of the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Authorizing the Issuance and Sale of its Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023
(Council will consider whether to approve financing of the costs of tenant improvements and related equipment and furnishings to the building at 25 Park Place leased by the City by means of the issuance of revenue bonds (the “Bonds”) by the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”) in an aggregate amount not to exceed $5,500,000, payable from the City’s general fund.)

NEW BUSINESS
M. Consider Approval of Construction Contract for Brisbane Administrative Offices (Assuming that Agenda Item L has been adopted, it is being recommended to award the Brisbane Administrative Offices construction contract (Project No. 922A) to Argo Construction, Inc. in the amount of $3,174,000 and authorize the mayor to sign the Agreement on behalf of the City.)
N. Consider Approval of Construction Management Services for 25 Park Remodel (Assuming that Agenda Items L an M have been adopted/approved, it is being recommended that the Mayor be authorized to sign a Task Order in the amount of $314,104.40 to JMW Consulting Engineers, and to also sign a Professional Services Agreement if deemed necessary by the City Attorney.)
O. Consider Approval of Request for Proposals for Executive Recruitment Services

STAFF REPORTS
P. City Manager’s Report on Upcoming Activities

MAYOR/COUNCIL MATTERS
Q. Countywide Assignments and Subcommittee Reports
- Public Art Advisory Committee6/26 4:30pmCunningham, Davis R. Written Communications
ORAL COMMUNICATIONS NO. 2

ADJOURNMENT
4 File Attachments for Item:

C. Approve Minutes of City Council Meeting of May 18, 2023 5 C.

BRISBANE CITY COUNCIL

ACTION MINUTES

CITY COUNCIL MEETING
THURSDAY, MAY 4, 2023
HYBRID MEETING, 50 PARK PLACE, BRISBANE, CA 94005

CALL TO ORDER AND PLEDGE OF ALLEGIANCE
Mayor Davis called the meeting to order at 7:37 P.M. and led the Pledge of Allegiance.

ROLL CALL
Councilmembers present: Councilmembers Cunningham, Lentz, Mackin, O’Connell and Mayor Davis Councilmembers absent: None
Staff Present: City Manager Holstine, City Clerk Padilla, City Attorney McMorrow, Finance Director Yuen, City Engineer Breault, Community Development Director Cheung, Senior Planner Ayres, Senior Planner Johnson, Parks and Recreation Director Leek, Police Commander Garcia and Administrative Analyst Ibarra
Consider any request of a City Councilmember to attend the meeting remotely under the “Emergency Circumstances” of AB 2449
No Councilmembers made any requests at this meeting.

REPORT OUT FROM CLOSED SESSION
City Attorney McMorrow reported that updates were provided to Council and direction was given to staff pertaining to the liability claim, the employee performance evaluation and the pending litigation item.

ADOPTION OF AGENDA
Staff made a request to remove Consent Calendar Item I from the agenda. Councilmember Lentz made a motion, seconded by Councilmember O’Connell, to adopt the agenda as amended. The motion passed unanimously by all present.
6 C.

City Council Minutes
May 18, 2023

Page 2 ends

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

Absent: None
Abstain: None
ORAL COMMUNICATIONS NO. 1
No member of the public wished to make public comment.

AWARDS AND PRESENTATIONS
B. Proclaiming May as Mental Health Month
Mayor Davis recognized May 2023 as Mental Health Month to enhance public awareness of mental health to help end the stigma and direct members of the community to resources and support for mental health and substance use conditions. San Mateo County Behavioral Health Commissioner Leticia Bidó accepted the proclamation and thanked the Council for the recognition.

C. Proclaiming May 21-27 as National Public Works Week
Mayor Davis designated the week May 21–27, 2023 as National Public Works Week and urged all citizens to pay tribute to our public works professionals, engineers, managers, and employees and to recognize the substantial contributions they make to protecting our health, safety, and quality of life. City Engineer Randy Breault accepted the Proclamation on behalf of the department.

D. Proclaiming May 21-27 as National Emergency Medical Service Week Mayor Davis proclaimed the week of May 21 - 27, 2023, as Emergency Medical Services Week and encouraged the community to observe this week with appropriate programs, ceremonies, and activities. Battalion Chief Matt Powers from North County Fire accepted the proclamation and thanked the Council for the recognition.

CONSENT CALENDAR
E. Approve Minutes of City Council Meeting of April 20, 2023 F. Approve Minutes of City Council Closed Session Meeting of May 4, 2023 G. Approve Minutes of City Council Meeting of May 4, 2023 H. Approve Receive Recology Brisbane’s 2023 Rate Increase of 4.64% I. Authorize Staff to Publish the Public Art Master Plan Request for Proposals (RFP) as Recommended by the Public Art Advisory Committee
(The RFP denotes not to exceed amount of $75,000 for a Master Planning consultant and the Public Art Advisory Committee is also recommending a 20% contingency (or $15,000) to draw from as needed to support master planning efforts.)
J. Introduce an Ordinance, Waiving First Reading, to Amend Section 10.24.050 of Chapter 10.24 of the Brisbane Municipal Code pertaining to “Stopping, Standing and Parking.” 7 C.

City Council Minutes
May 18, 2023

Page 3 ends

(The purpose of this item is to modify a section of the city’s municipal code that is inconsistent with state law.) Councilmember O’Connell made a motion, seconded by Councilmember Cunningham to approve Consent Calendar Items E-G, and J. The motion passed unanimously by all present.

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

Absent: None
Abstain: None
Mayor Davis recused herself from Consent Calendar Item H and stepped out of the room. Councilmember Cunningham made a motion, seconded by Councilmember Mackin, to approve Consent Calendar Item H. The motion passed unanimously by all present.

Ayes: Councilmembers Cunningham, Lentz, Mackin, and O’Connell Noes: None

Absent: None
Abstain: Mayor Davis

PUBLIC HEARING
K. Consider Adoption of a Resolution to Approve Amendment of the 2023-2031 Housing Element and Finding This Action Categorically Exempt from Environmental Review Under CEQA under CEQA Guidelines Sections 15061(b)(3)
(The purpose of this item is to adopt an amendment to the 2023-2031 Housing Element of the General Plan that complies with State law.)
Staff reported that they worked directly with the State Department of Housing and Community Development (HCD) staff to draft revisions to the adopted Element that address HCD’s April 5, 2023 comment letter.

These revisions are either informational in nature or represent minor revisions to the adopted Element’s housing policies. No new sites are identified in the housing opportunity sites inventory and no new land use changes are proposed in the City’s Housing Action Plan.

After the brief staff report and some Council questions, Mayor Davis opened the public hearing. Ali Sapirman from the Housing Action Coalition, commented that she is glad to see the timeline in the report.

Councilmember O’Connell made a motion, seconded by Councilmember Cunningham to close the public hearing. The motion passed unanimously by all present.

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

Absent: None
Abstain: None
8 C.

City Council Minutes
May 18, 2023

Page 4 ends

Council thanked staff for all their hard work and completing a difficult task. Councilmember O’Connell made a motion, seconded by Councilmember Lentz, to adopt a Resolution to approve amendment of the 2023-2031 housing Element and finding this action categorically exempt from environmental review under CEQA under CEQA Guidelines Sections 15061(b)(3). The motion passed unanimously by all present.

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

Absent: None
Abstain: None

OLD BUSINESS
L. Sierra Point Open Space & Parks Planning and Marina and Sierra Point Sea Level Rise Resiliency i. Receive overview from One Shoreline, San Mateo County’s Flood & Sea Level Resiliency District Len Materman, Chief Executive Officer of One Shoreline--San Mateo County Flood and Sea Level Rise Resiliency District, provided an overview and answered Council’s questions about San Mateo County’s Flood and Sea Level Resiliency efforts.
ii. Marina and Sierra Point Utilities Response to Sea Level Rise City Engineer Breault provided an update on major issues at Sierra Point: access to the area from Sierra Point Parkway, and needed response to sea level rise to preserve city infrastructure. City Engineer Breault answered Council questions and no members of the public wished to make public comment. iii. Sierra Point Open Space & Parks Master Plan Next Steps Parks and Recreation Director Leek asked for direction on next steps particularly whether the Council would like to revisit public engagement conducted during the first two phases of the project and broaden public engagement beyond the scope that was outlined in the City’s RFP and consultant’s proposal.

After council questions and no public comment, Council discussed having a stakeholder meeting in the community meeting room. City Manager Holstine will discuss details about the stakeholders meeting at the subcommittee level.

Lee Panza commented that Council should start with a meeting with the Marina stakeholders, the boaters, and the entire Marina community.

M. Discuss Measure K Funding Requests to Supervisor Canepa and Provide Direction to the City Manager as to the Prioritization of Said Projects
Council directed staff to request Measure K Funding from Supervisor Canepa to replace the community pool’s boiler with electric heat pump water heaters.

STAFF REPORTS
N. City Manager’s Report on Upcoming Activities
9 C.

City Council Minutes
May 18, 2023

Page 5 ends

City Manager Holstine invited Council and the public to attend the Asian American Pacific Islander Heritage Month Celebration.

MAYOR/COUNCIL MATTERS
O. Countywide Assignments and Subcommittee Reports
- Public Art Advisory Committee (5/1) Cunningham, Davis - Sierra Point Parkway Design Guidelines Subcommittee (5/3) Lentz, O’Connell Due to the late hour, no reports were made.

P. Written Correspondence
City Clerk Padilla reported that Council received correspondence from the following:

Roland Lebrun (5/9/23) Revised NOP of an EIR for the Brisbane Baylands Specific Plan Alison Sapirman, Housing Action Coalition, (5/16/23) Housing Element Comment Letter Department of Housing and Community Development (5/18/23) Cit of Brisbane’s 6th Cycle (2023-2031) Revised Draft Housing Element
ORAL COMMUNICATIONS NO. 2
No members of the public wished to make public comment.

ADJOURNMENT
Mayor Davis adjourned the meeting at 10:30 P.M.
_______________________
Ingrid Padilla
City Clerk
10 C.

File Attachments for Item:

D. Approve Minutes of City Council Closed Session Meeting of May 18, 2023 11 D.

BRISBANE CITY COUNCIL

ACTION MINUTES

BRISBANE CITY COUNCIL CLOSED SESSION MEETING
THURSDAY, MAY 18, 2023
HYBRID MEETING, 50 PARK PLACE LARGE CONFERENCE ROOM,

BRISBANE, CA
6:30 P.M. CLOSED SESSION
A. Approval of the Closed Session Agenda
B. Public Comment. Members of the public may address the Councilmembers on any item on the closed session agenda
C. Adjournment into Closed Session
D. Liability Claim: Claimant O’Boyle, pursuant to Government Code, section 54956.95 E. Conference with Legal Counsel—Anticipated Litigation Initiation of litigation pursuant to paragraph (4) of subsection (d) of Section 54956.9.

Number of cases: 1
F. Employee Performance Evaluation under Government Code, Section 54957 (b)(1) Title: City Manager G. Conference With Legal Counsel—Pending Litigation
Government Code, Section 54956.9 (d) (1). Number of Cases: One • City of Brisbane v. CA High-Speed Rail Authority (Superior Court of Sacramento County, Case No. 80004010)
Mayor Davis called the meeting to order at 6:32 P.M. Councilmember Cunningham made a motion, seconded by Councilmember O’Connell, to adopt the agenda as it stands. The motion passed unanimously by all present.

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

Absent: None
Abstain: None
Roland Lebrun made public comment about his wishes for the High Speed Rail project.

REPORT OUT OF CLOSED SESSION
City Attorney McMorrow reported that updates were provided to Council and direction was given to staff 12 pertaining to the liability claim, the employee performance evaluation and the pending litigation item.

City Council Minutes
May 18, 2023

Page 2 ends

ADJOURNMENT
The meeting was adjourned at 7:30 P.M.
______________________
Ingrid Padilla, City Clerk
13 D.

File Attachments for Item:

E. Adopt an Ordinance, Waiving Second Reading, to Amend Section 10.24.050 of Chapter 10.24 of the Brisbane Municipal Code pertaining to “Stopping, Standing and Parking.” (The purpose of this item is to modify a section of the city’s municipal code that is inconsistent with state law.)
14 E.

CITY COUNCIL AGENDA REPORT
Change to Municipal Code Chapter 10.24 Page 1 of 1
Meeting Date: June 1, 2023
From: Director of Public Works/City Engineer
Subject: Municipal Code Change to Chapter 10.24 – Stopping, Standing and Parking
Recommendation
Adopt an Ordinance, waiving second reading, amending Section 10.24.050 of Chapter 10.24 of the Brisbane Municipal Code pertaining to “Stopping, Standing and Parking.” Adoption of this Ordinance is not subject to further environmental review because it is not a project under the California Environmental Quality Act (CEQA). CEQA Guidelines, section 15378 (b) (2).

Background
This ordinance was introduced at the regular City Council meeting held on May 18, 2023, and was passed unanimously with no requested changes.

Environmental Review
Adoption of this Ordinance is not a project under CEQA because it is a continuing administrative activity, such as general policy and procedure making, and not applied to any specific instance.

CEQA Guidelines, Section 15378 (b)(5). Accordingly, no further environmental review is necessary.

Attachments

1. May 18, 2023 staff report
___________________________________ ___________________________________ Randy Breault, Public Works Director Clay Holstine, City Manager 1 of 5
15 E.

CITY COUNCIL AGENDA REPORT
Change to Municipal Code Chapter 10.24 Page 1 of 2
Meeting Date: May 18, 2023
From: Director of Public Works/City Engineer
Subject: Municipal Code Change to Chapter 10.24 – Stopping, Standing and Parking
Community Goal/Result:

Safe Community
Purpose
To modify a section of the city’s municipal code that is inconsistent with state law.

Recommendation
Introduce an Ordinance, waiving first reading, amending Section 10.24.050 of Chapter 10.24 of the Brisbane Municipal Code pertaining to “Stopping, Standing and Parking.” Introduction and adoption of this Ordinance is not subject to further environmental review because it is not a project under the California Environmental Quality Act (CEQA). CEQA Guidelines, section 15378 (b) (2).

Background
Section 10.08.120 “Removal of parked and abandoned vehicles” of the city’s municipal code allows for removal of a vehicle from streets and public property, “When a vehicle is parked or left standing upon any public street, highway, right-of-way or public grounds for seventy-two (72) or more consecutive hours.”
California Vehicle Code section 22651 k similarly provides removal authority, “If a vehicle is parked or left standing upon a highway for 72 or more consecutive hours in violation of a local ordinance authorizing removal.”
In conflict with both of these laws is Brisbane Municipal Code §10.24.050 “Use of streets for storage of vehicles prohibited”, which specifies an allowed maximum time period of 120 hours (5 days) for parking a vehicle on a street or alley.

Discussion
Approval of the recommended action will change the maximum time period for parking on a street or alley to 72 hours and will remove the current inconsistency. 2 of 5
16 E.

Change to Municipal Code Chapter 10.24 Page 2 of 2
Environmental Review
Introduction and adoption of this Ordinance is not a project under CEQA because it is a continuing administrative activity, such as general policy and procedure making, and not applied to any specific instance. CEQA Guidelines, Section 15378 (b)(5). Accordingly, no further environmental review is necessary.

Fiscal Impact
None as a result of the recommended action.

Measure of Success
Consistency throughout the city’s municipal code and with the state vehicle code.

Attachments

1. Proposed Ordinance
___________________________________ ___________________________________ Randy Breault, Public Works Director Clay Holstine, City Manager 3 of 5
17 E.
~ 1 ~
Ordinance No. - - -
ORDINANCE NO. - - -

AN ORDINANCE OF THE CITY OF BRISBANE
REVISING CHAPTER 10.24 OF THE BRISBANE MUNICIPAL CODE

CONCERNING STOPPING STANDING AND PARKING
The City Council of the City of Brisbane hereby ordains as follows:

Section 1: Section 10.24.050 of the Brisbane Municipal Code is revised to read as follows:
“10.24.050 – Use of streets for storage of vehicles prohibited.

No person who owns or has possession, custody or control of any vehicle shall park such vehicle upon any street or alley for more than a consecutive period of seventy-two (72) hours.” Section 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Brisbane hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional.

Section 3: This Ordinance shall be in full force and effect thirty days after its passage and adoption.
* * * *
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 ____________________, 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:
_____________________________
Madison Davis, Mayor
4 of 5
18 E.
~ 2 ~
Ordinance No. - - -
ATTEST:
_____________________________
Ingrid Padilla, City Clerk
APPROVED AS TO FORM:
_____________________________
Thomas R. McMorrow, City Attorney
5 of 5
19 E.

File Attachments for Item:

F. Introduce an Ordinance, Waiving First Reading, to amend the electric vehicle (EV) Charging Infrastructure Requirements for New Multifamily Residential Development Within the City of Brisbane to Align with the State’s New Minimum Requirements and finding that this Ordinance is Categorically Exempt From Environmental Review Under CEQA Guidelines Section 15308, Actions By Regulatory Agencies for Protection of the Environment 20 F.

Introduce Ordinance | EVSE in New Residential Development Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: June 1, 2023
From: John Swiecki, Community Development Director
Subject: Introduction of a draft ordinance to amend Section 15.84.070 of the City of Brisbane Electric Vehicle Infrastructure Ordinance and finding that this Ordinance categorically exempt from environmental review under CEQA Guidelines Section 15308, Actions by Regulatory Agencies for Protection of the Environment.

COMMUNITY GOAL/RESULT
Ecological Sustainability - Brisbane will be a leader in setting policies and practicing service delivery innovations that promote ecological sustainability.

PURPOSE
To amend the electric vehicle (EV) charging infrastructure requirements for new multifamily residential development within the City of Brisbane to align with the State’s new minimum requirements for EV charging infrastructure adopted under the 2022 version of the California Building Standards Codes (Code of Regulations, Title 24 or CBC).

RECOMMENDATION
Introduce the attached draft ordinance.

BACKGROUND
In 2019, the City adopted Ordinance No. 643 (Electric Vehicle Infrastructure Ordinance (EVIO)) which, among other actions, established EV infrastructure requirements for new residential and non-residential development. The EVIO exceeded the minimum requirements set by the State at the time. In 2022, the City readopted the 2019 EVIO without any substantive changes, as required by State law, when the City adopted the latest CBC. At the time, staff determined the EVIO remained more stringent than the new EV infrastructure requirements contained within the 2022 CBC as well as the new EV reach codes proposed by the Bay Area Reach Codes Coalition.

Subsequent review found that the 2022 CBC established specific criteria to equip a minimum of five percent of the total number of parking spaces with EV supply equipment (EVSE), or EV chargers, rather simply providing EV ready or capable circuitry in new residential buildings of 20 or more units. As currently adopted, the EVIO only requires EVSE for a portion of just the guest parking spaces in new multifamily residential development.

DISCUSSION
The proposed amendment is intended to provide additional charging infrastructure, specifically EVSE, in new residential development to better accommodate projected future demand and meet minimum State requirements. The proposed ordinance would amend Brisbane Municipal Code (BMC) §15.84.070 – Residential Requirements of the EVIO (Section 1 of the draft ordinance) to require a minimum of five percent of the required parking spaces for all dwelling units to be equipped with Level 2 EVSE, in addition to the current requirements for Level 2 EV Ready Circuit Parking Spaces and EV charging station (EVCS) guest parking spaces. The amendment would also 21 F.

Introduce Ordinance | EVSE in New Residential Development Page 2 of 2 clarify that the calculation for the required minimum number of EVSE spaces shall be rounded up to the nearest whole number, as already stipulated for nonresidential development. A summary table of the differences between current State law and the proposed amendment, specific to residential development, is provided below. There are no changes to any other section of the EVIO.
# of Multifamily Dwellings: Less than 20 units More than 20 units State Law:
10% of total parking spaces
must be Level 2 EV capable
10% of total parking spaces
must be Level 2 EV capable
25% of total parking spaces
must be Level 2 EV ready2
25% of total parking spaces
must be Level 2 EV ready2
5% of total parking spaces
must have Level 2 EV charger
BMC §15.84.070
Amendment:

Same provisions regardless the number of dwelling units1 1 Level 2 EV ready2 parking space per unit
5% of require parking spaces for all dwelling units must have Level 2 EV charger
50% of required guest parking spaces must have Level 2 EV charger
1 Duplexes and townhouses excluded from multifamily dwelling 2 EV capable means the parking space would support Level 2 EV charger installation in the future 3 EV ready means the parking space is equipped with a low power Level 2 EV charging receptacle

FISCAL IMPACT
None.

MEASURE OF SUCCESS
Application of updated standards to meet minimum requirements of State law and implementation of measures to help meet the goals of the City’s Climate Action Plan.

ATTACHMENTS

1. “Redline” copy of the update to BMC §15.84.070

2. Draft Ordinance
___________________________________ ___________________________________ John Swiecki, Community Development Director Clay Holstine, City Manager 22 F.

ATTACHMENT 1

1.1 15.84.070 – Residential Requirements
New residential construction shall comply with the following provisions:

A. New single-family residences, duplexes and townhouses.

1. EVElectric Vehicle (EV) Standards:
a. For each dwelling unit, where two (2) or more parking spaces are required, at least one Level 2 EV Ready Circuit and one Level 1 EV Ready Circuit is to be installed. b. Where only one parking space is required per dwelling unit, as provided inper Chapter 17.34, only one Level 2 EV Ready Circuit shall be required to be installed.

2. Exceptions: The following exceptions apply, subject to building official approval:
a. A reduction in the EV standards may be allowed, if requested in writing by the applicant based on demonstration that the provisions of this section would render the development project infeasible due to associated utility costs. Documentation is to take into account short term and long term cost analysis to the satisfaction of the building official.

B. New multifamily dwellings. The following shallprovisions apply to multifamily developments whether parking spaces are assigned or unassigned to individual units:

1. EV Standards:
a. A minimum of one (1) Level 2 EV Ready Circuit Parking Space per unit shall be provided; and b. A minimum of five percent (5%) of the required parking spaces for all dwelling units shall be equipped with Level 2 EVSE; and
b.c. A minimum of fifty percent (50%) of required guest parking spaces shall be electric vehicle charging station (EVCS) parking spaces.

2. Rounding. Calculations for the required minimum number of spaces equipped with Level 2 EVSE and EVCS parking spaces shall all be rounded up to the nearest whole number.

2.3.Exceptions: The following exceptions apply, subject to building official approval:
a. Where less than one parking space per unit is required as provided in per Chapter 17.34, the provision of Level 2 EV Ready Circuit parking space requirements shall apply only to the parking required as provided inper Chapter 17.34. This section subparagraph does not alter the required minimum number of parking spaces as provided in Chapter 17.34. b. When more than twenty (20) multifamily dwelling units are constructed on a building site, load balancing systems may be installed. In such cases, the panel capacity must average a minimum of sixteen (16) amperes per EV space. Load balancing systems may be installed to increase the number of EV chargers or the amperage or voltage beyond the minimum required.
c. A reduction in the EV standards may be allowed, if requested in writing by the applicant based on demonstration that the provisions of this sectionsubsection B would render the development project infeasible due to associated utility costs. However, the maximum feasible amount of EV infrastructure shall be provided. Documentation is to take into account short term and long term cost analysis to the satisfaction of the building official. 23 F.

ATTACHMENT 2

2.1 Draft
ORDINANCE NO. _____

AN ORDINANCE OF THE CITY OF BRISBANE
TO AMEND SECTION 15.84.070, BRISBANE MUNICIPAL CODE CONCERNING

ELECTRIC VEHICLE INFRASTRUCTURE
The City Council of the City of Brisbane hereby ordains as follows:

WHEREAS, The Brisbane City Council finds and determines that:

A. The actions contained in this ordinance comply with the California Environmental Quality Act (CEQA), being categorically exempt per CEQA Section 15308, Actions by Regulatory Agencies for Protection of the Environment.

B. The 2022 Edition of the California Building Code (CBC) became effective state-wide on January 1, 2023 and Section 4.106.4.2.2 of the California Green Building Standards Code requires five (5) percent of the total number of parking spaces in certain multifamily development projects, hotels, and motels be equipped with Level 2 Electric Vehicle Supply Equipment (EVSE) chargers.

C. The City adopted a Climate Action Plan on September 17, 2015, which includes the goal of reducing carbon emissions from fossil fuels to help curb global warming. Methods include substituting renewable energy for fossil fuel energy sources to reduce fossil fuel emissions from transportation.

D. In 2022, Brisbane readopted its energy and greenhouse gas (GHG) emissions reach code, which included electric vehicle (EV) charger and EV parking regulations for new development projects, known as the City of Brisbane Electric Vehicle Infrastructure Ordinance, and the following is noted:

1. Use of fossil fuel vehicles is a primary contributor to transportation emissions and availability of EV charging infrastructure is a critical component to EV adoption over the continued use of fossil fuel reliant vehicles. Additionally, provision of EV charging infrastructure is most cost effective as part of new development projects versus existing building/site retrofit projects.

2. The provisions within Brisbane’s EV Infrastructure Ordinance, as amended below, exceed the EV infrastructure provisions required by the 2022 California Building Standards Code as well as the latest EV infrastructure reach codes proposed by the Bay Area Reach Codes Coalition.

3. By reason of express findings F.1, F.2, and F.3 noted below, it is necessary to amend Brisbane’s 2022 Electric Vehicle Infrastructure Ordinance.

E. California Health and Safety Code Sections 17922, 17958, 17958.5, 17958.7, and 18941.5 authorize the City to make local amendments to the provisions in the CBC upon express findings that the local amendments are reasonably necessary due to local climatic, geological, topographical, and/or environmental conditions.

F. By reason of the following climatic and environmental conditions, it is necessary to adopt certain local amendments to the CBC in order to provide a high level of health and life safety for all persons who live and work within the City of Brisbane and to adequately protect both public and private property within the City:
24 F.

ATTACHMENT 2

2.2 1. The local amendments are justified on the basis of local climatic conditions in Brisbane.

Failure to address and significantly reduce GHG emissions could result in rises in sea level, including in San Francisco Bay, that could put at risk City homes and businesses, public facilities, and Highway 101 (Bayshore Freeway), particularly the mapped Flood Hazard areas of the City. EV charging infrastructure is a key component in reducing GHG emissions.

2. EV charging installations can help the City of Brisbane reduce its share of the GHG emissions that contribute to climate change and contribute to the reduction of GHG emissions by supporting the demand for EVs and the associated charging infrastructure.

Furthermore, electricity will become cleaner over time as utilities achieve more stringent Renewable Portfolio Standard requirements and translate the clean energy benefits to electric vehicles.

3. The local amendments improve the public health and welfare by promoting the environmental and economic health of the City by incorporating green practices into all development. The local amendments are consistent with the goals of the Green Building Code and help achieve the following goals:
• Promote the health and productivity of residents, workers, and visitors to the city; and
• Increase electric vehicle charging infrastructure to encourage electric vehicle adoption which in turn reduces greenhouse gas emissions and improves air quality.

NOW, THEREFORE, THE BRISBANE CITY COUNCIL ORDAINS AS FOLLOWS:

SECTION 1: Section 15.84.070 of the Brisbane Municipal Code is amended to read as follows:

New residential construction shall comply with the following:

A. New single-family residences, duplexes and townhouses.

1. Electric Vehicle (EV) Standards:
a. For each dwelling unit, where two (2) or more parking spaces are required, at least one Level 2 EV Ready Circuit and one Level 1 EV Ready Circuit is to be installed. b. Where only one parking space is required per dwelling unit as provided in Chapter 17.34, only one Level 2 EV Ready Circuit shall be required to be installed.

B. New multifamily dwellings. The following shall apply to multifamily developments whether parking spaces are assigned or unassigned to individual units:

1. EV Standards:
a. A minimum of one (1) Level 2 EV Ready Circuit Parking Space per unit shall be provided; and b. A minimum of five percent (5%) of the required parking spaces for all dwelling units shall be equipped with Level 2 EVSE; and
c. A minimum of fifty percent (50%) of required guest parking spaces shall be EVCS parking spaces.
25 F.

ATTACHMENT 2

2.3 2. Rounding. Calculations for the required minimum number of spaces equipped with Level 2 EVSE and EVCS parking spaces shall all be rounded up to the nearest whole number.

3. Exceptions: The following exceptions apply, subject to building official approval:
a. Where less than one parking space per unit is required as provided in Chapter 17.34, the Level 2 EV Ready Circuit parking space requirements shall apply only to the parking required as provided in Chapter 17.34. This subparagraph does not alter the required minimum number of parking spaces as provided in Chapter 17.34.
b. When more than twenty (20) multifamily dwelling units are constructed, load balancing systems may be installed. In such cases, the panel capacity must average a minimum of sixteen (16) amperes per EV space. Load balancing systems may be installed to increase the number of EV chargers or the amperage or voltage beyond the minimum required. c. A reduction in the EV standards may be allowed, if requested in writing by the applicant based on demonstration that the provisions of subsection B would render the development project infeasible due to associated utility costs. However, the maximum feasible amount of EV infrastructure shall be provided. Documentation is to take into account short term and long term cost analysis to the satisfaction of the building official.

SECTION 2: If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Brisbane hereby declares that it would have passed this Ordinance and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases may be held invalid or unconstitutional.

SECTION 3: The City Council finds and determines that the adoption of this Ordinance is exempt from review under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines, Section 15308, Actions by Regulatory Agencies for Protection of the Environment.

SECTION 4: This Ordinance shall be in full force and effect thirty days after its passage and adoption. * * *
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 __________ 2023, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN: _____________________________
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ _____________________________ City Clerk City Attorney
26 F.

File Attachments for Item:

G. Adopt a Resolution Authorizing the City’s Participation in the Age-Friendly Communities’ Network
27 G.

Age-Friendly City Resolution Page 1 of 1

CITY COUNCIL AGENDA REPORT
Meeting Date: June 1, 2023
From: Noreen Leek, Parks & Recreation Director
Subject: Age-Friendly City Resolution
Community Goal/Result
Community Building
Purpose
To ensure vibrant, sustainable, supportive, and inclusive communities for all generations.

Recommendation
Adopt a resolution authorizing the City’s participation in the Age-Friendly communities’ network.

Background
The global network of Age-Friendly Cities offers opportunities to address the aging population in a positive and inclusive way. The program provides resources to help communities support individuals to live comfortably in their homes and communities and encourages older residents to take an active role in having their voices heard. To be designated as an “Age-Friendly City” through the World Health Organization, Brisbane must demonstrate that it is committed to providing places for older adults to be engaged, as well as social opportunities and services that ensure older adults can thrive and be an active part of their community.

Discussion
At the February 2, 2023 Council meeting, the City Council authorized staff to proceed with the Center for Age-Friendly Excellence’s (CAFÉ) assistance and to apply for the Age-Friendly Communities (AFC) certification under the AARP/WHO Network of Age-Friendly Communities. Adoption of the attached resolution is a requirement of the application process in order for the City to receive the Age-Friendly designation.

Attachment

1. Age-Friendly City Resolution
___________________________________ ___________________________________ Noreen Leek, Parks & Recreation Director Clay Holstine, City Manager 28 G.

RESOLUTION NO. ______

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE AUTHORIZING THE CITY’S PARTICIPATION IN THE AGE-FRIENDLY COMMUNITIES NETWORK WHEREAS, by 2030, 25 percent of the county’s population will be 65 years or older; and WHEREAS, in 2005, the World Health Organization (WHO) developed the concept of Global Age-Friendly Cities to help cities implement policies and services to help older adults live healthy and vibrant lives as they age; and
WHEREAS, on July 10, 2018, the San Mateo County Board of Supervisors authorized the County to join the WHO’s Age-Friendly Global Network, established the San Mateo County AgeFriendly Initiative, and authorized and selected the Center for Age-Friendly Excellence (CAFÉ) at the Los Altos Community Foundation to assist with this effort; and WHEREAS, the process to be designated as an Age-Friendly Certified City or Community was approved at the February 2, 2023 City Council meeting. This process includes identifying a task force with various stakeholders to oversee the process; conducting a series of focus groups to assess the baseline “age-friendliness” of a city or community in various domains; reviewing focus group feedback and survey results; measuring progress of an action plan and its implementation; and completing the Age-Friendly application; and WHEREAS, there are currently eleven Age-Friendly cities in San Mateo County and Brisbane’s application to receive this designation will be submitted by mid-June; and WHEREAS, the Board of Supervisors approved Measure K monies to fund CAFÉ to work with Brisbane and seven additional cities to become Age-Friendly cities, and Brisbane staff have supported this endeavor by working with the task force and assisting CAFÉ through the process.

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Brisbane authorizes the City’s continued participation in the Age-Friendly Communities Network. ______________________________
Madison Davis, Mayor
I, Ingrid Padilla, City Clerk of the City of Brisbane, certify that the foregoing Resolution was introduced at a regular meeting of the City Council on the 1st day of June, 2023, and was adopted thereafter by the following vote:
29 G.

AYES: Councilmembers:

NOES: Councilmembers:

ABSENT: Councilmembers:
______________________________
Ingrid Padilla, City Clerk
30 G.

File Attachments for Item:

H. Authorize Staff to Publish the Public Art Master Plan Request for Proposals (RFP) as Recommended by the Public Art Advisory Committee
(The RFP denotes not to exceed amount of $75,000 for a Master Planning consultant and the Public Art Advisory Committee is also recommending a 20% contingency (or $15,000) to draw from as needed to support master planning efforts.)
31 H.

Public Art Master Plan RFP Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: June 1, 2023
From: Noreen Leek, Parks & Recreation Director
Subject: Public Art Master Plan RFP
Community Goal/Result
Community Building
Purpose
To increase citizens’ appreciation of art, improve quality of life, and to enhance Brisbane’s identity as a unique community within the greater Bay Area.

Recommendation
Authorize staff to publish the Public Art Master Plan RFP (Attachment 1) to prospective consultants as recommended by the Public Art Advisory Committee.

Background
As outlined in the City’s Art in Public Places Ordinance, public art has the power to energize our public spaces, arouse our thinking, and transform the places where we live, work, and play into more welcoming and beautiful environments that invite interaction. By its presence alone, public art can heighten our awareness, question our assumptions, transform a landscape, or express community values, and for these reasons it can have the power, over time, to transform a city's image. Public art helps define a community's identity and reveal its unique character.

Discussion
At their May 1st, 2023 meeting, the Public Art Advisory Committee voted unanimously to recommend the Public Art Master Plan RFP to City Council. The Master Plan will provide long-term direction to the Public Art Advisory Committee and the City Council on the planning and processes necessary to further develop, administer and maintain a dynamic public art program in the City of Brisbane. The selected consultant will be responsible for developing policies and procedures, prioritizing City needs related to public art, and identifying types and locations of art throughout the City in order to establish a clear future for public art in the City of Brisbane. The Consultant will work collaboratively with the City’s Public Art Advisory Committee and City Staff to ensure broad public outreach and involvement to curate a vision for Brisbane’s public art.

The Master Plan for Public Art in Brisbane will include integration of art in both existing and to be built public spaces. Future opportunities for art are anticipated in areas such as the Crocker Trail, Sierra Point, and the Baylands.
32 H.

Public Art Master Plan RFP Page 2 of 2
Fiscal Impact
The RFP denotes a not to exceed amount of $75,000 for a Master Planning consultant and the Public Art Advisory Committee is also recommending a 20% contingency (or $15,000) to draw from as needed to support master planning efforts. An example of this would be the costs associated with facilitating community engagement events. This approach aligns with industry best practices. Funds to support this are available within the Public Art Fund (Fund 275).

Attachments

1. Public Art Master Plan RFP
___________________________________ ___________________________________ Noreen Leek, Parks & Recreation Director Clay Holstine, City Manager 33 H.
1 Released June 5, 2023
Submittals due no later than Friday, July 14, 2023 @ 1:00pm Late submittals will not be accepted.

CITY OF BRISBANE | 50 PARK PLACE, BRISBANE CA, 94005 | WWW.BRISBANECA.ORG Request for Proposals

PUBLIC ART

MASTER PLAN
34 H.
2 The City of Brisbane, CA is seeking proposals from qualified individuals, firms, teams (hereinafter referred to as Consultant) with demonstrated experience in developing a public art master plan through a process of active public engagement. Consultants are invited to submit a proposal outlining their experience and qualifications in performing work directly related to the services required.

Selection will be made from responsive proposals that will best serve the interests of the City based on a combination of experience, qualifications, availability, and capacity to perform the scope of services.

Please submit your proposal using the format specified in this Request For Proposals (RFP). PROPOSALS MUST BE RECEIVED BY FRIDAY JULY 14, NO LATER THAN 1:00PM. Any proposal received after the specified time and date will not be considered. Proposals may be submitted one of the following ways:

Preferred:

1. Electronically via PDF to [email protected] AND [email protected].

Note: An email will be sent to confirm receipt of the electronic proposal.

Accepted:

2. Mailed to:

ATTN: Noreen Leek
Parks & Recreation Director
City of Brisbane
50 Park Place
Brisbane, CA 94005
If mailed, it must be received by the City by no later than Friday, July 14th.

3. Dropped off in person at Brisbane City Hall, 50 Park Place, Brisbane, CA 94005 on July 14th before 1:00pm. Note: A staff person will be onsite to receive hard-copy proposals during that time frame only.

Questions regarding the information contained in the RFP document must be submitted in writing by e-mail to: [email protected]. All questions must be received by June 30, 2023. Questions will be responded to in writing. Written summaries of all questions and answers will be recorded and may be shared with all prospective Consultants. Anonymity of the source of specific questions will be maintained in the responses and a clarification addendum will be issued, if necessary. Verbal inquiries are discouraged and the intent behind this requirement is to ensure that all prospective Consultants have the same information available to them and no inconsistent, incomplete, or misinformation is communicated to any party.

Noreen Leek
Parks & Recreation Director
(415) 508-2141
[email protected]
35 H.
3 Introduction
The City of Brisbane is seeking proposals from Consultants, Consultant Teams and Qualified Firms with demonstrated experience in public art master planning to develop the first Public Art Master Plan for the City of Brisbane, California. The Master Plan will provide long-term direction to the Public Art Advisory Committee and the City Council on the planning and processes necessary to further develop, administer, and maintain a dynamic public art program in the City of Brisbane. The selected Consultant will be responsible for developing policies and procedures, prioritizing City needs related to public art, and identifying types and locations of art throughout the City in order to establish a clear future for public art in the City of Brisbane. The Consultant will work collaboratively with the City’s Public Art Advisory Committee and City staff to ensure broad public outreach and involvement to curate a vision for Brisbane’s public art.

Background
The City of Brisbane is a small City in San Mateo County, approximately 20.1 square miles, nestled into the lower slopes of San Bruno Mountain. The City is located immediately south of San Francisco and is bordered to the east by the San Francisco Bay. The City of Brisbane was incorporated on November 27, 1961. Brisbane is known as “The City of Stars” due to a holiday tradition dating back to 1939. Residents and businesses adorn their homes and buildings with illuminated stars in early Winter delighting passersby.
36 H.
4 The City of Brisbane adopted a Public Arts Ordinance (ENCLOSURE A) in 2014 to increase citizens’ appreciation of art, to improve quality of life, and to enhance Brisbane’s identity as a unique community within the greater Bay Area. Additionally, public art should stimulate creativity, imagination, induce creative conflict, and add a unique human quality to the environment and enrich public spaces. A city rich in art becomes an outdoor cultural museum accessible to everyone.

The Brisbane Public Art Advisory Committee is the City Committee responsible for ensuring all public art projects in the City of Brisbane meet the program criteria and guidelines for selection of an artist or artist team, artwork, and artwork location established in the Public Arts Implementation Guidelines (ENCLOSURE B).

The Brisbane Public Art Advisory Committee is a City committee composed of 2 Parks and Recreation Commissioners as designated by the Parks and Recreation Commission, 2 City Council Members (the Council’s Parks and Recreation Commission Liaisons), and 3 Brisbane community members, appointed by City Council for two-year terms. The community members must include one individual professionally engaged in the art community, one individual that is an employee or owner of a Brisbane business, and the other may be either a resident of Brisbane or an owner/employee of a Brisbane business.

The Master Plan for Public Art in Brisbane will include integration of art in both existing and to be built public spaces. The City anticipates significant future growth and additional opportunities for art will be prevalent in areas such as the Crocker Trail, Sierra Point, and the Baylands. (See ENCLOSURE C, Map of Brisbane boundary.) Art should serve as a core element of Brisbane’s identity and should be a fundamental part of the design and the planning process for all development.

Scope of Work
This is the first Public Art Master Plan for the City of Brisbane. The purpose of the Public Art Master Plan is to set a vision and develop a long-term plan that will provide clear direction for the future of public art in Brisbane. The plan should outline goals for public art in Brisbane, identify priorities for its art program, identify strategic partnerships and possible sources of alternative funding, and establish program processes. Additionally, the plan should address opportunities for ongoing public engagement, develop policies and procedures, and recommend processes necessary to achieve the vision for public art in the community.

The Consultant will be expected to take the lead on all community meetings, presentations, and outreach efforts. Staff will play a supporting role in facilitating those efforts and meetings. Staff will act as the liaison between the Consultant and the Public Art Advisory Committee.
37 H.
5 Key elements of a Public Art Master Plan should include:
• Development of the mission, vision, goals, and guiding principles for the City’s Public Art Program;
• Clear goals and implementation strategies that include short and long-term priorities; • Recommended public art guidelines, policies and processes; • Summary of research, findings and community outreach results; • Strategies for ongoing community engagement and outreach to a diverse group of stakeholders;
• Identification of sites for future temporary and permanent public art projects, including “iconic” and “gateway” art placement and spaces for participatory art; • Opportunities for funding models for public art;
• Analysis and recommendations for a collection strategy, including recommendations for a collection maintenance, conservation, ownership, and deaccession plan.

The submitted proposal shall address the following areas of service:

Assessments and Recommendations

1. Identify standards for what is classified as public art. • Review current public art collection, inventory artworks and programs. • Recommend standards for future acquisitions/projects.

2. Identify criteria for selection of public art. • Highlight best practices. • Acknowledge government purchasing procedures.

3. Define processes and policies for public art, including but not limited to the following: • Art donations, temporary artworks, artist or community-initiated artwork, deaccession, ongoing maintenance, upkeep, relocation and removal policies and recommendations.

Public Participation Plan

1. Undertake a comprehensive community outreach program to fully engage residents, stakeholders and the community at-large in shaping and defining what Public Art is in Brisbane.

2. Undertake specific outreach to minority communities as well as low and moderate income residents to help identify specific opportunities for public art engagement that will be beneficial for those communities.

Development of Cohesive Plans

1. Identify and clarify key themes and values on which the community should focus its public art resources.
38 H.
6 2. Provide recommendations for program development (such as urban/street art, public art pocket map, murals, banners, community art gallery, artists registry, performing art, music, digital media).

3. Create measurable steps for achieving public art goals in 1-5 years; forecast 15–20 year initiatives.

4. Outline plan to create an arts district, including but not limited to the following based on Consultant experience/expertise: • Recommended contiguous location(s). • Recommended space and operational characteristics for creative space needs (e.g. square footage, height requirements, ventilation, outdoor access, storage, live/work needs). • Recommended space and operational characteristics for community performance space. • Suggest financing options to initiate and support necessary creative space infrastructure.

5. List and map potential locations for future art; explore options for re-zone of areas in City to encourage long-term artist residency and community space opportunities.

6. Suggest a long-term approach and priorities for disbursement of the Public Art Fund.

7. Identify additional funding resources and staffing recommendations including establishing criteria for when a curator is necessary.

8. Suggest goals for marketing and audience development.

9. Indicate actions for promotion of cultural diversity, community and neighborhood inclusivity.

10. Summarize Master Plan goals and content in an accessible, consumer-friendly format.

11. Suggest priorities for proposed projects, with a projected timeline and financial strategy for implementation.

12. Analyze current and best-in-practice metrics, comparisons, redundancies, and context with surrounding cities, and establish a plan for tracking performance of metrics as relevant to the overall plan.

13. Produce an attractive and understandable final printed and digital report which includes the findings noted above.

14. Present at a minimum of one Public Art Advisory Committee meeting and one City Council meeting.
39 H.
7 RFP Timeline
The anticipated schedule for selection of a Consultant for this project is as follows:

RFP Release Date June 5, 2023
Question Submission Cutoff Deadline June 30, 2023
Proposal Submission Deadline July 14, 2023
Selection Committee review & interviews (if necessary) August/September 2023 Tentative notification of bid awarded to Consultant September 2023 City approval granted to proceed October 5, 2023
Notice to proceed issued to Contractor October 6, 2023
*Disclaimer: This timeline is subject to change and the City of Brisbane reserves the right to adjust as deemed necessary.

Budget
Consultant shall provide a proposed budget itemized by task, as well as the total project cost proposed, and total project cost stated as a firm fixed fee not to exceed $75,000. Labor and direct costs should be identified by task. Hourly rates for project staff shall also be provided. Cost Proposal must be submitted separate from the rest of the RFP response.

Submission Requirements

1. Each RFP response shall be submitted in compliance with the requirements outlined on Page 2.

2. The submittal shall be typed and shall not exceed twenty-five (25) pages of written material including the cover letter. Submittals failing to comply with the page limitation will not be considered.

3. Submittal must include examples of previous work.

4. To be responsive, each RFP submission must include the following information in the format indicated. The submittals shall be organized to match the following categories. Submittals not organized according to the following format may be rejected. a. Cover Letter. Consultant identification including name, year firm established, address, city, state, zip code, telephone number and e-mail address of the firm‘s applicant(s). Length: One (1) page maximum.
40 H.
8 b. Letter of Interest. Statement of interest detailing the firm’s interest in the project and highlighting unique features it would bring to the project. Length: One (1) page maximum. c. Statements of Qualifications. Length: One (1) page maximum. i. Provide statement of qualifications for each of the specific disciplines; ii. Include the firm’s structure, background, and interest, detailing the firm’s interest in the project and highlighting unique features it would bring to the project; iii. List of recent projects similar in scale, cost, and complexity and also note the year completed; include the name, address and phone number for client, contractor, or person that may serve as a reference;
iv. Firm’s current work load and backlog;
v. Identify any recent or pending litigation.
d. Relevant Experience/Examples of Work. Provide descriptions of up to three (3) previous projects within the past 10 years that most closely relates to this request for services. Length:

Three (3) page maximum.
i. Include projects’ scale, cost, and complexity and also note the year constructed; name, address and phone number for client, contractor, or person that may serve as a reference.
e. Professional Background. Provide a summary of the applicant’s professional background, with a predominant focus on special professional and/or project experience. Length: Two (2) pages maximum.
f. List of Client References. Provide a list of clients to be used as references for your work.

Length: One (1) page maximum.
i. Must include the contact name, address, telephone number, nature of job, length of engagement, and resulting project.
g. Sealed Fee Proposal. The Fee Proposal shall be submitted in a separate sealed envelope or PDF document marked “Public Art Master Plan Fee Proposal”.

Selection/Interview Process
Pursuant Sections 4525-4529 of the Government Code of the State of California, the Consultant selection will be based on qualifications. The City’s Public Art Advisory Committee will review the proposals received by the deadline and develop a short-list of qualified firms. Depending on the relative quality of the proposals, the City may invite short-listed firms to formal interviews. The City of Brisbane reserves the right to refuse any or all proposal(s), to waive technicalities, and to accept whichever proposal(s) that may be in the best interest of the City, at its sole discretion. 41 H.
9 General Terms & Conditions

1. This RFP does not commit the City to enter into an agreement, to pay any cost incurred in the preparation of a submittal to this request or in subsequent negotiations, or to procure or contract for the project.

2. At any time prior to the specified time and date set for the submission, a person/firm, or their designated representative, may withdraw their proposal.

3. The issuance of this RFP and the acceptance of a proposal do not constitute an agreement by the City that any contract will actually be entered into by the City. The City expressly reserves the right to: • Reject any or all proposals. • Reissue an RFP. • Extend the time frame for submission of the proposals by notification to all parties who have registered an interest in this RFP with the City. • Request more information from any or all applicants. • Waive any immaterial defect or informality. • Decline to go forward with the RFP. • Reject any Subcontractor or Contractor proposed by the Proposer. • The City expressly reserves the right not to proceed to contract under this RFP.

4. All services shall be provided in accordance with Enclosure "D," the City's Professional Services Agreement. Final terms of any agreement will be established during negotiations. Negotiations may be terminated by the City for failure to reach mutually acceptable terms.

5. Each person/firm will be responsible for all costs incurred in preparing a response to this RFP.

6. All materials and documents submitted in response to this RFP will become the property of the City and will not be returned. Persons/firms selected for further negotiations will be responsible for all costs incurred by it during negotiations whether or not such negotiations lead to a contract with the City.

7. Proposers are responsible for reviewing all portions of this RFP. Proposers are to promptly notify the City, in writing, if the proposer discovers any ambiguity, discrepancy, omission or other error in the RFP. Any such notification should be directed to the City promptly after discovery, but in no event later than five working days prior to the date for receipt of proposals.

Enclosures/Reference Documents
Enclosure A Public Arts Ordinance – Brisbane Muni Code Chapter 15 – Art in Public Places Program Enclosure B Public Art Implementation Guidelines
Enclosure C Map denoting Brisbane boundary
Enclosure D DRAFT Agreement for Professional Services
42 H.

ENCLOSURE A
Chapter 15.85 ART IN PUBLIC PLACES PROGRAM

15.85.010 Title.

This chapter shall be known as the city's "art in public places program" and may be so cited. (Ord. No. 588, § 1, 10-2-14)

15.85.020 Purpose.

The purpose of the city's art in public places program is to promote the visual arts by requiring the inclusion of a public artwork component in certain new public and private development projects in Brisbane. The city council recognizes that public art has the power to energize our public spaces, arouse our thinking, and transform the places where we live, work, and play into more welcoming and beautiful environments that invite interaction. By its presence alone, public art can heighten our awareness, question our assumptions, transform a landscape, or express community values, and for these reasons it can have the power, over time, to transform a city's image.

Public art helps define a community's identity and reveal the unique character of a specific neighborhood.

15.85.030 Definitions.

For purposes of this chapter, the following definitions shall apply:

A. "Brisbane public art fund" means the fund described in Section 15.85.040.

B. "Building development costs" means construction costs, including grading and landscaping costs, for new private developments that do not include costs for hazardous materials abatement, land use planning consultants, feasibility studies, environmental review, land acquisition, legal fees, architecture/engineering, construction management, geotechnical surveys, historical surveys, and demolition. For public developments, "building development costs" means public construction costs that do not include costs for park and landscape renovation projects; pipelines, power transmission lines and towers, switchyards and substations, dwellings in watershed areas; mechanical, plumbing and electrical system upgrades; seismic or structural upgrades; modifications for disabled access, unless occurring in conjunction with a new building construction. "Building development costs" for public developments shall include costs for bridges and overpasses, but shall not include costs for other transportation improvement projects.

C. "Implementation guidelines" means the guidelines for implementation of this chapter to be developed by the public art subcommittee.

D. "In-lieu contribution" means a cash contribution equivalent to the percentage of building development costs required herein.

E. "Public art subcommittee" means a broadly representative subcommittee appointed by the parks and recreation commission.

15.85.040 Brisbane public art fund.

A. The city manager shall establish a Brisbane public art fund to receive in-lieu contributions, donations, and other funds contributed in support of the art in public places program. Unspent monies in the Brisbane 43 H.
public art fund shall be carried over to the next fiscal year, unless prohibited by the source of the funds, or applicable laws or regulations.

B. The Brisbane public art fund may be used to acquire, place, and maintain public art on public or private property throughout the city, as described in the implementation guidelines.

15.85.050 Contribution requirements.

A. Private Developments.

1. Commercial Projects.
a. Private nonresidential and non-live-work building developments with building development costs from one million dollars ($1,000,000.00) through five million dollars ($5,000,000.00) shall contribute in an amount equal to at least one percent of their building development costs into the Brisbane public art fund as an in-lieu contribution. This section shall apply to both new projects and building alterations/additions.
b. Private nonresidential and non-live-work building developments with building development costs above five million dollars ($5,000,000.00) shall contribute in an amount equal to at least one percent of their building development costs into the Brisbane public art fund as an in-lieu contribution.

Alternatively, at the discretion of the owner or developer, such projects may devote in an amount equal to at least one percent of their building development costs for the acquisition and installation of publicly accessible art on the development site, subject to the provisions of Section 15.85.060. This section shall apply to both new projects and building alterations/additions.

2. Residential Projects.
a. Single and multiple family residential and live-work developments with ten (10) through twenty (20) units shall contribute in an amount equal to at least one-half percent of their building development costs into the Brisbane public art fund as an in-lieu contribution. b. Single and multiple family residential and live-work developments with more than twenty (20) units shall contribute in an amount equal to at least one percent of their building development costs into the Brisbane public art fund as an in-lieu contribution. c. Single and multiple family residential and live-work developments with building development costs above ten million dollars ($10,000,000.00), regardless of the number of units, shall contribute in an amount equal to at least one percent of their building development costs into the Brisbane public art fund as an in-lieu contribution. Alternatively, at the discretion of the owner or developer, such projects may devote in an amount equal to at least one percent of their building development costs for the acquisition and installation of publicly accessible art on the development site, subject to the provisions of Section 15.85.060.
44 H.

ENCLOSURE B
Public Arts Implementation Guidelines
City of Brisbane
Approved by Council 06.17.21
Purpose:

The City of Brisbane adopted a Public Arts Ordinance in 2014 in order to increase citizens’ appreciation of art, to improve quality of life, and to enhance Brisbane’s identity as a unique community within the greater Bay Area. Additionally, public art should stimulate creativity, imagination, induce creative conflict, and add a unique human quality to the community environment and enrich public spaces. A city rich in art becomes an outdoor cultural museum accessible to everyone.

Public art can and should be an integral part of the design and the planning process of all development.

Goals:

1. Community Involvement – A community develops a specific identity and character over time.

Residents are uniquely qualified to provide insight into the types of public artwork that are best suited for the community depending on the size of the project. Those who reside in the community are encouraged to participate in the selection process of public art pieces by participating at public meetings.

2. Diversity of Art – The collection should be diverse in its representation of artists and artistic styles and be reflective of the ethnic and cultural diversity of the community.

3. Creation of Sense of Place – Art is important to our common experience because it brings focus, importance, and cohesion to public spaces. Public art develops images and provides experiences that reflect the historical and cultural essence of a community. Public art transforms public spaces by giving them a context and relevance and making them places of community interest and pride.

Public art has the potential to improve the appearance of an entire business block; to heighten the ethnic, historical or cultural aspects of the community and to attract foot traffic to an area that formerly had little or none.

4. Artist Participation – By encouraging collaboration between artist, architects, and engineers, we can provide an aesthetic dimension that expands possibilities for creating public spaces for the community.

Definitions:
• Artist: An individual or team of individual artists whose body of work and professional activities demonstrate serious ongoing commitment to the fine arts. Members of architectural, engineering, design or landscaping firms retained for the design and construction of a 45 H.
2 development project covered by these Guidelines shall not be considered artists for the purpose of meeting the requirement to provide public art.
• Arts professional: An individual who works in the fine arts field (such as arts consultant, fine arts curators, fine arts collectors, art critics, or art educators). • Artwork or work of art: All forms of original creations of visual arts, including but not limited to:
1) sculpture in any material or combination of materials; 2) painting- all media including portable and permanently affixed works, such as murals and frescoes; 3) graphic arts, print making and drawing; 4) mosaics; 5) photography; 6) crafts in clay, fiber and textiles, wood, metal, plastics and other materials; 7) calligraphy; 8) stained glass; and 9) mixed media – any combination of forms or media, including collage.
• Artwork cost: Artwork cost is the total amount budgeted by the City for a public artwork project. • Building valuation: The total dollar amount of all construction permits for the same development project using the latest building valuation data as set forth by the International Conference of Building Officials (ICBO) building valuation.
• Conceptual design plan: The initial phase of the approval of public artwork that includes review of the artist’s or artist team’s qualifications, conceptual artwork design, and artwork location. • Design: Artwork detailing project design, including scale drawings within site context, sealed by an engineer, if required.
• Fabrication: A detailed description of the methods of fabrication as well as any uncommon or unusual details regarding the approach to creating an artwork piece. • Final design plan: The final phase of the approval of public artwork that involves consideration of a highly defined proposal that conforms to the concept previously considered and approved by the Committee.
• In-lieu contribution: In place of an approved artwork on the site, a developer may elect to pay to the City an amount equal to the program allocation set forth in the Public Arts Ordinance. In-lieu fees shall be submitted to the City and deposited into the Public Art Fund before issuance of a building permit for the development project except when a different time period is approved by the Community Development Director and Parks and Recreation Director. • Installation: A detailed description of the installation procedure if the artwork will not be fabricated directly on the selected site. Installation would include the construction of any required footings or foundation.
• Public art: Any permanent display of a work of visual art that was specifically designed to be located on a site where it would be easily accessible to the public, either on private or public property within the City of Brisbane.
• Public art advisory committee: A committee made of 2 Parks and Recreation Commissioners as designated by the Parks and Recreation Commission, 2 Council Members (the Council’s Parks and Recreation Commission Liaisons), and 3 Brisbane Community members, appointed by City Council. The Community members shall serve two-year terms and one of whom will be professionally engaged in the art community, one of whom will be an employee or owner of a business located in Brisbane, and the other member may be either a resident of Brisbane or an owner or employee of a business located in Brisbane. Members of the Public Art Advisory 46 H.
3 Committee will be ineligible to propose public art projects while they serve on the Committee and for 1 year after they leave the Committee.
• Public art fund: An interest-bearing account that is managed by the City Manager, or designee, into which public art funds, including donated funds, in-lieu funds and/or public art grant funds are deposited.
• Public place: An interior or exterior area on public or private property that is easily accessible by and highly visible to the general public.

General Procedure:

Public artwork is limited to permanent visual works of art, as opposed to performing, written, or temporary art. Visual art includes but is not limited to, murals, sculptures, artist-designed landscape features, streetscape features, earthworks, environmental installations, and water and digital displays.

Any money donated to or collected through the Building Permit process will be deposited in the Public Art Fund. The City Manager, or designee, shall administer the funds and establish accounting records according to Generally Accepted Accounting Principles (GAAP). The City Manager or designee will authorize all disbursements from the Public Art Fund. The account shall not be added to the City’s General Fund.

The process for selecting the public piece to be installed will depend on whether or not the artwork is commissioned by the City of Brisbane or by a private person or entity.

All privately installed Public Art will be reviewed by a Public Art Advisory Committee. The Public Art Advisory Committee is responsible for reviewing and making decisions on conceptual design plans submitted by a developer of a project subject to the public art requirement.

Additionally, on an annual basis the Public Art Advisory Committee will meet to review the balance of funds in the Public Art Fund to determine if they should propose any projects be initiated and commissioned by the City.

The Public Art Advisory Committee shall ensure all public art projects meet the program criteria and guidelines for selection of an artist or artist team, artwork, and artwork location established in this procedure, before submittal of the Final Design Plan to the City Council.

The following procedure will be used to review and approve public art projects:

Privately Installed Public Art

1. The project contact will meet with the designated staff from the City prior to submitting concept design plans.

2. The developer must contract the services of an artist for any public art project. The developer will provide the work vitae of the art consultant or artist. 47 H.
4 3. Proposals must include preliminary sketches, photographs, or other documentation of sufficient descriptive clarity to indicate the nature of the proposed work.

4. An appraisal or other evidence of the value of the proposed artwork, including acquisition and installation costs. If the value of a proposed artwork (by past records of comparable work sold, etc.) cannot be verified, City staff may choose to have the artist’s proposal and or/other completed works appraised by a qualified art appraiser selected by the City. The developer will pay up-front for any art appraisal service fees. This expense will be deducted from the total artwork allocation cost.

5. Preliminary plans must contain such detailed information as may be required by the Public Art Advisory Committee to adequately evaluate the location of the artwork in relation to the proposed development, including compatibility with the character of adjacent conforming developed parcels and existing neighborhood if necessary.

6. A preliminary budget must show the proposed public art project is consistent with the public art ordinance requirements.

7. Within 30 days of receiving a completed application, the Advisory Committee will hold an open meeting to discuss the proposed project. The meeting will be noticed to all properties within 1,000 feet of the property and posted as required by law. With the agreement of the developer, the meeting may take place more than 30 days from receiving the completed application.

The proposed artwork project will be reviewed using the following criteria as applied to the supporting documentation and past projects:

Artistic quality (vision, originality, and craftsmanship); Context (architectural, historical, geographical, and socio-cultural context of the site); quality and permanency of materials; maintenance; safety; diversity of artists; representation in the existing collection of publicly-accessible artworks; and diversity of artworks (media, scale, style, intention) in the existing collection of publicly accessible artworks.

8. The Public Art Advisory Committee will make a recommendation on the proposed artwork to the City Council.

9. The City Council will have the final approval for any public artwork project. If the Council does not approve the proposed project, it can refer the item back to the Advisory Committee for reconsideration.

10. All costs of maintaining a privately installed Public Art work will be the expense of the private entity unless the City accepts the Public Art piece as a donation.

Public Installed Public Art

1. The Public Art Advisory Committee will recommend to the City Council the amount of money from the Public Art Fund to be used on any publicly installed public art pieces and the breakout between Administrative and Maintenance costs of the project. The Public Art Advisory Committee will also recommend a location for the art project, type of artwork when appropriate, process for involving the community in the process, and method of calling for artists. 48 H.
5 2. The Council will approve available funds for the artwork and solicit members to be part of an Art Selection Committee, if needed.

3. The Public Art Committee shall select an artist, or group of artists, through a public process using one of the following methods:
a. Request for qualifications (RFQ)
b. Request for proposals (RFP)
c. Invitational competition.

4. The City Council shall make a decision on the Public Art Committee’s recommendations on the artist or artist group.

5. The Public Art Committee, any outside professional hired by the City for assisting with the selection of the artwork, and the appropriate City staff (as needed for the particular project) shall meet regularly with the selected artist, or group of artists, in developing the Conceptual Design Plan that meets the artwork and location criteria.

6. Once the Conceptual Plan has been approved by the Public Art Committee, the artist or artist’s team shall refine the project objectives and the Conceptual Design Plan according to the direction of the Public Art Committee.

7. The Final Design will be approved by the City Council.

Use of Funds
All funds appropriated for public art will be deposited in the Public Art Fund. The City Council shall authorize projects for funding as prescribed in the public art implementation guidelines. In circumstances where it is not feasible to incorporate artistic features into a particular project, such money will be pooled and used for art in other projects. Disbursements shall be made in connection with projects approved by City Council. Nothing herein prohibits the City from soliciting or receiving grants, donations, bequests or gifts from private or public sources.

For individual pieces of art, the Art Advisory Committee will recommend to the City Council what percentage of the funds will be set aside for the Public Art, Maintenance and Administration, and Education based on the guidelines below:

1. Public Art Funds
No less than sixty-five percent (65%) of the fees collected shall be directed for Public Art Acquisition and may be spent for the following purposes:
a) Artists’ services and fees.
b) Acquisition of art.
c) Artist selection processes, including jury selection costs and model or design fees.

No more than fifteen percent (15%) of the money collected may be directed for maintenance and curatorial services:
a) Identifying plaques
b) Repair, maintenance, surveys, curatorial services, and other conservation work necessary to keep all artworks in the City collection in standard condition. 49 H.
6 No more than twenty percent (20%) of the fee may be directed for Public Art Administration and may be spent for the following purposes:
a) Project administration.
b) Community education programs, publicity, dedications, and other purposes as recommended by the Public Art Committee and approved by the City Council. 50 H.

ENCLOSURE C

MAP DENOTING BRISBANE BOUNDARY
51 H.

ENCLOSURE D

DRAFT AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT dated DATE is made by and between THE CITY OF BRISBANE, a municipal corporation ("City"), and CONSULTANT (“Consultant").

RECITALS
A. City desires to retain Consultant to prepare a public art master plan.

B. Consultant is specially trained, experienced, and qualified to provide such professional services and is willing to do so pursuant to the terms and conditions of this Agreement.

AGREEMENT

1. Scope of Services. Subject to the direction and approval of City through its staff that City may provide from time to time, Consultant shall perform the services described in the scope of work outlined in the Consultant’s proposal (Exhibit A) referenced herein.

2. Time of Performance. The services of Consultant shall commence upon the execution of this Agreement and shall be satisfactorily completed within the agreed upon timeframe.

3. Responsible Personnel. The personnel acting on behalf of Consultant primarily responsible for performance of the services hereunder shall be as set forth within Exhibit A.

4. Compensation. As compensation for all services to be performed by Consultant under this Agreement, Consultant shall be paid the amounts set forth and incorporated herein as Exhibit A. In no event shall Consultant’s total compensation exceed the agreed-upon sum without additional authorization from City. Payment by City under this Agreement shall not be deemed a waiver of defects, even if such defects were known to City at the time of payment.

5. Method of Payment. Consultant shall submit billings to City describing in detail the work performed for which payment is requested, the date the services were performed, the number of hours spent and by whom, and a description of any reimbursable expenditures. Billings shall be submitted monthly, or at such other time as agreed upon between City and Consultant. City shall pay Consultant no later than 30 days after approval of the invoice by City. Such payment shall not be unreasonably withheld.

6. Maintenance and Inspection of Records. Consultant shall maintain all ledgers, books of account, invoices, vouchers, canceled checks, timecards, and other records or documents relating to charges for services or expenditures charged to City, for a minimum of three (3) years from the date of final payment to Consultant under this Agreement and shall make the same available to City or its authorized representatives for inspection and audit at any time during regular business hours, upon written request by City. The right of inspection shall include the right to make extracts and copies.

7. Assignment and Subcontracts. Consultant acknowledges that Consultant’s special skill and expertise is a material consideration for City entering into this Agreement. Consultant shall not assign, subcontract, or delegate to any other party, the performance of any services to be rendered by Consultant or Subconsultants, without the prior written approval of City. If City consents to any sub-consulting of work, Consultant shall be fully responsible to City for all acts or omissions of the subconsultant. 52 H.

8. Ownership of Documents. Upon payment of fees and expenses due, all plans, studies, documents, and other writings prepared by and for the Consultant in the course of performing its services under this Agreement, except working notes and internal documents, shall become the property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or to any other party. Consultant shall, at Consultant’s expense, provide such reports, plans, studies, documents, and other writings to City upon written request.

9. Independent Contractor. Consultant is, and at all times shall remain, an independent contractor, and not an agent, officer, or employee of City. As an independent contractor, neither Consultant, nor any of Consultant’s agents or employees, shall be entitled to any salary, fringe benefits, worker's compensation, retirement contributions, sick leave, insurance, or other benefit or right connected with employment by City, or any compensation other than as provided in this Agreement. Consultant shall have no power or authority to bind City to any contract or otherwise to incur any obligation or liability for, or on behalf, or in the name of City.

10. Licenses. Consultant represents and warrants to City that Consultant has all licenses, permits, qualifications, insurance, and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant shall, at its sole cost and expense, keep and maintain such licenses, permits, qualifications, insurance and approvals in full force and effect at all times during the term of this Agreement. Consultant shall procure and thereafter maintain a City of Brisbane business license during the term of this Agreement.

11. Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations in connection with the performance of its services under this Agreement.

12. Employment Eligibility. At the request of City, Consultant shall furnish to City copies of Employment Eligibility Verifications (INS Form I-9) or other evidence satisfactory to City showing that any or all persons providing services under this Agreement for, or on behalf of Consultant, is eligible to be employed in the United States. In the event Consultant is unable or unwilling to provide the employment eligibility verification within ten (10) days after City's request, City may require the immediate removal from the project of such workers as specified by City, and upon any failure by Consultant to do so, City shall be entitled to terminate this Agreement.

13. Indemnity. Consultant shall indemnify, defend, and hold City, its officers, officials, agents, employees, and volunteers, harmless from and against any and all claims, demands, causes of action, losses, damages, injuries, expenses and liabilities, direct or indirect, including reasonable attorney's fees, to the extent actually caused by negligence or willful misconduct in the performance by Consultant of its services under this Agreement or its failure to comply with any of its obligations contained in this Agreement, and City shall not be liable for any negligent acts or omissions or willful misconduct of Consultant. Consultant shall not be liable for the negligent acts or omissions or willful misconduct of the City.

14. Insurance. Consultant, at its own expense, shall procure and maintain, for the duration of this Agreement, insurance policies, which satisfy the following requirements:
(a) Type of policies and coverage:
53 H.
(1) General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage, providing coverage at least as broad as Insurance Services Office Commercial General Liability form CG 0001 (Ed. 11/88). If the form of insurance with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
(2) Automobile Liability Coverage. Consultant shall maintain automobile liability insurance in an amount not less than $1,000,000 combined single limit for each occurrence, for bodily injury and property damage, providing coverage at least as broad as Insurance Services Office form CA 0001 (Ed. 12/90) Code 1 (any auto). (3) Workers' Compensation and Employer's Liability Coverage. Consultant shall maintain workers' compensation insurance as required by the State of California and employer's liability insurance in an amount not less than $1,000,000 per occurrence, for any and all persons employed by Consultant in connection with the performance of services under this Agreement. In the alternative, Consultants may rely on a self-insurance program to provide this coverage so long as the program of self-insurance complies fully with the provisions of the California Labor Code. The insurer, if insurance is provided, or Consultants, if a program of self-insurance is provided, shall waive all rights of subrogation against City for loss arising from work performed by Consultants for City.
(4) Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance in an amount not less than $1,000,000 per occurrence, covering negligent acts, errors or omissions which may be committed by Consultant in the performance of its services under this Agreement.
(b) Endorsements: Each general liability and automobile liability insurance policy shall contain, or be endorsed to contain, the following provisions:
(1) The City, its officers, officials, employees, agents, and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Consultant; products and completed operations of Consultant; premises owned, occupied, or used by Consultant; or automobiles owned, leased, hired or borrowed by Consultant. The coverage shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents, or volunteers.
(2) For any claims related to the Project, Consultant’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, agents, or volunteers shall be in excess of Consultants’ insurance and shall not contribute to it.
54 H.
(3) Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to City, its officers, officials, employees, agents, or volunteers.
(4) Consultant’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. (5) Consultant’s insurance coverage shall not be suspended, voided, canceled, or reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return-receipt requested, has been given to City. (c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by City. At City's option, Consultant shall demonstrate financial capability for payment of such deductibles or self-insured retentions. (d) Acceptability of Insurers. Insurance is to be placed with insurers having a current A.M. Best rating of no less than A: VII, unless otherwise approved by City in writing. (e) Verification of coverage. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required by this Agreement. Certificates of such insurance shall be filed with City before commencement of work by Consultant. At the request of City, Consultant shall provide complete, certified copies of all required insurance policies, including endorsements affecting the coverage required by this Agreement.

15. Notices. Any notices required or permitted to be given under this Agreement shall be in writing and shall be either personally delivered or sent by certified mail, return-receipt requested, addressed to the other party as follows:

To City City of Brisbane
50 Park Lane
Brisbane, CA 94005
Attn: City Manager

To Consultant NAME

ADDRESS
Attn: PRIMARY CONTACT

16. Litigation Expenses and Attorneys' Fees. If any party to this Agreement commences any legal action against the other party to enforce or interpret this Agreement, the prevailing party shall be entitled to recover all costs and expenses that may be incurred in connection therewith, including court costs, expert witness fees, discovery expenses, and reasonable attorneys' fees. 55 H.

17. Termination of Agreement. This Agreement may be terminated by any party, effective upon written notice, should the other party commit any material default in the performance of its obligations hereunder. This Agreement may also be terminated by either party, for any reason, upon fifteen (15) day's prior written notice to the other party. In the event this Agreement is terminated by City through no fault of Consultant, Consultant shall be compensated for all services performed prior to the date of termination.

18. Equal Opportunity Employment. Consultant warrants that it is an Equal Opportunity Employer and shall comply with applicable regulations governing equal opportunity employment.

19. Miscellaneous Provisions.
(a) Severability. Should any portion of this Agreement be declared void or unenforceable in a final decision by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement can be reasonably interpreted to implement the intention of the parties.
(b) Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and cancels all prior agreements or understandings, whether written or verbal.
(c) Amendments. This Agreement may be modified or amended only by a written document duly executed by both City and Consultant.
(d) Waiver. The waiver of any breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same provision or any other provision of this Agreement.
(e) Execution. Each party warrants that the individuals signing this Agreement on its behalf have the legal power and authority to do so and to bind the party to this Agreement. (f) Successors and Assigns. Subject to the restriction against assignment and subcontracting, this Agreement shall inure to the benefit of and shall be binding upon the heirs, personal representatives, successors and assigns of the parties hereto.

IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.

THE CITY OF BRISBANE
By: ____________________________
Clayton L. Holstine, City Manager
56 H.

ATTEST:
_____________________________
Ingrid Padilla, City Clerk

APPROVED AS TO FORM: CONSULTANT
By: ____________________________

NAME, COMPANY
Michael Roush
Legal Counsel
57 H.

File Attachments for Item:

I. Authorize Selecting a Land Management and Permitting System Vendor (The purpose of this item is to Authorize the City Manager to select a land management and permitting system vendor, negotiate a contract for system implementation, and execute a contract with the chosen vendor. The submitted vendor proposals include a range of pricing estimates, with initial one-time implementation costs ranging from $100,000-$650,000 and ongoing costs ranging from $40,000-$140,000 annually.)
58 I.

Permit System Contract Negotiation Page 1 of 2

CITY COUNCIL AGENDA REPORT
Meeting Date: June 1, 2023
From: John Swiecki, Community Development Director
Subject: Land Management and Permitting System Procurement Community Goal/Result
Fiscally Prudent - Brisbane's fiscal vitality will reflect sound decisions which also speak to the values of the community.

Purpose
Procure a modern land management and permitting system.

Recommendation
Authorize the City Manager to select a land management and permitting system vendor, negotiate a contract for system implementation, and execute a contract with the chosen vendor.

Background
In October 2021, staff presented a Technology Master Plan (TMP) to the City Council that provided a roadmap for the City to achieve its vision to deliver services efficiently and transparently through technology improvements across all Departments. One of the TMP’s priorities was implementation of a new comprehensive and modern land management and permitting system to replace the City’s current patchwork of manual building, planning, and engineering permit procedures and databases projected into the 2022-2023 fiscal years.

To move this effort forward, the City hired consultant firm Baker Tilly to conduct a process evaluation for existing permit procedures, and to evaluate in depth the needs of all City departments related to permit processing. These evaluations informed development of a Request for Proposals (RFP) for a new land management and permitting system, which was released in March of this year.

As described in the RFP, the City seeks a proven, cloud-based software system that is designed around best practices and will allow the City to streamline and improve the permit process across all relevant departments, including Building, Engineering, and Planning. The RFP highlighted the City’s desire for a system that is easy and intuitive to use for customers as well as staff members.

Discussion
The City received five responsive proposals representing a range of systems, from well-known industry leaders to relatively newer technology firms. An interdepartmental team representing 59 I.

Permit System Contract Negotiation Page 2 of 2
Community Development, Public Works, Finance/Administration, and Police departments are currently reviewing the proposals to determine which vendors will be invited to participate in vendor demonstrations tentatively scheduled for the week of June 5. Following the demonstrations, staff anticipates selecting a preferred vendor by mid-June. Contract negotiation with the preferred vendor would commence in July, with final contract terms mutually agreed upon by August.

Fiscal Impact
The Technology Master Plan reviewed by the Council in October 2021 projected budget estimates for one time implementation of $200,000 and ongoing costs of $20,000 annually. The submitted vendor proposals include a range of pricing estimates, with initial one-time implementation costs ranging from $100,000-$650,000 and ongoing costs ranging from $40,000-$140,000 annually. These prices should be considered ceilings, and all pricing estimates are subject to negotiation. Staff anticipates that contract negotiations may result in lower costs than those presented in the proposals.

Measure of Success
Procurement and implementation of a new land management and permitting system that streamlines the permit review and approval process for building, planning, and engineering permit processes, optimizes staff time spent on reviewing permit applications, and ensures the permit process is transparent and straightforward.

Attachments
None.
___________________________________ ___________________________________ John Swiecki, Community Development Director Clay Holstine, City Manager 60 I.

File Attachments for Item:

J. Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024 i. Adopt a Resolution, “Appointing Attorney for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”
ii. Adopt a Resolution, “Appointing Engineer for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”
iii. Adopt a Resolution, “A Resolution of Preliminary Approval of Engineer's Report - Fiscal Year 2023-2024 - Sierra Point Landscaping and Lighting District” iv. Adopt a Resolution, “A Resolution of Intention to order the levy and collection of assessments pursuant to the Landscaping and Lighting Act of 1972 - Fiscal Year 2023-2024 - Sierra Point Landscaping and Lighting District”
61 J.
1 SPL&L District Annual Appointments, Prelim Approval Engineer’s Report, Intention to Order Levy and Collection of Assessments

CITY COUNCIL AGENDA REPORT
Meeting Date: June 1, 2023
From: Karen Kinser, Deputy Director of Public Works
Subject: Sierra Point Landscape and Lighting District Annual Appointments, Preliminary Approval of Engineer’s Report and Intention to Order the Levy and Collection of Assessments
Community Goal/Result
Economic Development
Purpose
To begin the process that will ultimately provide a public hearing to consider imposition of annual tax roll charges that fund Sierra Point's Landscape and Lighting Assessment District, which provides for maintenance of the landscaping, irrigation and lighting installed in 1989.

Recommendation
Adopt the following resolutions:

1. Proposed Resolution, “Appointing Attorney for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”

2. Proposed Resolution, “Appointing Engineer for the Sierra Point Landscaping and Lighting District for the Fiscal Year 2023-2024.”

3. Proposed Resolution, “A Resolution of Preliminary Approval of Engineer's Report - Fiscal Year 2023- 2024 - Sierra Point Landscaping and Lighting District”

4. Proposed Resolution, “A Resolution of Intention to order the levy and collection of assessments pursuant to the Landscaping and Lighting Act of 1972 - Fiscal Year 2023-2024 - Sierra Point Landscaping and Lighting District”
Background
These four resolutions are part of the required annual process for the Sierra Point Landscaping and Lighting District. In order, they appoint an Attorney and an Engineer of Record for the landscaping and lighting district, preliminarily approve the Engineer’s Report (which specifies the work to be completed, the cost of the work, and the proportionate share of the costs within the district for the next fiscal year) and indicate intention to order the levy and collection of assessments for said district.

Discussion
The requested actions begin the annual process that provides funding for the operation and maintenance of the Sierra Point Landscaping and Lighting District. At a later meeting, a Public Hearing will be held to confirm and order the Improvements/Assessments. 62 J.
2 SPL&L District Annual Appointments, Prelim Approval Engineer’s Report, Intention to Order Levy and Collection of Assessments
If the Council chooses to not approve these Resolutions, then the city will most likely not have a mechanism to collect the assessments which fund the operation and maintenance of the landscaping, irrigation and lighting at Sierra Point.

Fiscal Impact
There is no direct fiscal impact as a result of approving the recommended resolutions; all work to be completed in this phase of the process will be completed by existing staff.

Measure of Success
Approval of the Engineer’s Report and confirming the assessments will allow for the ongoing maintenance and improvements of the landscaping, lighting and pathways at Sierra Point.

Attachments

1. Proposed Resolutions (4)

2. Draft Engineer’s Report
__________________________
Karen Kinser, Deputy Director of Public Works
__________________________ __________________________
Randy Breault, Director of Public Works/City Engineer Clay Holstine, City Manager 63 J.

1 Reso No. 2023-
RESOLUTION NO. 2023-__

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

APPOINTING ATTORNEY FOR THE SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT
FISCAL YEAR 2023-2024
WHEREAS, the City Council of the City of Brisbane has determined to undertake proceedings for the levy and collection of assessments upon the several lots or parcels of land in the Sierra Point Landscaping and Lighting District pursuant to the Landscaping and Lighting Act of 1972 for the construction or installation of improvements, including the maintenance or servicing, or both, thereof for the fiscal year 2023-2024; and
WHEREAS, the public interest and general welfare will be served by appointing and employing an attorney for the preparation and conduct of said proceedings; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brisbane as follows:

Thomas McMorrow, Attorney at Law, or his successor, is hereby appointed and employed to do and perform all legal services required for said proceedings. _____________________________
Madison Davis, Mayor
City of Brisbane
* * * *
I, the undersigned, hereby certify that the foregoing Resolution No. 2023- was adopted at a regular meeting of the City Council of the City of Brisbane on the 1st day of June, 2023 by the following vote:

AYES:

NOES:

ABSENT:
______________________________
Ingrid Padilla, City Clerk
City of Brisbane

64 J.
1 Reso No. 2023-
RESOLUTION NO. 2023-__

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

APPOINTING ENGINEER FOR THE SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT
FISCAL YEAR 2023-2024
WHEREAS, the City Council of the City of Brisbane has determined to undertake proceedings for the levy and collection of assessments upon the several lots or parcels of land in the Sierra Point Landscaping and Lighting District, pursuant to the Landscaping and Lighting Act of 1972 for the construction or installation of improvements, including the maintenance or servicing, or both, thereof for fiscal year 2023-2024;
WHEREAS, the public interest and general welfare will be served by appointing and employing an engineer for the preparation and conduct of said proceedings; NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brisbane as follows:

Karen A. Kinser, P.E., Deputy Director of Public Works, is hereby appointed and employed as Engineer of Work, employed in order to perform all engineering work necessary in and for said proceedings.
_____________________________
Madison Davis, Mayor
City of Brisbane
* * * *
I, the undersigned, hereby certify that the foregoing Resolution No. 2023- was adopted at a regular meeting of the City Council of the City of Brisbane on the 1st day of June, 2023 by the following vote:

AYES:

NOES:

ABSENT:
______________________________
Ingrid Padilla, City Clerk
City of Brisbane
65 J.

1 Reso No. 2023-
RESOLUTION NO. 2023-__

RESOLUTION OF PRELIMINARY APPROVAL OF ENGINEER'S REPORT FISCAL YEAR 2023 – 2024

SIERRA POINT LANDSCAPING AND LIGHTING DISTRICT
RESOLVED, by the City Council of the City of Brisbane, California, that WHEREAS, the Engineer of Work has prepared and filed with the Clerk of said City a report, in writing, all as therein more particularly described, under and pursuant to the Landscaping and Lighting Act of 1972;
WHEREAS, under and pursuant to said Act, the report has been presented to this Council for consideration; and
WHEREAS, said Council has duly considered said report and each and every part thereof, and finds that each and every part of said report is sufficient, and that neither said report, nor any part thereof should be modified in any respect.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED and ORDERED, as follows:

1. That the plans and specifications for the existing improvements and the proposed new improvements to be made within the assessment district or within any zone thereof, contained in said report, be, and they are hereby, preliminarily approved.

2. That the Engineer's estimate of the itemized and total costs and expenses of said improvements, maintenance and servicing thereof, and of the incidental expenses in connection therewith, contained in said report, be, and each of them are hereby, preliminarily approved.

3. That the diagram showing the exterior boundaries of the assessment district referred to and described in said Engineer’s Report and also the boundaries of any zones therein and the lines and dimensions of each lot or parcel of land within said district as such lot or parcel of land is shown on the County Assessor's maps for the fiscal year to which the report applies, each of which lot or parcel of land has been given a separate number upon said diagram, as contained in said report, be, and it is hereby, preliminarily approved.

4. That the proposed assessment of the total amount of the estimated costs and expenses of the proposed improvements upon the several lots or parcels of land in said district in proportion to the estimated benefits to be received by such lots or parcels, respectively, from said improvements including the maintenance or servicing, 66 J.

2 Reso No. 2023-
or both, thereof, and of the expenses incidental thereto, as contained in said report, be, and they are hereby, preliminarily approved.

5. That said report shall stand as the Engineer's Report for the purpose of all subsequent proceedings to be had.

Madison Davis, Mayor
City of Brisbane
* * * *
I, the undersigned, hereby certify that the foregoing Resolution No. 2023- was adopted at a regular meeting of the City Council of the City of Brisbane on the 1st day of June, 2023 by the following vote:

AYES:

NOES:

ABSENT:
______________________________
Ingrid Padilla, City Clerk
City of Brisbane
67 J.

1 Reso No. 2023-
RESOLUTION NO. 2023-__

A RESOLUTION OF INTENTION TO ORDER THE LEVY AND COLLECTION

OF ASSESSMENTS
PURSUANT TO THE LANDSCAPING AND LIGHTING ACT OF 1972
FISCAL YEAR 2023-2024

SIERRA POINT LANDSCAPING AND LIGHTING DISTRICT
RESOLVED, by the City Council of the City of Brisbane, California, as follows:

WHEREAS, pursuant to the Landscaping and Lighting Act of 1972, the Engineer of Work of said City has prepared and filed with the Clerk of this City the written report, which said submitted report has been preliminarily approved by this Council in accordance with said Act;
NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED and ORDERED, as follows:

1. In its opinion the public interest and convenience require and it is the intention of this Council to order the levy and collection of assessments for Fiscal Year 2023-2024 pursuant to the provisions of the Landscaping and Lighting Act of 1972, Part 2, Division 15 of the Streets and Highways Code of the State of California, for the construction or installation of the improvements, including the maintenance or servicing, or both, thereof, more particularly described in Exhibit “A” hereto attached and by reference incorporated herein.

2. The cost and expenses of said improvements, including the maintenance or servicing, or both, thereof, are to be made chargeable upon the assessment district designated as Sierra Point Landscaping and Lighting District, the exterior boundaries of which district are the composite and consolidated area as more particularly described on a map thereof on file in the office of the Clerk of said City, to which reference is hereby made for further particulars. Said map indicates by a boundary line the extent of the territory included in the district and of any zone thereof and the general location of said district.

3. Said Engineer's Report prepared by the Engineer of Work of said City, preliminarily approved by this Council, and on file with the Clerk of this City is hereby referred to for a full and detailed description of the improvements, the boundaries of the assessment district and any zones therein, and the proposed assessments upon assessable lots and parcels of land within the district.

4. Notice is hereby given that on June 29, 2023, or as soon thereafter as the matter may be heard, at the Brisbane Community Meeting Room, Brisbane City Hall, 50 Park Place, Brisbane, California, the City Council shall convene and hold a public 68 J.

2 Reso No. 2023-
meeting to receive public testimony with respect to said assessments, pursuant to Government Code Section 59954.6. The City Clerk is authorized to cause publication of notice of said public meeting pursuant to Government Code 6063 and to mail such notice by first-class mail to the owners of the property to be assessed as shown by the last equalized assessment roll said notice shall contain the information as specified by Government Code Section 54954.6 (C)(2).

5. Notice is hereby given that on June 29, 2023, or as soon thereafter as the matter may be heard, at the Brisbane Community Meeting Room, Brisbane City Hall, 50 Park Place, Brisbane, California, be and the same are hereby appointed and fixed as the time and place for a hearing by this Council on the question of the levy and collection of the proposed assessment for the construction or installation of said improvements, including the maintenance and servicing, or both, thereof, and when and where it will consider all oral statements and all written protests made or filed by any interested person at or before the conclusion of said hearing, against said improvements, the boundaries of the assessment district and any zone therein, the proposed diagram or the proposed assessment, to the Engineer's estimate of the cost thereof, and when and where it will consider and finally act upon the Engineer's Report.

6. The Clerk of said City is hereby directed to give notice of said hearing by causing a copy of this Resolution to be published once in the San Mateo Times, a newspaper published and circulated in San Mateo County, there being no newspaper published in said City, and by conspicuously posting a copy thereof upon the official bulletin board customarily used by the City for the posting of notices, said posting and publication to be had and completed at least ten (10) days prior to the date of hearing specified herein.

7. The office of the City Manager of said City is hereby designated as the office to answer inquiries regarding any protest proceedings to be had herein and may be contacted during regular office hours at City Hall, 50 Park Place, Brisbane, California 94005 or by calling (415) 508-2110.
_____________________________
Madison Davis, Mayor
City of Brisbane
* * * *
I, the undersigned, hereby certify that the foregoing Resolution No. 2023- was adopted at a regular meeting of the City Council of the City of Brisbane on the 1st day of June, 2023 by the following vote:

AYES:

NOES:

ABSENT:

Ingrid Padilla, City Clerk
City of Brisbane
69 J.

3 Reso No. 2023-
EXHIBIT “A” to Resolution No. 2023-__
Description of District Purpose

SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT
a) The construction or installation, including the maintenance or servicing, or both, thereof, of public landscaping, including irrigation, trees, shrubs, grass, or other vegetation. b) The construction or installation, including the maintenance or servicing, or both, thereof, of public lighting facilities, including standards, poles and electric current or energy.

70 J.

1 Engineer’s Report

CITY OF BRISBANE

SIERRA POINT

LANDSCAPING AND LIGHTING DISTRICT

ENGINEER'S REPORT
on the
Levy of an Assessment
for the
2023 - 2024 Fiscal Year
Prepared by
Karen Kinser, P.E.

Deputy Director of Public Works
May 24, 2023
71 J.
2 Engineer’s Report
I. BACKGROUND
In 1983, the Brisbane City Council determined to undertake proceedings under the provisions of Division 15, Part 2, of the California Streets and Highways Code, entitled “Landscaping and Lighting Act of 1972”, for the formation of an assessment district for the purpose of constructing, installing, maintaining and servicing the following facilities within said district:
a) Public landscaping, including trees, shrubs, grass, other vegetation, and irrigation facilities.
b) Public lighting facilities, including standards, poles, and electric current or energy.

The proposed district was designated the “Sierra Point Landscaping and Lighting District”.

This report was prepared as part of an annually occurring process to detail the assessment charges and district expenses covering the 2023 - 2024 fiscal year.

II. PLANS AND SPECIFICATIONS
The original plans and specifications for this assessment district have been separately bound but are incorporated herein by this reference thereto.

III. ESTIMATE OF COSTS
The costs of this assessment district for the 2023 - 2024 fiscal year are estimated to be as follows:

ZONE l & 2 CONSTRUCTION & MAINTENANCE COSTS
FY 23/24
Employee costs 111,368
Supplies and services 358,269
Administrative costs 122,082
TOTAL ZONE 1 & 2 $591,719
Supplies and services includes safety clothing, maintenance of vehicles and equipment, small tools and supplies, landscape and irrigation maintenance including materials, electricity, and water.

Administrative charges are indirect, overhead costs to manage the district. 72 J.
3 Engineer’s Report
A detailed breakdown of these costs is available to assessees upon request.

Costs associated with this assessment district for the 2023 - 2024 fiscal year are to be paid as follows:

ZONE l & 2 FUNDING SOURCES

FY 23/24
Assessment charges 591,719
TOTAL ZONE 1 & 2 $591,719

IV. DIAGRAM
The assessment diagrams for Zones 1 and 2 are attached hereto and are a part of this report.

V. ASSESSMENT
The assessments to be made against the assessable lots and parcels of land within this assessment district are attached hereto and are a part of this report.

Respectfully submitted,
Dated ____________________ __________________________
Karen Kinser, P.E.

Deputy Director of Public Works

05/24/23
73 J.

4 Engineer’s Report
Filed in the office of the City Clerk of the City of Brisbane, San Mateo County, California, this __________ day of _________, 2023.
_____________________________
Ingrid Padilla
City Clerk
Filed in the office of the County Controller-Auditor of the County of San Mateo, California, this _________ day of ____________________, 2023.
_____________________________
Juan Raigoza
County Controller
74 J.

5 Engineer’s Report

ASSESSMENT ROLL

ASSESSMENT ASSESSOR'S PARCEL PARCEL
NUMBER NUMBER AREA, AC. ASSESSMENT
ZONE l
A 1 007—165—210 4.41 $24,570
A 2 007—165—230 8.97 49,976
A 3 007—165—110 3.44 19,166
A 4 007—165—050 6.13 34,153
A 5 007—164—020 5.66 31,534
A 6 007—164—010 10.20 56,828
A 7 007—165—130 9.78 54,488
A 8 007—165—140 7.13 39,724
A 9 007—165—150 5.93 33,038
A 10 007—163—030 3.52 19,619
A 11 007—163—040 3.08 17,160
A 12 007—165—120 4.56 25,406
C l 015—011—090 Note1 0
C 2 015—011—100 6.92 38,554
C 3 015—011—110 8.57 47,747
C 4 015—011—120 8.56 47,691
C 5 015—011—140 2.41 13,427
Subtotal Zone 1 99.27 $553,074
1 Although previously assessed, this parcel is owned by California State Lands Commission, which is exempt from local assessments.
75 J.

6 Engineer’s Report
ZONE 2
B l None (placeholder only) -0-
B 2 005—162—430 (Ptn) 15.2 7,190
B 3 005—162—300 66.5 31,455
B 4 005—162—400 (Ptn) Note2 -0-
B 5 005—162—410 (Ptn) 0.23 -0-
B 6 005—162—390 Note4 -0-
B 7 005—162—420 (Ptn) Note4 -0-
Subtotal Zone 2 81.7 $ 38,645
Total 180.99 $591,719

METHOD OF ASSESSMENT SPREAD
The amounts to be assessed against the parcels of property to pay the costs and expenses of the work and improvements shall be based on the estimated benefits to be derived by the various properties within the assessment district.

Construction and maintenance costs shall be segregated by zone, and then spread to the parcels within each zone in proportion to the area of the benefited parcels within the zone.

Incidental expenses shall be spread proportionally to the area of benefited parcels within the assessment district.

Due to the County Auditor's requirement that individual parcel assessments be rounded to the nearest even cent, the total of said individual assessments may not exactly equal the total estimate of costs.
2 This portion of this parcel is private land over which the public has been granted access for use as the street, Tunnel Avenue.
3 No assessment has been imposed for a value less than $100. 4 B6 and B7 are publicly owned portions of Tunnel Avenue. 76 J.

7 Engineer’s Report

NAMES AND ADDRESSES OF OWNERS

ASSESSMENT
NUMBER
APN

NUMBER ASSESSEE
A-1 007-165-210 BP3 SF4 1000 Marina LLC
4380 La Jolla Village Dr. Suite 230
San Diego, CA 92122
A-2 007-165-230 BP3 SF5 3000 3500 Marina LLC
4380 La Jolla Village Dr. Suite 230
San Diego, CA 92122
A-3 007-165-110 SNH Brisbane Ca LLC
255 Washington St
Newton, MA 02458
A-12 007-165-120 PPF OFF 7000 Marina Blvd LP
C/O Morgan Stanley Real Estate Advisor
555 California St. 21st Floor
San Francisco, CA 94101
A-4 007-165-050 Grand Sierra Properties, Inc.
150 Executive Park Blvd. #4000
San Francisco, CA 94134
A-5 007-164-020 HCP Life Science REIT, Inc.
1920 Main St, Suite 1200
Irvine, CA 92614
A-6 007-164-010 HCP Life Science REIT, Inc.
1920 Main St, Suite 1200
Irvine, CA 92614
A-7
A-8
A-9
007-165-130
007-165-140
007-165-150
Slough Brisbane LLC
1920 Main St. Suite 1200
Irvine, CA 92614
A-10 007-163-030 Summit Hospitality 114 LLC
12600 Hill Country Blvd., #R-100
Austin, TX 78738
A-11 007-163-040 Bre Sh Brisbane Owner LLC
PO Box A-3956
Chicago, IL 60690-3956
77 J.

8 Engineer’s Report
B-2
B-3
B-4
B-5
005-162-430
005-162-300
005-162-400
005-162-410
Oyster Point Properties, Inc.
150 Executive Park Blvd. #4200
San Francisco, CA 94134-3332
B-6
B-7
005-162-390
005-162-420
City of Brisbane
50 Park Place
Brisbane, CA 94005
C-1 015-011-090 State of California
C/O State Lands Commission
Attn: Title Unit
100 Howe Ave., Ste. 100
Sacramento, CA 95825
C-2 015-011-100 HCP Life Sciences REIT, Inc.
3000 Meridian Boulevard #200
Franklin, TN 37067
C-3 015-011-110 GI ETS Shoreline LLC
Attn: Tony P. Lin
4 Embarcadero Suite 3200
San Francisco, CA 94111
C-4 015-011-120 DW LSP 5000 Shoreline LLC
C/O Divco West Real Estate Group
Attn: Sam Hamilton
PO Box 130667
Carlsbad, CA 92013
C-5 015-011-140 GNS Shoreline LP
C/O Altusgroup USINC/Ventas #6904
PO Box 71970
Phoenix, AZ 85050

78 J.

File Attachments for Item:

L. Consider Adoption of a Resolution of the Board of Directors of the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Authorizing the Issuance and Sale of its Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023
(Council will consider whether to approve financing of the costs of tenant improvements and related equipment and furnishings to the building at 25 Park Place leased by the City by means of the issuance of revenue bonds (the “Bonds”) by the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”) in an aggregate amount not to exceed $5,500,000, payable from the City’s general fund.) 79 L.
3669408.1 039949 AGMT

CITY OF BRISBANE AND BRISBANE GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY

AGENDA REPORT
Meeting Date: 6/1/2023
From: Carolina Yuen, Finance Director
Subject: City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with tenant improvements, and related equipment and furnishings for leased property at 25 Park Place 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 tenant improvements, and related equipment and furnishings for leased property at 25 Park Place in Brisbane and authorizing and directing certain actions thereto
Community Goal/Result
Fiscally Prudent
Community Building
Purpose
Authorize funding to finance costs associated with tenant improvements, and related equipment and furnishings for leased property at 25 Park Place (City Hall Annex) to be used for municipal purposes.

Recommendation
Approve the Resolutions described above.

Background
In July 2021, the City entered into a 10-year lease for the property located at 25 Park Place in order to better serve the community and in anticipation of the need for additional space for staff due to the potential development of the Baylands. In February 2023, the City amended the lease to extend the term an additional 15 years in order to obtain financing to cover the necessary tenant improvements.

Estimates of construction costs to improve the property currently have been presented at $4.6 million including a 20% cushion to cover unexpected change orders and the cost of construction management. The architect’s contract was for approximately $400,000. The construction timeframe is expected to span nine months starting this year and to be completed by the Spring of 2024.

Staff met with the City Council Fiscal and Administrative Policies Subcommittee on April 3, 2023, to discuss funding options. The Subcommittee directed staff to proceed to explore bond financing to pay for the tenant improvements, but to also look at partial funding directly from 80 L.
3669408.1 039949 AGMT
the City’s liquid funds.

Discussion
City staff and the City’s Financial Advisor (Marty Johnson) have explored financing options considering bond rates have been volatile over the past year. The target was to keep the annual payment structure comparable to existing requirements considering we have a Pension Obligation Bond due in 2023 and the City Hall Remodel Refunding due to be paid off in 2029.

Proposed payments are structured to commence in FY2024.

Staff reviewed several options including a private placement with a bank and a sale in the public market. The current volatility in the interest rate market, various issues surrounding regional banks and the relatively small size of the financing have resulted in the City pursuing a negotiated sale process in the public market. Based on feedback from the Subcommittee, the City is proposing to issue a 20-year bond, sized to provide $5.5 million of net proceeds. The estimated interest rate is 4.45%. The payments on the new debt will be structured with payment of ~$350,000 through FY2025 and then payments of ~$430,000 through maturity in FY2043, with an approximate total interest cost of $3.2 million. Based on this structure, the total payments on all issues paid from the General Fund would be approximately $1.3 million from FY2026 to FY2033.

The repayment schedule may be altered further to wrap 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 2023 on the new debt. If the payments are structured around the existing payments, the total annual payment from the General Fund would be ~1.2 million. The total interest cost on the proposed 2023 bonds would increase to $3.7 million.

If the City Council chooses not to borrow the $5.5 million, the City would need to instead pay cash from the General Fund and reduce the amount of cash available to meet other needs. As discussed at the FY23 Mid-year Budget review, the City is just shy of using reserves to cover costs for FY23. Spending cash instead of borrowing may risk us not having funds accessible if there is an emergency or to cover lost revenues. Reducing the City’s cash balance would also reduce the amount of interest the City could earn from existing investments. The LAIF rate is currently approximately at 3% and the 2-year Treasury is at 4.3%. Whether we borrow the full $5.5 million versus a less amount, several of the bond costs are fixed and won’t change with a smaller par amount.

Proceeds Amount Interest Cost
Average Annual
Debt Svc
$5,500,000 $ 3.2M $422K
81 L.
3669408.1 039949 AGMT
$4,500,000 $2.6M $346K
$3,500,000 $2.0M $271K
Fiscal Impact
The annual payment for the new debt will increase from $350,000 in FY 2024 to $430,000 in 2043. The bonds will be paid off after 20 years. The total amount of interest paid over the life of the bonds will be $3.2 million. The interest paid in the first 5 years will be $1.2 million. A portion of this interest payment can be offset by the interest on the money the City will keep by using financing and by investing the bond proceeds during the construction period.

City properties including the Mission Blue Community Center, the Community Pool Complex, and the Community Center located on Visitacion Avenue, are being bundled to satisfy the financing requirements:

Security for the 2023 Bonds
Community Pool Complex $ 2,013,000
Community Center / Old Library $ 1,734,000
Mission Blue Community Center $ 1,976,000
$ 5,723,000
Measure of Success
The City and staff are able to enjoy the use of the City Hall Annex property to benefit the community.

Attachments
1) City Council Resolution Approving the form and authorizing the execution of certain lease financing documents to finance the costs associated with improvements at leased property located at 25 Park Place 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 improvements at leased property located at 25 Park Place in Brisbane and authorizing and directing certain actions thereto. 3) Site and Facility Lease – Details the term of the lease through May 1, 2043. The City leases the facility to the Brisbane/Guadulupe Valley Municipal Improvement Financing Authority for the advance payment of $5,500,000 the City will pay the Financing Authority back over time on the prearranged payment schedule. 4) Lease Agreement between Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority and the City – The City leases back the Mission Blue Community Center, the Municipal Pool Complex, and the Old Community Center property as set 82 L.
3669408.1 039949 AGMT
forth in the terms of this lease agreement. Lease payments from the City to the Financing Authority will be budgeted annually from any source legally available to the City to make the payments.
5) Indenture of Trust – Details the terms and conditions of the agreement between the issuer and the trustee who represents the interests of the bond investors. 6) Bond Purchase Agreement – Stipulates the conditions of the sale between the bond issuer and the underwriter of the bonds.
7) Continuing Disclosure Certificate – This document is executed and delivered by the Issuer for the benefit of registered and beneficial owners of the bonds, to assist the underwriter (Oppenheimer & Co., Inc.) in complying with SEC Rule 15c2-12(b)(5). 8) Preliminary Official Statement (POS) – This document is an informational disclosure document released prior to the sale that describes the proposed new issue of bonds prior to the final determination of the maturity amounts, interest rates and offering pricing/yields.
9) Proposed Debt Schedule
________________
Carolina Yuen, Finance Director Clay Holstine, City Manager 83 L.

Quint & Thimmig LLP 03/28/23
04/18/23
05/13/23
05/22/23
02036.04

CITY OF BRISBANE
RESOLUTION NO. _____

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRISBANE

APPROVING PROCEEDINGS BY THE BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY FOR THE

ISSUANCE AND SALE OF ITS BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY LEASE REVENUE BONDS, SERIES 2023, TO FINANCE THE COSTS OF TENANT

IMP,OVEMENTS TO, AND RELATED EQUIPMENT AND FURNISHINGS FOR, A BUILDING AT 25 PARK PLACE, BRISBANE, CALIFORNIA, LEASED BY THE

CITY AND USED FOR MUNICIPAL PURPOSES, APPROVING THE FORM

AND AUTHORIZING EXECUTION OF RELATED DOCUMENTS AND

APPROVING RELATED OFFICIAL ACTIONS
RESOLVED, by the City Council (the “Council”) of the City of Brisbane (the “City”), San Mateo County, State of California, as follows:

WHEREAS, the City of Brisbane (the “City”) proposes to finance the costs of tenant improvements to, and related equipment and furnishings for, a building at 25 Park Place leased by the City and used for municipal purposes (the “2023 Project”); WHEREAS, it is proposed that the 2023 Project will be financed from the proceeds of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023 (the “Bonds”), to be issued by the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”) under the provisions of Article 4 (commencing with section 6584) of the JPA Act (the “Bond Law”), and pursuant to the terms of an indenture of trust, by and between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee;
WHEREAS, in order to provide for the repayment of the Bonds, the City will lease certain City-owned property and the site thereof (collectively, the “Property”) to the Authority pursuant to a site and facility lease (the “Site and Facility Lease”) and the Authority will lease the Property back to the City pursuant to a lease agreement (the “Lease Agreement”) under which the City will agree to make lease payments to the Authority from moneys in the City’s General Fund and the City will budget and appropriate sufficient amounts in each year to pay the lease payments which will be equal to the scheduled principal of and interest on the Bonds; WHEREAS, the proposed form of a preliminary official statement (the “Preliminary Official Statement”) describing the Bonds, to be used in connection with the marketing of the Bonds, has been prepared and has been presented to the Council; WHEREAS, Oppenheimer & Co. Inc. (the “Underwriter”), has proposed to purchase and underwrite the Bonds and has presented to the Authority and the City a form of bond purchase agreement for the Bonds, to be entered into among the Authority, the City and the Underwriter (the “Bond Purchase Agreement”);
84 L.
-2-
WHEREAS, the Council desires to make a finding of significant public benefit pursuant to section 6586.5(a)(2) of the California Government Code and to approve of the financing and the transactions contemplated by the Bonds;
WHEREAS, the Council has duly considered such transactions and wishes at this time to approve said transactions in the public interests of the City; and WHEREAS, pursuant to section 5852.1 of the Government Code, which became effective on January 1, 2018, by the enactment of Senate Bill 450, certain information relating to the Bonds is set forth in Exhibit A attached to this Resolution, and such information is hereby disclosed and made public;

NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BRISBANE AS FOLLOWS:

Section 1. Recitals True and Correct. The Council hereby finds and determines that the foregoing recitals are true and correct.

Section 2. Findings. The Council hereby finds that significant public benefits will arise from the financing contemplated by the Bonds and the documents related thereto, in accordance with section 6586 of the California Government Code.

Section 3. Approval of Bonds. The Council hereby approves the issuance of the Bonds by the Authority for the purpose of providing funds to finance the 2023 Project.

Section 4. Approval of Site and Facility Lease. The Council hereby approves the Site and Facility Lease, in the form on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by the City Manager, the Assistant City Manager or the Finance Director (each, a “Designated Officer”), and the execution of the Site and Facility Lease by a Designated Officer shall be conclusive evidence of such approval. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the City to execute the final form of the Site and Facility Lease for and in the name of the City. The Council hereby authorizes the delivery and performance of the Site and Facility Lease.

Section 5. Approval of Lease Agreement. The Council hereby approves the Lease Agreement, in the form on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by any of the Designated Officers, and the execution of the Lease Agreement by a Designated Officer shall be conclusive evidence of the approval of any such changes or additions. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the City to execute the final form of the Lease Agreement for and in the name of the City. The Council hereby authorizes the delivery and performance of the Lease Agreement.

Section 6. Sale of Bonds. The Council hereby approves the sale of the Bonds by the Authority by negotiation with the Underwriter pursuant to the Bond Purchase Agreement, in the form on file with the City Clerk, together with such additions thereto and changes therein as any of the Designated Officers shall deem necessary, desirable or appropriate, and the execution of which by a Designated Officer shall be conclusive evidence of the approval of such additions and changes. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the City to execute the final form of the Bond Purchase Agreement for and in the name of the City; provided that (a) the amount of Underwriter’s discount for the Bonds shall be not more than 0.75% of the par amount thereof, (b) the principal 85 L.
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amount of the Bonds is not greater than $5,500,000, (c) the true interest cost of the Bonds does not exceed 4.50% and (d) the term of the Bonds does not extend beyond May 1, 2043.

Section 7. Official Statement. The Council hereby approves, and hereby deems nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934 (the “Rule”), the Preliminary Official Statement, in the form on file with the City Clerk. The Designated Officers, each acting alone, are hereby authorized and directed to execute an appropriate certificate stating the City’s determination that the Preliminary Official Statement is nearly final within the meaning of the Rule. Distribution of the Preliminary Official Statement in connection with the sale of the Bonds is hereby approved. The Designated Officers, each acting alone, are hereby authorized and directed, upon consultation with Disclosure Counsel to the Authority for the Bonds and the City Attorney, to approve any changes in or additions to the Preliminary Official Statement deemed necessary or desirable to bring it into the form of a final official statement (the “Final Official Statement”), and the execution of the Final Official Statement by any Designated Officer shall be conclusive evidence of approval of any such changes and additions.

The Council hereby authorizes the distribution of the Final Official Statement by the Underwriter. The Final Official Statement shall be executed in the name and on behalf of the City by any of the Designated Officers.

Section 8. Continuing Disclosure Certificate. The Council hereby approves a continuing disclosure certificate (the “Continuing Disclosure Certificate”), in the form on file with the City Clerk, together with any changes therein or additions thereto deemed advisable by any Designated Officer, the execution of which by the City shall be conclusive evidence of the approval of any such non-material additions and changes. The Designated Officers, each acting alone, are hereby authorized and directed to execute the final form of the Continuing Disclosure Certificate for and in the name and on behalf of the City. The City hereby authorizes the delivery and performance of the Continuing Disclosure Certificate.

Section 9. Municipal Bond Insurance. The Designated Officers are hereby authorized and directed to solicit proposals for municipal bond insurance for the Bonds. Any Designated Officer, in consultation with the Municipal Advisor, is hereby authorized to determine if such municipal bond insurance is financially advantageous to the City and, if it is determined that such municipal bond insurance is financially advantageous to the City and a commitment therefor is received, any Designated Officer is hereby authorized to accept such commitment and to revise the legal documents as may be appropriate to provide for such municipal bond insurance.

Section 10. Official Actions. The Mayor, the City Manager, the Assistant City Manager, the Finance Director, the City Attorney, the City Clerk and all other officers of the City are each authorized and directed in the name and on behalf of the City to make any and all assignments, certificates, requisitions, agreements, notices, consents, instruments of conveyance, warrants and other documents, which they or any of them might deem necessary or appropriate in order to consummate any of the transactions contemplated by the documents approved pursuant to this Resolution. Whenever in this Resolution any officer of the City is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf of such officer by any person designated by such officer to act on his or her behalf in the case such officer shall be absent or unavailable.

Section 9. Effective Date. This Resolution shall take effect from and after its adoption. * * * * * *
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I hereby certify that the foregoing Resolution was adopted by the City Council of the City of Brisbane at its meeting of June 1, 2023, by the following vote:

Ayes: Councilmembers:

Noes: Councilmembers:

Absent: Councilmembers:

City Clerk
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Exhibit A

EXHIBIT A
GOVERNMENT CODE SECTION 5852.1 DISCLOSURE
The following information consists of estimates that have been provided by the City’s Municipal Advisor and the Underwriter which has been represented to have been provided in good faith:
(A) True Interest Cost of the Bonds: 4.25%
(B) Finance Charges: $179,750
(C) Net Proceeds to be Received: $5,880,610
(net of finance charges)
(D) Total Payment Amount through Maturity: $8,879,083
The foregoing estimates constitute good faith estimates only.

The principal amount of the Bonds, the true interest cost of the Bonds, 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 Bonds being different than the date assumed for purposes of such estimates, (b) the actual principal amount of Bonds sold being different from the estimated amount used for purposes of such estimates, (c) the actual amortization of the Bonds being different than the amortization assumed for purposes of such estimates, (d) the actual market interest rates at the time of sale of the Bonds 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 Bonds and the actual principal amount of Bonds sold will be determined by the City based on the timing of the need for proceeds of the Bonds and other factors. The actual interest rates with respect to the Bonds will depend on market interest rates at the time of sale thereof. The actual amortization of the Bonds 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.
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BRISBANE/GUADALUPE VALLEY MUNICIPAL

IMPROVEMENT DISTRICT FINANCING AUTHORITY
RESOLUTION NO. _____

RESOLUTION OF THE BOARD OF DIRECTORS OF THE

BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT

FINANCING AUTHORITY AUTHORIZING THE ISSUANCE AND SALE OF ITS

BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY LEASE REVENUE BONDS, SERIES 2023, TO FINANCE

THE COSTS OF TENANT IMPROVEMENTS TO, AND RELATED EQUIPMENT AND FURNISHINGS FOR, A BUILDING AT 25 PARK PLACE, BRISBANE,

CALIFORNIA, LEASED BY THE CITY OF BRISBANE AND USED FOR

MUNICIPAL PURPOSES, APPROVING THE FORM AND AUTHORIZING

EXECUTION OF RELATED DOCUMENTS AND APPROVING RELATED

OFFICIAL ACTIONS
RESOLVED, by the Board of Directors (the “Board”) of the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority (the “Authority”), San Mateo County, State of California, as follows:

WHEREAS, pursuant to the provisions of the Joint Exercise of Powers Act, comprising Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 (commencing with section 6500) of the California Government Code (the “JPA Act”), the City of Brisbane, California (the “City) and the Guadalupe Valley Municipal Improvement District entered into a joint exercise of powers agreement, dated September 18, 2014, as amended on October 2, 2014 (the “Agreement”) pursuant to which the Authority was created;
WHEREAS, the Authority is authorized by the Agreement to issue bonds, notes or other evidences of indebtedness or other agreements for all purposes permitted by the JPA Act and described in the Agreement;
WHEREAS, the City proposes to finance the costs of tenant improvements to, and related equipment and furnishings for, a building at 25 Park Place leased by the City and used for municipal purposes (the “2023 Project”);
WHEREAS, it is proposed that the 2023 Project will be financed from the proceeds of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023 (the “Bonds”), to be issued by the Authority under the provisions of Article 4 (commencing with section 6584) of the JPA Act (the “Bond Law”), and pursuant to the terms of an indenture of trust, by and between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Indenture”);
WHEREAS, in order to provide for the repayment of the Bonds, the City will lease certain City-owned property and the site thereof (collectively, the “Property”) to the Authority pursuant to a site and facility lease (the “Site and Facility Lease”) and the Authority will lease the Property back to the City pursuant to a lease agreement (the “Lease Agreement”) under 89 L.
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which the City will agree to make lease payments to the Authority from moneys in the City’s General Fund and the City will budget and appropriate sufficient amounts in each year to pay the lease payments which will be equal to the scheduled principal of and interest on the Bonds; WHEREAS, the proposed form of a preliminary official statement (the “Preliminary Official Statement”) describing the Bonds, to be used in connection with the marketing of the Bonds, has been prepared and has been presented to the Board; WHEREAS, Oppenheimer & Co. Inc. (the “Underwriter”), has proposed to purchase and underwrite the Bonds and has presented to the Authority and the City a form of bond purchase agreement for the Bonds, to be entered into among the Authority, the City and the Underwriter (the “Bond Purchase Agreement”);
WHEREAS, the Board has duly considered such transactions and wishes at this time to approve said transactions in the public interests of the Authority; and WHEREAS, pursuant to section 5852.1 of the Government Code, which became effective on January 1, 2018, by the enactment of Senate Bill 450, certain information relating to the Bonds is set forth in Exhibit A attached to this Resolution, and such information is hereby disclosed and made public;

NOW, THEREFORE, BE IT RESOLVED BY THE BIOARD OF DIRECTORS OF THE

BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY AS FOLLOWS:

Section 1. Findings. The Board hereby finds that significant public benefits will arise from the financing contemplated by the Bonds and the documents related thereto in accordance with section 6586 of the California Government Code.

Section 2. Issuance of Bonds. Pursuant to the Bond Law and the Indenture, the Authority hereby authorizes the issuance of the Bonds. The Bonds shall be issued and secured in accordance with the terms of and shall be in the form set forth in the Indenture.

Section 3. Approval of Indenture. The Board hereby approves the Indenture, in the form on file with the Secretary, together with any changes therein or additions thereto deemed advisable by the Chairperson, the Executive Director, the Assistant Executive Director or the Treasurer/Auditor of the Authority (each, a “Designated Officer”), and the execution thereof by a Designated Officer shall be conclusive evidence of such approval. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the Authority to execute the final form of the Indenture for and in the name of the Authority. The Board hereby authorizes the delivery and performance of the Indenture. The dated date, maturity date or dates, interest rate or rates, interest payment dates, denominations, forms, registration privileges, manner of execution, place or places of payment, terms of redemption, series designations and other terms of the Bonds shall be as provided in the Indenture, as finally executed.

Section 4. Approval of Site and Facility Lease. The Board hereby approves the Site and Facility Lease, in the form on file with the Secretary, together with any changes therein or additions thereto deemed advisable by any Designated Officer, and the execution thereof by a Designated Officer shall be conclusive evidence of such approval. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the Authority to execute the final form of the Site and Facility Lease for and in the name of the 90 L.
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Authority. The Board hereby authorizes the delivery and performance of the Site and Facility Lease.

Section 5. Approval of Lease Agreement. The Board hereby approves the Lease Agreement, in the form on file with the Secretary, together with any changes therein or additions thereto deemed advisable by any Designated Officer, and the execution thereof by a Designated Officer shall be conclusive evidence of the approval of any such changes or additions. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the Authority to execute the final form of the Lease Agreement for and in the name of the Authority. The Board hereby authorizes the delivery and performance of the Lease Agreement.

Section 6. Sale of Bonds. The Board hereby approves the sale of the Bonds by the Authority by negotiation with the Underwriter pursuant to the Bond Purchase Agreement, in the form on file with the Secretary, together with such additions thereto and changes therein as any Designated Officer shall deem necessary, desirable or appropriate, and the execution thereof by a Designated Officer shall be conclusive evidence of the approval of such additions and changes. The Designated Officers, each acting alone, are hereby authorized and directed for and in the name and on behalf of the Authority to execute the final form of the Bond Purchase Agreement for and in the name of the Authority; provided that (a) the amount of Underwriter’s discount for the Bonds shall be not more than 0.75% of the par amount thereof, (b) the principal amount of the Bonds is not greater than $5,500,000, (c) the true interest cost of the Bonds does not exceed 4.50% and (d) the term of the Bonds does not extend beyond May 1, 2043.

Section 7. Official Statement. The Board hereby approves, and hereby deems nearly final within the meaning of Rule 15c2-12 of the Securities Exchange Act of 1934 (the “Rule”), the Preliminary Official Statement in the form on file with the Secretary. The Designated Officers, each acting alone, are hereby authorized and directed to execute an appropriate certificate stating the Authority’s determination that the Preliminary Official Statement is nearly final within the meaning of the Rule. Distribution of the Preliminary Official Statement in connection with the sale of the Bonds is hereby approved. The Designated Officers, each acting alone, are hereby authorized and directed, upon consultation with Disclosure Counsel and counsel to the Authority, to approve any changes in or additions to the Preliminary Official Statement deemed necessary or desirable to bring it into the form of a final official statement (the “Final Official Statement”), and the execution of the Final Official Statement by any Designated Officer shall be conclusive evidence of approval of any such changes and additions. The Board hereby authorizes the distribution of the Final Official Statement by the Underwriter. The Final Official Statement shall be executed in the name and on behalf of the Authority by any of the Designated Officers.

Section 8. Official Actions. The Chairperson, the Executive Director, the Assistant Executive Director, the Treasurer/Auditor, and the Secretary are each authorized and directed in the name and on behalf of the Authority to make any and all assignments, and to execute any and all certificates (including the Continuing Disclosure Certificate referenced in the Final Official Statement), requisitions, agreements, notices, consents, instruments of conveyance, warrants and other documents (including any agreement needed to obtain bond insurance for the Bonds if in the judgment of the Treasurer/Auditor, upon consultation with the Municipal Advisor, such insurance is cost effective), which they or any of them deem necessary or appropriate in order to consummate the sale and issuance of the Bonds and any of the other transactions contemplated by the documents approved pursuant to this Resolution. Whenever in this Resolution any officer of the Authority is authorized to execute or countersign any document or take any action, such execution, countersigning or action may be taken on behalf 91 L.
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of such officer by any person designated by such officer to act on his or her behalf in the case such officer shall be absent or unavailable.

Section 9. Effective Date. This Resolution shall take effect from and after its adoption. * * * * * *
I hereby certify that the foregoing Resolution was adopted by the Board of Directors of the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority at a regular meeting of the Board of Directors held on June 1, 2023, by the following vote:

Ayes: Boardmembers:

Noes: Boardmembers:

Absent: Boardmembers:

Secretary
92 L.

Exhibit A

EXHIBIT A
GOVERNMENT CODE SECTION 5852.1 DISCLOSURE
The following information consists of estimates that have been provided by the Authority’s Municipal Advisor and underwriter which has been represented to have been provided in good faith:
(A) True Interest Cost of the Bonds: 4.25%
(B) Finance Charges: $179,750
(C) Net Proceeds to be Received: $5,880,610
(net of finance charges)
(D) Total Payment Amount through Maturity: $8,879,083
The foregoing estimates constitute good faith estimates only.

The actual date of sale of the Bonds and the actual principal amount of Bonds sold will be determined by the Authority based on the timing of the need for proceeds of the Bonds and other factors. The actual interest rates with respect to the Bonds will depend on market interest rates at the time of sale thereof. The actual amortization of the Bonds 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 Authority. 93 L.

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AFTER RECORDATION 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 June 1, 2023
by and between the
CITY OF BRISBANE, CALIFORNIA, as Lessor
and the

BRISBANE/GUADALUPE VALLEY MUNICIPAL
IMPROVEMENT DISTRICT FINANCING AUTHORITY, as Lessee
Relating to:
$________
Brisbane/Guadalupe Valley Municipal
Improvement District Financing Authority
Lease Revenue Bonds, Series 2023
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02036.04

SITE AND FACILITY LEASE
This SITE AND FACILITY LEASE, dated as of June 1, 2023, 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 entity, organized and existing under and by virtue of the laws of the State of California, as lessee (the “Authority”):

RECITAL:

WHEREAS, the Authority intends to assist the City by leasing certain real property and improvements to the City pursuant to a Lease Agreement, dated as of June 1, 2023, by and between the City and the Authority, and recorded concurrently herewith by memorandum thereof (the “Lease Agreement”), and the City proposes to enter into this Site and Facility Lease with the Authority as a material consideration for the Authority’s agreement to lease such real property and improvements to the City.

AGREEMENT:

NOW, THEREFORE, it is hereby mutually agreed as follows:

Section 1. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms in this Site and Facility Lease shall have the respective meanings specified in that certain Indenture of Trust, dated as of June 1, 2023, by and between the Authority and The Bank of New York Mellon Trust Company, N.A., as trustee, in connection with the issuance by the Authority of its Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority of its $_______ Lease Revenue Bonds, Series 2023 (the “Bonds”).

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, 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 (collectively, the “Site”), and certain existing facilities on the Site, more particularly described in Exhibit B attached hereto and made a part hereof (collectively, the “Facility”).

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 San Mateo County, State of California, and shall end on May 1, 2043, unless such term is extended or sooner terminated as hereinafter provided. If, on May 1, 2053, the aggregate amount of Lease Payments shall not have been paid, or provision shall not have been made for their payment, then the term of this Site and Facility Lease shall be extended until such Lease Payments shall be fully paid or provision made for such payment. If, prior to May 1, 2052, all Lease Payments shall be fully paid, or provision made for such payment in accordance with Section 4.3 or 4.4 of the Lease Agreement, the term of this Site and Facility Lease shall end.

Section 4. Rental. The City acknowledges receipt from the Authority as and for rental hereunder the sum of one dollar ($1.00), on or before the date of delivery of this Site and Facility Lease.
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Section 5. Purpose. The Authority shall use the Site and the Facility solely for the purpose of leasing the Site and the Facility 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 Site and the Facility. The City covenants that it is the owner of fee title to the Site and the Facility.

Section 7. Assignments; Subleases; Amendments. 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 Site or the Facility, except as provided in the Lease Agreement and the Indenture, without the written consent of the City. This Site and Facility Lease may be amended, if required, pursuant to the provisions of Section 8.3 of the Lease Agreement.

Section 8. Right of Entry. The City reserves the right, for any of its duly authorized representatives, to enter upon the Site and the Facility at any reasonable time to inspect the same or to make any repairs, improvements or changes necessary for the preservation thereof.

Section 9. Termination. The Authority agrees, upon the termination of this Site and Facility Lease, to quit and surrender the Site and the Facility in the same good order and condition as the same was 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 and the Facility at the time of the termination of this Site and Facility Lease shall remain thereon and title thereto shall vest in the City.

Section 10. 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 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; provided, however, that so long as any Bonds are outstanding and unpaid in accordance with the terms thereof, the Lease Payments assigned by the Authority to the Trustee under the Indenture shall continue to be paid to the Trustee.

Section 11. Quiet Enjoyment. The Authority, at all times during the term of this Site and Facility Lease, shall peaceably and quietly have, hold and enjoy the Site and the Facility subject to the provisions of the Lease Agreement and the Indenture.

Section 12. 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 member, Board member, officer, employee and agent of the Authority of and from any personal or individual liability under this Site and Facility Lease. No member, Board member, 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.

Section 13. Taxes. The City covenants and agrees to pay any and all assessments of any kind or character and also all taxes, including possessory interest taxes, levied or assessed upon the Site and the Facility (including both land and improvements).

Section 14. Eminent Domain. In the event the whole or any part of the Site or the Facility is taken by eminent domain proceedings, the interest of the Authority shall be recognized and is 96 L.
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hereby determined to be the amount of the then unpaid Bonds including the unpaid principal and interest with respect to any such Bonds then outstanding and, subject to the provisions of the Lease Agreement, the balance of the award, if any, shall be paid to the City.

Section 15. Use of the Proceeds. The City and the Authority hereby agree that the lease to the Authority of the City’s right, title and interest in the Site and the Facility pursuant to Section 2 serves the public purposes of the City. The City hereby agrees that the proceeds of the Bonds shall be used solely for the purpose of financing the costs associated with the costs of tenant improvements to, and related equipment and furnishings for, a building at 25 Park Place leased by the City, subject to the provisions of the Indenture.

Section 16. 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 17. 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, and, if to the City, to the Finance Director, City of Brisbane, 50 Park Place, Brisbane, CA 94005, and if to the Authority, to the Finance Director, c/o the City of Brisbane, 50 Park Place, Brisbane, CA 94005, or to such other addresses as the respective parties may from time to time designate by notice in writing.

Section 18. 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 19. Applicable Law. This Site and Facility Lease shall be governed by and construed in accordance with the laws of the State.

Section 20. 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.
[Remainder of page is intentionally left blank]
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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 authorized representatives 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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Exhibit A

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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:

Site of Mission Blue Community Center, 475 Mission Blue Drive, Brisbane, CA Lot 71, Northeast Ridge Unit No. 1, filed May 30, 1995, Map Book 125, Pages 28 through 62,inclusive, San Mateo County Records.

APN: 005-440-020 and 005-440-010
Site of Municipal Pool, 2 Solano Street, Brisbane, CA
Portion of lands of Brisbane Elementary School District as Granted by Crocker Estate Company and by Deed as recorded May 23, 1951 in Volume 2077, Page 430of Deeds, Records of San Mateo County, California and lying within the County of San Mateo, description as follows:

Parcel A:

Point of beginning which marks the intersection of the Northerly line of San Francisco Avenue with the Westerly line of Solano Street as designated on that certain Map entitled "Amended Map of Subdivision Number 1, 2, 3 of City of Visitacion, (Brisbane) California", which was filed for Record on October 14, 1908 in the Office of the Recorder of San Mateo County, State of California in Book 6 of Maps at Page 45, commencing at said point of intersection along the Northerly boundary line of the above mentioned subdivision South 89° 35' 50" West 496.68 feet; thence leaving said boundary North 50° 38' 00" East 314.30 feet; thence North 39° 16' 00" West 48.06 feet; thence North 41° 00' 00" East 7.09 feet; thence South 70° 45' 00" East 26.84 feet; thence South 62° 15' 00’’ East 175.00 feet; thence South 03° 56' 46" West 29.62 feet; thence South 64° 20' 30" East 53.95 feet, to a tangent curve concave to the Southwest having a central angle of 57° 04' 14" and a radius 100 feet; thence along the arc of said curve an arc distance of 99.61 feet; thence non-tangent from said carve South 10° 25' 40" West more or less to the point of beginning.

Containing 1.44 acres more or less.

Parcel A-1:

A right of way for ingress and egress purposes over a strip of land lying Northerly and adjacent to the above described Parcel A as follows:

Point of beginning being at the intersections of the Northerly line of San Francisco Avenue with the Westerly line of Solano Street; thence North 10° 25' 40" East 17.99 feet to a non-tangent curve concave to the Southwest having a central angle of 57° 04' 14" and a radius 100 feet a radial to said point bears North 82° 43' 44" East; thence along the arc of said curve an arc distance of 99.81 feet; thence tangent from said curve North 64° 20' 30" West 53.95 feet; thence North 03° 56' 46" East 29.62 feet; thence North 62° 15' 00" West 175.00 feet; thence North 70° 45' 00" West 26.84 feet; thence North 15° 15' 00" East 25.00 feet; thence South 70° 45' 00" East 28.70 feet; thence South 62° 15' 00" East 243.03 feet; thence to a tangent curve concave to the Southwest having a central angle of 61° 50' 50" and a radius of 150 feet; thence along the arc of said curve an arc distance of 161.92 feet; thence tangent from said curve South 00° 24' 10" East 7.34 feet; thence South 89° 35' 50" West 51.81 feet more or less to the point of beginning.

Containing 0.35 acres, more or less.

APN: 005-166-020
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Exhibit A

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Parcel B
All that certain real property situate in the City of Brisbane, County of San Mateo, State of California being a portion of that certain real property described in that certain Grant Deed from Crocker Estate Company to Brisbane Elementary School District recorded in Volume 2077 at page 430,San Mateo County Official Records and being more particularly described as follows:

Beginning at the Southeasterly corner of said Lands of the Brisbane Elementary School District:

Thence along the Easterly boundary of said Lands of Brisbane Elementary School District, being the Southerly boundary of Parcel 'A' as said Parcel is shown on the certain Parcel Map recorded on June 13, 1978 in Book 42 of Parcel Maps at Pages 44 and 45, San Mateo County Records North 00°50'48" East a distance of 156.81 feet (said Grant Deed indicates North 0°24'13" West 156.89 feet); Thence along the Northerly line of said Lands of Brisbane Elementary School District being the Southerly line of said Parcel 'A' North 63°12'12" West a distance of 351.73 feet (said Grant Deed indicates North 64°27'10" West);
Thence leaving said Northerly line of the Lands of Brisbane Elementary School District in a Southwesterly direction South 28°59'58" West a distance of 94.65 feet; Thence South 51°52' 58 West a distance of 361.41 feet to the Southerly line of said Lands of Brisbane Elementary School District:

Thence along said Southerly line of the Lands of Brisbane Elementary School District South 89° 09'12'’ East a distance of 94.48 feet (said Grant Deed indicates South 89° 35' 50" West) to the Southwesterly corner of the Lands of the City of Brisbane as said lands are described in that certain Grant Deed from the Brisbane School District to the City of Brisbane recorded in Reel 7713 Page 825 and 826,San Mateo County Records;
Thence along the Westerly line of said Lands of the City of Brisbane North 51°52' 58° East a distance of 314.30 feet (aforementioned Grant Deed indicates North 50°38' 00'' East); Thence North 38°01' 02'' West a distance of 48.06 feet (aforementioned Grant Deed indicates North 39° 16' 00" West);
Thence North 42°14' 58" East a distance of 7.09 feet (aforementioned Grant Deed indicates North 41°00' 00" East);
Thence South 69° 30' 02" East a distance of 26.84 feet (aforementioned Grant Deed indicates South 70°45' 00" East);
Thence South 61°00' 02" East a distance of 175.00 feet (aforementioned Grant Deed indicates South 62°15' 00" East);
Thence South 5° 11' 44" West a distance of 29.62 feet (aforementioned Grant Deed indicates South 3° 56' 46" West);
Thence South 63° 05' 32" East a distance of 53.95 feet (aforementioned Grant Deed indicates South 64° 20' 30" East);
Thence along a tangent curve concave to the Southwest having a radius of 100.00 feet and a central angle of 57° 04' 14", an arc length of 99.61 feet;
Thence South 11° 39' 26" West a distance of 17.99 feet (aforementioned Grant Deed indicates South 10° 25' 40" West) to a point which marks the intersection of the Northerly line of San Francisco Avenue with the Westerly line of Solano Street as designated on that certain Map entitled "Amended Map of subdivision 100
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Exhibit A

Page 3 ends

Number 1, 2, 3 of City of Visitacion, (Brisbane) California, which was filed for Record on October 14, 1908 in Book 6 of Maps at page 45,San Mateo County Records;
Thence along the Northerly line of said San Francisco Avenue South 89° 09'12'' East a distance of 50.77 feet to the point of beginning.

Containing 1.264 Acres, more or less.

APN: 005-166-040
Site of Old Community Center, 250 Visitacion Avenue, Brisbane, CA Lots 3 and 4, Block 13, as designated on the map entitled “Amended Map of Subdivisions Nos. 1, 2 and 3, of City of Visitacion, California”, which map was 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.

APN: 007-272-020
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Exhibit B

EXHIBIT B

DESCRIPTION OF THE FACILITY
The Facility consists of
Mission Blue Community Center, 475 Mission Blue Drive, Brisbane, CA. Built in 2000, this 6,000 square foot facility has seating for up to 200 dining guests is located in the Northeast Ridge district and offers panoramic views of San Bruno Mountain and the San Francisco Bay and is available for event rentals.

Municipal Pool, 2 Solano Street, Brisbane, CA. Built in 2000 in part by funds from the Northeast Ridge Development, the pool is a 75-foot length outdoor pool (total 4,200 sq. ft.) with a zero-depth entry pool for disability access, using solar and conventional heating. The pool is surrounded by landscaping and sheltered stations which can be rented for gatherings.

Old Community Center, 250 Visitacion Avenue, Brisbane, CA. Built in 1979, this two-story facility is located in Downtown Brisbane with a total size of approximately 5,500 square feet. The top floor is approximately 2,000 square feet and can be rented out for events, seating up to 70 guests. 102
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Quint & Thimmig LLP 03/28/23
05/13/23
02036.04

LEASE AGREEMENT
Dated as of June 1, 2023
by and between the

BRISBANE/GUADALUPE VALLEY MUNICIPAL
IMPROVEMENT DISTRICT FINANCING AUTHORITY, as Lessor
and the
CITY OF BRISBANE, CALIFORNIA, as Lessee
Relating to:
$________
Brisbane/Guadalupe Valley Municipal
Improvement District Financing Authority
Lease Revenue Bonds, Series 2023
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-iTABLE OF CONTENTS
Page

ARTICLE I

DEFINITIONS AND EXHIBITS
Section 1.1. Definitions ................................................................................................................................................................... 2 Section 1.2. Exhibits ......................................................................................................................................................................... 2

ARTICLE II

REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of Authority .................................................................................. 3 Section 2.2. Representations, Covenants and Warranties of the City ...................................................................................... 3

ARTICLE III
ISSUANCE OF BONDS; ACQUISITION AND CONSTRUCTION OF THE 2023 PROJECT Section 3.1. The Bonds .................................................................................................................................................................... 6 Section 3.2. Plans and Specifications for the 2023 Project .......................................................................................................... 6 Section 3.3. Acquisition and Construction of the 2023 Project ................................................................................................. 6 Section 3.4. Grant of Easements .................................................................................................................................................... 6 Section 3.5. Appointment of City as Agent of Authority .......................................................................................................... 7

ARTICLE IV
LEASE OF PROPERTY; TERM OF THE LEASE AGREEMENT; LEASE PAYMENTS Section 4.1. Lease of Property ........................................................................................................................................................ 8 Section 4.2. Term of Lease .............................................................................................................................................................. 8 Section 4.3. Lease Payments ........................................................................................................................................................... 8 Section 4.4. Prepayment Option .................................................................................................................................................... 9 Section 4.5. Quiet Enjoyment ....................................................................................................................................................... 10 Section 4.6. Title ........................................................................................................................................................................... 10 Section 4.7. Additional Payments ............................................................................................................................................... 10

ARTICLE V

MAINTENANCE, TAXES, INSURANCE AND OTHER MATTERS
Section 5.1. Maintenance, Utilities, Taxes and Assessments ................................................................................................... 12 Section 5.2. Modification of Property ......................................................................................................................................... 12 Section 5.3. Public Liability and Property Damage Insurance ................................................................................................ 13 Section 5.4. Fire and Extended Coverage Insurance ................................................................................................................ 13 Section 5.5. Rental Interruption Insurance ................................................................................................................................ 13 Section 5.6. Recordation Hereof; Title Insurance ...................................................................................................................... 14 Section 5.7. Net Proceeds of Insurance; Form of Policies ........................................................................................................ 14 Section 5.8. Installation of Personal Property ............................................................................................................................ 14 Section 5.9. Liens 15
Section 5.11. Continuing Disclosure ........................................................................................................................................... 15 Section 5.12. Payment of Costs of Issuance and Direction of Investments ........................................................................... 16

ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; ABATEMENT OF LEASE PAYMENTS Section 6.1. Application of Net Proceeds ................................................................................................................................... 17 Section 6.2. Abatement of Lease Payments ................................................................................................................................ 17

ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
Section 7.1. Disclaimer of Warranties ......................................................................................................................................... 19 Section 7.2. Rights of Access ........................................................................................................................................................ 19 Section 7.3. Non-Liability of the Authority ............................................................................................................................... 19 Section 7.4. Expenses ..................................................................................................................................................................... 20 104
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-iiSection 7.5. Indemnification ......................................................................................................................................................... 20 Section 7.6. Waiver of Personal Liability .................................................................................................................................... 21

ARTICLE VIII

ASSIGNMENT, LEASING AND AMENDMENT
Section 8.1. Assignment by the Authority ................................................................................................................................. 22 Section 8.2. Assignment and Subleasing by the City ............................................................................................................... 22 Section 8.3. Amendment of Lease ............................................................................................................................................... 22

ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
Section 9.1. Events of Default Defined ....................................................................................................................................... 26 Section 9.2. Remedies on Default ................................................................................................................................................ 26 Section 9.3. Limitation on Remedies ........................................................................................................................................... 27 Section 9.4. No Remedy Exclusive .............................................................................................................................................. 27 Section 9.5. Agreement to Pay Attorneys’ Fees and Expenses ............................................................................................... 28 Section 9.6. No Additional Waiver Implied by One Waiver ................................................................................................... 28 Section 9.7. Trustee and Bond Owners to Exercise Rights ...................................................................................................... 28

ARTICLE X

MISCELLANEOUS
Section 10.1. Notices ...................................................................................................................................................................... 29 Section 10.2. Binding Effect .......................................................................................................................................................... 29 Section 10.3. Severability .............................................................................................................................................................. 29 Section 10.4. Net-net-net Lease .................................................................................................................................................... 29 Section 10.5. Further Assurances and Corrective Instruments ............................................................................................... 29 Section 10.6. Execution in Counterparts .................................................................................................................................... 30 Section 10.7. Governing Law ....................................................................................................................................................... 30 Section 10.8. Authorized Representatives .................................................................................................................................. 30 Section 10.9. Waiver of Personal Liability .................................................................................................................................. 30 Section 10.10. Limitation of Rights to Parties and Bond Owners ........................................................................................... 30 Section 10.11. Captions ................................................................................................................................................................. 30 EXHIBIT A: DESCRIPTION OF THE SITE
EXHIBIT B: DESCRIPTION OF THE FACILITY
EXHIBIT C: SCHEDULE OF LEASE PAYMENTS
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LEASE AGREEMENT
THIS LEASE AGREEMENT (the “Lease Agreement”), dated for convenience as of June 1, 2023, is by and between the BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY, a joint exercise of powers entity organized and existing under and by virtue of the laws of the State of California, as lessor (the “Authority”), and the CITY OF BRISBANE, CALIFORNIA, 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”).

RECITALS:

WHEREAS, pursuant to that certain Site and Facility Lease, dated as of June 1, 2023 (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 (collectively, the “Site”), and certain existing facilities on the Site, more particularly described in Exhibit B attached hereto and made a part hereof (the “Facility” and, with the Site, the “Property”), all for the purpose of enabling the City to finance the costs of tenant improvements to, and related equipment and furnishings for, a building at 25 Park Place leased by the City (the “2023 Project”); WHEREAS, in order to provide the revenues necessary to enable the Authority to pay debt service on the Bonds (hereinafter defined) as it becomes due, the Authority proposes to lease the Property to the City pursuant to this Lease Agreement and to assign 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, to The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), pursuant to that certain Indenture of Trust, dated as of June 1, 2023, by and between the Authority and the Trustee (the “Indenture”), and pursuant to which the Authority will issue and the Trustee will authenticate and deliver its Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023, in the aggregate principal amount of $_________ (the “Bonds”); and
WHEREAS, the Authority and the City have duly authorized the execution and delivery of this Lease Agreement.

AGREEMENT:

NOW, THEREFORE, for and in consideration of the premises and the material covenants hereinafter contained, and for other consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby formally covenant, agree and bind themselves as follows:
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ARTICLE I

DEFINITIONS AND EXHIBITS
Section 1.1. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms used in this Lease Agreement have the respective meanings given them in Section 1.01 of the Indenture.

Section 1.2. Exhibits. The following exhibits are attached to, and by this reference made a part of, this Lease Agreement:

EXHIBIT A: DESCRIPTION OF THE SITE
EXHIBIT B: DESCRIPTION OF THE FACILITY
EXHIBIT C: SCHEDULE OF LEASE PAYMENTS
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ARTICLE II

REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of Authority. The Authority makes the following covenants, representations and warranties as the basis for its undertakings herein contained:
(a) Organization/Authority. The Authority is a joint exercise of powers entity duly organized and existing under the laws of the State and is duly authorized to issue the Bonds and to perform its obligations under the Site and Facility Lease and this Lease Agreement. (b) Enforceability. All requirements have been met and procedures have occurred in order to authorize the execution and delivery by the Authority of the Site and Facility Lease, this Lease Agreement and the Indenture. The Authority has taken all necessary action and has complied with all provisions of the law required to make the Site and Facility Lease, this Lease Agreement and the Indenture valid and binding limited obligations of the Authority, except to the extent limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity, or by public policy.
(c) Limited Obligation of the Authority. The Bonds have been duly authorized, executed and delivered by the Authority. Nothing in the Site and Facility Lease, this Lease Agreement or the Indenture shall be construed as requiring the Authority to provide any financing for any purpose other than the financing of the 2023 Project. (d) No Litigation. To the best knowledge of the Authority, there is no action, suit, proceeding, inquiry or investigation by or before any court, governmental agency or public board or body pending or threatened against the Authority that (i) affects or seeks to prohibit, restrain or enjoin the issuance, execution or delivery of the Bonds, the application of the proceeds of the Bonds, or the execution and delivery of the Site and Facility Lease, this Lease Agreement or the Indenture, or (ii) affects or questions the validity or enforceability of the Bonds or the Site and Facility Lease, this Lease Agreement and the Indenture.

Section 2.2. Representations, Covenants 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) Organization/Authority. The City is a municipal corporation and general law city duly organized and in good standing under the laws of the State and has full legal right, power and authority to enter into the Site and Facility Lease and this Lease Agreement and to carry out and consummate all transactions on its part contemplated hereby and thereby and by proper action has duly authorized the execution, delivery and performance by the City of the Site and Facility Lease and this Lease Agreement. (b) Execution/Delivery. The Site and Facility Lease and this Lease Agreement have been duly authorized, executed and delivered by the City. 108
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(c) Enforceability. The Site and Facility Lease and this Lease Agreement constitute the legal, valid and binding agreements of the City enforceable against the City by the Trustee in accordance with their respective terms for the benefit of the Owners, and any rights of the Authority and obligations of the City not so assigned to the Trustee constitute the legal, valid, and binding agreements of the City enforceable against the City by the Authority in accordance with their terms; except in each case as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy.
(d) No Conflicts. The execution and delivery of the Site and Facility Lease and this Lease Agreement, the consummation of the transactions on the part of the City herein and therein contemplated and the fulfillment of or compliance by the City with the terms and conditions hereof and thereof, 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, loan agreement, 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 lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the City (other than as contemplated hereby and by the Site and Facility Lease), which conflict, violation, breach, default, lien, charge or encumbrance might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site and Facility Lease and this Lease Agreement, or the financial condition, assets, properties or operations of the City.
(e) No Other Consents. No consent or approval of any trustee or holder of any indebtedness of the City or any guarantor of indebtedness of or other provider of credit or liquidity to the City, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except with respect to any state securities or “blue sky” laws) is necessary in connection with the execution and delivery by the City of the Site and Facility Lease and this Lease Agreement, or the consummation of any transaction of the City herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions hereof or thereof, 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, 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 the Site and Facility Lease and this Lease Agreement, or upon the financial condition, assets, properties or operations of the City. (g) Disclosures Accurate. No official statement or other offering document in connection with the issuance of the Bonds, as of its date or as of the date hereof, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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(h) Financial Condition. All financial statements and information heretofore delivered to the Original Purchaser by City, including without limitation, information relating to the financial condition of City, fairly and accurately present the financial position thereof and have been prepared (except where specifically noted therein) in accordance with generally accepted accounting principles consistently applied. Since the date of such statements, there has been no material adverse change in the financial condition or results of operations of the City or the other subjects of such statements.
(i) Title to Property. The City has good and marketable title to the Property free and clear from all encumbrances other than Permitted Encumbrances. (j) No Defaults. The City is not in default (and no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) (i) under the Site and Facility Lease and this Lease Agreement, or (ii) 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 could reasonably be expected to have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site and Facility Lease or the Indenture, or the financial condition, assets, properties or operations of the City. 110
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ARTICLE III
ISSUANCE OF BONDS; ACQUISITION AND
CONSTRUCTION OF THE 2023 PROJECT
Section 3.1. The Bonds.
(a) The Authority has authorized the issuance of the Bonds pursuant to the Indenture in the aggregate principal amount of ___________ dollars ($________).The Authority agrees that the proceeds of sale of the Bonds shall be paid to the Trustee on the Closing Date for deposit and application pursuant to the terms and conditions of the Indenture. (b) The City hereby approves the Indenture, the assignment to the Trustee of the rights (but none of the obligations) of the Authority assigned or purported to be assigned thereunder, and the issuance of the Bonds by the Authority thereunder.

Section 3.2. Plans and Specifications for the 2023 Project. Before any payment is made for the 2023 Project or any component thereof from amounts on deposit in the Project Fund, the City shall have filed with the Authority detailed Plans and Specifications relating thereto.

The City may from time to time file amendments to such Plans and Specifications with the Authority and may thereby change or modify the description of the 2023 Project or any component thereof.

Section 3.3. Acquisition and Construction of the 2023 Project. The Authority hereby agrees with due diligence to supervise and provide for, or cause to be supervised and provided, for the Acquisition and Construction of the 2023 Project in accordance with Plans and Specifications, purchase orders, construction contracts and other documents relating thereto and approved by the City pursuant to all applicable requirements of law. Direct payment of the Project Costs shall be made from amounts on deposit in the Project Fund, pursuant to Section 3.03 of the Indenture. All contracts for, and all work relating to, the Acquisition and Construction of the 2023 Project shall be subject to all applicable provisions of law relating to the acquisition and construction of public works by the City. The Authority expects that the Acquisition and Construction of the 2023 Project will be completed on or before June 1, 2025; provided, however, that the failure to complete the 2023 Project by the estimated Completion Date thereof shall not constitute an Event of Default hereunder or a grounds for termination hereof, nor shall such failure result in the diminution, abatement or extinguishment of the obligations of the City hereunder to pay the Lease Payments allocable to the 2023 Project.

The City shall have the right from time to time in its sole discretion to amend the description of the 2023 Project to be financed and leased by the Authority hereunder.

Upon the completion of the Acquisition and Construction of the 2023 Project, the amounts, if any, on deposit in the Project Fund shall be transferred by the City to the Trustee for deposit in the Bond Fund and the City shall close the Project Fund.

Section 3.4. Grant of Easements. The City hereby grants to the Authority all necessary easements, rights of way and rights of access in and to all real property or interests therein now or hereafter acquired and owned by the City, as may be necessary or convenient to enable the Authority to acquire, construct and install the 2023 Project thereon or thereabouts. 111
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The City covenants that it will execute, deliver and record any and all additional documents as may be required to be executed, delivered and recorded to establish such easements, rights of way and rights of access.

Section 3.5. Appointment of City as Agent of Authority. The Authority hereby appoints the City as its agent to carry out all phases of the Acquisition and Construction of the 2023 Project pursuant to and in accordance with the provisions hereof. The City hereby accepts such appointment and assumes all rights, liabilities, duties and responsibilities of the Authority regarding the Acquisition and Construction of the 2023 Project. The Authority, or the City as agent of the Authority hereunder, shall enter into, administer and enforce all purchase orders or other contracts relating to the Acquisition and Construction of the 2023 Project. All contracts for, and all work relating to, the Acquisition and Construction of the 2023 Project shall be subject to all applicable provisions of law relating to the acquisition, construction, improvement, and equipping of like project and property by joint powers authorities and by municipal corporations.
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ARTICLE IV
LEASE OF PROPERTY; TERM OF THE LEASE AGREEMENT;

LEASE PAYMENTS
Section 4.1. Lease of Property. The Authority hereby leases the Property to the City, and the City hereby leases the Property from the Authority, upon the terms and conditions set forth in this Lease Agreement.

Section 4.2. Term of Lease. This Lease Agreement shall take effect on the date hereof, and shall end on the earlier of May 1, 2052, or such earlier date on which the Bonds shall no longer be Outstanding under the Indenture. If, on May 1, 2043, the Indenture shall not be discharged by its terms or if the Lease Payments payable hereunder shall have been abated at any time and for any reason, then the Term of the Lease Agreement shall be extended until there has been deposited with the Trustee an amount sufficient to pay all obligations due under the Lease Agreement, but in no event shall the Term of the Lease Agreement extend beyond May 1, 2053.

Section 4.3. Lease Payments.
(a) Obligation to Pay. In consideration of the lease of the Property from the Authority hereunder and subject to the provisions of Section 6.2, the City agrees to pay to the Authority, its successors and assigns, as rental for the use and occupancy of the Property during each Fiscal Year, the Lease Payments (denominated into components of principal and interest) for the Property in the respective amounts specified in Exhibit C hereto, to be due and payable on the respective Lease Payment Dates specified in Exhibit C hereto. Any amount held in the Revenue Fund, the Interest Account or the Principal Account on any Lease Payment Date, derived from any source of funds of the City or the Authority, shall be credited towards the Lease Payment then due and payable. The Lease Payments coming due and payable in any Fiscal Year shall be for the use of the Property for such Fiscal Year.

The City’s obligation to pay Lease Payments hereunder shall be absolute and unconditional subject only to abatement, in the event and to the extent that there is substantial interference with the use and occupancy of the property or any portion thereof, as provided in Section 6.2.
(b) Rate on Overdue Payments. In the event the City should fail to make any of the payments required in this Section 4.3, the payment in default shall continue as an obligation of the City until the amount in default shall have been fully paid, and the City agrees to pay the same with interest thereon, from the date of default to the date of payment at the highest rate of interest borne by any Outstanding Bond. Such interest, if received, shall be deposited in the Revenue Fund.
(c) Fair Rental Value. The Lease Payments and Additional Payments coming due and payable in each Fiscal Year shall constitute the total rental for the Property for each Fiscal Year and shall be paid by the City in each Fiscal Year 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 Fiscal Year. The Authority and the City hereby agree and determine that the total Lease Payments do not exceed the fair rental value of the Property. In making such determination, consideration has been given to the obligations of the parties under this Lease 113
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Agreement, the value 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. (d) Source of Payments; Budget and Appropriation. The Lease Payments shall be payable from any source of available funds of the City, subject to the provisions of Section 6.2. The City covenants to take such action as may be necessary to include all Lease Payments due hereunder in each of its budgets during the Term of the Lease Agreement and to make the necessary annual appropriations for all such Lease Payments. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be 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 official 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.

During the Term of the Lease Agreement, the City shall furnish to the Authority and the Trustee, no later than ten days following the adoption of a budget for the current Fiscal Year, a certificate stating that the Lease Payments due in that Fiscal Year have been included in the budget approved by the City Council for such Fiscal Year. (e) Assignment. The City understands and agrees that all Lease Payments have previously been assigned by the Authority to the Trustee in trust, pursuant to Section 5.01 of the Indenture, for the benefit of the Owners of the Bonds, and the City hereby assents to such assignment. The Authority hereby directs the City, and the City hereby agrees, to pay all of the Lease Payments to the Trustee at its Office.
(f) Security Deposit. Notwithstanding any other provision of this Lease Agreement, the City may on any date secure the payment of the Lease Payments for the Property in whole or in part by depositing with the Trustee an amount of cash which, together with other available amounts, including but not limited to amounts on deposit in the Revenue Fund, is either (i) sufficient to pay such Lease Payments, including the principal and interest components thereof, and premium, if any, in accordance with the Lease Payment schedule set forth in Exhibit C, or (ii) invested in whole or in part in Defeasance Obligations in such amount as will, in the opinion of an Independent Accountant, together with interest to accrue thereon and together with any cash which is so deposited, be fully sufficient to pay such Lease Payments when due hereunder, as the City shall instruct at the time of said deposit. 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.

Section 4.4. Prepayment Option. The Authority hereby grants an option to the City to prepay the principal component of the Lease Payments in full, or in part, without premium.

Said option may be exercised with respect to Lease Payments due on and after April 15, ____, in whole or in part on any date commencing April 15, ____. Said option shall be exercised by the City by giving written notice to the Authority and the Trustee of the exercise of such option at least thirty (30) days prior to said Lease Payment Date. Such option shall be exercised in the event of prepayment in full, by depositing with said notice cash in an amount, which, together with amounts then on deposit in the Insurance and Condemnation Fund and the Revenue Fund, will be sufficient to pay the aggregate unpaid Lease Payments on said Lease Payment Date as set forth in Exhibit C hereto, together with any Lease Payments then due but unpaid, or, in the event of prepayment in part, by depositing with said notice cash equal to the amount desired to be prepaid (the principal component of which shall be an amount divisible by $5,000) together with any Lease Payments then due 114
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but unpaid. In the event of prepayment in part, the partial prepayment shall be applied against Lease Payments in such manner and shall be applied to redeem Bonds as the City shall determine and if the City shall fail to make such determination, pro rata. Lease Payments due after any such partial prepayment shall be in the amounts set forth in a revised Lease Payment schedule which shall be provided by, or caused to be provided by, the City to the Trustee and which shall represent an adjustment to the schedule set forth in Exhibit C attached hereto taking into account said partial prepayment.

Section 4.5. Quiet Enjoyment. During the Term of the Lease Agreement, the Authority shall provide the City with quiet use and enjoyment of the Property, and the City shall, during such Term, 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 shall have the right to inspect the Property as provided in Section 7.2.

Section 4.6. Title. If the City pays all of the Lease Payments and Additional Payments during the Term of the Lease Agreement as the same become due and payable, or if the City posts a security deposit for payment of the Lease Payments pursuant to Section 4.3(f), and if the City has paid in full all of the Additional Payments coming due and payable as of such date, and provided in any event that no Event of Default shall have occurred and be continuing, 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 of title.

Section 4.7. Additional Payments. In addition to the Lease Payments, the City shall pay when due the following Additional Payments:
(a) All taxes and assessments of any type or character charged to the Authority or to the Trustee affecting the amount available to the Authority or the Trustee from payments to be received hereunder or in any way arising due to the transactions contemplated hereby (including taxes and assessments assessed or levied by any public agency or governmental authority of whatsoever character having power to levy taxes or assessments) but excluding franchise taxes based upon the capital and/or income of the Trustee and taxes based upon or measured by the net income of the Trustee; provided, however, that the City shall have the right to protest any such taxes or assessments and to require the Authority or the Trustee, at the City’s expense, to protest and contest any such taxes or assessments levied upon them and that the City shall have the right to withhold payment of any such taxes or assessments pending disposition of any such protest or contest unless such withholding, protest or contest would adversely affect the rights or interests of the Authority or the Trustee; (b) All reasonable fees, charges and expenses of the Trustee for services rendered under the Indenture as and when the same become due and payable; (c) The reasonable fees and expenses of such accountants, consultants, attorneys and other experts as may be engaged by the Authority or the Trustee to prepare audits, financial statements, reports, opinions or provide such other services required under the Site and Facility Lease, this Lease Agreement or the Indenture; and 115
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(d) The reasonable fees and expenses of the Authority or any agent or attorney selected by the Authority to act on its behalf in connection with the Site and Facility Lease, this Lease Agreement or the Indenture or the Bonds, including, without limitation, any and all reasonable expenses incurred in connection with the authorization, issuance, sale and delivery of the Bonds or in connection with any litigation, investigation or other proceeding which may at any time be instituted involving the Site and Facility Lease, this Lease Agreement or the Indenture or the Bonds or any of the other documents contemplated thereby, or in connection with the reasonable supervision or inspection of the City, its properties, assets or operations or otherwise in connection with the administration of the Site and Facility Lease, this Lease Agreement or the Indenture. (e) Any amounts due and payable by the City as arbitrage rebate under section 148 of the Code with respect to the Bonds, pursuant to City’s covenants and agreements with respect thereto in Section 6.08 of the Indenture and Section 5.10(c) hereof.

Such Additional Payments shall be billed to the City by the Authority or the Trustee from time to time, together with a statement certifying that the amount billed has been incurred or paid by the Authority or the Trustee for one or more of the above items. After such a demand, amounts so billed shall be paid by the City within thirty (30) days after the date of invoice. Notwithstanding the foregoing, the Authority shall not be required to submit a bill to the City for any amounts due with respect to arbitrage rebate under Section 6.08 of the Indenture, the calculation and payment for which is the responsibility of the City. 116
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ARTICLE V

MAINTENANCE, TAXES, INSURANCE AND OTHER

MATTERS
Section 5.1. Maintenance, Utilities, Taxes and Assessments. Throughout the Term of the Lease Agreement, as part of the consideration for the rental of the Property, all improvement, repair and maintenance of the Property shall be the responsibility of the City and the City shall 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, phone, 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 lessee 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 of the California Civil Code, but such waiver shall not limit any of the rights of the City under the terms of this Lease Agreement.

The City shall also 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 shall be obligated to pay only such installments as are required to be paid during the Term of the 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 the reasonable opinion of the Authority, 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 shall 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.

Section 5.2. Modification of Property. The City shall, at its own expense, have the right to make additions, modifications and improvements to the Property. All additions, modifications and improvements to the Property shall thereafter comprise part of the Property and be subject to the provisions of this Lease Agreement. Such additions, modifications and improvements shall 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 City shall file with the Trustee and the Authority a Written Certificate of the City stating that the Property, upon completion of any additions, modifications and improvements made thereto pursuant to this Section 5.2, shall be of a value which is not substantially less than the value of the Property immediately prior to the making of such additions, modifications and improvements. The City will not permit any mechanic’s or other lien to be established or remain against the Property for labor or materials furnished in connection with any remodeling, additions, modifications, improvements, repairs, renewals or replacements made by the City pursuant to this Section

5.2; provided that if any such lien is established and the City shall first notify or cause to be 117
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notified the Authority of the City’s intention to do so, the City may in good faith contest any lien filed or established against the Property, and in such event may permit the items so contested to remain undischarged and unsatisfied during the period of such contest and any appeal therefrom and shall provide the Authority with full security against any loss or forfeiture which might arise from the nonpayment of any such item, in form satisfactory to the Authority. The Authority will cooperate fully in any such contest, upon the request and at the expense of the City.

Section 5.3. Public Liability and Property Damage Insurance. The City shall maintain or cause to be maintained throughout the Term of the Lease Agreement, a standard comprehensive general insurance policy or policies in protection of the Authority, the City, and their respective Board members, Council 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. Said policy or policies shall provide coverage in the minimum liability limits of $1,000,000 for personal injury or death of each person and $3,000,000 for personal injury or deaths of two or more persons in each accident or event, and in a minimum amount of $100,000 (subject to a deductible clause of not to exceed $250,000) for damage to property resulting from each accident or event. Such public liability and property damage insurance may, however, be in the form of a single limit policy in the amount of $3,000,000 covering all such risks. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City, and such liability insurance may be maintained in whole or in part in the form of self-insurance by the City, subject to the provisions of Section 5.7, or in the form of the participation by the City in a joint powers agency or other program providing pooled insurance. The proceeds of such liability insurance shall be applied by the City toward extinguishment or satisfaction of the liability with respect to which they are paid.

Section 5.4. Fire and Extended Coverage Insurance. The City shall procure and maintain, or cause to be procured and maintained, throughout the Term of the Lease Agreement, insurance against loss or damage to the improvements constituting a part of the Property by fire and lightning, with extended coverage and vandalism and malicious mischief insurance. Said extended coverage insurance, when required, shall, as nearly as practicable, cover loss or damage by explosion, windstorm, riot, aircraft, vehicle damage, smoke and such other hazards as are normally covered by such insurance. Such insurance shall be in an amount at least equal to the lesser of (a) one hundred percent (100%) of the replacement cost of all of the insured improvements, or (b) the aggregate principal amount of the outstanding Bonds. 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 agency or other program providing pooled insurance; provided however, that such insurance may not be maintained by the City in the form of self-insurance. The Net Proceeds of such insurance shall be applied as provided in Section 6.1(a).

Section 5.5. Rental Interruption Insurance. The City shall procure and maintain, or cause to be procured and maintained, throughout the Term of the Lease Agreement, rental interruption or use and occupancy insurance to cover loss, total or partial, of the use of the Property 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 twenty-four (24) month period. 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 118
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whole or in part in the form of the participation by the City in a joint powers agency or other program providing pooled insurance; provided that such insurance may not be maintained in the form of self-insurance except for a time element deductible not to exceed sixty (60) days in duration. The proceeds of such insurance, if any, shall be paid to the Trustee and deposited in the Revenue Fund, and shall be credited towards the payment of the Lease Payments as the same become due and payable.

Section 5.6. Recordation Hereof; Title Insurance. On or before the Closing Date the City shall, at its expense, (a) cause the Site and Facility Lease and this Lease Agreement, or a memorandum hereof or thereof, in each case in form and substance approved by Bond Counsel, to be recorded in the office of the San Mateo County Recorder, and (b) obtain a CLTA policy of title insurance which insures the City’s leasehold estate in the Property in an amount equal to the aggregate initial principal amount of the Bonds. All Net Proceeds received under said policy shall be deposited with the Trustee in the Redemption Fund and shall be deposited in the Insurance and Condemnation Fund.

Section 5.7. Net Proceeds of Insurance; Form of Policies. Each policy of insurance maintained pursuant to Sections 5.4, 5.5 and 5.6 shall name the Trustee as loss payee so as to provide that all proceeds thereunder shall be payable to the Trustee. All required insurance policies shall be provided by a commercial insurer in one of the two highest rating categories by a Nationally Recognized Statistical Rating Organization (without regard to designations of plus (+) or minus (-)). The City shall pay or cause to be paid when due the premiums for all insurance policies required by this Lease Agreement. All such policies shall provide that the Trustee shall be given thirty (30) days’ notice of each expiration, any intended cancellation thereof or reduction of the coverage provided thereby. The Trustee shall not be responsible for the sufficiency or amount of any insurance or self-insurance herein required and shall be fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss. The City shall cause to be delivered to the Trustee annually, no later than February 1 in each year, a certificate stating that all of the insurance policies required by this Lease Agreement are in full force and effect and identifying whether any such insurance is then maintained in the form of self-insurance.

In the event that any insurance maintained pursuant to Section 5.3 shall be provided in the form of self-insurance, the City shall file with the Trustee annually, within ninety (90) days following the close of each Fiscal Year, a statement of the City risk manager, insurance consultant or actuary identifying the extent of such self-insurance and stating the determination that the City maintains sufficient reserves with respect thereto. In the event that any such insurance shall be provided in the form of self-insurance by the City, the City shall not be obligated to make any payment with respect to any insured event except from such reserves. The results of such review shall be filed with the Trustee.

Section 5.8. Installation of 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 items of equipment or other personal property in or upon any portion of the Property. All such items shall remain the sole property of the City, in which neither the Authority nor the Trustee shall have any interest and may be modified or removed by the City at any time provided that the City shall 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 shall prevent the City from purchasing or leasing items to be installed pursuant to this Section 5.8 under a lease or conditional sale agreement, or subject to a vendor’s lien or 119
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security agreement, as security for the unpaid portion of the purchase price thereof, provided that no such lien or security interest shall attach to any part of the Property.

Section 5.9. Liens. Neither the City nor the Authority shall, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to any portion of the Property, other than the respective rights of the Trustee, the Authority and the City as provided herein and Permitted Encumbrances. Except as expressly provided in this Article V, the City and the Authority shall promptly, at their 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 shall reimburse the Authority for any expense incurred by it in order to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim.

Section 5.10. Tax Covenants.
(a) Private Activity Bond Limitation. The City shall assure that proceeds of the Bonds are not so used as to cause the Bonds to satisfy the private business tests of section 141(b) of the Code or the private loan financing test of section 141(c) of the Code. (b) Federal Guarantee Prohibition. The City shall not take any action or permit or suffer any action to be taken if the result of the same would be to cause any of the Bonds to be “federally guaranteed” within the meaning of section 149(b) of the Code. (c) Rebate Requirement. The City shall take any and all actions necessary to assure compliance with section 148(f) of the Code, relating to the rebate of excess investment earnings, if any, to the federal government, to the extent that such section is applicable to the Bonds.
(d) No Arbitrage. The City shall not take, or permit or suffer to be taken by the Trustee or otherwise, any action with respect to the proceeds of the Bonds which, if such action had been reasonably expected to have been taken, or had been deliberately and intentionally taken, on the Closing Date would have caused the Bonds to be “arbitrage bonds” within the meaning of section 148 of the Code.
(e) Maintenance of Tax-Exemption. The City shall take all actions necessary to assure the exclusion of interest with respect to the Bonds from the gross income of the Owners of the Bonds to the same extent as such interest is permitted to be excluded from gross income under the Code as in effect on the Closing Date.

Section 5.11. Continuing Disclosure. The City hereby covenants and agrees that it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate.

Notwithstanding any other provision of this Lease Agreement, failure of the City to comply with the Continuing Disclosure Certificate shall not constitute an Event of Default hereunder; provided, however, that the Participating Underwriter or any Owner or Beneficial Owner (as defined in the Continuing Disclosure Certificate) of the Bonds may take such actions as may be necessary and appropriate to compel performance by the City of its obligations under this Section 5.11, including seeking mandate or specific performance by court order.
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Section 5.12. Payment of Costs of Issuance and Direction of Investments. The City hereby agrees that, pursuant to Section 3.02 of the Indenture, it will direct the payment of Costs of Issuance and that, pursuant to Section 5.07 of the Indenture, it will direct the Investment of funds held by the Trustee, and acknowledges the matters set forth in Section

5.07 of the Indenture.
121
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ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; ABATEMENT OF

LEASE PAYMENTS
Section 6.1. Application of Net Proceeds.
(a) From Insurance Award. The Net Proceeds of any insurance award resulting from any damage to or destruction of the Property by fire or other casualty shall be paid by the City to the Trustee and shall be deposited in the Insurance and Condemnation Fund by the Trustee and applied as set forth in Section 5.06 of the Indenture. (b) From Eminent Domain Award. If the Property or any portion thereof shall be taken permanently or temporarily under the power of eminent domain or sold to a government threatening to exercise the power of eminent domain, the Net Proceeds resulting therefrom shall be deposited in the Insurance and Condemnation Fund and applied as set forth in Section 5.06 of the Indenture.
(c) From Title Insurance Award. The Net Proceeds of any title insurance award shall be paid to the Trustee, deposited in the Insurance and Condemnation Fund and applied as set forth in Section 5.06 of the Indenture.

Section 6.2. Abatement of Lease Payments.
(a) Abatement Due to Damage or Destruction of the Property. The Lease Payments shall be abated during any period in which by reason of damage to or destruction of the Property (other than by eminent domain which is hereinafter provided for) there is substantial interference with the use and occupancy by the City of the Property or any portion thereof.

The amount of such abatement shall be an amount agreed upon by the City and the Authority such that the resulting Lease Payments represent fair consideration for the use and occupancy of the portions of the Property not damaged or destroyed and available for use and possession by the City. 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 or the date when the remaining portion of the Property is available for use and possession by the City. 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 or destruction. There shall be no abatement of the Lease Payments to the extent that moneys derived from any person as a result of such damage or destruction are available to pay the amount which would otherwise be abated or if there is any money available in the Revenue Fund to pay the amount which would otherwise be abated.
(b) Abatement Due to Eminent Domain. If all of the Property shall be taken permanently under the power of eminent domain or sold to a government threatening to exercise the power of eminent domain, the Term of the Lease Agreement shall cease with respect to the Property 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, (i) 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 (ii) there shall be a partial abatement of Lease Payments in an amount to be agreed upon by the City and the Authority such that the resulting Lease 122
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Payments for the Property represent fair consideration for the use and occupancy of the remaining usable portion of the Property.
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ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS
Section 7.1. Disclaimer of Warranties. THE AUTHORITY MAKES NO 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 OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROPERTY. IN

NO EVENT SHALL THE AUTHORITY AND ITS ASSIGNS BE LIABLE FOR INCIDENTAL,

INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR

ARISING OUT OF THE SITE AND FACILITY LEASE, THIS LEASE AGREEMENT OR THE INDENTURE FOR THE EXISTENCE, FURNISHING, FUNCTIONING OR THE CITY’S USE OF THE PROPERTY.

Section 7.2. Rights of Access. The City agrees that the Authority and any Authorized Representative of the Authority, and the Authority’s successors or assigns, shall have the right at all reasonable times to enter upon and to examine and inspect the Property. The City further agrees that the Authority, any Authorized Representative of the Authority, and the Authority’s successors or assigns, shall have such rights of access to the Property as may be reasonably necessary to cause the proper maintenance of the Property in the event of failure by the City to perform its obligations hereunder; provided, however, that the Authority’s assigns shall not be required to cause such proper maintenance.

Section 7.3. Non-Liability of the Authority. The Authority shall not be obligated to pay the principal of or interest on the Bonds, except from Revenues and other moneys and assets received by the Trustee pursuant to this Lease Agreement. Neither the faith and credit nor the taxing power of the State or any political subdivision thereof, nor the faith and credit of the Authority or any member of the Authority is pledged to the payment of the principal or interest on the Bonds. Neither the Authority nor its members, Board members, officers, agents or employees or their successors and assigns shall be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under, by reason of or in connection with this Lease Agreement, the Bonds or the Indenture, except only to the extent amounts are received for the payment thereof from the City under this Lease Agreement.

The City hereby acknowledges that the Authority’s sole source of moneys to repay the Bonds will be payments made by the City to the Trustee pursuant to this Lease Agreement, together with investment income on certain funds and accounts held by the Trustee under the Indenture, and hereby agrees that if the payments to be made hereunder shall ever prove insufficient to pay all principal and interest on the Bonds as the same shall become due (whether by maturity, redemption, acceleration or otherwise), then upon notice from the Trustee, the City shall pay such amounts as are required from time to time to prevent any deficiency or default in the payment of such principal or interest, including, but not limited to, any deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Trustee, the City, the Authority or any third party, subject to any right of reimbursement from the Authority or any such third party, as the case may be, therefor but solely, in the case of the Authority, from the Revenues. 124
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Section 7.4. Expenses. The City shall pay and indemnify the Authority and the Trustee against all reasonable fees, costs and charges, including reasonable fees and expenses of attorneys, accountants, consultants and other experts, incurred in good faith (and with respect to the Trustee, without negligence or willful misconduct) and arising out of or in connection with the Site and Facility Lease, this Lease Agreement, the Indenture and the Bonds. These obligations and those in Section 7.5 shall remain valid and in effect notwithstanding payment of the Lease Payments or the Bonds or termination of this Lease Agreement or the Indenture.

Section 7.5. Indemnification.
(a) To the fullest extent permitted by law, the City agrees to indemnify, hold harmless and defend the Authority, the Trustee, and each of their respective past, present and future officers, members, Board members, officials, officers, directors, employees, attorneys and agents (collectively, the “Indemnified Parties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:
(i) the Bonds, the Indenture, the Site and Facility Lease or this Lease Agreement, or the execution or amendment hereof or thereof or in connection with transactions contemplated hereby or thereby, including the issuance, sale or resale of the Bonds;
(ii) any act or omission of the City or any of its agents, contractors, servants, employees, tenants) or licensees in connection with the Property, the operation of the Property, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation or construction of, the Property or any part thereof;
(iii) any lien or charge upon payments by the City to the Authority and the Trustee hereunder, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the Authority or the Trustee in respect of any portion of the Property; (iv) any violation of any environmental laws or regulations with respect to, or the release of any hazardous substances from, the Property or any part thereof; (v) the defeasance and/or redemption, in whole or in part, of the Bonds; (vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering statement or disclosure or continuing disclosure document for the Bonds or any of the documents relating to the Bonds, or any omission or alleged omission from any offering statement or disclosure or continuing disclosure document for the Bonds of any material fact necessary to be stated therein in order to make the statements made 125
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therein, in the light of the circumstances under which they were made, not misleading; or
(vii) the Trustee’s acceptance or administration of the trust of the Indenture, or the exercise or performance of any of its powers or duties thereunder or under any of the documents relating to the Bonds to which it is a party; except (A) in the case of the foregoing indemnification of the Trustee or any of its respective officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the negligence or willful misconduct of such Indemnified Party; or (B) in the case of the foregoing indemnification of the Authority or any of its officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the willful misconduct of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the City, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the City shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the City if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel.
(b) The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses shall survive the final payment or defeasance of the Bonds and in the case of the Trustee any resignation or removal. The provisions of this Section 7.5 shall survive the termination of this Lease Agreement.

Section 7.6. Waiver of Personal Liability. No member, Board member, officer, agent or employee of the Authority or any officer, agent or employee of the City shall be individually or personally liable for the payment of any principal of or interest on the Bonds or any other sum hereunder or be subject to any personal liability or accountability by reason of the execution and delivery of this Lease Agreement, but nothing herein contained shall relieve any such member, Board member, officer, agent or employee from the performance of any official duty provided by law or by this Lease Agreement. 126
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ARTICLE VIII

ASSIGNMENT, LEASING AND AMENDMENT
Section 8.1. Assignment by the Authority. Certain rights of the Authority under this Lease Agreement, including the right to receive and enforce payment of the Lease Payments to be made by the City under this Lease Agreement, have been pledged and assigned to the Trustee for the benefit of the Owners of the Bonds pursuant to the Indenture, to which pledge and assignment the City hereby consents. The assignment of this Agreement to the Trustee is solely in its capacity as Trustee under the Indenture and the duties, powers and liabilities of the Trustee in acting hereunder shall be subject to the provisions of the Indenture, including, without limitation, the provisions of Article VIII thereof.

Section 8.2. Assignment and Subleasing by the City. This Lease Agreement may not be assigned by the City. The City may sublease the Property or any portion thereof, subject to, and delivery to the Authority and the Trustee of a certificate as to, all of the following conditions:
(a) This Lease Agreement and the obligation of the City to make Lease Payments hereunder shall remain obligations of the City;
(b) The City shall, within thirty (30) days after the delivery thereof, furnish or cause to be furnished to the Authority and the Trustee a true and complete copy of such sublease (which the Trustee has no duty or obligation to review or examine and in no event shall be responsible for the contents of such sublease);
(c) No such sublease by the City shall cause the Property to be used for a purpose other than as may be authorized under any applicable provisions of the laws of the State; and
(d) The City shall furnish the Authority and the Trustee with a written opinion of Bond Counsel, stating that such sublease is permitted by this Lease Agreement.

Section 8.3. Amendment of Lease.
(a) Substitution 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 substitute other land (a “Substitute Site”) for the Site (the “Former Site”), or a portion thereof, provided that the City shall satisfy all of the following requirements which are hereby declared to be conditions precedent to such substitution:
(i) The City shall file with the Authority and the Trustee 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) The City shall file with the Authority and the Trustee 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; 127
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(iii) The City shall certify in writing to the Authority and the Trustee that such Substitute Site serves the purposes of the City, constitutes property that is unencumbered (or the portion of such property to be to substituted is unencumbered), subject to Permitted Encumbrances, and constitutes property which the City is permitted to lease under the laws of the State; (iv) The City delivers to the Trustee and the Authority evidence (which may be an officer’s certificate of the City) that the Substitute Site (or the portions to be to substitute) is of equal or greater value than the Site (or the portions thereof) to be to substitute;
(v) The City shall certify the Substitute Site shall not cause the City to violate any of its covenants, representations and warranties made herein; (vi) The City shall obtain an amendment to the title insurance policy required pursuant to Section 5.6 hereof which adds thereto a description of the Substitute Site and deletes therefrom the description of the Former Site; (vii) The City shall certify that the Substitute Site is of the same or greater essentiality to the City as was the Former Site;
(viii) The City shall certify that the Substitute Site has a useful life equal to or longer than the remaining term of the Bonds; and
(ix) The City shall provide notice of such substitution to any rating agency then rating the Bonds.
(b) Substitution of 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 a substitute facility or substitute facilities (a “Substitute Facility”) for the Facility (the “Former Facility”), or a portion thereof, provided that the City shall satisfy all of the following requirements which are hereby declared to be conditions precedent to such substitution:
(i) The City shall file with the Authority and the Trustee 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, if applicable; (ii) The City shall file with the Authority and the Trustee 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; (iii) The City shall certify in writing to the Authority and the Trustee that such Substitute Facility serves the purposes of the City, constitutes property that is unencumbered (or the portion of such property to be to substituted is unencumbered), subject to Permitted Encumbrances, and constitutes property which the City is permitted to lease under the laws of the State; (iv) The City delivers to the Trustee and the Authority evidence (which may be an officer’s certificate of the City) that the Substitute Facility (or the portions to be to substitute) is of equal or greater value than the property (or the portions thereof) to be to substitute;
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(v) The City shall certify the Substitute Facility shall not cause the City to violate any of its covenants, representations and warranties made herein; (vi) The City shall certify that the Substitute Facility is of the same or greater essentiality to the City as was the Former Facility;
(vii) The City shall certify that the Substitute Facility has a useful life equal to or longer than the remaining term of the Bonds; and
(viii) The City shall provide notice of such substitution to any rating agency then rating the Bonds.
(c) 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, 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 Authority and the Trustee an amended Exhibit A to the Site and Facility Lease which describes the Site, as revised by such release; (ii) The City shall file with the Authority and the Trustee an amended Exhibit A to this Lease Agreement which describes the Site, as revised by such release; (iii) The City delivers to the Trustee and the Authority evidence (which may be an officer’s certificate of the City) that the Site, as revised by such release, including the value of the Facility (other than any portion thereof, or the Site or any portion thereof to be released), has a value at least equal to the principal amount of the Bonds then outstanding;
(iv) The City shall obtain an amendment to the title insurance policy required pursuant to Section 5.6 hereof which describes the Site, as revised by such release; and
(v) The City shall provide notice of such release to any rating agency then rating the Bonds.
(d) Release of 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 release any portion of the Facility 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 Authority and the Trustee an amended Exhibit B to the Site and Facility Lease which describes the Facility, as revised by such release;
(ii) The City shall file with the Authority and the Trustee an amended Exhibit B to this Lease Agreement which describes the Facility, as revised by such release; (iii) The City delivers to the Trustee and the Authority evidence (which may be an officer’s certificate of the City) that the Facility, as revised by such release, 129
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together with the Site (that remains subject to this Lease Agreement), has a total value at least equal to the principal amount of the Bonds then outstanding; and (iv) The City shall provide notice of such release to any rating agency then rating the Bonds.
(e) Generally. The Authority and the City may at any time amend or modify any of the provisions of this Lease Agreement, subject to Section 6.09 of the Indenture, but only (a) with the prior written consents of the Owners of a majority in aggregate principal amount of the Outstanding Bonds, or (b) without the consent of any of the Bond Owners, but only if such amendment or modification is for any one or more of the following purposes:
(i) to add to the covenants and agreements of the City contained in this Lease Agreement, other covenants and agreements thereafter to be observed, or to limit or surrender any rights or power herein reserved to or conferred upon the City; (ii) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein, or in any other respect whatsoever as the Authority and the City may deem necessary or desirable, provided that, in the opinion of Bond Counsel, such modifications or amendments will not materially adversely affect the interests of the Owners of the Bonds; or
(iii) to amend any provision thereof relating to the Code, to any extent whatsoever but only if and to the extent such amendment will not adversely affect the exclusion from gross income of the Owners of the Bonds of interest on the Bonds under the Code, in the opinion of Bond Counsel.
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ARTICLE IX
EVENTS OF DEFAULT; REMEDIES
Section 9.1. Events of Default Defined. The following shall be “Events of Default” under this Lease Agreement:
(a) Failure by the City to pay any Lease Payment required to be paid hereunder at the time specified herein.
(b) Failure by the City to make any Additional Payment required hereunder and the continuation of such failure for a period of thirty (30) days after notice thereof is given to the City by the Trustee.
(c) Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in the preceding clauses (a) or (b), for a period of sixty (60) days after written notice specifying such failure and requesting that it be remedied has been given to the City by the Authority or the Trustee; provided, however, that if in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such sixty (60) day period, such failure shall not constitute an Event of Default if the City shall commence to cure such failure within such sixty (60) day period and thereafter diligently and in good faith shall cure such failure in a reasonable period of time which shall last no longer than 120 days after the original written notice.
(d) 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 applicable federal bankruptcy law, or under any similar acts which may hereafter be enacted.

Section 9.2. Remedies on Default. Whenever any Event of Default referred to in Section 9.1 shall have happened and be continuing, it shall be lawful for the Authority to exercise any and all remedies available pursuant to law or granted pursuant to this Lease Agreement; provided, however, that notwithstanding anything to the contrary herein or in the Indenture, 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 or to terminate this Lease Agreement or to cause the fee interest of the City in the Property to be sold, assigned or otherwise alienated. 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 of entry and re-entry upon the Property. The City hereby irrevocably consents to the Authority’s repossession of the Property if such an Event of Default shall occur and consents to the Authority’s re-letting of the Property for the account of the City. In the event of such default and notwithstanding any re-entry by the Authority, the City shall, as herein expressly provided, continue to remain liable for the payment of the Lease Payments and/or damages for breach of this Lease Agreement and the performance of all conditions herein contained and, in any event, 131
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such rent and/or damages shall be payable to the Authority at the time and in the manner as herein provided, to wit:
(a) The City agrees to and shall remain liable for the payment of all Lease 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, in the event the Authority is unable to re-lease the Property, then for the full amount of all Lease Payments to the end of the Term of the Lease Agreement, but said Lease 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 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.
(b) The City hereby irrevocably appoints the Authority as the agent and attorney-infact of the City to enter upon and re-lease the Property in the event of default by the City in the performance of any covenants herein contained to be performed by the City 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 releasing 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. (c) The City hereby waives any and all claims for damages caused or which may be caused by the Authority in re-entering and taking possession of the Property as herein provided and all claims for damages that may result from the destruction of or injury to the Property and all claims for damages to or loss of any property belonging to the City that may be in or upon the Property.
(d) 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 reentry without effecting a surrender of this Lease Agreement, and further agrees that no acts of the Authority in effecting such re-leasing 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.

Section 9.3. Limitation on Remedies. Notwithstanding the foregoing provisions of Section 9.2, neither the Authority nor the Trustee shall exercise any remedies against the Property to the extent such remedies would generate funds which are not available to satisfy the obligations of this Lease Agreement or the Indenture.

Section 9.4. 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, except as herein expressly provided to the contrary, 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 any 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 IX it shall 132
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not be necessary to give any notice, other than such notice as may be required in this Article IX or by law.

Section 9.5. Agreement to Pay Attorneys’ Fees and Expenses. In the event either party to this Lease Agreement should default under any of the provisions hereof and the nondefaulting party should employ attorneys or incur other expenses for the collection of moneys or the enforcement or performance or observance of any obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that it will on demand therefor pay to the non-defaulting party the reasonable fees of such attorneys and such other expenses so incurred by the non-defaulting party.

Section 9.6. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Lease Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder.

Section 9.7. Trustee and Bond Owners to Exercise Rights. Such rights and remedies as are given to the Authority under this Article IX have been assigned by the Authority to the Trustee under the Indenture, to which assignment the City hereby consents. Such rights and remedies may be exercised by the Trustee and the Owners of the Bonds as provided in the Indenture. The Trustee shall be considered a third-party beneficiary of this Lease Agreement for enforcing its rights under this Lease Agreement.
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ARTICLE X

MISCELLANEOUS
Section 10.1. Notices. All written notices to be given 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 at such address as the party may provide to the other party in writing from time to time. Notice shall be effective either (a) upon transmission by facsimile transmission or other form of telecommunication, confirmed by phone, (b) upon receipt after deposit in the United States mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt.

To the Authority: Brisbane/Guadalupe Valley Municipal
Improvement District Financing Authority
c/o City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Executive Director
If to the City: City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: City manager
If to the Trustee: The Bank of New York Mellon Trust Company, N.A. 333 South Hope Street, Suite 2525
Los Angeles, CA 90071
Attention: Corporate Trust Department
The Authority, the City or the Trustee 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.

Section 10.2. Binding Effect. This Lease Agreement shall inure to the benefit of and shall be binding upon the Authority and the City and their respective successors and assigns.

Section 10.3. Severability. In the event any provision of this Lease Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.

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

Section 10.5. 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 134
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description of the Property hereby leased or intended so to be or for carrying out the expressed intention of this Lease Agreement.

Section 10.6. Execution in Counterparts. This Lease 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.

Section 10.7. Governing Law. This Lease Agreement is a contract made under the laws of the State and shall be governed by and construed in accordance with the Constitution and laws applicable to contracts made and performed in the State.

Section 10.8. Authorized Representatives. Whenever under the provisions of this Lease Agreement the approval of the Authority or the City is required, or the Authority or the City is required to take some action at the request of the other, such approval or such request shall be given for the Authority by an Authorized Representative of the Authority and for the City by an Authorized Representative of the City, and any party hereto shall be authorized to rely upon any such approval or request.

Section 10.9. Waiver of Personal Liability. All liabilities under this Lease Agreement on the part of the City are solely liabilities of the City and the Authority hereby releases each and every Council member, director, officer, employee and agent of the City of and from any personal or individual liability under this Lease Agreement. No Council member, director, officer, employee or agent of the City shall at any time or under any circumstances be individually or personally liable under this Lease Agreement for anything done or omitted to be done by the City hereunder.

Section 10.10. Limitation of Rights to Parties and Bond Owners. Nothing in this Lease Agreement expressed or implied is intended or shall be construed to give to any person other than the Authority, the Trustee, the City and the Owners of the Bonds any legal or equitable right, remedy or claim under or in respect of this Lease Agreement or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Authority, the Trustee, the City and the Owners of the Bonds.

Section 10.11. 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 has caused this Lease Agreement to be executed in its name by its duly Authorized Representative; and the City has caused this Lease Agreement to be executed in its name by its duly authorized officer, 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

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 A:

Containing 1.44 acres more or less.

Parcel A-1:

A right of way for ingress and egress purposes over a strip of land lying Northerly and adjacent to the above described Parcel A as follows:

Containing 0.35 acres, more or less.

APN: 005-166-020
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Exhibit A

Page 2 ends

Beginning at the Southeasterly corner of said Lands of the Brisbane Elementary School District:

Exhibit A

Page 3 ends

Containing 1.264 Acres, more or less.

APN: 007-272-020
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Exhibit B

EXHIBIT B

Exhibit C

Page 1 ends

EXHIBIT C

SCHEDULE OF LEASE PAYMENTS
Lease Total
Payment Principal Interest Lease
Date Component Component Payment
10/15/23
4/15/24
10/15/24
4/15/25
10/15/25
4/15/26
10/15/26
4/15/27
10/15/27
4/15/28
10/15/28
4/15/29
10/15/29
4/15/30
10/15/30
4/15/31
10/15/31
4/15/32
10/15/32
4/15/33
10/15/33
4/15/34
10/15/34
4/15/35
10/15/35
4/15/36
10/15/36
4/15/37
10/15/37
4/15/38
10/15/38
4/15/39
10/15/39
4/15/40
10/15/40
4/15/41
10/15/41
4/15/42
10/15/42
4/15/43
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Quint & Thimmig LLP 03/28/23
05/13/23
02036.04

INDENTURE OF TRUST
Dated as of June 1, 2023
by and between the

BRISBANE/GUADALUPE VALLEY MUNICIPAL

IMPROVEMENT DISTRICT FINANCING AUTHORITY
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Relating to:
$________
Brisbane/Guadalupe Valley Municipal
Improvement District Financing Authority
Lease Revenue Bonds, Series 2023
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-iTABLE OF CONTENTS
Page

ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.01. Definitions ................................................................................................................................................................. 3 Section 1.02. Rules of Construction ............................................................................................................................................. 11 Section 1.03. Authorization and Purpose of Bonds .................................................................................................................. 11 Section 1.04. Equal Security ......................................................................................................................................................... 11

ARTICLE II

ISSUANCE OF BONDS
Section 2.01. Authorization of Bonds ......................................................................................................................................... 13 Section 2.02. Terms of the Bonds ................................................................................................................................................. 13 Section 2.03. Transfer and Exchange of Bonds .......................................................................................................................... 14 Section 2.04. Book-Entry System ................................................................................................................................................. 14 Section 2.05. Registration Books .................................................................................................................................................. 16 Section 2.06. Form and Execution of Bonds ............................................................................................................................... 16 Section 2.07. Temporary Bonds ................................................................................................................................................... 16 Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen ....................................................................................................... 17 Section 2.09. CUSIP Numbers ...................................................................................................................................................... 17

ARTICLE III

APPLICATION OF PROCEEDS
Section 3.01. Application of Proceeds of Sale of Bonds ........................................................................................................... 18 Section 3.02. Establishment and Application of Costs of Issuance Fund .............................................................................. 18 Section 3.03. Project Fund ............................................................................................................................................................. 18 Section 3.04. Validity of Bonds .................................................................................................................................................... 19

ARTICLE IV

REDEMPTION OF BONDS
Section 4.01. Terms of Redemption ............................................................................................................................................. 20 Section 4.02. Selection of Bonds for Redemption ...................................................................................................................... 21 Section 4.03. Notice of Redemption ............................................................................................................................................ 21 Section 4.04. Partial Redemption of Bonds ................................................................................................................................ 22 Section 4.05. Effect of Redemption .............................................................................................................................................. 22 Section 4.06. Purchase of Bonds .................................................................................................................................................. 22

ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF PRINCIPAL AND INTEREST Section 5.01. Pledge and Assignment; Revenue Fund ............................................................................................................. 23 Section 5.02. Allocation of Revenues .......................................................................................................................................... 23 Section 5.03. Application of Interest Account ........................................................................................................................... 24 Section 5.04. Application of Principal Account ......................................................................................................................... 24 Section 5.05. Application of Redemption Fund ........................................................................................................................ 24 Section 5.06. Insurance and Condemnation Fund .................................................................................................................... 24 Section 5.07. Investments ............................................................................................................................................................. 25

ARTICLE VI

PARTICULAR COVENANTS
Section 6.01. Punctual Payment ................................................................................................................................................... 27 Section 6.02. Extension of Payment of Bonds ............................................................................................................................ 27 Section 6.03. Against Encumbrances .......................................................................................................................................... 27 Section 6.04. Power to Issue Bonds and Make Pledge and Assignment ............................................................................... 27 Section 6.05. Accounting Records ............................................................................................................................................... 27 Section 6.06. No Additional Obligations .................................................................................................................................... 28 Section 6.07. Collection of Amounts Due Under Lease Agreement ...................................................................................... 29 Section 6.08. Continuing Disclosure ........................................................................................................................................... 30 143
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-iiSection 6.09. Waiver of Laws ....................................................................................................................................................... 30 Section 6.10. Further Assurances ................................................................................................................................................. 30

ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default .................................................................................................................................................... 31 Section 7.02. Remedies Upon Event of Default ......................................................................................................................... 31 Section 7.03. Application of Revenues and Other Funds After Default ................................................................................ 32 Section 7.04. Trustee to Represent Bond Owners ..................................................................................................................... 33 Section 7.05. Bond Owners’ Direction of Proceedings ............................................................................................................. 33 Section 7.06. Limitation on Bond Owners’ Right to Sue .......................................................................................................... 33 Section 7.07. Absolute Obligation of Authority ........................................................................................................................ 34 Section 7.08. Termination of Proceedings .................................................................................................................................. 34 Section 7.09. Remedies Not Exclusive ........................................................................................................................................ 34 Section 7.10. No Waiver of Default ............................................................................................................................................. 34 Section 7.11. Parties Interested Herein ....................................................................................................................................... 35

ARTICLE VIII

THE TRUSTEE
Section 8.01. Duties, Immunities and Liabilities of Trustee .................................................................................................... 36 Section 8.02. Merger or Consolidation ....................................................................................................................................... 37 Section 8.03. Liability of Trustee ................................................................................................................................................. 37 Section 8.04. Right to Rely on Documents ................................................................................................................................. 40 Section 8.05. Preservation and Inspection of Documents ........................................................................................................ 40 Section 8.06. Compensation and Indemnification .................................................................................................................... 41

ARTICLE IX

MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 9.01. Amendments Permitted ........................................................................................................................................ 42 Section 9.02. Effect of Supplemental Indenture ........................................................................................................................ 43 Section 9.03. Endorsement of Bonds; Preparation of New Bonds .......................................................................................... 43 Section 9.04. Amendment of Particular Bonds .......................................................................................................................... 43

ARTICLE X

DEFEASANCE
Section 10.01. Discharge of Indenture ........................................................................................................................................ 44 Section 10.02. Discharge of Liability on Bonds ......................................................................................................................... 44 Section 10.03. Deposit of Money or Securities with Trustee ................................................................................................... 44 Section 10.04. Unclaimed Funds .................................................................................................................................................. 45

ARTICLE XI

MISCELLANEOUS
Section 11.01. Liability of Authority Limited to Revenues ...................................................................................................... 46 Section 11.02. Limitation of Rights to Parties and Bond Owners ........................................................................................... 46 Section 11.03. Funds and Accounts ............................................................................................................................................. 46 Section 11.04. Waiver of Notice; Requirement of Mailed Notice ........................................................................................... 46 Section 11.05. Destruction of Bonds ............................................................................................................................................ 47 Section 11.06. Severability of Invalid Provisions ...................................................................................................................... 47 Section 11.07. Notices .................................................................................................................................................................... 47 Section 11.08. Evidence of Rights of Bond Owners .................................................................................................................. 47 Section 11.09. Disqualified Bonds ............................................................................................................................................... 48 Section 11.10. Money Held for Particular Bonds ...................................................................................................................... 48 Section 11.11. Waiver of Personal Liability ................................................................................................................................ 48 Section 11.12. Successor Is Deemed Included in All References to Predecessor .................................................................. 49 Section 11.13. Execution in Several Counterparts .................................................................................................................... 49 Section 11.14. Governing Law ..................................................................................................................................................... 49

EXHIBIT A FORM OF BOND
EXHIBIT B DESCRIPTION OF THE 2023 PROJECT
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INDENTURE OF TRUST
THIS INDENTURE OF TRUST (this “Indenture”), dated as of June 1, 2023, is by and between the BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY, a joint exercise of powers entity organized and existing under and by virtue of the laws of the State of California (the “Authority”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,, a national banking association organized and existing under and by virtue of the laws of the United States of America with a corporate trust office in Los Angeles, California, and being qualified to accept and administer the trusts hereby created, as trustee (the “Trustee”).

RECITALS:

WHEREAS, the Authority is a joint exercise of powers entity duly organized pursuant to the provisions of the Joint Exercise of Powers Act, comprising Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 (commencing with section 6500) of the California Government Code (the “Act”), and a joint exercise of powers agreement, dated September 18, 20214, as amended on October 2, 2014 (the “Joint Powers Agreement”), by and between the City of Brisbane, California (the “City”), and the Guadalupe Valley Municipal Improvement District (the “District”);
WHEREAS, the Authority is authorized by the Joint Powers Agreement to issue bonds, notes or other evidences of indebtedness for purposes permitted by the Act and described in the Joint Powers Agreement;
WHEREAS, pursuant to the provisions of the Act, the City and the District are authorized to jointly exercise any power common to such contracting parties, including, without limitation, the power to acquire and dispose of property, both real and personal; WHEREAS, the City wishes to finance the costs of tenant improvements to, and related equipment and furnishings for, a building at 25 Park Place leased by the City (the “2023 Project”);
WHEREAS, for such purposes, the Authority has determined to issue its Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023, in the aggregate principal amount of $_________ (the “Bonds”); WHEREAS, the Bonds will be issued under the provisions of Article 4 (commencing with section 6584) of the Act (the “Bond Law”) and this Indenture; WHEREAS, in order to provide for the repayment of the Bonds, the Authority will lease certain real property and improvements (the “Property”) to the City pursuant to a lease agreement, dated as of June 1, 2023 (the “Lease Agreement”), under which the City will agree to make lease payments to the Authority from moneys in its General Fund and the City will budget and appropriate sufficient amounts in each year to pay the full amount of principal of and interest on the Bonds;
WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and to secure the payment of the principal thereof, premium, if any, and interest thereon, the Authority has authorized the execution and delivery of this Indenture; and 145
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WHEREAS, all acts and proceedings required by law necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal limited obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of the Indenture have been in all respects duly authorized.

AGREEMENT :

NOW, THEREFORE, in order to secure the payment of the Bonds at any time issued and Outstanding under this Indenture according to their terms, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and delivered, and in consideration of the premises and of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners thereof, and for other consideration the receipt and sufficiency of which is hereby acknowledged, the Authority does covenant and agree with the Trustee, for the benefit of the respective Owners from time to time of the Bonds, as follows:
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ARTICLE I
DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS;

EQUAL SECURITY
Section 1.01. Definitions. Unless the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture, of any Supplemental Indenture, of the Lease Agreement, of the Bonds and of any certificate, opinion, request or other documents herein mentioned, have the meanings herein specified.
“Acquisition and Construction” means, with respect to any portion of the 2023 Project, the acquisition, construction, improvement, equipping, renovation, remodeling or reconstruction thereof, including reimbursement relating thereto.
“Act” means the Joint Exercise of Powers Act, comprising Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 (commencing with section 6500) of the Government Code of the State.
“Additional Payments” means the payments so designated and required to be paid by the City pursuant to the Lease Agreement.
“Authority” means the Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority, or its successors and assigns, a joint exercise of powers entity created pursuant to the Joint Powers Agreement.
“Authorized Representative” means: (a) with respect to the Authority, any member of the Board, the Executive Director of the Authority, the Treasurer/Auditor of the Authority, or any other person designated as an Authorized Representative of the Authority by a Written Certificate of the Authority signed by a member of the Board, such Executive Director or such Treasurer/Auditor and filed with the City and the Trustee; and (b) with respect to the City, its City Manager, Director of Financial Management, City Treasurer or City Clerk, or any other person designated as an Authorized Representative of the City by a Written Certificate of the City signed by an Authorized Representative of the City and filed with the Authority and the Trustee.
“Board” means the Board of Directors of the Authority.
“Bond Counsel” means (a) Quint & Thimmig LLP, or (b) any other attorney or firm of attorneys appointed by or acceptable to the Authority of nationally recognized experience in the issuance of obligations of governmental entities.
“Bond Law” means Article 4 (commencing with section 6584) of the Act. “Bond Year” means each twelve-month period extending from May 2 in one calendar year to May 1 of the succeeding calendar year, both dates inclusive; provided that the first Bond Year with respect to the Bonds shall commence on the Closing Date and end on May 1, 2024. “Bonds” means the $________ aggregate principal amount of Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023, authorized by and at any time Outstanding pursuant to this Indenture. 147
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“Business Day” means a day (other than a Saturday or a Sunday) on which banks are not required or authorized to remain closed in the city in which the Office of the Trustee is located and on which the Federal Reserve is open.
“City” means the City of Brisbane, California, a municipal corporation and chartered city organized and existing under and by virtue of its charter and the laws of the State. “Closing Date” means June 29, 2023, being the date of delivery of the Bonds to the Original Purchaser.
“Code” means the Internal Revenue Code of 1986 as in effect on the Closing Date or (except as otherwise referenced herein) as it may be amended to apply to obligations issued on the Closing Date, together with applicable proposed, temporary and final regulations promulgated, and applicable official public guidance published, thereunder. “Completion Date” means, with respect to any component of the 2023 Project, the date on which the Authority files a Written Certificate with the City and the Trustee stating that the Acquisition and Construction of such component of the 2023 Project has been completed pursuant to Article III.
“Continuing Disclosure Certificate” means that certain Continuing Disclosure Certificate executed by the City and dated the Closing Date, as originally executed and as it may be amended from time to time in accordance with the terms thereof. “Costs of Issuance” means all expenses incurred in connection with the authorization, issuance, sale and delivery of the Bonds, including but not limited to all compensation, fees and expenses (including but not limited to fees and expenses for legal counsel) of the Authority or the City relating thereto, initial fees and expenses of the Trustee (including but not limited to fees and expenses for its legal counsel), compensation to any municipal advisor or Underwriter, legal fees and expenses, filing and recording costs, rating agency fees, costs of preparation and reproduction of documents, out-of-pocket expenses of the Authority or the City, Authority and City staff costs and costs of printing.
“Costs of Issuance Fund” means the fund by that name established and held by the Trustee pursuant to Section 3.02.
“Debt Service” means, during any period of computation, the amount obtained for such period by totaling the following amounts: (a) the principal amount of all Outstanding Bonds coming due and payable by their terms in such period; and (b) the interest which would be due during such period on the aggregate principal amount of Bonds which would be Outstanding in such period if the Bonds are retired as scheduled, but deducting and excluding from such aggregate amount the amount of Bonds no longer Outstanding. “Defeasance Obligations” means (a) cash; and (b) obligations of, or obligations fully and unconditionally guaranteed as to the timely payment of principal and interest by, the United States or any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States, including: (i) United States treasury obligations; (ii) all direct or fully guaranteed obligations; (iii) certificates of beneficial ownership of the Farmers Home Administration; (iv) participation certificates of the General Services Administration; (v) guaranteed Title XI Financings of the U.S. Maritime Administration; (vi) Government National Mortgage Association obligations; and (vii) State and Local Government Series. 148
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“District” means the Guadalupe Valley Municipal Improvement District. “Event of Default,” with respect to this Indenture, means any of the events specified in Section 7.01 and, with respect to the Lease Agreement, means any of the events specified in Section 9.1 of the Lease Agreement.
“Facility” means, collectively, those existing facilities located on the Site, more particularly described in Exhibit B to the Site and Facility Lease and in Exhibit B to the Lease Agreement.
“Fair Market Value” means the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, arm’s length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of section 1273 of the Code) and, otherwise, the term “Fair Market Value” means the acquisition price in a bona fide arm’s length transaction (as referenced above) if (a) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, or (c) the investment is a United States Treasury Security—State and Local Government Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt.
“Federal Securities” means: (a) any direct general 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), the timely payment of principal of and interest on which are unconditionally and fully guaranteed by the United States of America; (b) obligations of any agency or department of the United States of America which represent the full faith and credit of the United States of America or the timely payment of the principal of and interest on which are secured or guaranteed by the full faith and credit of the United States of America; and (c) any obligations issued by the State of California or any political subdivision thereof the payment of and interest and premium (if any) on which are fully secured by Federal Securities described in the preceding clauses (a) or (b), as verified by an independent certified public accountant, and rated by a Nationally Recognized Statistical Rating Organization at its then stated rating for direct general obligations of the United States of America.
“Fiscal Year” means any twelve-month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve-month period selected and designated by the Authority or the City, as applicable, as its official fiscal year period.
“Indenture” means this Indenture of Trust, as originally executed or as it may from time to time be supplemented, modified or amended by any Supplemental Indenture pursuant to the provisions hereof.
“Independent Accountant” means any certified public accountant or firm of certified public accountants appointed and paid by the Authority or the City, and who, or each of whom (a) is in fact independent and not under domination of the Authority or the City; (b) does not have any substantial interest, direct or indirect, in the Authority or the City; and (c) is not connected with the Authority or the City as an officer or employee of the Authority or the City 149
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but who may be regularly retained to make annual or other audits of the books of or reports to the Authority or the City.
“Information Services” means the Electronic Municipal Market Access System (referred to as “EMMA”), a facility of the Municipal Securities Rulemaking Board (at http://emma.msrb.org) and, in accordance with then current guidelines of the Securities and Exchange Commission, such other organizations providing information with respect to the redemption of bonds as the Authority may designate in a Written Certificate of the Authority delivered to the Trustee.
“Insurance and Condemnation Fund” means the fund by that name established and held by the Trustee pursuant to Section 5.06.
“Interest Account” means the account by that name established in the Revenue Fund pursuant to Section 5.02.
“Interest Payment Date” means each May 1 and November 1, commencing November 1, 2023.
“Joint Powers Agreement” means the Joint Exercise of Powers Agreement, dated September 18, 20214, as amended on October 2, 2014, between the City and the District, as originally executed and as it may thereafter be amended or supplemented in accordance with its terms.
“Lease Agreement” means that certain Lease Agreement, dated as of June 1, 2023, by and between the Authority and the City, as originally executed and as it may from time to time be supplemented, modified or amended in accordance with the terms thereof and of this Indenture.
“Lease Payment Date” means, with respect to any Interest Payment Date, commencing with the November 1, 2023, Interest Payment Date, the fifteenth (15th) calendar day of the month preceding such Interest Payment Date.
“Lease Payments” means the payments required to be paid by the City pursuant to Section 4.3 of the Lease Agreement, such payments constituting the portion of Revenues applied to the payment of debt service on the Bonds.
“Nationally Recognized Statistical Rating Organization” means a credit rating agency that issues credit ratings that the U.S. Securities and Exchange Commission permits financial firms to use for certain regulatory purposes.
“Net Proceeds” means amounts derived by the City from any policy of casualty insurance with respect to any portion of the Property, or the proceeds of any taking of the Property or any portion thereof in eminent domain proceedings (including sale under threat of such proceedings), to the extent remaining after payment therefrom of all expenses incurred in the collection and administration thereof.
“Office” means, with respect to the Trustee, the corporate trust office of the Trustee located in Los Angeles, California, except that with respect to presentation of Bonds for payment or for registration of transfer and exchange, such term shall mean the corporate trust operations office or agency of the Trustee.
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“Original Purchaser” means, ___________, the original purchaser of the Bonds upon their delivery by the Trustee on the Closing Date.
“Outstanding,” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 11.09) all Bonds theretofore, or thereupon being, authenticated and delivered by the Trustee under this Indenture except: (a) Bonds theretofore canceled by the Trustee or surrendered to the Trustee for cancellation; (b) Bonds with respect to which all liability of the Authority shall have been discharged in accordance with Section 10.02, including Bonds (or portions thereof) described in Section 11.09; and (c) Bonds for the transfer or exchange of or in lieu of or in substitution for which other Bonds have been authenticated and delivered by the Trustee pursuant to this Indenture. “Owner,” whenever used herein with respect to a Bond, means the person in whose name the ownership of such Bond is registered on the Registration Books. “Participating Underwriter” shall have the meaning ascribed thereto in the Continuing Disclosure Certificate.
“Permitted Encumbrances” means, as of any particular time: (a) liens for general ad valorem taxes and assessments, if any, not then delinquent, or which the City may, pursuant to provisions of Article V of the Lease Agreement, permit to remain unpaid; (b) the Site and Facility Lease; (c) the Lease Agreement; (d) any right or claim of any mechanic, laborer, materialman, supplier or vendor not filed or perfected in the manner prescribed by law; (e) easements, rights-of-way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record as of the Closing Date and which the City certifies in writing will not materially impair the use of the Property; and (f) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions established following the date of recordation of the Lease Agreement and to which the Authority and the City agree in writing do not reduce the value of the Property.
“Permitted Investments” means any of the following which at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein (provided the Trustee may rely upon the Request of the City directing investment under this Indenture as a determination that such investment is a Permitted Investment):
(a) direct obligations of (including obligations issued or held in book entry form on the books of) the Department of the Treasury of the United States of America, fully and unconditionally guaranteed as to timely payment;
(b) debentures of the Federal Housing Administration to the extent such obligations are guaranteed by the full faith and credit of the United States of America; (c) obligations of the following agencies which are not guaranteed by the United States of America: (i) participation certificates or debt obligations of the Federal Home Loan Mortgage Corporation; (ii) consolidated system-wide bonds and notes of the Farm Credit Banks (consisting of Federal Land Banks, Federal Intermediate Credit Banks and Banks for Cooperatives); (iii) consolidated debt obligations or letter of credit-backed issues of the Federal Home Loan Banks; or (iv) mortgage-backed securities (excluding stripped mortgage securities which are valued greater than par on the portion of unpaid principal) or debt obligations of the Federal National Mortgage Association; provided, however, that not more than ten percent (10%) 151
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of the proceeds of the Bonds may, in the aggregate, be invested in any such obligations at one time;
(d) commercial paper of “prime” quality of the highest ranking or of the highest letter and number rating as provided for by a Nationally Recognized Statistical-Rating Organization.

The entity that issues the commercial paper shall meet all of the following conditions in either paragraph (i) or (ii):
(i) The entity meets the following criteria:
• is organized and operating in the United States as a general corporation • has total assets in excess of five hundred million dollars ($500,000,000) • has debt other than commercial paper, if any, that is rated “A” or higher by a Nationally Recognized Statistical-Rating Organization (ii) The entity meets the following criteria:
• is organized within the United States as a special purpose corporation, trust, or limited liability company
• has program-wide credit enhancements including, but not limited to, overcollateralization, letters of credit, or surety bond • has commercial paper that is rated “A-1” or higher, or the equivalent, by two of the Nationally Recognized Statistical-Rating Organizations, and split ratings (i.e. A2/P1) are not allowable, and no more than 10 percent of the outstanding commercial paper of any single corporate issue may be purchased; (e) shares of beneficial interest issued by diversified management companies which invest only in direct obligations of the US Treasury, debt instruments issued by agencies of the Federal government, and repurchase agreements with a weighted average of 60 days or less, and have the highest rating from two Nationally Recognized Statistical-Rating Organizations, and must maintain a daily principal per share value of $1.00 per share and distribute interest monthly, and have a minimum of $500 million in assets under management. The purchase price of the shares may not include commission;
(f) bank deposit products, demand deposits, including interest bearing money market accounts, trust funds, trust accounts, overnight bank deposits, interest-bearing deposits or certificates of deposit, including those placed by a third party pursuant to an agreement between the Trustee and the Authority, including in the case of any such deposit, fund or account of the Trustee or any of its affiliates, rated in one of the top two highest categories from two Nationally Recognized Statistical-Rating Organizations without regard to gradations, or which are fully FDIC-insured;
(g) Investment agreements, guaranteed investment contracts, funding agreements, or any other form of corporate note which represents the unconditional obligation of one or more banks, insurance companies or other financial institutions, or are guaranteed by a financial institution which has an unsecured rating, or which agreement is itself rated, as of the date of execution thereof, in one of the two highest rating categories by a Nationally Recognized Statistical-Rating Organization;
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(h) the Local Agency Investment Fund of the State, created pursuant to Section 16429.1 of the California Government Code, to the extent the Trustee is authorized to register such investment in its name;
(i) Repurchase and reverse repurchase agreements collateralized with securities described in subsections (a) and (c) above, at 102% and 104% respectively, including those of the Trustee or any of its affiliates, so long as such repurchase and/or reverse repurchase agreements have a final maturity date of 365 days or less, and must be marked to market weekly with a two (2) day cure period for any deficiencies, and any failure to deliver such collateral or to cure a deficiency shall require the immediate acceleration and termination of the agreement;
(j) longer dated repurchase agreements with financial institutions, or banks insured by the FDIC, or any broker dealer with “retail customers” which falls under the jurisdiction of the Securities Investors Protection Corporation (SIPC), provided that: (i) the over-collateralization is at 102%, computed weekly, for securities described in subsection (a) and 104% for securities described in subsection (c); (ii) a third party custodian, the Trustee or the Federal Reserve Bank shall have possession of such obligations; (iii) the Trustee shall have perfected a first priority security interest in such obligations; and (iv) failure to maintain the requisite collateral percentage will require the Trustee to liquidate the collateral; (k) Forward delivery or forward purchase agreements with underlying securities of the types outlined in (a), (b), (c) and (d) above;
(l) Tax-exempt obligations of the City, any local agency in the State or of any other 49 states, rated in either of the two highest rating categories by two of the Nationally Recognized Statistical-Rating Organizations;
(m) money market mutual funds including those for which the Trustee or any of its affiliates receives a fee for services provided to the fund, whether as investment advisor, transfer agent, custodian or otherwise; and
(n) the City Treasurer’s Investment Pool.
“Plans and Specifications” means, with respect to the 2023 Project or any component thereof, the plans and specifications relating thereto filed by the City with the Authority pursuant to Section 3.2 of the Lease Agreement.
“Principal Account” means the account by that name established in the Revenue Fund pursuant to Section 5.02.
“Project Costs” means, with respect to the 2023 Project, all costs of the Acquisition and Construction thereof which are paid from moneys on deposit in the Project Fund, including but not limited to:
(a) all costs required to be paid to any person under the terms of any agreement for or relating to the Acquisition and Construction of the 2023 Project; (b) obligations incurred for labor and materials in connection with the Acquisition and Construction of the 2023 Project;
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(c) the cost of performance or other bonds and any and all types of insurance that may be necessary or appropriate to have in effect in connection with the Acquisition and Construction of the 2023 Project;
(d) all costs of engineering and architectural services, including the actual out-of-pocket costs for test borings, surveys, estimates, plans and specifications and preliminary investigations therefor, development fees, sales commissions, and for supervising construction, as well as for the performance of all other duties required by or consequent to the proper Acquisition and Construction of the 2023 Project;
(e) any sums required to reimburse the Authority or the City for advances made for any of the above items or for any other costs incurred and for work done which are properly chargeable to the Acquisition and Construction of the 2023 Project; and (f) all financing costs incurred in connection with the Acquisition and Construction of the 2023 Project, including but not limited to Costs of Issuance and other costs incurred in connection with the Lease Agreement and the financing of the 2023 Project. “Project Fund” means the fund by that name established and held by the Trustee pursuant to Section 3.03.
“Property” means, collectively, the Site and the Facility. “Record Date” means, with respect to any Interest Payment Date, the fifteenth (15th) calendar day of the month preceding such Interest Payment Date, whether or not such day is a Business Day.
“Redemption Fund” means the fund by that name established pursuant to Section 5.05. “Registration Books” means the records maintained by the Trustee pursuant to Section

2.05 for the registration and transfer of ownership of the Bonds. “Regulations” means the regulations of the United States Department of Treasury issued under the Code.
“Revenue Fund” means the fund by that name established and held by the Trustee pursuant to Section 5.01.
“Revenues” means (a) all Lease Payments, prepayments, insurance proceeds, condemnation proceeds, and (b) subject to the provisions of Section 5.07 hereof, all interest, profits or other income derived from the investment of amounts in any fund or account established pursuant to this Indenture, other than the Costs of Issuance Fund. “Securities Depositories” means The Depository Trust Company, 55 Water Street, 50th Floor, New York, NY 10041-0099, Attention: Call Notification Department, Fax (212) 855-7232; and, in accordance with then current guidelines of the Securities and Exchange Commission, such other addresses and/or such other securities depositories as the Authority may designate in a Written Certificate of the Authority delivered to the Trustee. “Site” means those certain parcels of real property more particularly described in Exhibit A to the Site and Facility Lease and in Exhibit A to the Lease Agreement. 154
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“Site and Facility Lease” means the Site and Facility Lease, dated as of June 1, 2023, by and between the City, as lessor, and the Authority, as lessee, together with any duly authorized and executed amendments thereto.
“State” means the State of California.
“Supplemental Indenture” means any indenture hereafter duly authorized and entered into between the Authority and the Trustee, supplementing, modifying or amending this Indenture; but only if and to the extent that such Supplemental Indenture is specifically authorized hereunder.
“Tax Certificate” means the certificate of the Authority dated the Closing Date, with respect to tax matters.
“Term of the Lease Agreement” means the term during which the Lease Agreement is in effect, as provided in Section 4.2 of the Lease Agreement. “Trustee” means The Bank of New York Mellon Trust Company, N.A., a national banking association organized and existing under the laws of the United States of America, or its successor, as Trustee hereunder as provided in Section 8.01. “2023 Project” means the new capital projects more particularly described in Exhibit B attached hereto.
“Written Certificate,” “Written Request” and “Written Requisition” of the Authority or the City mean, respectively, a written certificate, request or requisition signed in the name of the Authority or the City by its Authorized Representative. Any such instrument and supporting opinions or representations, if any, may, but need not, be combined in a single instrument with any other instrument, opinion or representation, and the two or more so combined shall be read and construed as a single instrument.

Section 1.02. Rules of Construction. All references in this Indenture to “Articles,” “Sections” and other subdivisions in this Indenture are to the corresponding Articles, Sections or subdivisions of this Indenture; and the words “herein,” “hereof,” “hereunder,” and other words of similar import in this Indenture refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof.

Section 1.03. Authorization and Purpose of Bonds. The Authority has reviewed all proceedings heretofore taken relative to the authorization of the Bonds and has found, as a result of such review, and hereby finds and determines that all things, conditions, and acts required by law to exist, happen and/or be performed precedent to and in the issuance of the Bonds do exist, have happened and have been performed in due time, form and manner as required by law and the Authority is now authorized under each and every requirement of law to issue the Bonds in the manner and form provided in this Indenture. Accordingly, the Authority hereby authorizes the issuance of the Bonds pursuant to this Indenture for the purposes described herein.

Section 1.04. Equal Security. In consideration of the acceptance of the Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a contract between the Authority and the Owners from time to time of the Bonds; and the covenants and agreements herein set forth to be performed on behalf of the Authority shall be for the equal and proportionate benefit, security and protection of all Owners of the Bonds without preference, 155
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priority or distinction as to security or otherwise of any of the Bonds over any of the others by reason of the number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause whatsoever, except as expressly provided therein or herein. 156
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ARTICLE II

ISSUANCE OF BONDS
Section 2.01. Authorization of Bonds.
(a) The Authority hereby authorizes the issuance of the Bonds, which shall constitute limited obligations of the Authority, for the purpose of providing funds to finance the 2023 Project. The Bonds are hereby designated the “Brisbane/Guadalupe Valley Municipal Improvement District Financing Authority Lease Revenue Bonds, Series 2023.” The aggregate principal amount of Bonds initially issued and Outstanding under this Indenture is __________ dollars ($________). At any time after the execution of this Indenture, the Authority may execute, and the Trustee shall authenticate and, upon the Written Request of the Authority, deliver the Bonds to the Original Purchaser upon payment of the purchase price therefor. (b) This Indenture constitutes a continuing agreement with the Trustee and the Owners from time to time of the Bonds to secure the full payment of the principal of and interest and premium (if any) on all the Bonds, subject to the covenants, provisions and conditions herein contained.

Section 2.02. Terms of the Bonds.
(a) The Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no Bond shall have more than one maturity date. The Bonds shall mature on May 1 in each of the years and in the amounts, and shall bear interest (calculated on the basis of a 360-day year of twelve 30-day months) at the rates per annum, as follows:

Maturity Date Principal Interest
(May 1) Amount Rate
2024
2025
2026
2027
2028
2029
2030
2031
2032
2033
2034
2035
2036
2037
2038
2039
2040
2041
2042
2043
(b) Interest on the Bonds shall be payable semiannually on each Interest Payment Date, to the person whose name appears on the Registration Books as the Owner thereof as of the Record Date immediately preceding each such Interest Payment Date, such interest to be paid 157
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by check of the Trustee mailed on such Interest Payment Date by first class mail to the Owners at the respective addresses of such Owners as they appear on the Registration Books; provided however, that payment of interest may be by wire transfer in immediately available funds to an account in the United States of America to any Owner of Bonds in the aggregate principal amount of $1,000,000 or more who shall furnish written wire instructions to the Trustee at least five (5) days before the applicable Record Date. Principal of any Bond and any premium upon redemption shall be paid by wire or check of the Trustee upon presentation and surrender thereof at the Office of the Trustee, except as provided in Section 2.04. Principal of and interest and premium (if any) on the Bonds shall be payable in lawful money of the United States of America.

Each Bond shall be dated as of the Closing Date and shall bear interest from the Interest Payment Date next preceding the date of authentication thereof, unless (a) it is authenticated after a Record Date and on or before the following Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (b) unless it is authenticated on or before October 15, 2023, in which event it shall bear interest from the Closing Date; provided, however, that if, as of the date of authentication of any Bond, interest thereon is in default, such Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment thereon.

Section 2.03. Transfer and Exchange of Bonds. Any Bond may, in accordance with its terms, be transferred on the Registration Books by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer, duly executed in a form acceptable to the Trustee. Transfer of any Bond shall not be permitted by the Trustee during the period established by the Trustee for selection of Bonds for redemption or if such Bond has been selected for redemption pursuant to Article IV. Whenever any Bond or Bonds shall be surrendered for transfer, the Authority shall execute, and the Trustee shall authenticate and shall deliver a new Bond or Bonds for a like aggregate principal amount and of like maturity.

The Trustee may require the Bond Owner requesting such transfer to pay any tax or other governmental charge required to be paid with respect to such transfer. The cost of printing Bonds and any services rendered, or expenses incurred by the Trustee in connection with any transfer shall be paid by the Authority.

Any Bond may be exchanged at the Office of the Trustee for a like aggregate principal amount of Bonds of other authorized denominations and of like maturity. Exchange of any Bond shall not be permitted during the period established by the Trustee for selection of Bonds for redemption or if such Bond has been selected for redemption pursuant to Article IV. The Trustee may require the Bond Owner requesting such exchange to pay any tax or other governmental charge required to be paid with respect to such exchange. The cost of printing Bonds and any services rendered, or expenses incurred by the Trustee in connection with any exchange shall be paid by the Authority.

Section 2.04. Book-Entry System. Notwithstanding any provision of this Indenture to the contrary:
(a) The Bonds shall be initially issued and registered in the name of “Cede & Co.,” as nominee of The Depository Trust Company, the depository designated by the Original Purchaser, and shall be evidenced by one certificate for each of the maturity dates set forth in Section 2.02 hereof to be in a denomination corresponding to the total principal therein designated to mature on such date. Registered ownership of such Bonds, or any portions thereof, may not thereafter be transferred except:
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(i) to any successor of The Depository Trust Company or its nominee, or of any substitute depository designated pursuant to paragraph (ii) of this subsection (a) (“substitute depository”); provided that any successor of The Depository Trust Company or substitute depository shall be qualified under any applicable laws to provide the service proposed to be provided by it;
(ii) to any substitute depository designated in a written request of the Authority, upon (A) the resignation of The Depository Trust Company or its successor (or any substitute depository or its successor) from its functions as depository or (B) a determination by the Authority that The Depository Trust Company or its successor is no longer able to carry out its functions as depository; provided that any such substitute depository shall be qualified under any applicable laws to provide the services proposed to be provided by it; or
(iii) to any person as provided below, upon (A) the resignation of The Depository Trust Company or its successor (or any substitute depository or its successor) from its functions as depository or (B) a determination by the Authority that The Depository Trust Company or its successor is no longer able to carry out its functions as depository; provided that no substitute depository which is not objected to by the Authority and the Trustee can be obtained.
(b) In the case of any transfer pursuant to paragraph (i) or paragraph (ii) of subsection (a) of this Section 2.04, upon receipt of all Outstanding Bonds by the Trustee, together with a written request of an Authorized Representative of the Authority to the Trustee, a single new Bond shall be issued, authenticated and delivered for each maturity of such Bond then outstanding, registered in the name of such successor or such substitute depository or their nominees, as the case may be, all as specified in such written request of an Authorized Representative of the Authority. In the case of any transfer pursuant to paragraph (iii) of subsection (a) of this Section 2.04, upon receipt of all Outstanding Bonds by the Trustee together with a written request of an Authorized Representative of the Authority, new Bonds shall be issued, authenticated and delivered in such denominations and registered in the names of such persons as are requested in a written request of the Authority provided the Trustee shall not be required to deliver such new Bonds within a period less than sixty (60) days from the date of receipt of such a written request of an Authorized Representative of the Authority. (c) In the case of partial redemption or an advance refunding of any Bonds evidencing all of the principal maturing in a particular year, The Depository Trust Company shall, at the Authority’s expense, deliver the Bonds to the Trustee for cancellation and re-registration to reflect the amounts of such reduction in principal.
(d) The Authority and the Trustee shall be entitled to treat the person in whose name any Bond is registered as the absolute Owner thereof for all purposes of this Indenture and any applicable laws, notwithstanding any notice to the contrary received by the Trustee or the Authority; and the Authority and the Trustee shall have no responsibility for transmitting payments to, communication with, notifying or otherwise dealing with any beneficial owners of the Bonds. Neither the Authority nor the Trustee will have any responsibility or obligations, legal or otherwise, to the beneficial owners or to any other party including The Depository Trust Company or its successor (or substitute depository or its successor), except for the registered owner of any Bond.
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(e) So long as all outstanding Bonds are registered in the name of Cede & Co. or its registered assign, the Authority and the Trustee shall reasonably cooperate with Cede & Co., as sole registered Owner, or its registered assign in effecting payment of the principal and redemption premium, if any, and interest due on the Bonds by arranging for payment in such manner that funds for such payments are properly identified and are made immediately available on the date they are due.
(f) So long as all Outstanding Bonds are registered in the name of Cede & Co. or its registered assigns (hereinafter, for purposes of this paragraph (f), the “Owner”):
(i) All notices and payments addressed to the Owners shall contain the Bonds’ CUSIP number.
(ii) Notices to the Owner shall be forwarded in the manner set forth in the form of blanket issuer letter of representations (prepared by The Depository Trust Company) executed by the Authority and received and accepted by The Depository Trust Company.

Section 2.05. Registration Books. The Trustee will keep or cause to be kept, at the Office of the Trustee, sufficient records for the registration and transfer of ownership of the Bonds, which shall at all reasonable times upon reasonable prior notice be open to inspection during regular business hours by the Authority and the City; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on such records, the ownership of the Bonds as provided in Section 2.03.

Section 2.06. Form and Execution of Bonds. The Bonds shall be signed in the name and on behalf of the Authority with the facsimile signature of its Chairperson or Treasurer/Auditor, and shall be delivered to the Trustee for authentication by it. In case any officer of the Authority who shall have signed any of the Bonds shall cease to be such officer before the Bonds so signed shall have been authenticated or delivered by the Trustee or issued by the Authority, such Bonds may nevertheless be authenticated, delivered and issued and, upon such authentication, delivery and issue, shall be as binding upon the Authority as though the individual who signed the same had continued to be such officer of the Authority. Also, any Bond may be signed on behalf of the Authority by any individual who on the actual date of the execution of such Bond shall be the proper officer although on the nominal date of such Bond such individual shall not have been such officer.

Only such of the Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibits A and B, manually executed by the Trustee, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Trustee shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture.

Section 2.07. Temporary Bonds. The Bonds may be issued in temporary form exchangeable for definitive Bonds when ready for delivery. Any temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the Authority, shall be in fully registered form without coupons and may contain such reference to any of the provisions of this Indenture as may be appropriate. Every temporary Bond shall be executed by the Authority and authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If the Authority issues temporary Bonds it will execute and deliver definitive Bonds as promptly thereafter as practicable, and thereupon 160
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the temporary Bonds may be surrendered, for cancellation, at the Office of the Trustee and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Indenture as definitive Bonds authenticated and delivered hereunder.

Section 2.08. Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become mutilated, the Authority, at the expense of the Owner of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be canceled by it and delivered to, or upon the order of, the Authority. If any Bond shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to the Trustee and an indemnity for the Authority and the Trustee satisfactory to the Trustee shall be given, the Authority, at the expense of the Owner of such lost, destroyed or stolen Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been called for redemption, instead of issuing a substitute Bond, the Trustee may pay the same without surrender thereof upon receipt of indemnity for the Authority and the Trustee satisfactory to the Trustee). The Authority may require payment by the Owner of a sum not exceeding the actual cost of preparing each new Bond issued under this Section 2.08 and of the expenses which may be incurred by the Authority and the Trustee in the premises. Any Bond issued under the provisions of this Section 2.08 in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original additional contractual obligation on the part of the Authority whether or not the Bond so alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be entitled to the benefits of this Indenture with all other Bonds secured by this Indenture.

Section 2.09. CUSIP Numbers. The Trustee, the Authority and the City shall not be liable for any defect or inaccuracy in the CUSIP number that appears on any Bond or in any redemption notice. The Trustee may, in its discretion, include in any redemption notice a statement to the effect that the CUSIP numbers on the Bonds have been assigned by an independent service and are included in such notice solely for the convenience of the Owners and that neither the Trustee, the Authority nor the City shall be liable for any inaccuracies in such numbers.
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ARTICLE III

APPLICATION OF PROCEEDS
Section 3.01. Application of Proceeds of Sale of Bonds. (a) Upon the receipt of payment for the Bonds on the Closing Date of $__________, being the principal amount of the Bonds of $_________, less an underwriter’s discount of $_________, the Trustee shall apply the proceeds of sale thereof as follows:
(i) The Trustee shall deposit the amount of $________ in the Costs of Issuance Fund; and
(ii) The Trustee shall deposit the amount of $_______ in the Project Fund. (b) The Trustee may, in its sole discretion, establish such funds or accounts in its records to facilitate the foregoing deposits.

Section 3.02. Establishment and Application of Costs of Issuance Fund. (a) The Trustee shall establish, maintain and hold in trust a separate fund to be known as the “Costs of Issuance Fund.” There shall be deposited in the Costs of Issuance Fund the amounts indicated in Section 3.01(a)(i) of this Indenture. (b) The moneys in the Costs of Issuance Fund shall be used and withdrawn by the Trustee to pay the Costs of Issuance upon submission of Written Requisitions of the City stating the person to whom payment is to be made, the amount to be paid, payment instructions, the purpose for which the obligation was incurred and that such payment is a proper charge against said fund. Each such Written Requisition shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. (c) On September 15, 2023, or upon the earlier Written Request of the City, all amounts remaining in the Costs of Issuance Fund shall be transferred by the Trustee to the Project Fund and the Costs of Issuance Fund shall be closed.

Section 3.03. Project Fund.
(a) The Trustee shall establish, maintain and hold in trust a separate fund to be known as the “Project Fund.” There shall be deposited in the Project Fund the amount indicated in Section

3.01(a)(iii) of this Indenture.
(b) Except as otherwise provided herein, moneys in the Project Fund shall be used solely for the payment of the Project Costs. The Trustee shall disburse moneys in the Project Fund from time to time to pay Project Costs (or to reimburse the Authority or the City for payment of Project Costs) upon receipt by the Trustee of a Written Requisition of the City which: (A) states with respect to each disbursement to be made (i) the requisition number, (ii) the name and address of the person, firm or corporation to whom payment will be made, (iii) the amount to be disbursed, (iv) that each obligation mentioned therein is a proper charge against the Project Fund and has not previously been disbursed by the Trustee from amounts in the Project Fund, (v) that all conditions precedent set forth in the Lease Agreement with respect to such disbursement have been satisfied, and (vi) that the amount of such disbursement is for a Project Cost; (B) specifies in reasonable detail the nature of the obligation; and (C) is accompanied by a 162
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bill or statement of account (if any) for each obligation. The Trustee may conclusively rely on the information contained in any Written Requisition and shall have no responsibility with respect to the application of any funds disbursed in accordance with such Written Requisition. (c) Upon the filing with the Trustee of a Written Certificate of the Authority stating that the 2023 Project has been completed or that all Written Requisitions intended to be filed by the Authority and the City have been filed, the Trustee shall withdraw any remaining amounts then on deposit in the Project Fund and transfer such amounts to the Bond Fund and applied to the payment of interest on the Bonds and the Project Fund shall be closed.

Section 3.04. Validity of Bonds. The validity of the authorization and issuance of the Bonds is not dependent on and shall not be affected in any way by any proceedings taken by the Authority or the Trustee with respect to or in connection with the Lease Agreement. The recital contained in the Bonds that the same are issued pursuant to the laws of the State shall be conclusive evidence of their validity and of compliance with the provisions of law in their issuance.
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ARTICLE IV

REDEMPTION OF BONDS
Section 4.01. Terms of Redemption.
(a) Optional Redemption. The Bonds maturing on or before May 1, ____, are not subject to optional redemption prior to their respective stated maturities. The Bonds maturing on or after May 1, ____, shall be subject to optional redemption, in whole or in part, upon thirty (30) days written notice to the Trustee by the Authority, at the direction of the City, of its intention to optionally prepay all or a portion of the Lease Payments, on any date on or after May 1, ____, from any available source of funds of the City, at a redemption price equal to the principal amount of the Bonds to be redeemed, together with accrued interest thereon to the date fixed for redemption, without premium.
(b) Sinking Account Redemption. The Bonds maturing on May 1, ____ (the “____ Term Bonds”) are subject to mandatory redemption, in part by lot, from Sinking Account payments set forth in the following schedule on May 1, ____, and on May 1 in each year thereafter to and including May 1, ____, at a redemption price equal to the principal amount thereof to be redeemed (without premium), together with interest accrued thereon to the date fixed for redemption; provided, however, that if some but not all of the ____ Term Bonds have been optionally redeemed as described above, the total amount of Sinking Account payments to be made subsequent to such redemption shall be reduced in an amount equal to the principal amount of the ____ Term Bonds so redeemed by reducing each such future Sinking Account payment as shall be determined by the City and, in lieu of such determination, on a pro rata basis (as nearly as practicable) in integral multiples of $5,000, as shall be designated pursuant to written notice filed by the Authority with the Trustee.

Redemption Date Principal
(May 1) Amount
† Maturity.

The Bonds maturing on May 1, ____ (the “____ Term Bonds”) are subject to mandatory redemption, in part by lot, from Sinking Account payments set forth in the following schedule on May 1, ____, and on May 1 in each year thereafter to and including May 1, ____, at a redemption price equal to the principal amount thereof to be redeemed (without premium), together with interest accrued thereon to the date fixed for redemption; provided, however, that if some but not all of the ____ Term Bonds have been optionally redeemed as described above, the total amount of Sinking Account payments to be made subsequent to such redemption shall be reduced in an amount equal to the principal amount of the ____ Term Bonds so redeemed by reducing each such future Sinking Account payment as shall be determined by the City and, in lieu of such determination, on a pro rata basis (as nearly as practicable) in integral multiples of $5,000, as shall be designated pursuant to written notice filed by the Authority with the Trustee. 164
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Redemption Date Principal
(May 1) Amount
† Maturity.
(c) Special Mandatory Redemption from Insurance or Condemnation Proceeds. The Bonds shall also be subject to redemption as a whole or in part on any date, pro rata between series, to the extent the Trustee has received hazard insurance proceeds or condemnation proceeds not used to repair or replace any portion of the Property damaged or destroyed and elected by the City to be used for such purpose as provided in Section 5.06, at a redemption price equal to the principal amount thereof to be redeemed, together with interest accrued thereon to the date fixed for redemption, without premium.

Section 4.02. Selection of Bonds for Redemption. Whenever provision is made in this Indenture for the redemption of less than all of the Bonds of a particular maturity, the Trustee shall select the Bonds to be redeemed from all Bonds of such maturity or such given portion thereof not previously called for redemption, by lot in any manner which the Trustee in its sole discretion shall deem appropriate. For purposes of such selection, the Trustee shall treat each Bond as consisting of separate $5,000 portions and each such portion shall be subject to redemption as if such portion were a separate Bond. If less than all the Outstanding Bonds are called for redemption from proceeds of eminent domain or insurance at any one time, the City shall specify to the Trustee a principal amount in each maturity to be redeemed which, to the extent practicable, results in approximately equal annual debt service on the Bonds Outstanding following such redemption.

Section 4.03. Notice of Redemption. Notice of redemption shall be mailed by the Trustee by first class mail, postage prepaid, not less than twenty (20) nor more than sixty (60) days before any redemption date, to the respective Owners of any Bonds designated for redemption at their addresses appearing on the Registration Books, and to the Securities Depositories and to the Information Services. Each notice of redemption shall state the date of the notice, the redemption date, the place or places of redemption, whether less than all of the Bonds (or all Bonds of a single maturity) are to be redeemed, the CUSIP numbers and (in the event that not all Bonds within a maturity are called for redemption) Bond numbers of the Bonds to be redeemed, the maturity or maturities of the Bonds to be redeemed and in the case of Bonds to be redeemed in part only, the respective portions of the principal amount thereof to be redeemed. Each such notice shall also state that on the redemption date there will become due and payable on each of said Bonds the redemption price thereof, and that from and after such redemption date interest thereon shall cease to accrue, and shall require that such Bonds be then surrendered. Neither the failure to receive any notice nor any defect therein shall affect the sufficiency of the proceedings for such redemption or the cessation of accrual of interest from and after the redemption date. Notice of redemption of Bonds shall be given by the Trustee, at the expense of the Authority, for and on behalf of the Authority.

Notice of any redemption of Bonds (other than redemptions pursuant to Section 4.01(b)) shall either (i) explicitly state that the proposed redemption is conditioned on there being on deposit in the applicable fund or account on the redemption date sufficient money to pay the 165
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full redemption price of the Bonds to be redeemed, or (ii) be sent only if sufficient money to pay the full redemption price of the Bonds to be redeemed is on deposit in the applicable fund or account.

Section 4.04. Partial Redemption of Bonds. Upon surrender of any Bonds redeemed in part only, the Authority shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of authorized denominations equal in aggregate principal amount to the unredeemed portion of the Bonds surrendered and of the same interest rate and maturity.

Section 4.05. Effect of Redemption. Notice of redemption having been duly given as aforesaid, and moneys for payment of the redemption price of, together with interest accrued to the date fixed for redemption on, the Bonds (or portions thereof) so called for redemption being held by the Trustee, on the redemption date designated in such notice, the Bonds (or portions thereof) so called for redemption shall become due and payable, interest on the Bonds so called for redemption shall cease to accrue, said Bonds (or portions thereof) shall cease to be entitled to any benefit or security under this Indenture, and the Owners of said Bonds shall have no rights in respect thereof except to receive payment of the redemption price thereof.

All Bonds redeemed pursuant to the provisions of this Article shall be canceled and destroyed by the Trustee upon surrender thereof.

Section 4.06. Purchase of Bonds. In lieu of redemption of Bonds as provided in this Article IV, amounts held by the Trustee for such redemption may also be used on any Interest Payment Date, upon receipt by the Trustee at least sixty (60) days prior to the next scheduled Interest Payment Date of the written request of an Authorized Representative of the Authority, for the purchase of Bonds at public or private sale as and when and at such prices (including brokerage, accrued interest and other charges) as the Authority may in its discretion direct, but not to exceed the redemption price which would be payable if such Bonds were redeemed. The aggregate principal amount of Bonds of the same maturity purchased in lieu of redemption pursuant to this Section 4.06 shall not exceed the aggregate principal amount of Bonds of such maturity which would otherwise be subject to such redemption. Any Bonds so purchased shall be surrendered to the Trustee for cancellation.
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ARTICLE V
REVENUES; FUNDS AND ACCOUNTS; PAYMENT OF

PRINCIPAL AND INTEREST
Section 5.01. Pledge and Assignment; Revenue Fund.
(a) Subject only to the provisions of this Indenture permitting the application thereof for the purposes and on the terms and conditions set forth herein, all of the Revenues and any other amounts (including proceeds of the sale of the Bonds) held in any fund or account established pursuant to this Indenture (other than the Costs of Issuance Fund) are hereby pledged to secure the payment of the principal of, premium, if any, and interest on the Bonds in accordance with their terms and the provisions of this Indenture. Said pledge shall constitute a first lien on and security interest in such assets and shall attach, be perfected and be valid and binding from and after the Closing Date, without any physical delivery thereof or further act. (b) The Authority hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Owners from time to time of the Bonds, all of the Revenues and all of the rights of the Authority in the Lease Agreement (except for rights to receive Additional Payments, rights to give approvals and consents thereunder, the right to enforce venue, and certain rights to indemnification and expenses set forth therein), and in the Site and Facility Lease (except for rights to give approvals and consents thereunder and certain rights to indemnification set forth therein). The Trustee shall be entitled to and shall collect and receive all of the Revenues, and any Revenues collected or received by the Authority shall be deemed to be held, and to have been collected or received, by the Authority as the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. The Trustee also shall be entitled to and may, subject to the provisions of Article VIII, take all steps, actions and proceedings which the Trustee determines to be reasonably necessary in its judgment to enforce, either jointly with the Authority or separately, all of the rights of the Authority, all of the obligations of the City under the Lease Agreement.

The assignment of the Lease Agreement and the Site and Facility Lease to the Trustee is solely in its capacity as Trustee under this Indenture and the duties, powers and liabilities of the Trustee in acting thereunder shall be subject to the provisions of this Indenture, including, without limitation, the provisions of Article VIII hereof. The Trustee shall not be responsible for any representations, warranties, covenants or obligations of the Authority under the Lease Agreement or the Site and Facility Lease.
(c) The Trustee agrees to provide written notice to the City at least five Business Days prior to each Lease Payment Date of the amount, if any, on deposit in the Revenue Fund which shall serve as a credit against, and shall relieve the City of making, the Lease Payments due from the City on such Lease Payment Date. Subject to Sections 5.06 and 5.07, all Revenues shall be promptly deposited by the Trustee upon receipt thereof in a special fund designated as the “Revenue Fund” which the Trustee shall establish, maintain and hold in trust; except that all moneys received by the Trustee and required hereunder or under the Lease Agreement to be deposited in the Redemption Fund or the Insurance and Condemnation Fund shall be promptly deposited in such Funds. All Revenues deposited with the Trustee shall be held, disbursed, allocated and applied by the Trustee only as provided in this Indenture.

Section 5.02. Allocation of Revenues. Not later than the Business Day preceding each Interest Payment Date, the Trustee shall transfer from the Revenue Fund and deposit into the 167
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following respective accounts (each of which the Trustee shall establish and maintain within the Revenue Fund), the following amounts in the following order of priority, the requirements of each such account (including the making up of any deficiencies in any such account resulting from lack of Revenues sufficient to make any earlier required deposit) at the time of deposit to be satisfied before any transfer is made to any account subsequent in priority:
(a) The Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to equal to the amount of interest becoming due and payable on such Interest Payment Date on all Bonds then Outstanding.
(b) The Trustee shall deposit in the Principal Account an amount, if any, required to cause the aggregate amount on deposit in the Principal Account to equal the principal amount of the Bonds coming due at maturity and payable on such Interest Payment Date.
(c) If the then applicable Interest Payment Date is November 1, all remaining moneys shall be held by the Trustee in the Revenue Fund and applied for the next succeeding May 1 Interest Payment Date deposits. If the then applicable Interest Payment Date is May 1, all remaining moneys shall be transferred to the City for deposit to the General Fund of the City free and clear of any pledge or lien imposed under this Indenture.

Section 5.03. Application of Interest Account. All amounts in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying interest on the Bonds as it shall become due and payable (including accrued interest on any Bonds purchased or redeemed prior to maturity pursuant to this Indenture).

Section 5.04. Application of Principal Account. All amounts in the Principal Account shall be used and withdrawn by the Trustee solely to pay the principal amount of the Bonds at their respective maturity dates.

Section 5.05. Application of Redemption Fund. The Trustee shall establish and maintain the Redemption Fund, amounts in which shall be used and withdrawn by the Trustee solely for the purpose of paying the principal of Bonds to be redeemed pursuant to Sections 4.01(a) and

4.01(b); provided, however, that at any time prior to the selection of Bonds for redemption, the Trustee may apply such amounts to the purchase of Bonds at public or private sale, in accordance with Section 4.06.

Section 5.06. Insurance and Condemnation Fund.
(a) Establishment of Fund. Upon the receipt of any proceeds of insurance or eminent domain with respect to any portion of the Property, the Trustee shall establish and maintain an Insurance and Condemnation Fund, to be held and applied as hereinafter set forth in this Section 5.07.
(b) Application of Insurance Proceeds. Any Net Proceeds of insurance against accident to or destruction of the Property collected by the City in the event of any such accident or destruction shall be paid to the Trustee by the City pursuant to Section 6.1 of the Lease Agreement and deposited by the Trustee promptly upon receipt thereof in the Insurance and Condemnation Fund. If the City fails to determine and notify the Trustee in writing of its determination, within forty-five (45) days following the date of such deposit, to replace, repair, restore, modify or 168
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improve the Property, then such Net Proceeds shall be promptly transferred by the Trustee to the Redemption Fund and applied to the redemption of Bonds pursuant to Section 4.01(b). All proceeds deposited in the Insurance and Condemnation Fund and not so transferred to the Redemption Fund shall be applied to the prompt replacement, repair, restoration, modification or improvement of the damaged or destroyed portions of the Property by the City, upon receipt of Written Requisitions of the City, as agent for the Authority, which: (i) states with respect to each payment to be made (A) the requisition number, (B) the name and address of the person to whom payment is due, (C) the amount to be paid and (D) that each obligation mentioned therein has been properly incurred, is a proper charge against the Insurance and Condemnation Fund, has not been the basis of any previous withdrawal; and (ii) specifies in reasonable detail the nature of the obligation. Each such Written Requisition shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. Any balance of the proceeds remaining after such work has been completed as certified by the City to the Trustee shall be remitted by the Trustee to the City. (c) Application of Eminent Domain Proceeds. 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 with the Trustee in the Insurance and Condemnation Fund pursuant to Section 6.1 of the Lease Agreement and shall be applied and disbursed by the Trustee as follows:
(i) If the City has not given written notice to the Trustee, within forty-five (45) days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for the replacement of the Property or such portion thereof, the Trustee shall transfer such Net Proceeds to the Redemption Fund to be applied towards the redemption of the Bonds pursuant to Section 4.01(b). (ii) If the City has given written notice to the Trustee, within forty-five (45) days following the date on which such Net Proceeds are deposited with the Trustee, of its determination that such Net Proceeds are needed for replacement of the Property or such portion thereof, the Trustee shall pay to the City, or to its order, from said proceeds such amounts as the City may expend for such replacement, upon the filing of Written Requisitions of the City as agent for the Authority in the form and containing the provisions set forth in subsection (b) of this Section 5.06. Each such Written Requisition shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts.

Section 5.07. Investments. All moneys in any of the funds or accounts established with the Trustee pursuant to this Indenture shall be invested by the Trustee solely in Permitted Investments. Such investments shall be directed by the City pursuant to a Written Request of the City filed with the Trustee at least two (2) Business Days in advance of the making of such investments (which Written Request shall certify that the investments constitute Permitted Investments) or such shorter time as the Trustee may accept in its sole discretion. In the absence of any such directions from the City, the Trustee shall hold such amounts uninvested. Permitted Investments purchased as an investment of moneys in any fund shall be deemed to be part of such fund or account. The City shall take the liquidity needs of the moneys held hereunder into account in making investments.

All interest or gain derived from the investment of amounts in any of the funds or accounts established hereunder and held by the Trustee shall be deposited or retained in the Revenue Fund. To the extent that any investment agreement requires the payment of fees, such fees shall be paid from available moneys in the Revenue Fund after the deposit of moneys 169
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described in Section 5.02 (a) through (c) above. For purposes of acquiring any investments hereunder, the Trustee may commingle funds held by it hereunder. The Trustee or any of its affiliates may act as principal or agent in the acquisition or disposition of any investment and may impose its customary charges therefor. The Trustee or its affiliates may act as sponsor, advisor or depository with respect to any Permitted Investment. To the extent that any Permitted Investment purchased by the Trustee are registrable securities such Permitted Investment shall be registered in the name of the Trustee on behalf of the Owners. The Trustee shall incur no liability for losses arising from any investments made pursuant to the City’s investment direction.

The City acknowledges that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grants the City the right to receive brokerage confirmations of security transactions as they occur at no additional cost, the City specifically waives receipt of such confirmations to the extent permitted by law. The Trustee will furnish the City periodic cash transaction statements which shall include detail for all investment transactions made by the Trustee hereunder.

Such investments shall be valued by the Trustee not less often than quarterly at the market value thereof, exclusive of accrued interest. Deficiencies in the amount on deposit in any fund or account resulting from a decline in market value shall be restored no later than the succeeding valuation date.

The Trustee may utilize securities pricing services that may be available to it making such valuations, including those within its accounting system (including brokers and dealers in securities) with respect to the Bonds, and conclusively rely thereon. 170
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ARTICLE VI

PARTICULAR COVENANTS
Section 6.01. Punctual Payment. The Authority shall punctually pay or cause to be paid the principal of and interest and premium (if any) on all the Bonds in strict conformity with the terms of the Bonds and of this Indenture, according to the true intent and meaning thereof, but only out of Revenues and other assets pledged for such payment as provided in this Indenture.

Section 6.02. Extension of Payment of Bonds. The Authority shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall not have been so extended. Nothing in this Section 6.02 shall be deemed to limit the right of the Authority to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds.

Section 6.03. Against Encumbrances. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture. Subject to this limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, and reserves the right to issue other obligations for such purposes. Nothing in this section shall in any way limit the City’s ability to encumber its assets in accordance with the Lease Agreement.

Section 6.04. Power to Issue Bonds and Make Pledge and Assignment. The Authority is duly authorized pursuant to law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues and other assets purported to be pledged and assigned under this Indenture in the manner and to the extent provided in this Indenture. The Authority has duly authorized the execution and delivery of the Bonds and this Indenture under the terms and provisions of the Act and a resolution adopted by the Board and further represents, covenants and warrants that all requirements have been met and procedures have occurred in order to ensure the enforceability against the Authority of the Bonds and this Indenture. The Authority has taken all necessary action and has complied with all provisions of the Act required to make the Bonds and this Indenture the valid, legal and binding limited obligations of the Authority.

Section 6.05. Accounting Records. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate trust industry standards, in which complete and accurate entries shall be made of all transactions made by it relating to the proceeds of Bonds, the Revenues, the Lease Agreement and all funds and accounts established pursuant to this Indenture. Such books of record and account shall be available for inspection by the Authority and the City, during business hours and under reasonable circumstances upon reasonable prior notice.
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Section 6.06. No Additional Obligations. The Authority covenants that no additional bonds, notes or other indebtedness shall be issued or incurred which are payable out of the Revenues in whole or in part.

Section 6.07. Tax Covenants. The Authority covenants to and for the benefit of the Owners that, notwithstanding any other provisions of this Indenture (other than Section 11.01 hereof), it will:
(a) neither make or use nor cause to be made or used any investment or other use of the proceeds of the Bonds or the moneys and investments held in the funds and accounts established under this Indenture which would cause the Bonds to be arbitrage bonds under section 103(b) and section 148 of the Code and the Regulations issued under section 148 of the Code or which would otherwise cause the interest payable on the Bonds to be includable in gross income for federal income tax purposes;
(b) not take or cause to be taken any other action or actions, or fail to take any action or actions, which would cause the interest payable on the Bonds to be includable in gross income of the Owners of the Bonds for federal income tax purposes; (c) at all times do and perform all acts and things permitted by law and necessary or desirable in order to assure that interest paid by the Authority on the Bonds will be excluded from the gross income, for federal income tax purposes, of the Owners pursuant to the Code; and
(d) not take any action or permit or suffer any action to be taken if the result of the same would be to cause the Bonds to be “federally guaranteed” within the meaning of section 149(b) of the Code and the Regulations.

In furtherance of the covenants in this Section 6.07, the Authority shall execute, deliver and comply with the provisions of the Tax Certificate. The Trustee agrees it will invest funds held under this Indenture in accordance with the terms of this Indenture (this covenant shall extend throughout the term of the Bonds, to all funds and accounts created under this Indenture held by the Trustee and all moneys on deposit to the credit of any fund or account held by the Trustee).

Section 6.08. Rebate Fund.
(a) The Trustee shall establish and maintain, when required, a fund separate from any other fund established and maintained hereunder designated as the Rebate Fund. Within the Rebate Fund, the Trustee shall maintain such accounts as shall be necessary to comply with instructions of the Authority. Subject to the transfer provisions provided in paragraph (e) below, all money at any time deposited in the Rebate Fund shall be held by the Trustee in trust, to the extent required to satisfy the Rebate Requirement (as defined in the Tax Certificate), for payment to the federal government of the United States of America. Neither the Authority nor the Owner of any Bonds shall have any rights in or claim to such money. All amounts deposited into or on deposit in the Rebate Fund shall be governed by this Section 6.08, by Section 6.07 and by the Tax Certificate (which is incorporated herein by reference). The Trustee shall be deemed conclusively to have complied with such provisions if it follows the directions of the Authority including supplying all necessary information reasonably requested by the Authority, and shall have no liability or responsibility to enforce compliance by the Authority with the terms of the Tax Certificate or any other tax covenants contained herein. The Trustee shall not be responsible for calculating rebate amounts or for the adequacy or correctness of any rebate report or rebate 172
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calculations. The Trustee shall have no independent duty to review such calculations or enforce the compliance by the Authority with such rebate requirements. The Trustee shall have no duty or obligation to determine the applicability of the Code and shall only be obligated to act in accordance with written instructions provided by the Authority. (b) Upon the Authority’s written direction, an amount shall be deposited to the Rebate Fund by the Trustee from deposits by the Authority or the City, if and to the extent required, so that the balance in the Rebate Fund shall equal the Rebate Requirement. Computations of the Rebate Requirement shall be furnished by or on behalf of the Authority in accordance with the Tax Certificate. The Trustee shall supply to the Authority all necessary information requested by the Authority to the extent such information is reasonably available to the Trustee. (c) The Trustee shall have no obligation to rebate any amounts required to be rebated pursuant to this Section 6.08, other than from moneys held in the Rebate Fund or from other moneys provided to it by the Authority or the City.
(d) At the written direction of the Authority, the Trustee shall invest all amounts held in the Rebate Fund in Permitted Investments. Moneys shall not be transferred from the Rebate Fund except as provided in paragraph (e) below. The Trustee shall not be liable for any consequences arising from such investment.
(e) Upon receipt of the Authority’s written directions, the Trustee shall remit part or all of the balances in the Rebate Fund to the United States, as so directed. In addition, if the Authority so directs, the Trustee will deposit money into or transfer money out of the Rebate Fund from or into such accounts or funds as directed by the Authority’s written directions; provided, however, only moneys in excess of the Rebate Requirement may, at the written direction of the Authority, be transferred out of the Rebate Fund to such other accounts or funds or to anyone other than the United States in satisfaction of the arbitrage rebate obligation. Any funds remaining in the Rebate Fund (i) after each five-year remission to the United States, and (ii) after redemption and payment of all of the Bonds and payment and satisfaction of any Rebate Requirement, shall be withdrawn by the Trustee and remitted to the City. (f) Notwithstanding any other provision of this Indenture, including in particular Article X, the obligation to remit the Rebate Requirement to the United States and to comply with all other requirements of this Section 6.08, Section 6.07 and the Tax Certificate shall survive the defeasance or payment in full of the Bonds.

Section 6.09. Collection of Amounts Due Under Lease Agreement. The Trustee shall promptly collect all amounts due from the City pursuant to the Lease Agreement. Subject to the provisions of Article VIII, the Trustee may enforce, and take all steps, actions and proceedings which the Trustee determines to be reasonably necessary for the enforcement of all of its rights thereunder as assignee of the Authority, for the enforcement of all of the obligations of the City under the Lease Agreement.

The Authority shall not amend, modify or terminate any of the terms of the Lease Agreement, or consent to any such amendment, modification or termination, without the prior written consent of the Trustee. The Trustee shall give such written consent only if (a) in the opinion of Bond Counsel, such amendment, modification or termination will not materially adversely affect the interests of the Owners, or (b) the Trustee first obtains the written consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding to such amendment, modification or termination.
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Section 6.10. Continuing Disclosure. Pursuant to Section 5.11 of the Lease Agreement, the City has undertaken all responsibility for compliance with continuing disclosure requirements, and neither the Authority nor the Trustee shall have any liability to the Owners of the Bonds or any other person with respect to the Continuing Disclosure Certificate. The Trustee hereby covenants and agrees that it will comply with and carry out all of the provisions of Section 5.11 of the Lease Agreement applicable to it. Notwithstanding any other provision of this Indenture, failure of the City to comply with the Continuing Disclosure Certificate shall not be considered an Event of Default; however, the Trustee shall at the request of the Owners or Beneficial Owners (as defined in the Continuing Disclosure Certificate) of at least 25% aggregate principal amount of Outstanding Bonds, to the extent indemnified to its satisfaction from any liability, cost or expense, including fees and expenses of its attorneys, or any Owner or Beneficial Owner may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the City to comply with its obligations under Section 5.11 of the Lease Agreement or to cause the Trustee to comply with its obligations under this Section 6.10. For purposes of this Section 6.10, “Beneficial Owner” means any person which has or shares the power, directly or indirectly, to make investment decisions concerning ownership of any Bonds (including persons holding Bonds through nominees, depositories or other intermediaries).

Section 6.11. Waiver of Laws. The Authority shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, any stay or extension of law now or at any time hereafter in force that may affect the covenants and agreements contained in this Indenture or in the Bonds, and all benefit or advantage of any such law or laws is hereby expressly waived by the Authority to the extent permitted by law.

Section 6.12. Further Assurances. The Authority will make, execute and deliver any and all such further indentures, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture and for the better assuring and confirming unto the Owners of the Bonds of the rights and benefits provided in this Indenture.
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ARTICLE VII

EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The following events shall be Events of Default hereunder:
(a) Default in the due and punctual payment of the principal of any Bond when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption or otherwise.
(b) Default in the due and punctual payment of interest on any Bonds when and as the same shall become due and payable.
(c) Default by the Authority in the observance of any of the other covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, if such default shall have continued for a period of thirty (30) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Authority by the Trustee; provided, however, that if in the reasonable opinion of the Authority the default stated in the notice can be corrected, but not within such thirty (30) day period, such default shall not constitute an Event of Default hereunder if the Authority shall commence to cure such default within such thirty (30) day period and thereafter diligently and in good faith cure such failure in a reasonable period of time which period shall be no longer than 120 days after the original written notice of default.
(d) The occurrence and continuation of an Event of Default under and as such term is defined in the Lease Agreement.

Section 7.02. Remedies Upon Event of Default. Upon the occurrence and continuance of any Event of Default, then and in every such case the Trustee in its discretion may, and upon the written request of the Owners of not less than 25% in principal amount of the Bonds then Outstanding and receipt of indemnity to its satisfaction, and payment of its fees and expenses, including the fees and expenses of its counsel, shall in its own name and as the Trustee of an express trust:
(a) by mandamus, or other suit, action or proceeding at law or in equity, enforce all rights of the Owners under, and require the Authority or the City to carry out any agreements with or for the benefit of the Owners of Bonds and to perform its or their duties under the Lease Agreement and this Indenture, provided that any such remedy may be taken only to the extent permitted under the applicable provisions of the Lease Agreement or this Indenture, as the case may be;
(b) bring suit upon the Bonds;
(c) by action or suit in equity require the Authority to account as if it were the trustee of an express trust for the Owners of Bonds; or
(d) by action or suit in equity enjoin any acts or things which may be unlawful or in violation of the rights of the Owners of Bonds hereunder. 175
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Upon the occurrence of an Event of Default, the Trustee shall be entitled as a matter of right to the appointment of a receiver or receivers for the Revenues, ex parte, and without notice, and the Authority consents to the appointment of such receiver upon the occurrence of an Event of Default. In the case of any receivership, insolvency, bankruptcy, or other judicial proceedings affecting the Authority or the City, the Trustee shall be entitled to file such proofs of claims and other documents as may be necessary or advisable in order to have the claims of the Trustee and the Bond Owners allowed in such proceedings, without prejudice, however, to the right of any Bond Owner to file a claim on his or her own behalf; provided, the Trustee shall be entitled to compensation and reimbursement for the reasonable fees and expenses of its counsel and indemnity for its reasonable expenses and liability from the Authority, the City or the Bond Owners, as appropriate.

Nothing herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Bond Owner any plan of reorganization, arrangement, adjustment, or composition affecting the Bonds or the rights of any Owner thereof, or to authorize the Trustee to vote in respect of the claim of any Bond Owner in any such proceeding without the approval of the Bond Owners so affected.

Notwithstanding anything contained herein or in the Lease Agreement to the contrary, upon the occurrence and continuance of an Event of Default, before taking any foreclosure action or any action which may subject the Trustee to liability under any Environmental Laws, the Trustee may require that a satisfactory indemnity bond, indemnity or environmental impairment insurance be furnished for the payment or reimbursement of all expenses to which it may be put and to protect it against all liability resulting from any claims, judgments, damages, losses, penalties, fines, liabilities (including strict liability) and expenses which may result from such foreclosure or other action. The term “Environmental Laws” shall mean all federal, state and local environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances and codes relating to the protection of the environment or governing the use, storage, treatment, generation, transportation, processing, handling, production or disposal of Hazardous Substances and the rules, regulations, policies, guidelines, interpretations, decisions, orders and directives of federal, state and local governmental agencies and authorities with respect thereto. The term “Hazardous Substances” shall mean any chemical, substance or material classified or designated as hazardous, toxic or radioactive, or other similar term, and now or hereafter regulated under any Environmental Laws, including without limitation, asbestos, petroleum and hydrocarbon products. The Trustee shall not be required to take any foreclosure action if the approval of a government regulator shall be a condition precedent to taking such action, and such approval cannot be obtained.

Section 7.03. Application of Revenues and Other Funds After Default. If an Event of Default shall occur and be continuing, all Revenues and any other funds then held or thereafter received by the Trustee under any of the provisions of this Indenture shall be applied by the Trustee as follows and in the following order:
(a) To the payment of any expenses necessary in the opinion of the Trustee to protect the interests of the Owners of the Bonds and payment of reasonable fees, charges and expenses of the Trustee (including reasonable fees and disbursements of its counsel) incurred in and about the performance of its powers and duties under this Indenture; (b) To the payment of the principal of and interest then due on the Bonds (upon presentation of the Bonds to be paid, and stamping or otherwise noting thereon of the payment if only partially paid, or surrender thereof if fully paid) in accordance with the provisions of this Indenture, as follows:
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First: To the payment to the persons entitled thereto of all installments of interest then due in the order of the maturity of such installments, and, if the amount available shall not be sufficient to pay in full any installment or installments maturing on the same date, then to the payment thereof ratably, according to the amounts due thereon, to the persons entitled thereto, without any discrimination or preference; and Second: To the payment to the persons entitled thereto of the unpaid principal of any Bonds which shall have become due, whether at maturity or by redemption, with interest on the overdue principal at the rate borne by the respective Bonds (to the extent permitted by law), and, if the amount available shall not be sufficient to pay in full all the Bonds, together with such interest, then to the payment thereof ratably, according to the amounts of principal due on such date to the persons entitled thereto, without any discrimination or preference.

Section 7.04. Trustee to Represent Bond Owners. The Trustee is hereby irrevocably appointed (and the successive respective Owners of the Bonds, by taking and holding the same, shall be conclusively deemed to have so appointed the Trustee) as trustee and true and lawful attorney-in-fact of the Owners of the Bonds for the purpose of exercising and prosecuting on their behalf such rights and remedies as may be available to such Owners under the provisions of the Bonds, this Indenture and applicable provisions of any law. Upon the occurrence and continuance of an Event of Default or other occasion giving rise to a right in the Trustee to represent the Bond Owners, the Trustee in its discretion may, and upon the written request of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, and upon being indemnified to its satisfaction therefor, the Trustee shall, proceed to protect or enforce its rights or the rights of such Owners by such appropriate action, suit, mandamus or other proceedings as shall be deemed most effectual to protect and enforce any such right, at law or in equity, either for the specific performance of any covenant or agreement contained herein, or in aid of the execution of any power herein granted, or for the enforcement of any other appropriate legal or equitable right or remedy vested in the Trustee or in such Owners under the Bonds, this Indenture or any other law; and upon instituting such proceeding, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver of the Revenues and other assets pledged under this Indenture, pending such proceedings. All rights of action under this Indenture or the Bonds or otherwise may be prosecuted and enforced by the Trustee without the possession of any of the Bonds or the production thereof in any proceeding relating thereto, and any such suit, action or proceeding instituted by the Trustee shall be brought in the name of the Trustee for the benefit and protection of all the Owners of such Bonds, subject to the provisions of this Indenture.

Section 7.05. Bond Owners’ Direction of Proceedings. Anything in this Indenture to the contrary notwithstanding, the Owners of a majority in aggregate principal amount of the Bonds then Outstanding shall have the right, by an instrument or concurrent instruments in writing executed and delivered to the Trustee, and upon indemnification of the Trustee to its reasonable satisfaction, to direct the method of conducting all remedial proceedings taken by the Trustee hereunder, provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture, and that the Trustee shall have the right to decline to follow any such direction which in the opinion of the Trustee would expose it to liability.

Section 7.06. Limitation on Bond Owners’ Right to Sue. Notwithstanding any other provision hereof, no Owner of any Bonds shall have the right to institute any suit, action or proceeding at law or in equity, for the protection or enforcement of any right or remedy under this Indenture, the Lease Agreement or any other applicable law with respect to such Bonds, 177
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unless (a) such Owner shall have given to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such suit, action or proceeding in its own name; (c) such Owner or Owners shall have tendered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee shall have failed to comply with such request for a period of sixty (60) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Trustee; and (e) no direction inconsistent with such written request shall have been given to the Trustee during such sixty (60) day period by the Owners of a majority in aggregate principal amount of the Bonds then Outstanding.

Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder or under law; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to affect, disturb or prejudice the security of this Indenture or the rights of any other Owners of Bonds, or to enforce any right under the Bonds, this Indenture, the Lease Agreement or other applicable law with respect to the Bonds, except in the manner herein provided, and that all proceedings at law or in equity to enforce any such right shall be instituted, had and maintained in the manner herein provided and for the benefit and protection of all Owners of the Outstanding Bonds, subject to the provisions of this Indenture.

Section 7.07. Absolute Obligation of Authority. Nothing in Section 7.06 or in any other provision of this Indenture or in the Bonds contained shall affect or impair the obligation of the Authority, which is absolute and unconditional, to pay the principal of and interest and premium (if any) on the Bonds to the respective Owners of the Bonds at their respective dates of maturity, or upon call for redemption, as herein provided, but only out of the Revenues and other assets herein pledged therefor, or affect or impair the right of such Owners, which is also absolute and unconditional, to enforce such payment by virtue of the contract embodied in the Bonds.

Section 7.08. Termination of Proceedings. If any proceedings taken by the Trustee or any one or more Bond Owners on account of any Event of Default shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Trustee or the Bond Owners, then the Authority, the Trustee and the Bond Owners, subject to any determination in such proceedings, shall be restored to their former positions and rights hereunder, severally and respectively, and all rights, remedies, powers and duties of the Authority, the Trustee and the Bond Owners shall continue as though no such proceedings had been taken.

Section 7.09. Remedies Not Exclusive. No remedy herein conferred upon or reserved to the Trustee or the Owners of the Bonds is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.

Section 7.10. No Waiver of Default. No delay or omission of the Trustee or any Owner of the Bonds to exercise any right or power arising upon the occurrence of any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and every power and remedy given by this Indenture to the Trustee or the Owners of the Bonds may be exercised from time to time and as often as may be deemed expedient.
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Section 7.11. Parties Interested Herein. Nothing in this Indenture expressed or implied is intended or shall be construed to confer upon, or to give to, any person or entity, other than the City, the Authority, the Trustee, their officers, employees and agents, and the Owners any right, remedy or claim under or by reason of this Indenture, or any covenant, condition or stipulation hereof, and all covenants, stipulations, promises and agreements in this Indenture contained by and on behalf of the Authority shall be for the sole and exclusive benefit of the City, the Authority, the Trustee, their officers, employees and agents, and the Owners. 179
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ARTICLE VIII

THE TRUSTEE
Section 8.01. Duties, Immunities and Liabilities of Trustee. (a) The Trustee shall, prior to an Event of Default, and after the curing or waiver of all Events of Default which may have occurred, perform such duties and only such duties as are expressly and specifically set forth in this Indenture and no implied duties or covenants shall be read into this Indenture against the Trustee. The Trustee shall, during the existence of any Event of Default (which has not been cured or waived), exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) The Authority may remove the Trustee at any time and the Authority shall remove the Trustee if at any time requested to do so by the Owners of not less than a majority in aggregate principal amount of the Bonds then Outstanding (or their attorneys duly authorized in writing) or if at any time the Trustee shall cease to be eligible in accordance with subsection (e) of this Section 8.01, or shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or a receiver of the Trustee or its property shall be appointed, or any public officer shall take control or charge of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, in each case by giving written notice of such removal to the Trustee and the City and thereupon shall appoint a successor Trustee by an instrument in writing. Any such removal shall be made upon at least thirty (30) days’ prior written notice to the Trustee.
(c) The Trustee may at any time resign by giving written notice of such resignation to the Authority and the City, and by giving the Bond Owners notice of such resignation by mail at the addresses shown on the Registration Books. Upon receiving such notice of resignation, the Authority shall promptly appoint a successor Trustee by an instrument in writing. (d) Any removal or resignation of the Trustee and appointment of a successor Trustee shall become effective upon acceptance of appointment by the successor Trustee. If no successor Trustee shall have been appointed and have accepted appointment within sixty (60) days of giving notice of removal or notice of resignation as aforesaid, the Authority shall (or the Trustee may) petition any court of competent jurisdiction for the appointment of a successor Trustee, and such court may thereupon, after such notice (if any) as it may deem proper, appoint such successor Trustee. Any successor Trustee appointed under this Indenture shall signify its acceptance of such appointment by executing and delivering to the Authority, to its predecessor Trustee a written acceptance thereof, and thereupon such successor Trustee, without any further act, deed or conveyance, shall become vested with all the moneys, estates, properties, rights, powers, trusts, duties and obligations of such predecessor Trustee, with like effect as if originally named Trustee herein; but, nevertheless at the Written Request of the Authority or the request of the successor Trustee, such predecessor Trustee shall execute and deliver any and all instruments of conveyance or further assurance and do such other things as may reasonably be required for more fully and certainly vesting in and confirming to such successor Trustee all the right, title and interest of such predecessor Trustee in and to any property held by it under this Indenture and shall pay over, transfer, assign and deliver to the successor Trustee any money or other property subject to the trusts and conditions herein set forth. Upon request of the successor Trustee, the Authority shall execute and deliver any and all instruments as may be 180
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reasonably required for more fully and certainly vesting in and confirming to such successor Trustee all such moneys, estates, properties, rights, powers, trusts, duties and obligations. Upon acceptance of appointment by a successor Trustee as provided in this subsection, the Authority shall promptly mail or cause the successor trustee to mail a notice of the succession of such Trustee to the trusts hereunder to each rating agency which is then rating the Bonds and to the Bond Owners at the addresses shown on the Registration Books. If the Authority fails to mail such notice within fifteen (15) days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Authority. (e) Any Trustee appointed under this Indenture shall be a corporation or association organized and doing business under the laws of any state or the United States of America or the District of Columbia, shall be authorized under such laws to exercise corporate trust powers, shall have (or, in the case of a corporation or national banking association included in a bank holding company system, the related bank holding company shall have) a combined capital and surplus of at least fifty million dollars ($50,000,000), shall be subject to supervision or examination by federal or state agency, and shall be acceptable to the City in its discretion. If such corporation or national banking association publishes a report of condition at least annually pursuant to law or to the requirements of any supervising or examining agency above referred to then for the purpose of this subsection (e), the combined capital and surplus of such corporation or national banking association shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this subsection (e), the Trustee shall resign immediately in the manner and with the effect specified in this Section 8.01.

Section 8.02. Merger or Consolidation. Any bank or trust company into which the Trustee may be merged or converted or with which it may be consolidated or any bank or trust company resulting from any merger, conversion or consolidation to which it shall be a party or any bank or trust company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided such bank or trust company shall be eligible under subsection (e) of Section 8.01 shall be the successor to such Trustee, without the execution or filing of any paper or any further act, anything herein to the contrary notwithstanding.

Section 8.03. Liability of Trustee.
(a) The recitals of facts herein and in the Bonds contained shall not be taken as statements of the Trustee, and the Trustee shall not assume responsibility for the correctness of the same, or make any representations as to the validity or sufficiency of this Indenture, the Bonds or the Lease Agreement, nor shall the Trustee incur any responsibility in respect thereof, other than as expressly stated herein in connection with the respective duties or obligations herein or in the Bonds assigned to or imposed upon it. The Trustee shall, however, be responsible for its representations contained in its certificate of authentication on the Bonds. The Trustee shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Trustee may become the Owner of Bonds with the same rights it would have if it were not Trustee, and, to the extent permitted by law, may act as depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Bond Owners, whether or not such committee shall represent the Owners of a majority in principal amount of the Bonds then Outstanding.
(b) The Trustee shall not be liable for any error of judgment made in good faith by a responsible officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
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(c) The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture. (d) The Trustee shall not be liable for any action taken by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(e) The Trustee shall not be deemed to have knowledge of any Event of Default hereunder, or any other event which, with the passage of time, the giving of notice, or both, would constitute an Event of Default hereunder unless and until it shall have actual knowledge thereof, or a corporate trust officer shall have received written notice thereof, at its Office.

Except as otherwise expressly provided herein, the Trustee shall not be bound to ascertain or inquire as to the performance or observance by the Authority or the City of any of the terms, conditions, covenants or agreements herein, under the Lease Agreement or of any of the documents executed in connection with the Bonds, or as to the existence of an Event of Default or an event which would, with the giving of notice, the passage of time, or both, constitute an Event of Default. The Trustee shall not be responsible for the validity, effectiveness or priority of any collateral given to or held by it. Without limiting the generality of the foregoing, the Trustee shall not be required to ascertain or inquire as to the performance or observance by the City and the Authority of the terms, conditions, covenants or agreements set forth in the Lease Agreement, other than the covenants of the City to make Lease Payments to the Trustee when due, such reports and certifications as the City are required to file with the Trustee thereunder. (f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it is not assured to its satisfaction that the repayment of such funds or indemnity satisfactory to it against such risk or liability is reasonably assured to it.
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of Owners pursuant to this Indenture, unless such Owners shall have offered to the Trustee reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction. No permissive power, right or remedy conferred upon the Trustee hereunder shall be construed to impose a duty to exercise such power, right or remedy.
(i) Whether or not therein expressly so provided, every provision of this Indenture and the Lease Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of Section 8.01(a), this Section 8.03 and Section

8.04 hereof.
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(j) The Trustee shall not be concerned with or accountable to anyone for the subsequent use or application of any proceeds of the Bonds or moneys which shall be released or withdrawn in accordance with the provisions hereof.
(k) The Trustee makes no representation or warranty, expressed or implied as to the title, value, design, compliance with specifications or legal requirements, quality, durability, operation, condition, merchantability or fitness for any particular purpose for the use contemplated by the Authority or the City of the Property. In no event shall the Trustee be liable for incidental, indirect, special or consequential damages in connection with or arising from the Lease Agreement or this Indenture for the existence, furnishing or use of the Property. (l) Except to the extent that information was provided by the Trustee, the Trustee shall have no responsibility with respect to any information, statement, or recital in any official statement, offering memorandum or any other disclosure material prepared or distributed with respect to the Bonds.
(m) The indemnities extended to the Trustee also extend to its directors, officers, employees and agents. The rights, protections and indemnities of the Trustee herein shall also apply to the Trustee when acting under the Lease Agreement or the Site and Facility Lease. (n) The Trustee may become the owner or pledgee of any Bonds with the same rights it would have if it were not Trustee.
(o) The Trustee shall not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not limited to, acts of God or of the public enemy or terrorists, acts of a government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion, mob violence, riot, inability to procure or general sabotage or rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market, litigation or arbitration involving a party or others relating to zoning or other governmental action or inaction pertaining to the Property, malicious mischief, condemnation, and unusually severe weather or delays of suppliers or subcontractors due to such causes or any similar event and/or occurrences beyond the control of the Trustee. (p) The Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means ("Electronic Means" shall mean the following communications methods: email, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.); provided, however, that the City and/or the Authority, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the City and/or the Authority, as applicable, whenever a person is to be added or deleted from the listing. If the City and/or the Authority, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The City and the Authority understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent 183
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by such Authorized Officer. The City and the Authority shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Trustee and that the City, the Authority and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the City and/or the Authority, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The City and the Authority agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the City and/or the Authority, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
(q) Notwithstanding the effective date of this Indenture or anything to the contrary in this Indenture, the Trustee shall have no liability or responsibility for any act or event relating to this Indenture which occurs prior to the date the Trustee formally executes this Indenture and commences acting as Trustee hereunder
Section 8.04. Right to Rely on Documents. The Trustee shall be protected in acting upon any notice, facsimile, e-mail, resolution, request, requisition, consent, order, certificate, report, opinion, bonds or other paper or document believed by them to be genuine and to have been signed or presented by the proper party or parties. The Trustee may consult with counsel, who may be counsel of or to the Authority, with regard to legal questions, and the opinion or advice of such counsel shall be full and complete authorization and protection in respect of any action taken or suffered by it hereunder in good faith and in accordance therewith.

The Trustee may treat the Owners of the Bonds appearing in the Registration Books as the absolute owners of the Bonds for all purposes and the Trustee shall not be affected by any notice to the contrary.

Whenever in the administration of the trusts imposed upon it by this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a Written Certificate, Written Request or Written Requisition of the Authority or the City, and such Written Certificate, Written Request or Written Requisition shall be full warrant to the Trustee for any action taken or suffered in good faith under the provisions of this Indenture in reliance upon such Written Certificate, Written Request or Written Requisition, but in its discretion the Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may deem reasonable.

Section 8.05. Preservation and Inspection of Documents. All documents received by the Trustee under the provisions of this Indenture shall be retained by the Trustee and shall be subject at all reasonable times to the inspection of the Authority, the City and any Bond Owner, and their agents and representatives duly authorized in writing, at reasonable hours and under reasonable conditions upon reasonable prior notice.
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Section 8.06. Compensation and Indemnification. The Authority shall pay to the Trustee from time to time compensation for all services rendered under this Indenture and also all reasonable expenses and disbursements (including fees and expenses of counsel), incurred in and about the performance of its powers and duties under this Indenture.

The Authority shall indemnify, defend and hold harmless the Trustee against any loss, liability, suit, cost, claim, judgment, damages or expense (including legal fees and expenses) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this Indenture, under the Site and Facility Lease, the Lease Agreement, or any other document or transaction contemplated in connection herewith or therewith including costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers hereunder. As security for the performance of the obligations of the Authority under this Section 8.06 to the Trustee, the Trustee shall have a lien prior to the lien of the Bonds upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of or interest on particular Bonds. The rights of the Trustee and the obligations of the Authority under this Section 8.06 shall survive the resignation or removal of the Trustee or the discharge of the Bonds and this Indenture. When the Trustee incurs expenses or renders services after the occurrence of an Event of Default, such expenses and the compensation for such services are intended to constitute expenses of administration under any federal or state bankruptcy, insolvency, arrangement, moratorium, reorganization or other debtor relief law. 185
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ARTICLE IX

MODIFICATION OR AMENDMENT OF THIS INDENTURE
Section 9.01. Amendments Permitted.
(a) This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time by an indenture or indentures supplemental thereto, which the Authority and the Trustee may enter into when the written consents of the Owners of a majority in aggregate principal amount of all Bonds then Outstanding, shall have been filed with the Trustee. No such modification or amendment shall (i) extend the fixed maturity of any Bonds, or reduce the amount of principal thereof or extend the time of payment, or change the method of computing the rate of interest thereon, or extend the time of payment of interest thereon, without the consent of the Owner of each Bond so affected, or (ii) reduce the aforesaid percentage of Bonds the consent of the Owners of which is required to effect any such modification or amendment, or permit the creation of any lien on the Revenues and other assets pledged under this Indenture prior to or on a parity with the lien created by this Indenture except as permitted herein, or deprive the Owners of the Bonds of the lien created by this Indenture on such Revenues and other assets (except as expressly provided in this Indenture), without the consent of the Owners of all of the Bonds then Outstanding. It shall not be necessary for the consent of the Bond Owners to approve the particular form of any Supplemental Indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(b) This Indenture and the rights and obligations of the Authority, of the Trustee and the Owners of the Bonds may also be modified or amended from time to time and at any time by a Supplemental Indenture, which the Authority and the Trustee may enter into without the consent of any Bond Owners, if the Trustee has been furnished an opinion of counsel that the provisions of such Supplemental Indenture shall not materially adversely affect the interests of the Owners of the Bonds, including, without limitation, for any one or more of the following purposes:
(i) to add to the covenants and agreements of the Authority in this Indenture contained other covenants and agreements thereafter to be observed, to pledge or assign additional security for the Bonds (or any portion thereof), or to surrender any right or power herein reserved to or conferred upon the Authority; (ii) to make such provisions for the purpose of curing any ambiguity, inconsistency or omission, or of curing or correcting any defective provision, contained in this Indenture, or in regard to matters or questions arising under this Indenture, as the Authority may deem necessary or desirable;
(iii) to modify, amend or supplement this Indenture in such manner as to permit the qualification hereof under the Trust Indenture Act of 1939, as amended, or any similar federal statute hereafter in effect, and to add such other terms, conditions and provisions as may be permitted by said act or similar federal statute; or (iv) to modify, amend or supplement this Indenture in such manner as to cause interest on the Bonds to remain excludable from gross income of the Owners under the Code.
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(c) The Trustee may in its discretion, but shall not be obligated to, enter into any such Supplemental Indenture authorized by subsections (a) or (b) of this Section 9.01 which materially adversely affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
(d) Prior to the Trustee entering into any Supplemental Indenture hereunder, there shall be delivered to the Trustee an opinion of Bond Counsel stating, in substance, that such Supplemental Indenture has been adopted in compliance with the requirements of this Indenture.
(e) Written notice of any amendment or modification made pursuant to this Section 9.01 shall be given by the Authority to any rating agency then rating the Bonds prior to the effective date of such amendment or modification.

Section 9.02. Effect of Supplemental Indenture. Upon the execution of any Supplemental Indenture pursuant to this Article IX, this Indenture shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties and obligations under this Indenture of the Authority, the Trustee and all Owners of Bonds Outstanding shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any such Supplemental Indenture shall be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

Section 9.03. Endorsement of Bonds; Preparation of New Bonds. Bonds delivered after the execution of any Supplemental Indenture pursuant to this Article may, and if the Authority so determines shall, bear a notation by endorsement or otherwise in form approved by the Authority and the Trustee as to any modification or amendment provided for in such Supplemental Indenture, and, in that case, upon demand on the Owner of any Bonds Outstanding at the time of such execution and presentation of his Bonds for the purpose at the Office of the Trustee or at such additional offices as the Trustee may select and designate for that purpose, a suitable notation shall be made on such Bonds. If the Supplemental Indenture shall so provide, new Bonds so modified as to conform, in the opinion of the Authority and the Trustee, to any modification or amendment contained in such Supplemental Indenture, shall be prepared and executed by the Authority and authenticated by the Trustee, and upon demand on the Owners of any Bonds then Outstanding shall be exchanged at the Office of the Trustee, without cost to any Bond Owner, for Bonds then Outstanding, upon surrender for cancellation of such Bonds, in equal aggregate principal amount of the same series and maturity.

Section 9.04. Amendment of Particular Bonds. The provisions of this Article IX shall not prevent any Bond Owner from accepting any amendment as to the particular Bonds held by him.
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ARTICLE X

DEFEASANCE
Section 10.01. Discharge of Indenture. Any or all of the Outstanding Bonds may be paid by the Authority in any of the following ways, provided that the Authority also pays or causes to be paid any other sums payable hereunder by the Authority:
(a) by paying or causing to be paid the principal of and interest and premium (if any) on such Bonds, as and when the same become due and payable; (b) by depositing with the Trustee, in trust, at or before maturity, Defeasance Obligations in the necessary amount (as provided in Section 10.03) to pay or redeem such Bonds; or
(c) by delivering to the Trustee, for cancellation by it, such Bonds.

If the Authority shall also pay or cause to be paid all other sums payable hereunder by the Authority, then and in that case, at the election of the Authority, and notwithstanding that any of such Bonds shall not have been surrendered for payment, this Indenture and the pledge of Revenues and other assets made under this Indenture with respect to such Bonds and all covenants, agreements and other obligations of the Authority under this Indenture (except its obligations under Section 8.06 hereof) with respect to such Bonds shall cease, terminate, become void and be completely discharged and satisfied. In such event, upon the Written Request of the Authority, the Trustee shall execute and deliver to the Authority all such instruments as may be necessary or desirable to evidence such discharge and satisfaction, and the Trustee shall pay over, transfer, assign or deliver to the City all moneys or securities or other property held by it pursuant to this Indenture which are not required for the payment or redemption of any of such Bonds not theretofore surrendered for such payment or redemption.

Section 10.02. Discharge of Liability on Bonds. Upon the deposit with the Trustee, in trust, at or before maturity, of money or securities in the necessary amount (as provided in Section 10.03) to pay or redeem any Outstanding Bonds (whether upon or prior to the maturity or the redemption date of such Bonds), provided that, if such Bonds are to be redeemed prior to maturity, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, then all liability of the Authority in respect of such Bonds shall cease, terminate and be completely discharged, and the Owners thereof shall thereafter be entitled only to payment out of such money or securities deposited with the Trustee as aforesaid for their payment, subject, however, to the provisions of Section 10.04.

The Authority may at any time surrender to the Trustee for cancellation by it any Bonds previously issued and delivered, which the Authority may have acquired in any manner whatsoever, and such Bonds, upon such surrender and cancellation, shall be deemed to be paid and retired.

Section 10.03. Deposit of Money or Securities with Trustee. Whenever in this Indenture it is provided or permitted that there be deposited with or held in trust by the Trustee money or securities in the necessary amount to pay or redeem any Bonds, the money or securities so to be deposited or held may include money or securities held by the Trustee in the funds and accounts established pursuant to this Indenture and shall be:
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(a) lawful money of the United States of America in an amount equal to the principal amount of such Bonds and all unpaid interest thereon to maturity, except that, in the case of Bonds which are to be redeemed prior to maturity and in respect of which notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice, the amount to be deposited or held shall be the principal amount of such Bonds and all unpaid interest thereon to the redemption date; or
(b) Defeasance Obligations, the principal of and interest on which when due will, in the written opinion of an Independent Accountant filed with the City, the Authority and the Trustee, provide money sufficient to pay the principal of and interest and premium (if any) on the Bonds to be paid or redeemed, as such principal, interest and premium become due, provided that in the case of Bonds which are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article IV or provision satisfactory to the Trustee shall have been made for the giving of such notice; provided, in each case, that (i) the Trustee shall have been irrevocably instructed (by the terms of this Indenture or by Written Request of the Authority) to apply such money to the payment of such principal, interest and premium (if any) with respect to such Bonds, and (ii) the Authority shall have delivered to the Trustee an opinion of Bond Counsel to the effect that such Bonds have been discharged in accordance with this Indenture (which opinion may rely upon and assume the accuracy of the Independent Accountant’s opinion referred to above).

Section 10.04. Unclaimed Funds. Notwithstanding any provisions of this Indenture, and subject to applicable provisions of State law, any moneys held by the Trustee in trust for the payment of the principal of, or interest on, any Bonds and remaining unclaimed for two (2) years after the principal of all of the Bonds has become due and payable (whether at maturity or upon call for redemption as provided in this Indenture), if such moneys were so held at such date, or two (2) years after the date of deposit of such moneys if deposited after said date when all of the Bonds became due and payable, shall be repaid to the City free from the trusts created by this Indenture and without liability for interest thereon, and all liability of the Trustee with respect to such moneys shall thereupon cease; provided, however, that before the repayment of such moneys to the City as aforesaid, the Trustee shall (at the written request and cost of the Authority) first mail to the Owners of Bonds which have not yet been paid, at the addresses shown on the Registration Books, a notice, in such form as may be deemed appropriate by the Trustee with respect to the Bonds so payable and not presented and with respect to the provisions relating to the repayment to the Authority of the moneys held for the payment thereof.
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ARTICLE XI

MISCELLANEOUS
Section 11.01. Liability of Authority Limited to Revenues. None of the Authority, any Authority members, any Board members or any person executing the Bonds is liable personally on the Bonds or subject to any personal liability or accountability by reason of their issuance.

The Bonds are limited obligations of the Authority, payable solely from and secured by the pledge of Revenues. Neither the Authority, its members, the State, nor any of its political subdivisions shall be directly, indirectly, contingently or morally obligated to use any other moneys or assets to pay all or any portion of the debt service due on the Bonds, to levy or to pledge any form of taxation whatever therefor or to make any appropriation for their payment.

The Bonds are not a pledge of the faith and credit of the Authority, its members, the State or any of its political subdivisions nor do they constitute indebtedness within the meaning of any constitutional or statutory debt limitation. The Authority has no taxing power.

The Authority shall not be liable for payment of the principal of or interest on the Bonds or any other costs, expenses, losses, damages, claims or actions of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Indenture, the Bonds or any other documents, except only to the extent amounts are received for the payment thereof from the City under the Lease Agreement.

Section 11.02. Limitation of Rights to Parties and Bond Owners. Nothing in this Indenture or in the Bonds expressed or implied is intended or shall be construed to give to any person other than the Authority, the Trustee, the City and the Owners of the Bonds, any legal or equitable right, remedy or claim under or in respect of this Indenture or any covenant, condition or provision therein or herein contained; and all such covenants, conditions and provisions are and shall be held to be for the sole and exclusive benefit of the Trustee, the City, the Authority and the Owners of the Bonds.

Section 11.03. Funds and Accounts. Any fund or account required by this Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purposes of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account; but all such records with respect to all such funds and accounts shall at all times be maintained in accordance with industry standards to the extent practicable, and for the protection of the security of the Bonds and the rights of every Owner thereof. The Trustee may establish such funds and accounts as it deems necessary to perform its obligations hereunder. The Trustee shall deliver a monthly accounting to the Authority of the funds and accounts held hereunder; provided, that the Trustee shall not be obligated to deliver an accounting for any fund or account that has had no activity since the last reporting date and that has a balance of zero.

Section 11.04. Waiver of Notice; Requirement of Mailed Notice. Whenever in this Indenture the giving of notice by mail or otherwise is required, the giving of such notice may be waived in writing by the person entitled to receive such notice and in any such case the giving or receipt of such notice shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Whenever in this Indenture any notice shall be required to be given by mail, such requirement shall be satisfied by the deposit of such notice in the United States mail, postage prepaid, by first class mail.
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Section 11.05. Destruction of Bonds. Whenever in this Indenture provision is made for the cancellation by the Trustee and the delivery to the Authority of any Bonds, the Trustee shall, in lieu of such cancellation and delivery, cancel and destroy such Bonds as may be allowed by law, and at the written request of the Authority the Trustee shall deliver a certificate of such destruction to the Authority.

Section 11.06. Severability of Invalid Provisions. If any one or more of the provisions contained in this Indenture or in the Bonds shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be deemed severable from the remaining provisions contained in this Indenture and such invalidity, illegality or unenforceability shall not affect any other provision of this Indenture, and this Indenture shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Authority hereby declares that it would have entered into this Indenture and each and every other Section, paragraph, sentence, clause or phrase hereof and authorized the issuance of the Bonds pursuant thereto irrespective of the fact that any one or more Sections, paragraphs, sentences, clauses or phrases of this Indenture may be held illegal, invalid or unenforceable.

Section 11.07. Notices. All written notices to be given under this Indenture shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to time.

Notice shall be effective either (a) upon transmission by facsimile transmission or other form of telecommunication, confirmed by phone, (b) after deposit in the United States mail, postage prepaid, upon receipt, or (c) in the case of personal delivery to any person, upon actual receipt.

The Authority, the City or the Trustee 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.

To the Authority: Brisbane/Guadalupe Valley Municipal
Improvement District Financing Authority
c/o City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Finance Director
Fax: (562) 570-5836
If to the City: City of Brisbane
50 Park Place
Brisbane, CA 94005
Attention: Finance Director
If to the Trustee: The Bank of New York Mellon Trust Company, N.A. 333 South Hope Street, Suite 2525
Los Angeles, CA 90071
Attention: Corporate Trust Department
The City, the Authority and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent.

Section 11.08. Evidence of Rights of Bond Owners. Any request, consent or other instrument required or permitted by this Indenture to be signed and executed by Bond Owners may be in any number of concurrent instruments of substantially similar tenor and shall be signed or executed by such Bond Owners in person or by an agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing 191
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appointing any such agent, or of the holding by any person of Bonds transferable by delivery, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee and the Authority if made in the manner provided in this Section 11.08.

The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgments of deeds, certifying that the person signing such request, consent or other instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such execution duly sworn to before such notary public or other officer.

The ownership of Bonds shall be proved by the Registration Books.

Any request, consent, or other instrument or writing of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of every Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Authority in accordance therewith or reliance thereon.

Section 11.09. Disqualified Bonds. In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are actually known by the Trustee to be owned or held by or for the account of the Authority or the City, or by any other obligor on the Bonds, or by any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Authority or the City or any other obligor on the Bonds, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination (unless 100% of the Bonds are so owned). Bonds so owned which have been pledged in good faith may be regarded as Outstanding for the purposes of this Section 11.09 if the pledgee shall certify to the Trustee the pledgee’s right to vote such Bonds and that the pledgee is not a person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the Authority or the City or any other obligor on the Bonds. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee.

Upon request, the Authority or the City shall specify to the Trustee those Bonds disqualified pursuant to this Section 11.09. The Trustee may conclusively rely on such representation of the Authority and the City.

Section 11.10. Money Held for Particular Bonds. The money held by the Trustee for the payment of the interest or principal due on any date with respect to particular Bonds (or portions of Bonds in the case of Bonds redeemed in part only) shall, on and after such date and pending such payment, be set aside on its books and held in trust by it for the Owners of the Bonds entitled thereto, subject, however, to the provisions of Section 10.04 hereof but without any liability for interest thereon.

Section 11.11. Waiver of Personal Liability. No Board member, officer, agent or employee of the Authority shall be individually or personally liable for the payment of the principal of or interest or premium (if any) on the Bonds or be subject to any personal liability or accountability by reason of the issuance thereof; but nothing herein contained shall relieve any such Board member, officer, agent or employee from the performance of any official duty provided by law or by this Indenture.
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Section 11.12. Successor Is Deemed Included in All References to Predecessor. Whenever in this Indenture either the City, the Authority or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof, and all the covenants and agreements in this Indenture contained by or on behalf of the City, the Authority or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not.

Section 11.13. Execution in Several Counterparts. This Indenture may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original; and all such counterparts, or as many of them as the Authority and the Trustee shall preserve undestroyed, shall together constitute but one and the same instrument.

Section 11.14. Governing Law. This Indenture and the Bonds are contracts made under the laws of the State and shall be governed by and construed in accordance with the Constitution and laws applicable to contracts made and performed in the State. {Remainder of this page is intentionally left blank}
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IN WITNESS WHEREOF, the BRISBANE/GUADALUPE VALLEY MUNICIPAL IMPROVEMENT DISTRICT FINANCING AUTHORITY has caused this Indenture to be signed in its name by its duly Authorized Representative and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,, in token of its acceptance of the trust created hereunder, has caused this Indenture to be signed in its corporate name by its officer identified below, all as of the day and year first above written.

BRISBANE/GUADALUPE VALLEY

MUNICIPAL IMPROVEMENT DISTRICT

FINANCING AUTHORITY
By
Clayton L. Holstine
Executive Director

THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.,, as Trustee
By:

Authorized Signatory
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Exhibit A

Page 1 ends

Brisbane City CouncilJune 1, 2023

Brisbane City Council
June 1, 2023