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HomeMy WebLinkAbout2013/07/23 Item 08s.. - _ _ `~ CITY- COUNCIL =-~~.~ AGENDA STATEMENT mot. `~,+y ~~ CITY OF CHULA VISTA 7/23/13, Item ITE14 TITLE: PUBLIC HEARING TO CONSIDER AUTHORIZING THE EXECUTION A\TD DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR I~~IPROVE~gNTS AT CITY BUILDINGS RESOLUTION OF THE CITY COUNCIL- OF THE CITY OF CHULA VISTA MAKING REQUIRED FINDINGS AND AUTHORIZING THE EXECUTION' AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCIl\TG OF SOLAR Ii\4PROVEA4EN'TS AT CITY BUILDINGS; Ai\TD AUTHORIZII~iG AND DIRECTING CERTAIN ACTIONS IN CONNECTION THERER'ITH RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA MUNICIPAL FINANCING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR Ii\4PROVEMENTS AT CITY BUILDINGS. AND AUTHORIZING AN'D DIRECTING CERTAIN ACTION'S IN CONNECTION THERE\VITH RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING 52,121;00 OF FINANCING TO THE ENERGY CONSERVATION' FUND FOR THE MUNICIPAL SOLAR PHOTOVOLTAIC - PHASE II PROJECT (GG206), AMENDING THE FY2013-14 ,CAPITAL IMPROVEMENT PROGRAM BUDGET. APPROPRIATING AND AMENDING THE GENERAL FUND BUDGET TO REFLECT THE REDUCTION INi ENERGY COSTS AND TRANSFER OF THESE SAVINGS TO THE ENERGY CONSERVATION LOP,N' FUND; r~,\'D APPROPRIATING FUNDS TO THE ENERGY CONSERVATION LOAN FUND FOR DEBT SERVICE COSTS SUBbIITTED BY: DIRECTOR OF PUBLIC WORKS .~ DIRECTOR OF FIN ~ R.EVIE~~'ED BY: CITY MANAGE ASSISTANT CITY 1P.NAGE 4hTHS VOTE: YES ~ NO 8-1 7/23/13, Item E' Page 2 of 3 SUMMARY To support reaching its renewable energy goals and to reduce long-term utility costs, the City has been pursuing the installation of onsite Solar Photovoltaic (PV) systems at municipal buildings and facilities. Staff has been recently working with Sullivan Solar Power to design Solaz PV systems for three municipal sites as part of the "Municipal Solar Photovoltaic-Phase IP' project (GG206). To finance the project, staff is proposing to utilize a $2,121,500 Tax-Exempt Facility Lease Agreement with Banc of America, which would be repaid through the annual energy cost savings at the facilities. The project would leverage over $645,000 in state incentives and would approximately double the City's onsite renewable energy generation. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that-the activity qualifies for a Class 8 categorical exemption pursuant to Section 15308 [Actions by Regulatory Agencies for Protection of the Environment] of the State CEQA Guidelines, because the proposed actions will increase local rooftop renewable energy capacity, which helps to reduce greenhouse gas emissions and help improve local air quality. Thus, no further environmental review is required. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION Renewable energy; such as Solaz Photovoltaic (PV) systems, is an integral component of the City's climate action and energy management initiatives. Specifically, the Chula Vista Municipal Building Energy Efficiency Policy (Resolution #2005-048) establishes a goal of generating at least 20% of the municipal facility energy demand with renewable energy technologies. City Council reinforced this renewable energy commitment in 2008 with adoption of Mitigation Measure #5 in the revised Climate Action Plan (Resolution #2008-177). To date, Chula Vista has installed approximately 500 kW of renewable energy at 13 facilities representing about 5% of overall municipal energy use. The Solaz PV arrays, which have aState-mandated minimum 25-year warranty, reduce the City's long- term energy costs by offsetting utility-supplied electricity that historically has had annual rate increases of at least 3%. Renewable energy systems also help to improve local air quality by reducing the region's reliance on fossil fuel-based power plants. Through a competitive bid process, the City selected Sullivan Solar Power in May 2012 (Resolution #2012-074) to design and install additional Solar PV systems at up to six municipal sites as part of the `'Municipal Solar Photovoltaic-Phase II" project (GG206). After further evaluation, the project's scope has been narrowed to four sites in order to maximize the project's cost effectiveness and the Cit}~'s return on investment. The proposed systems totaling approximately 568 kW DC would consist of roof-mounted arrays at three sites -Civic Center (Building 100), Loma Verde Recreation Center, and Public Works -and would generate almost 860,000 kWh every year (equivalent to the ainual energy use of over 140 homes). 8-2 7/23/13, Item Page 3 of 3 To finance the project. staff has been workine c~ith Banc of America to develop aTax-Exempt Facility Lease Agreement using the Loma Verde Recreation Center as collateral for the loan. The $2,121;500 agreement would cover all project construction costs as well as associated financing closing costs. The $2;121;600 amount would also sense as the Guazanteed Maximum Price (GMP) for the Sullivan Solar Power contract. The financing would be fuliv repaid over its 17.6-year term through the project's resulting energy cost savings estimated at S101,000 in Yeaz 1 (increasing to $161.000 in Yeaz 17). In addition, approximately $645,000 in California Solaz Initiative incentives, which the project v<ill receive over the first 5 yeazs, vill also be used to reduce the debt service. Over the 25-year minimum life of the new Solaz PV systems, cumulative cost benefits to the City aze estimated at over $3.5 million (assuming a 3% annual utility escalator). Finally, the proposed Municipal Solar Photovoltaic-Phase II project would successfully double the City's onsite renewable energy generation capacity. DECISION 1VIAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundaries of the property, which is the subject of this action. Staff is not independently awaze; nor has staff been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT YEAR FISCAL I114PACT The project's initial $2,121;600 gross costs will be fully covered by the financing through the Tax-Exempt Facility Lease Agreement with Banc of America. The total debt service amount of $2;848;064 ($2,121;600 plus $726;564 in interest) dill be repaid over the 17.6-year term using the resulting annual energy cost savings as well as the $645,000 in state incentives (paid out over the first 5 yeazs). The interest rate for the lease is 3.95% and is locked in until July 31, 2013. The financing is scheduled to close on July 26, 2013. Debt service payments begin in January 2014 and will be included in the proposed budgets going forward. Once the financing debt'is repaid, the City's General Fund will realize the total avoided energy costs on an annual basis. The costs of issuance for the financing are anticipated to be approximately $50,000. These costs cover the anticipated amounts to be paid to the attorneys for Banc of America and the City; City's financial advisor, title insurance and other closing costs. ONGOING FISCAL IMPACT It is anticipated that the project`s utility cost savings will fully cover the Equipment Lease Agreement debt service over the 17.5-pear term. Total anticipated savings over the life of the solaz panels is estimated at $3.6 million. Once the financing is repaid, the General Fund vill realize the total avoided energy costs annually. ATTACFII\'IENTS Attachment 1 -Tax-Exempt Facility Lease Agreement Packet v<ith Banc of America Prepared by: Brendan Reed, Environmental Resource Manager, Public {{'orks -Conservation Section Phil Dm~is, Assistant Finance Director, Finance Department H:IPUBLIC R'ORKS- EA'GIAGENDAICAS2013107-?3-131REPORT-P {1'-Solar P~ Phase II Financing_FmAGtll.doc 8-3 DRAFT DATED 7/16/13 TO BE RECORDED AND WHEN RECORDED RETURN TO: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, Califomia 92660 Attention: Robert J. Whalen THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX UNDER SECTION 11929 OF THE CALIFORNIA REVENLiE AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM RECORDING FEES UNDER SECTION 273$3 OF THE CALIFORNIA GOVERNMENT CODE. SITE LEASE This SITE LEASE (this "Site Lease"), dated as of July _, 2013, is between the CITY OF CHULA VISTA, a municipal corporation and charter city duly organized and existing under and by virtue of the laws of the State of California (the "City"), as lessor, and CHULA VISTA MUNICIPAL FINANCING AUTHORITY, a joint powers agency organized and existing under the laws of the State of Califomia (the "Authority "), as lessee. BACKGROUND: 1. In order to finance the acquisition, construction and installation of certain solaz energy improvements to existing City buildings (the "Project"), the City has agreed to lease the real property consisting of the land and the improvements comprising the City's Loma Verde Recreation and Aquatics Center with a street address of ~ ~, as such real property is described more fully in Appendix A attached hereto and made a part hereof together with any portion of the Project located on such real property (the "Leased Property"), to the Authority by entering into this Site Lease; 2. The Authority has agreed to assist the City. with such financing by entering into a Lease Agreement dated as of July _, 2013 (the "Lease "); which is being recorded concurrently herewith, pursuant to which the Authority will sublease the Leased Property back to the City and the City will make lease payments (the "Lease Payments ") to the Authority; 3. In order to raise the funds needed for the financing, the Authority has assigned certain of its rights under this Site Lease and the Lease, including the right to receive and enforce payment of the Lease Payments, to Banc of America Public Capital Corp (the "Assignee "), under an Assignment Agreement dated as of July _, 2013 (the "Assignment Agreement "), which is being recorded concurrently herewith; and 4. The City is authorized to enter into alease-leaseback arrangement with the Authority to provide financing for the Project under the City's Charter and other applicable State law. 3420786 O1 04 2209708 8-4 AGREEAfE:VT: In consideration of the foregoing and the material covenarits hereinafter contained; the Cip' and the Authority formally covenant; agree and bind themselves as follows: Section 1. Lease of Leased Property. The Cit}' hereby leases to the Authority, and the Authority hereby leases from the City; the Leased Propem' as described more fully in Appendix A together with any portion of the Project located on such Leased Propert}', on the terms and conditions hereinafter set forth. Section 2. Term; Possession. The term of this Site Lease commences, and the Authorit}' becomes entitled to possession of the Leased Property, as of the date of recordation hereof This Site Lease ends, and the right of the Authority' hereunder to possession of the Leased Propem' thereupon ceases; on the date on which all of the outstanding Lease Payments aze paid in full, or provision is made for such payment in accordance with the Lease; and the Lease has been terminated in accordance with its terms. Section 3. Rental. The Authority shall pay to the Cit}' as and for rental of the Leased Propem' hereunder; the amount of S to be paid on the date hereof The Authority' shall cause the amount required for such purpose to be provided from the Assignee in accordance with the Assignment Agreement. Section 4. Purpose of this Site Lease; Sublease Back to City. The purpose for which the Cin' agrees to lease the Leased Property to the Authority' hereunder is to enable the City and the Authority to finance the Project from the rental payment made to it by the Authority' under Section 3. The Authority hereby agrees to sublease the Leased Property back to the City under the Lease. Section 4A. Substitution or Release of Property. If the City exercises its option under Section 4.7 of the Lease and satisfies the conditions therein provided to substitute property' for the Leased Propem' in whole or in part; such substitution shall also automatically operate to substirute propem' for the Leased Property leased hereunder. If the City exercises its option under Section 4.8 of the Lease and satisfies the conditions therein provided to release any portion of the Leased Property from the Lease, such release shall also automatically operate to release property hereunder. The description of the property leased under the Lease shall conform at all times to the description of the property leased hereunder. Section .i. Assignments and Subleases. The Authority' may not assign its rights under this Site Lease or sublet all or any portion of the Leased Propem', except as provided in the Lease and the Assignment Agreement; without the prior written consent of the Assignee. Section 6. Right of Entry. The Cit}' resen'es the right for any of its duly authorized representatives to enter upon the Leased Propem}', or any portion thereof, at any reasonable time to inspect the same or to make any-repairs, improvements or changes necessary for the presen'ation thereof. -2- 8-5 Section 7. Termination. The Authority agrees, upon the termination of this Site Lease, to quit and surrender the Leased Property in the same good order and condition as the Leased Property was in at the time of commencement of the term hereof, reasonable weaz and tear excepted, and agrees that all buildings, improvements and structures then existing upon the Leased Property will remain thereon and title thereto will vest thereupon in the City for no additional consideration. Section 8. Default. If the Authority defaults in the performance of any obligation on its part to be performed under the terms of this Site Lease, which default continues for 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 Lease and of the Lease shall be deemed to occur as a result thereof and this Site Lease may not be terminated by the City as a remedy for such default. Notwithstanding the foregoing, so long as the Lease remains in effect, the. City shall continue to pay the Lease Payments as and when due under the Lease to the Assignee in accordance with the Assignment Agreement. - Section 9. Amendments. The Authority and the City may at any time amend or modify any of the provisions of this Site Lease, but only with the prior written consent of the Assignee. Section 10. Quiet Enjoyment. The Authority at all times during the term of this Site Lease shall peaceably and quietly have, hold and enjoy all of the Leased Property, subject to the provisions of the Lease and subject only to Permitted Encumbrances. Section 11. Waiver of Personal Liability. All liabilities under this Site Lease on the part of the Authority aze solely corporate liabilities of the Authority as a joint powers agency, and the City hereby releases each and every member and officer of the Authority of and from any personal or individual liability under this Site Lease. No member or officer of the Authority or its governing boazd is at any time or under any circumstances individually or personally liable under this Site Lease for anything done or omitted to be done by the Authority hereunder. Section 12. Taxes. The City will pay any and all assessments of anykind or chazacter and also all taxes, including possessory interest taxes, levied or assessed upon the Leased Property and any improvements thereon. Section 13. Eminent Domain. If the whole or any part of the Leased Property, or any improvements thereon, are taken by eminent domain proceedings, the interest of the Authority v`~ill be the aggregate amount of the then unpaid principal components of the Lease Payments payable under the Lease and the balance of the award, if any, will be paid to the City. The City hereby waives any and all rights that it has or may hereafter have to acquire the interest of the Authority in and to the Leased Property. through the eminent domain powers of the City. The City hereby agrees, to the extent permitted by law, that the compensation to be paid in any condemnation proceedings brought by or on behalf of the City with respect to the Leased Property or any improvement thereon shall be in an amount not less than the total unpaid principal components of Lease Payments plus the interest component of Lease Payments accrued to the date of payment of all Lease Payments under the Lease. -3- 8-6 Section 14. Notices. Any notice; request, complaint, demand or other communication under this Site Lease must be given b}~ first class mail or personal delivery to the party entitled thereto at its address set forth below, or by telecopy, telex or other form of telecommunication; at its number set forth below. I~'otice will be effective either (a) upon transmission by telecopy; telex or other form of telecommunication, (b) 48 hours after deposit in the United States mail; postage prepaid; or (c) in the case of personal delivery to any person; upon actual receipt. The City, the Authorit}~ and the Assignee may. by written notice to the other parties; from time to time modify the address or number to which communications aze to be given hereunder. If to the City: City of Chula Vista 276 Fourth Avenue Chula Vista. California Attn: Director ofFinance/Treasurer Fax: (619) 58~-698 If to the Authority: Chula Vista Municipal Financing Authority 276 Fourth Avenue Chula Vista. California Attn: Chief Financial Officer Fax: (619)~8~-5698 If to the Assignee: Banc of America Public Capital Corp 1 li33 McCormick Road Hunt Valley II M/C MDR-032-07-OS Hunt Valle}', Maryland 21031 Attention: Contract Administration Fax: (443) »6-6977 Section 1.5. Governing Lmv. This Site Lease is governed by the laws of the State of California. Section 16. Third Party Beneficiary. The Assignee is hereby made a third pam~ beneficiary hereunder with all riehts of a third pam~ beneficiary. Section 17. Binding Efj-ect. This Site Lease inures to the benefit of and is binding upon the Authoring, the Cit}~ and their respective successors and assigns; subject. however; to the limitations contained herein. Section 18. Severabiliry of Invalid Provisions. If any one or more of the provisions contained in this Site Lease are for an}° reason held to be invalid. illegal or unenforceable in any respect; then such provision or provisions will be deemed severable from the remaining provisions contained in this Site Lease and such invalidity, illegalin~ or unenforceability shall not affect any other provision of this Site Lease, and this Site Lease shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The Authority and the Cit}~ each hereby declazes that it s;~ould have entered into this Site Lease and each and every -4- 8-7 other Section; pazagraph, sentence, clause or phrase hereof irrespective of the fact that any one or more Sections, pazagraphs, sentences, clauses or phrases of this Site Lease may be held illegal; invalid or unenforceable. Section 19. Section Headings. All section headings contained herein aze for convenience of reference only and are not intended to define or limit the scope of any provision of this Site Lease. Section 20. Execution in Counterparts. This Site Lease may be executed in any number of counterparts, each of which is an original but all together constitute one and the same instrument. It is also agreed that sepazate counterparts of this Site Lease may be sepazately executed by the Authority and the City, all with the same force and effect as though the same counterpart had been executed by both the Authority and the City. Section 21. Defined Terms. All capitalized terms used herein and not otherwise defined have the respective meanings given those terms in the Lease. Section 22. No Merger. Neither this Site Lease, the Lease nor any provisions hereof or thereof shall be construed to effect a merger of the title of the City to the Leased Property under this Site Lease and the City's leasehold interest therein under the Lease. [SIGNATURE PAGE FOLLOWS] -$- 8-8 IN RtITi``ESS VTHEREOF, the Cit}° and the Authorit<~ have caused this Site Lease to be executed by their respective officers thereunto duly authorized, all as of the day and year first above HTitten. CITY OF CHULA VISTA, CALIFOR\9A, as Lessor By \'ame: Title: Approved as to Form: By Attest: By I~'ame: Title: CHtJLA VISTA MII~'ICIPAL Ft~A\'CIt~G AtJTHGRITY, as Lessee By \'ame: Title: Approved as to Form: By Name: Title: Attest: By I~'ame: Title: Signatwe Page to Site Lease 8-9 STATE OF CALIFORNIA ) ) COUNTY OF SAN-DIEGO ) On July _, 2013 before me, a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Affix seal here) City oJChula Vista, California 8-10 STATE OF CALIFORtiIA ) ) S COUNTY OF SAN DIEGO ) On July _. ZOli before me; a Notary Public; personally appeazed ;who pro~~ed to me on the basis of satisfactory e~~idence to be the person(s) whose name(s) is/aze subscribed to the w2thin instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacin~(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PEItiURY under the laws of the State of California that the foregoing pazagraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Affix seal here) Chula 1'isra Finance duthoriry 8-~~ APPENDIX A DESCRIPTION OF THE LEASED PROPERTY Legal Description [To be pro~~ided by the City] A-1 8-12 CERTIFICATE OF ACCEPTATCE OF SITE LEASE This is to certify that the interest in real property conveyed by the Site Lease; dated as of July , ~Oli, between Citv of Chula Vista, as lessor; and Chula Vista Municipal Financing Authorit} as lessee (the "Authority "); is hereby accepted by the undersigned officer on behalf of the Authoring pursuant to a resolution adopted by the Boazd of Directors of the Authoritr~ on July 23.2013 and the Authority consents to recordation thereof by its duly authorized officer. Dated: July _, 2013 CHULA VISTA MUNICIPAL Fli\A\'CI;~G AUTHORITY BV I~'ame: Title: 8-13 DRAFT DATED 7/16/13 TO BE RECORDED AND WHEN RECORDED RETURN TO: Stradling Yocca Cazlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach; Califomia 92660 Attention: Robert J. Whalen THIS TRANSACTION IS EXEMPT FROM CALIFORNIA DOCUMENTARY TRANSFER TAX UNDER SECTION 1 1922 OF THE CALIFORNIA REVENUE AND TAXATION CODE. THIS DOCUMENT IS EXEbfPT FROM RECORDING FEES UNDER SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE. LEASE AGREEMENT This LEASE AGREEMENT (this "Lease "); dated as of July _, 2013, is between CHULA VISTA MUNICIPAL FINANCING AUTHORITY, a joint powers agency organized and existing under the laws of the State of California (the "Authority "), as lessor, and the CITY of CHULA VISTA, a municipal corporation and charter city duly organized and existing under and by virtue of the laws of the State of Califomia (the "City "), as lessee. BACXGROUND: I. In order to finance the acquisition, construction and installation of certain solar energy facility improvements to existing City buildings (the "Project"), the City has agreed to lease the real property consisting of the land and improvements comprising the City's Loma Verde Recreation and Aquatics Center, with a street address of ~ ~, as such real property is described more fully in Appendix A attached hereto and made a part hereof together with all or the portion of the Project located on such real property (the "Leased Property"), to the Authority by entering into a Site Lease dated as of July _, 2013 (the "Site Lease "), which is being recorded concurrently herewith; 2. The Authority has agreed to assist the City with such financing by entering into this Lease, pursuant to which the Authority will sublease the Leased Property back to the City and the City will be obligated to make lease payments to the Authority; 3. In order to raise the funds needed for the financing, the Authority has assigned certain of its rights under this Lease and the Site Lease, including the right to receive and enforce payment of the lease payments that aze payable by the City hereunder; to Banc of America Public Capital Corp under an Assignment Agreement dated as of July _, 2013 (the "Assignment Agreement "), which has been recorded concurrently herewith; and 4. The City is authorized to enter into a ]ease-leaseback arrangement with the Authority to provide financing for the Project under the City's Charter and other applicable State law. 3420787 01 06 2209708 8-14 AGREEAfENT: In consideration of the foregoing and the material covenants hereinafter contained, the Cit}' and the Authority formal]}' covenant, agree and bind themselves as follows: ARTICLE I DEFI\ITIO\S, RULES OF I\TERPRETATIO\ Section 1.1. Definitions. All terms defined in this Section 1.1 have the meanings herein specified for all purposes of this Lease. "Additional Payments" means any and all amounts payable by the Cit}' hereunder (other than Lease Payments); including rebate payments to the federal government. "Applicab/e Environmental Lmvs" means and shall include, but shall not be limited to; the Comprehensive Environmental Response; Compensation; and Liabilit}' Act ("CERCLA "); 42 USC Sections 9601 et seq.; the Resource Conservation and Recovery Act ("RCRA"), 42 USC Sections 6901 et seq.; the California Hazardous Waste Control Law ("HY1~CL "), California Health & Safety Code Sections 25100 et seq.; the Hazardous Substance Account Act (°HSAA"), California Health & Safety Code Sections 25300 et seq.; the Porter-Cologne Water Quality Control Act (the "Porter-Cologne Act"); California Water Code Sections L300 et seq.; the Air Resources Act; California Health & Safety Code Sections 3900 et seq.; the Safe Drinking Water & Toxic Enforcement Act, California Health & Safety Code Sections 25249.5 et seg.; and the regulations under each thereof; and any other local, state, and/or federal laws or regulations, whether currently in existence or hereafter enacted, that govern: (a) the existence, cleanup, and/or remedy of contamination on property; (b) the protection of the environment from spilled; deposited; or otherwise emplaced contamination; (c) the control of hazardous wastes; or (d) the use; generation, transport, treatment; removal, or recovery of Hazardous Substances, including building materials. "Assignee "means Banc of America Public Capital Coip; as assignee of certain rights of the Authority hereunder, its successors and assigns. "Assigned Rights" means all of the Authorit}'s rights under this Lease as lessor of the Leased Property (excepting only the Authority's rights under Section 7.3 of this Lease and its rights to notice under the Site Lease and this Lease), including; but not limited to the right to receive and enforce paytnent of the Lease Payments to be made by the City hereunder, and as lessee of the Leased Propert}' under the Site Lease; as more particularly described in the -2- 8-15 Assigrunent Agreement, that are assigned and transferred by the Authority to the initial Assignee pursuant to the Assignment Agreement. "Assignment Agreement" means the Assignment Agreement dated as of July _, 2013, between the Authority, as assignor, and the Assignee, as assignee, as originally executed or as thereafter amended under any duly authorized and executed amendments thereto. "Authority" means Chula Vista Municipal Financing Authority, a joint powers agency organized and existing under the laws of the State of California. "Bond Counsel" means any attorney or firm of attorneys of nationally recognized expertise and acceptable to Assignee with respect to legal matters relating to obligations the interest on which is excludable from gross income under Section 103 of the Tax Code. "Business Day" means a day other than a Saturday, Sunday or~legal holiday, on which banking institutions aze not closed in the State of California. "City" means the City of Chula Vista, a municipal corporation and charter city duly organized and existing under and by virtue of the laws of the State of California. "Closing Date" means the date of execution and delivery of this Lease by the parties hereto, being July _, 2013. "Event of Default" means any of the events of default as defined in Section 8.1. "Excess Project Funds" will have the meaning set forth in Section 3.4. "Facilities" means all buildings and other improvements, including any portion of the Project, at any time situated on the Leased Property. "Federal Securities" means any direct general non-callable obligations of the United States of America (including obligations issued or held in book entry form on the books of the Department of the Treasury of the United States of America), or obligations the timely payment of principal of and interest on which aze directly guazanteed by the United States of America. "Fiscal Year" means each twelve-month period during the Term of this Lease commencing on July 1 in any calendar yeaz and ending on June 30 in the next succeeding calendar year, or any other twelve-month period selected by the City as its fiscal year period. "Hazardous Substance" means any substance that shall, at any time, be listed as "hazardous" or "toxic' in any Applicable Environmental Law or that has been or shall be determined at any time by any agency or court to be a hazardous or toxic substance regulated under Applicable Environmental Laws; and also means, without limitation, raw materials, building components, the products of any manufacturing, or other activities on the facilities, wastes, petroleum, and source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954, as amended (42 USC Sections 3011 et seq. ). -3- 8-16 "Lease" means this Lease Agreement dated as of July _, 2013. beris-een the Authority, as lessor; and the Cit}~, as lessee, as originally executed or as thereafter amended under any duh~ authorized and executed amendments hereto. "Lease Payment" means all payments required to be paid by the Citv under Section 4.4, including any prepayment thereof under Section 9.2 or 93. "Lease Payment Date" means January U and July U in each yeaz; commencing Januaq~ U, 2014, and continuing to and including the date on which the Lease Payments aze paid in full. "Leased Property" means the real property which is more particulazly described in Appendix A together Huth the improvements thereon, including any portion of the Project located on such real property. From and after the date of any substitution of property under Section 4.7 or release of property under Section 4.8, the term "Leased Property" means the real propem~ which remains subject to this Lease follo~~~ng such substitution or release. "Net Proceeds" means amounts derived from any policy of casualty insurance or title insurance with respect to the Leased Property; or the proceeds of any taking of the Leased 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. "Permitted Encumbrances" means, as of any time: (a) liens for general ad valorem taxes and assessments, if any; not then delinquent; or which the City may permit to remain unpaid under Section 5.1 of this Lease; (b) the Site Lease, this Lease and the Assignment Agreement; (c) any right or claim of any mechanic, laborer, materialman, supplier or vendor not filed or perfected in the manner prescribed by law; (d) the exceptions disclosed in the title insurance policy required by Section ~.7 ~~ith respect to the Leased Propem- issued as of the Closing Date; and (e) any easements, rights of wav. mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record and which the City certifies in ~~Titing mill not materially impair the use of the Leased Propem~ for its intended purposes. V "Project" means the acquisition, construction and installation of the improvements described in Exhibit C hereto. "Project Costs" means, ~~ith respect to the Project; all costs of the acquisition, construction and installation 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 Project; (b) obligations incurred for labor and materials in connection with the Project; -4- 8-17 (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 Project; (d) all costs of engineering, azchitectural services and other preliminary investigation expenses, including the actual out-of-pocket costs for site investigations, surveys, hazazdous materials investigations, 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 Project; (e) any sums required to reimburse the City for advances made for any of the above items or for any other costs incurred and for work done, including but not limited to administrative costs of the City, which are properly chazgeable to the Project; and (f) all financing costs incurred in connection with the Project, including but not limited to fmancing costs incurred in connection with this Lease and the financing of the Project. "Project Fund" means the fund by that name established and held by the Project Fund Custodian for the benefit of the City under Section 3.3. "Project Fund Agreement" means the Project Fund Agreement dated as of July _, 2013, among the City, the Assignee and the Project Fund Custodian, relating to the administration of the Project Fund. "Project Fund Custodian" means ,its successors and assigns, as holder of the Project Fund under the Project Fund Agreement. "Rental Period" means (a) for each Lease Payment Date that occurs on ( ~, the period from the preceding ( ~ to (and including) such ~ ~; and (b) for each Lease Payment Date that occurs on ~ ~, the period from the preceding ~ ~ to (and including) such ~ ~, prol~ided that the first Rental Period begins on the Closing Date and ends on ~ , 20~. "Site Lease" is defined in the preambles hereto. "Tax 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, under the Tax Code. "Term of this Lease" or "Term" means the time during which this Lease is in effect, as provided in Section 4.3. Section 1.2. Interpretation. (a) Unless the context otherwise indicates, words expressed in the singular include the plural and vice versa and the use of the neuter, masculine, or feminine -5- 8-18 gender is for convenience only and include the neuter; masculine or feminine gender, as appropriate. (b) Headings of articles and sections herein and the table of contents hereof aze solely for convenience of reference, do not constitute a part hereof and do not affect the meaning; construction or effect hereof. (c) All references herein to "Articles;" "Sections-' and other subdivisions aze to the corresponding Articles; Sections or subdivisions of this Lease, the words `herein," "hereof" "hereby;" "hereunder' and other words of similaz import refer to this Lease as a whole and not to any particulaz Article. Section or subdivision hereof. ARTICLE II COVEnA,\TS, REPRESENTATIO\S A\D ~VARRA,\TIES Section 2.1. Covenants, Representations and Yl'arranties 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: (a) Due Organization and Existence. The City is a municipal corporation and charter city duly organized and validly existing under and by virtue of the laws of the State of California, has full legal right, power and authority under the lay+~s of the State of California to enter into the Site Lease and this Lease and to carry out and consummate all transactions contemplated hereby, and by proper action the City has duly authorized the execution and delivery of the Site Lease and this Lease. (b) Due Execution. The representatives of the City executing the Site Lease and this Lease have been fully authorized to execute the same under a resolution duly adopted by the City Council of the Cit}~. (c) Vo/id, Binding and Enforceable Obligations. The Site Lease and this Lease have each been duly authorized; executed and delivered by the City and each constitutes the legal, valid and binding agreement of the Citv enforceable against the Cin~ in accordance with its terms. (d) A'o Conflicts. The execution and delivery of the Site Lease and this Lease; the consummation of the transactions therein and herein contemplated and the fulfillment of or compliance with the terms and conditions thereof and hereof, do not and will not conflict N2th 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 anv indenture; mortgage, deed of trust, lease; contract or other agreement or instrument to which the Cit}~ is a pam~ or by which it or its properties aze otherwise subject or bound, or result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the propem or assets of the City; which conflict, violation, breach; default; lien, -6- 8-19 chazge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease or this Lease or the financial condition. assets, properties or operations of the City. (e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the City or of the voters of the City, and no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority is necessary in connection with the execution and delivery by the City of the Site Lease and this Lease, or the consummation of any transaction therein or herein contemplated, except as have been obtained or made and as are in full force and effect, or except as would not materially adversely affect the transactions contemplated hereby. (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 7easonable 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 and adverse effect upon the consummation of the transactions contemplated by, or the validity of, the Site Lease or this Lease or upon the financial condition, assets, properties or operations of the City, and the City is not in default with respect to any order or decree of any court or any order, regulation or demand of any federal, state, municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease or this Lease, or the financial condition, assets, properties or operations of the City. (g) Essential Purpose. The Leased Property and the financing of the Project pursuant to this Lease and the Assignment Agreement serve an essential govenunental function of the City and aze in the best interests of the City. (h) Budget. The obligations of the City under this Lease, including without limitation the obligation to make Lease Payments, are obligations payable from lav.~fully available funds of the City including the City's general fund budget. (i) Available Funds. The City has funds available for. the payment of Lease Payments due during the current Fiscal Year and reasonably believes that sufficient funds can be obtained to make all Lease Payments and payments of other amounts required to be paid hereunder. Section 2.2. Covenants, Representations and Warranties of the Authority. The Authority makes the following covenants, representations and warranties to the City as of the date of the execution and delivery of this Lease: (a) Due Organization and Existence. The Authority is a joint powers agency organized and existing under the laws of the State of California, has full legal right, power and authority to enter into the Site Lease, this Lease and the Assignment Agreement and to carry out and consummate all transactions contemplated hereby and -7- 8-20 thereby, and by proper action the Authority has duly authorized the execution and delivery of the Site Lease; this Lease and the Assignment Agreement. (b) Due Execution. The representatives of the Authoriri~ executing the Site Lease; this Lease and the Assignment Agreement are fully authorized to execute the same under official action taken by the Boazd of Directors of the Authorit<~. (c) Valid, Binding and Enforceable Obligations. The Site Lease, this Lease and the Assignment Agreement have been duly authorized; executed and delivered by the Authority and constitute the legal, valid and binding agreements of the Authority; enforceable against the Authority in accordance ~~th their respective terms. (d) No Conflicts. The execution and delivery of the Site Lease; this Lease and the Assierunent Agreement. the consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof and thereof. do not and w711 not conflict ~~2th or constitute a violation or breach of or default (~~ith due notice or the passage of time or both) under any applicable la~~ or administrative rule or regulation; or any applicable court or administrative decree or order; or any indenture, mortgage; deed of trust, lease, contract or other agreement or instrument to which the Authority is a pam~ or by which it or its properties aze otherwise subject or bound; or result in the creation or imposition of any prohibited lien; charge or encumbrance of any nature whatsoever upon any of the property or assets of the Authority, which conflict, violation, breach, default, lien; charge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease, this Lease or the Assignment Agreement or the fmancial condition; assets; properties or operations of the Authority. (e) Consents and Approvals. I~'o consent or approval of any trustee or holder of anv indebtedness of the Authority; and no consent, permission, authorization; order or license of or filing or registration ~2th, any governmental authority is necessary in connection with the execution and delivery by the Authorit}~ of the Site Lease, this Lease or the Assignment Agreement; or the consummation of any transaction herein or therein contemplated, except as have been obtained or made and as aze in full force and effect, or except as would not materially adversely effect the transactions contemplated hereby. (f) ?~'o 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 Authorin~ after reasonable investigation; threatened against or affecting the Authority or the assets; properties or operations of the Authority which; if determined adversely to the Authority or its interests; would have a material and adverse effect upon the consummation of the transactions contemplated by or the validity of the Site Lease, this Lease or the Assignment Agreement; or upon the financial condition, assets; properties or operations of the Authorih~, and the Authority is not in default with respect to any order or decree of any court or any order; regulation or demand of any federal; state, municipal or other governmental authority; which default might have consequences that would materially and adversely affect the consummation -8- 8-21 of the transactions contemplated by the Site Lease, this Lease or the Assignment Agreement or the financial condition, assets, properties or operations of the Authority. ARTICLE III DEPOSIT AND APPLICATION OF FUNDS Section 3.1. Deposit of and Application of Funds. As provided in the Assignment, the proceeds therefrom in the amount of $ will be deposited with the Project Fund Custodian on the Closing Date and applied as follows: (a) $ will be applied to pay the costs of the fmancing on behalf of the City; and (b) $ will be held, administered and invested for the purpose of financing the Project as provided herein and in the Project Fund Agreement. Section 3.2. Appointnsent of City as Agent of Authority. The Authority hereby appoints the City as its agent to carry out all phases of the Project under and in accordance with the provisions hereof. The City hereby accepts its appointment as agent of the Authority and assumes all rights, liabilities, duties and responsibilities of the Authority regarding the Project. The City, as agent of the Authority hereunder, will enter into, administer and enforce all purchase orders, energy services contacts or other contracts relating to the Project. The City will requisition the payment of Project Costs from amounts held by the Project Fund Custodian in the Project Fund, pursuant to and in accordance with the Project Fund Agreement. All contracts for, and all work relating to, the Project are subject to all applicable provisions of law relating to the acquisition, construction, improvement, and equipping of like facilities, equipment and properly by the City. Section 3.3. Acquisition, Construction and Installation of the Project. (a) As agent of the Authority, the City hereby agrees with due diligence to supervise and provide for, or cause to be supervised and provided for; the acquisition, construction and installation of the Project in accordance with the plans and specifications, purchase orders, construction contracts, energy services contracts and other documents relating thereto and approved by the City under all applicable requirements of la~~. (b) In order to enswe that moneys sufficient to pay the Project Costs will be available when required, the Authority shall deposit the sum of $ in a special account (the "Project Fund") to be established by the Project Fund Custodian as custodian for the benefit of the City. The Project Fund Custodian shall disburse moneys in the Project Fund from time to time to pay the Project Costs (or to reimburse the City for payment of Project Costs) upon delivery to the Project Fund Custodian of written disbursement requests from the City each of which conforms to the requirements of the Project Fund Agreement. Notwithstanding anything in this Article III to the contrary, the City shall assure that amounts in the Project Fund aze expended solely in accordance with the requirements of Section 7.7 relating to the observance of all tax provisions relating to the Project. -9- 8-22 Section 3.4. Disposition, of Excess Project Funds. Upon the determination by the Cirv that the acquisition, construction and installation of the Project have been completed and accepted by the Ciry; the City wRll notify the Assignee and the Project Fund Custodian of such fact and ~~ll request the Project Fund Custodian to close the Project Fund and transfer all remaining amounts therein ("Excess Project Funds"), in the Ciry`s discretion. (a) to the Cih~ to finance additional projects and facilities of the City; or (b) to the Assignee as payment or prepayment of the Lease Payments under Section 9.2. If the amount remaining in the Project Fund exceeds 5100;000; the City will obtain the prior written consent of the Assignee (which consent will not unreasonably be withheld) before financing additional projecu or facilities with such funds. ARTICLE IV LEASE OF LEASED PROPERTY; LEASE PA1'~IE\TS Section 4.1. Lease of Leased Property by Authority to Cit}-. For and in consideration of the application by the Authority of funds in accordance with Section 3.1, the City has leased the Leased Property to the Authority under the Site Lease. For and in consideration of the Lease Payments to be made by the City hereunder, the Authority hereby leases the Leased Property to the City and the City hereby leases the Leased Property from the Authority; pursuant to this Lease upon the terms and provisions hereof. Section -0.2. Reserved. Section 4.3. Term. The Term of this Lease commences on the Closing Date and ends on the date on which all of the Lease Payments have been paid in full. In the event the obligation of the Ciry to pay Lease Payments is abated for any period under Section 6.3 hereof; the term of this Lease shall extend until such time as all Lease Payments set forth on Appendix B hereto have been paid in full; provided that the term of this Lease shall not extend more than ten yeazs following the last Lease Payment Date sho«m on Appendix B. Section 4.4. Lease Payments. (a) Obligation to Pay. Subject to the provisions of Section 6.3 and the provisions of Article IX; the City agrees to pay to the Authority, its successors and assigns; the Lease Payments (denominated into components of principal and interest) in the respective amounts specified in Appendix B attached hereto (including any supplements thereto) and by this reference incorporated herein, to be due and payable in immediately available funds on each of the respective Lease Payment Dates specified in Appendix B. The Lease Payments payable in any Rental Period 7th respect to the Leased Propem~ shall be for the use of the Leased Propem~ during such Rental Period. The interest componenu of the Lease Payments hay°e been calculated based on an interest rate of ~ % per annum, on the basis of a 360-day yeaz of i<veh~e 30-day months. (b) Effect of Prepayment. If the Ciry prepays all Lease Payments in full under Section 9.2 or 9.3; the City's obligations under this Section will thereupon cease and terminate. -10- 8-23 If the City prepays the Lease Payments in part but not in whole under Section 9.3, such amounts shall be applied by the Authority as prepayment to the remaining unpaid principal components of the Lease Payments owing hereunder in the inverse order of Lease Payment Dates and the interest component of each remaining Lease Payment vt211 be reduced on a pro rata basis. (c) Rate on Overdue Payments. If the City fails to make any of the payments required in this Section 4.4, the payment in default will continue as an obligation of the City until the amount in default has been fully paid, and the City agrees to pay the same with interest thereon, from the date of default to the date of payment at a rate equal to the lesser of (a) 8.00% per annum and (b) the maximum rate permitted by law. (d) Fair Rental Value. The Lease Payments coming due and payable during each Rental Period constitute the total rental for the Leased Property for such Rental Period, and mill be paid by the City in each Rental Period for and in consideration of the right of the use and occupancy, and the continued quiet use and enjoyment, of the Leased Property during each Rental Period. The parties hereto have agreed and determined that the total Lease Payments due in each Rental Period are not in excess of the fair rental value of the Leased Property in the corresponding Rental Period. In making this determination, consideration has been given to the estimated fair market value of the Leased Property, the replacement costs of the Leased Property, the costs of financing the deposit required to be made under Section 3.1, other obligations of the City and the Authority under this Lease, the uses and purposes which may be served by the Leased Property and the benefits therefrom which will accrue to the City and the general public. (e) Sow•ce of Payments; Budget and Appropriation. The Lease Payments are payable from any source of legally available funds of the City, subject to the provisions of Sections 6.3 and 9.1. The City covenants to take such action as may be necessary to include all Lease Payments in each of its annual budgets during the Term of this Lease and to make the necessary annual appropriations for all such Lease Payments. The covenants on the part of the City herein contained constitute duties imposed by law and it is the duty of each and every public official of the City to take such action and do such things as are required by law in the performance of the official duty of such officials to enable the City to carry out and perform the covenants and agreements iri this Lease agreed to be carried out and performed by the City. Section ~..i. Quiet Enjoyment. Throughout the Term of this Lease, the Authority will provide the City with quiet use and enjoyment of the Leased Property and the City will peaceably and quietly have and hold and enjoy the Leased Property, without suit, trouble or hindrance from the Authority, except as expressly set forth in this Lease. 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 has the light to inspect the Leased Propem as provided in Section 7.2. Section 4.6. Title. At all times during the Term of this Lease, the Authority shall hold leasehold title to the Leased Property, including all additions which comprise fixtures, repairs, replacements or modifications thereto, subject to Permitted Encumbrances and subject to the provisions of Section 8.2. -11- 8-24 Upon the termination of this Lease (other than under Section 8.2(b) hereof), all right. title and interest of the Authority in and to the Leased Propem~ shall be transferred to and vested in the City. Upon the payment in full of all Lease Payments allocable to the Leased Property, or upon the deposit by the City of security for such Lease Payments as provided in Section 9.1, all right; title and interest of the Authority in and to the Leased Propem~ shall be transferred to and vested in the City. The Authorip~ 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 ~.7. Substitution of Property. With the prior written consent of the Assignee in its sole and absolute discretion; the City may substitute other land; facilities or improvements (the "Substitute Property") for the Leased Propem~ or any portion thereof (the "Former Property"), provided that the City has satisfied all of the follo~~~ing requirements. which aze hereby declazed to be conditions precedent to such substitution: (a) The City has certified to the Authority and the Assignee that no Event of Default has occurred and is continuine. (b) The City has filed with the Authority and the Assignee; and caused to be recorded in the Office of the San Diego County Recorder sufficient memorialization of an amended Appendix A to this Lease which adds thereto a description of such Substirute Property and deletes therefrom the description of such Former Propem. (c) The City has obtained a CLTA policy of title insurance insuring the City's leasehold estate hereunder in the Substitute Property, in an amount at least equal to the aggregate unpaid principal components of the Lease Payments and naming the Assignee as an additional insured. (d) The City has certified in writing to the Authority and the Assignee that such Substitute Property is essential to the City's efficient and economic operation, sen~es an essential governmental function of the City and constitutes property which the Cit}~ is permitted to lease under the laws of the State of California. (e) The Substitute Propem~ does not cause the City to violate any of its covenants; representations and warranties made herein. No event giving rise to an abatement of Lease Payments has occurred or is continuing with respect to the Substirute Propem~. (f) The City has certified in meriting to the Authority and the Assignee that the estimated value and the estimated fair rental value of the Substitute Propem~ aze at least equal to the estimated value and the estimated fair rental value; respectively; of the Former Propem as of the date hereof, and that the useful life of the Substitute Propem~ extends to or beyond If requested by the Assignee; the City has delivered to the Assignee valuations prepazed or confirmed by an independent third pam~, which might include; without limitation, an appraisal or a valuation by an insurance company. -12- 8-25 (g) The City has delivered w the Authority and the Assignee an Opinion of Bond Counsel to the effect that such substitution of Leased Property will not, in and of itself, cause the interest portion of Lease Payments to be included in gross income for federal income tax purposes. (h) The City has delivered to the Assignee an environmental sun=ey or surveys with respect to the Substitute Property, and other documents that the Assignee may reasonably require; provided, hou=ever, that if the environmental studies have recommended that remedial action be taken with respect to the Substitute Property so that it will be in compliance with Applicable Environmental Laws, the Authority, at the direction of the Assignee, does not have an obligation or duty to accept the Substitute Property as Leased Property until such time as the remedial action has been completed and the Assignee has received assurances to its satisfaction that the Substitute Property is in compliance with Applicable Environmental Laws. Upon written consent of the Assignee and the satisfaction of all conditions precedent to any substitution under this Section 4.7, the Term of this Lease will thereupon end as to the Former Property and commence as to the Substitute Property. The Authority and the City shall execute, deliver and cause to be recorded all documents required to discharge the Site Lease, this Lease and the Assignment Agreement of record against the Former Property. Section 4.8. Release of Property. With the prior written consent of the Assignee in its sole and absolute discretion, the City may release any portion of the Leased Property from this Lease (the "Released Property") provided that the City has satisfied all of the following requirements, which are hereby declazed to be conditions precedent to such release: (a) The City has certified to the Authority and the Assignee that no Event of Default has occurred and is continuing. (b) The City has filed with the Authority and the Assignee, and caused to be recorded in the Office of the San Diego County Recorder sufficient memorialization of an amendment hereof which removes the Released Property from this Lease. (c) The City has certified in writing to the Authority and the Assignee that the value of the property which remains subject to this Lease following such release is at least equal to the aggregate unpaid principal components of the Lease Payments, and the fair rental value in each Rental Period of the property which remains subject to this Lease following such release is at least equal to the Lease Payments in the corresponding Rental Period coming due and payable hereunder. If requested by the Assignee, the City has delivered to the Assignee valuations prepared or confirmed by an independent third party, which might include, without limitation, an appraisal or a valuation by an insurance company. (d) The City has delivered to the Authority and the Assignee a written opinion of Bond Counsel to the effect that such release of Leased Property will not, in and of -13- 8-26 itself; cause the interest portion of Lease Payments to be included in gross income for federal income tax purposes. Upon v`ritten consent of the Assignee and the satisfaction of all such conditions precedent; the Term of this Lease sill thereupon end as to the Released Property. The City is not entitled to any reduction, diminution, extension or other modification of the Lease Payments whatsoever as a result of such release. The Authoril5~ and the City shall execute. deliver and cause to be recorded all documents required to dischazge the Site Lease; this Lease and the Assignment Agreement of record against the Released Propem~. ARTICLE V M,IITTENANCE; TA~CES; INSUR4\CE; A.\D OTHER MATTERS Section ~.1. Maintenance, Utilities, Taxes and Assessments. Throughout the Term of this Lease, as part of the consideration for the rental of the Leased Propem~, all improvement, repair and maintenance of the Leased Property aze the sole responsibility of the City, and the City will pay for or otherwise arrange for the payment of all utility services supplied to the Leased Property, which may include; v<ithout limitation, janitor service, security, power; gas; telephone, light; heating, water and all other utility services, and shall pay for or otherwise arrange for the payment of the cost of the repair and replacement of the Leased Propem~ resulting from ordinary wear and teaz or want of caze on the part of the City or any assignee or sublessee thereof on the part of the City or any assignee. In exchange for the Lease Payments herein provided; the Authority agrees to provide only the Leased Property, as hereinbefore more specifically set forth. The City waives the benefits of subsections 1 and 2 of Section 1932; Section 1933(4) and Sections 1941 and 1942 of the California Civil Code, but such waiver does not limit any of the rights of the City under the terms of this Lease. The City will pay or cause to be paid all taxes and assessments of any type or nature; if any; charged to the Authority or the City affecting the Leased Property or the respective interests or estates therein; provided that with respect to special assessments or other governmental chazges that may law~ftrlly be paid in installments over a period of nears, the City is obligated to pay only such installments as are required to be paid during the Term of this Lease as and when the same become due. The City may, at the City's expense and in its name, in good faith contest any such taxes; assessments, utility and other charges and, in the event of any such contest, may permit the taxes, assessments or other charges so contested to remain unpaid during the period of such contest and any appeal therefrom unless the Authority shall notify the City that, in its reasonable opinion, by nonpa} ment of any such items the interest of the Authority in the Leased Propem~ will be materially endangered or the Leased Propem~ or any part thereof will be subject to loss or forfeiture, in which event the City will promptly pay such taxes, assessments or charges or provide the Authority with full securih- against any loss which may result from nonpayment; in form satisfactory to the Authority. -14- 8-27 Section 5.2. Modification of Leased Property. The City has the right, at its own expense, to make additions, modifications and improvements to the Leased Property or any portion thereof. All additions, modifications and improvements to the Leased Property will thereafter comprise part of the Leased Property and become subject to the provisions of this Lease. Such additions, modifications and improvements may not in any way damage the Leased Property, or cause the Leased Property to be used for purposes other than those authorized under the provisions of state and federal law; and the Leased Property, upon completion of any additions, modifications and improvements made thereto under this Section, must be of a value which is not substantially less than the value thereof immediately prior to the making of such additions, modifications and improvements. The City will not permit any mechanic's or other lien to be established or remain against the Leased Property for labor or materials furnished in connection with any remodeling, additions, modifications, improvements, repairs, renewals or replacements made by the City under this Section; provided that if any such lien is established and the City first notifies the Authority of the City's intention to do so, the City may in good faith contest any lien filed or established against the Leased Property," and in such event may permit the items so contested to remain undischazged and unsatisfied during the period of such contest and any appeal therefrom and will 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 Insurance. The City shall maintain or cause to be maintained throughout the Term of this Lease a standazd comprehensive general insurance policy or policies in protection of the City, the Authority and their respective members, officers, agents, employees and assigns. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by reason of the operation of the Leased Property. Such policy or policies must provide coverage of at least $1,000,000 per occurrence, $3,000,000 in aggregate and $5,000,000 excess liability and may be subject to such deductibles as the City deems adequate and prudent. Such insurance may be maintained as part of or in conjunction with any other insurance coverage carried by the City, and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance. The City will apply the proceeds of such liability insurance towazd extinguishment or satisfaction of the liability with respect to which such proceeds have been paid. Section .i.4. Casualty Insurance; Flood Coverage. (a) Reguirement to Maintain Casualty Insurance. The City will procure and maintain, or cause to be procured and maintained, throughout the Term of this Lease, casualty insurance against loss or damage to the Facilities by fire and lightning, with extended coverage insurance, vandalism and malicious mischief insurance and sprinkler system leakage insurance. Said extended coverage insurance shall cover loss or damage by fire, explosion, windstorm, riot, aircrafr, vehicle damage, smoke and such other hazazds as are normally covered by such insurance, including earthquake coverage if such coverage is available at commercially reasonable cost from a reputable insurer in the reasonable determination of the City. Such -15- 8-28 insurance shall be in an amount at least equal to the greater of (i) the replacement value of the insured Facilities; or (ii) the aggregate unpaid principal components of the Lease Payments; and may be subject to such deductibles as the City deems adequate and prudent. 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 ~rhole or in part in the form of the participation by the City in a joint powers"authority or other program providing pooled insurance. The City ~~Il apply the Net Proceeds of such insurance as provided in Article VI. (b) Flood Insurance. If at anti time and for so long as the Leased Propem~ is located in a 100-yeaz flood area as sho~m on a Flood Insurance Rate Map published by the Federal Emergency Management Agency, the policy or policies of casualty insurance provided under this Section 5.4 shall include insurance against loss or damage to the Facilities due to flooding. If the Cit}~ obtains an exception or waiver to the designation of the Facilities as being within a 100-yeaz flood azea from the Federal Emergency Management Agency; the City shall not be required to provide flood insurance as set forth in this subsection (b). " (c) Federal or State Disaster Aid. Should the Facilities be damaged or destro}~ed as a result of an event for which federal or State of California disaster aid is available, the Authority andlor the City shall promptly apply for disaster aid. Any disaster aid proceeds received shall be used to repair; reconstruct; restore or replace the damaged or destroyed portions of the Facilities. or, at the option of the City and the Authorih, to prepay the Lease Payments if permitted under the disaster aid program and the law. (d) Self-Insurance. As an alternative to providing the insurance required by this Section; the City may provide aself-insurance method or plan of protection if and to the extent such self-insurance method or plan of protection (i) affords reasonable coy°erage for the risks required to be insured against, in light of all circumstances, giving consideration to cost, availability and similaz plans or methods of protection adopted by public entities in the State of California other than the City, and (ii) has been approved in writing by the Assignee. Before such other method ar plan may be provided by the City, and annually thereafrer so long as such method or plan is being provided to satisfy the requirements of this Lease, there shall be filed with the Authority and the Assignee a certificate of an actuan~; insurance consultant or other qualified person (who may be an employee of the City), stating that; in the opinion of the signer, the substitute method or plan of protection is in accordance with the requirements of this Section and, when effective, would afford reasonable coverage for the risks required to be .insured against and is sufficiently funded to afford such coverage. There shall also be filed a certificate of the Cit}~ settine forth the details of such substitute method or plan. In the event of loss covered by any such self-insurance method, the liability of the City hereunder shall be limited to the amounts in the self-insurance reserve fund or funds created under such method. Section i..5. Rental Interruption Insurance. The Cit}~ shall procure and maintain, or cause to be procured and maintained; throughout the Term of this Lease; rental interruption or use and occupancy insurance to cover loss. total or partial; of the use of the Leased Propem~ as a result of any of the hazards covered in the insurance required by Section ~.4, in an amount at least equal to the maximum Lease Payments coming due and payable during any future 24-month period. Such insurance may be maintained as part of or in conjunction with any other -16- 8-29 insurance coverage carried by the City, and may be maintained in whole or in part in the form of the participation by the City in a joint powers authority or other program providing pooled insurance. Such rental interruption or use and occupancy insurance shall not be self-insured and the City acknowledges that this requirement may limit its ability to self-insure under Section 5.4. The City will apply the Net Proceeds of such insurance towazds the payment of the Lease Payments allocable to the insured improvements as the same become due and payable. Section 5.6. YVorker's Compensation Insurance. If required by applicable California law; the City shall carry workers compensation insurance covering all employees on, in, neaz or about the Leased Property and, upon request, shall furnish to the Authority certificates evidencing such coverage throughout the Term of this Lease. Section .i.7. Recordation Hereof,• Title Insurance. On or before the Closing Date, the City shall, at its expense, (a) cause the Assignment Agreement, the Site Lease and this Lease, or a memorandum hereof or thereof, to be recorded in the office of the Sah"Diego County Recorder with respect to the Leased Property, and (b) obtain a CLTA leasehold lender's title insurance policy insuring the Authority's interests in the estate established under the Site Lease in the Leased Property, subject only to Permitted Encumbrances, in an amount equal to the original principal components of the Lease Payments. The City shall apply the Net Proceeds received under such title insurance policy to prepay the remaining Lease Payments under Section 9.3. Section .i.8. Form of Policies. All insurance policies (or riders) required by this Article V shall be taken out and maintained with responsible insurance companies organized under the laws of one of the states of the United States and qualified to do business in the State of California, and shall contain a provision that the insurer shall not cancel or revise coverage thereunder without giving written notice to the insured pazties at least ten days before the cancellation or revision becomes effective. Each insurance policy or rider required by Sections 53, 5.4 and 5.5 shall name the City as the insured and loss payee and the Assignee as additional insured and shall include a lender's loss payable endorsement for the benefit of the Assignee. Prior to the Closing Date; the City will deposit with the Assignee policies (and riders and endorsements; if applicable) evidencing any such insurance procured by it, or a certificate or certificates of the respective insurers stating that such insurance is in full force and effect. Before the expiration of any such policy (or rider), the City will furnish to the Assignee evidence that the policy has been renewed or replaced by another policy conforming to the provisions of this Article V unless such insurance is no longer obtainable, in which event the City shall notify the Assignee of such fact. Section J.9. Installation of City's Personal Property. The City may at any time and from time to time, in its sole discretion and at its own expense, install or permit to be installed other items of equipment or other personal property in'or upon the Leased Property. All such items shall remain the sole property of the City, in which the Authority has no interest, and may be modified or removed by the City at any time. The City must repair and restore any and all damage to the Leased Property resulting from the installation, modification or removal of any such items. Nothing in this Lease prevents the City from purchasing or leasing items to be installed under this Section under a lease or conditional sale agreement, or subject to a vendor s -17- 8-30 lien or securih' agreement; as security' for the unpaid portion of the pwchase price thereof. provided that no such lien or secwit}' interest may attach to any part of the Leased Property. Section 5.10. Liens. The City ~~211 not, directly or indirectly; create, incw, assume or suffer to exist any mortgage, pledge; lien; chazge; encumbrance or claim on or w2tlt respect to the Leased Propem, other than as herein contemplated and except for such encumbrances as the City certifies in v<riting to the Authorit}' do not materially and adversely affect the leasehold estate in the Leased Property hereunder and for which the Assignee approves in «Titing, which approval may not be uweasonably withheld. Except as expressly provided in this Article V, the City will prompthr, at its ov<n expense, take such action as may be necessary to duly dischazge or remove any such mortgage, pledge; lien, chazge, encumbrance or claim, for which it is responsible, if the same shall azise at any time. The City ~~~ll reimbwse the Authority for any expense incurred by it in order to dischazge or remove any such mortgage, pledge, lien; charge, encumbrance or claim. Section 5.11. Adi~ances. If the Cit}' fails to perform any of its obligations under this Article V, the Authority' may take such action as may be necessan' to cure such failwe, including the advancement of money, and the City shall be obligated to repay all such advances as additional rental hereunder, with interest at the rate set forth in Section 4.4(c). ARTICLE VI DAMAGE, DESTRUCTION AND EMINENT DODIAI\; USE OF PROCEEDS; ABATEMENT OF LEASE PAYMENTS Section 6.1. Deposit of Net Proceeds. The Net Proceeds of any taking of the Leased Propem}' or any portion thereof in eminent domain proceedings, and the Net Proceeds of any policy of inswance maintained under Section ~.4, shall be paid to the City to be applied as hereinafter set forth in Section 6.2. Section 6.2. Application of Net Proceeds. If the Leased Propem' is taken in eminent domain proceedings at any time during the Term of this Lease, or if the Leased Propert}' is damaged due to an inswed casualty which is covered by a policy of inswance or a program of self-inswance maintained under Section ~.4, the City' shall as soon as practicable after such event; Nrith the prior written consent of the Assignee, apply the Net Proceeds resulting therefrom to one of the following: (a) repair the Leased Propem to full use; (b) replace the Leased Propem'; at the Cit}''s sole cost and expense, with property of equal or greater value to the Leased Propem immediately prior to the time of such destruction or damage, such replacement Leased Property to be subject to the Assignee's reasonable approval; whereupon such replacement shall be substituted in this Lease by appropriate endorsement; (c) substitute additional property as provided in Section 4.7; or -18- 8-31 (d) prepay the Lease Payments in accordance with Section 9.3. The City will notify the Authority and the Assignee of which course of action it has elected to take within a reasonable time not to exceed 60 days after the occurrence of such eminent domain proceedings or such destruction or damage. Such repair, replacement; substitution or prepayment shall commence not later than 60 days after the occurrence of such taking; destruction or damage and be pursued diligently to completion. The Authority may (but is not required to) in its ov<m name or in the City's name execute and deliver proofs of claim, receive all such moneys; endorse checks and other instruments representing payment of such moneys, and adjust, litigate, compromise or release any claim against the issuer of any such policy; and the City hereby grants to the Authority a power of attorney coupled with an interest to accomplish all or any of the foregoing. Section 6.3. Abatement Due to Damage or Desh~uction. The Lease Payments are subject to abatement during any period in which by reason of damage or destruction (other than by eminent domain which is provided for in Section 6.4) or a material title defect there is substantial interference with the use and occupancy by the City of the Leased Property or any portion thereof. The Lease Payments are subject to abatement in an amount determined by the City such that the resulting Lease Payments represent fair consideration for the use and occupancy of the remaining usable portions of the Leased Property not damaged or destroyed or interfered with as in result of such title defect. Such abatement will 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 restoration of use following the removal of any title defect. In the event of any such damage or destruction or any title defect, this Lease will continue in full force and effect and the City waives any right to terminate this Lease by virtue of any such damage and destruction or any title defect. Notwithstanding the foregoing, the Lease Payments aze not subject to abatement to the extent that rental interruption insurance proceeds aze available to pay Lease Payments which would otherwise be abated under this Section 6.3, it being hereby declazed that such amounts constitute special funds for the payment of the Lease Payments. Section 6.4. Termination or Abatement Due to Eminent Domain. If the Leased Property is taken permanently under the power of eminent domain or sold to a government threatening to exercise the power of eminent domain, the Term of this Lease will cease with respect thereto as of the day possession is so taken. if less than all of the Leased Property is taken permanently, or if the Leased Property is taken temporarily, under the power of eminent domain, (a) this Lease will continue in full force and effect with respect thereto and will not be terminated by virtue of such taking and the parties waive the benefit of any law to the contrary, and (b) there will be a partial abatement of Lease Payments allocated thereto based upon whether such event has occun•ed with respect to the Leased Property, in an amount to be determined by the City such that the resulting `'Lease Payments'' represent fair consideration for the use and occupancy of the remaining usable portions of the affected Leased Property. -19- 8-32 ARTICLE VII OTHER CO\'E\:},\TS OF THE CITY Section i.l. Disclaimer of Warranties. THE AUTHORITY MAKES NO AGREE~~Ni, WARRANT}' OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIG\, CONDITION. 4g'.RCHAN7ABILITY OR FITNESS FOR ANY PARTICUZAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF THE LEASED PROPERTY OR AN}' PORTION THEREOF. OR A\'}' OTHER REPRESENTATION` OR WARRANT}' N'ITH RESPECT TO THE LEASED PROPERTY OR ANY PORTION THEREOF. THE CITY ACKNOWLEDGES THAT THE AUTHORITY IS NOT A D1.4NUFACTU'RER OF ANY PORTION OF THE LEASED PROPERTY OR A DEALER THERERQ, THAT THE CITY LEASES THE LEASED PROPERTY AS-IS. IT BEING AGREED THAT ALL OF THE AFOREMEA'TIOA'ED RISKS ARE TO BE BORA°E B}' THE CIT}'. In no event is the Authority' liable for incidental, indirect; special or consequential damages, in connection with or arising out of this Lease for the existence; furnishing; functioning or use of the Leased Property by the Cit}'. - - Section 7.2. Access to the Leased Property. The City' agrees that the Authority, and the Authorih''s successors or assigns, has the right at all reasonable times; following at least 48 hours written notice provided to the City; to enter upon and to examine and inspect the Leased Property or any part thereof. The Ciq' further agrees that the Authorih', and the Authorip''s successors or assigns; shall Cit}' such rights of access to the Leased Property or any component thereof; following at least 48 hours written notice provided to the City, as may be reasonably necessary' to cause the proper maintenance of the Leased Property' if the Cit}' fails to perform its obligations hereunder. Neither the Authority nor any of its assigns has any obligation to cause such proper maintenance. Section 7.3. Release and Indemnification Covenants. The Cit}' hereby agrees, to the extent not prohibited by applicable law, to indemnify the Authority, the Assignee and their respective directors, officers; employees, agents, successors and assigns against all claims, losses and damages, including legal fees and expenses, arising out of (a) the use; maintenance. condition or management of, or from any work or thing done on the Leased Property by the City, (b) any breach or default on the paR of the Cit}' in the performance of any of its obligations under this Lease, (c) any negligence or willful misconduct of the City' or of any of its agents, contractors, servants, employees or licensees with respect to the Leased Propem', (d) any intentional misconduct or negligence of any sublessee of the City with respect to the. Leased Propem', (e) the acquisition, construction, improvement and equipping of the Leased Propem'; (f) the use; presence. storage, disposal or clean-up of any Hazardous Substances or toxic wastes on the Leased Propem'; (g) the failure to comply with any Applicable Envirohmental Law's. or (h) any loss of the Federal income tax exemption of the interest portion of Lease Payments, in any case, due to the Cit}''s or the Authorit}''s action or failure to take any action or the making by the Cih' or the Authority of any misrepresentation herein or in any certificate required to be given in connection with the execution and delivery of this Lease and any interest or penalties imposed by the Internal Revenue Service on the Assignee in connection therewith; any such amount with respect to past Lease Payments to be paid to the Assignee in a single lump sum payment upon demand of the Assignee. and any such amount with respect to future Lease Payments to be paid as an increase in the interest component of Lease Payments such that the -20- 8-33 after tax yield to the Assignee shall remain the same following the loss of the federal income tax exemption as it was before such loss of tax exemption; provided, ho>7~ever, in no event may such payments result in the Lease Payments in any Rental Period exceeding the fair rental value of the Leased Property in such Rental Period. No indemnification is made under this Section or elsewhere in this Lease for willful misconduct or gross negligence under this Lease by the Authority, the Assignee, or their respective officers, agents, employees, successors or assigns. Section 7.4. Assignment by the Authority. (a) The Authority has assigned and transferred the Assigned Rights to the Assignee pursuant to the Assignment Agreement. The City hereby consents to such assignment and transfer. The Authority hereby directs the City, and the City hereby agrees, to pay to the Assignee all payments payable by the City under Section 4.4 and all amounts payable by the City under Article IX. Whenever in this Lease any reference is made to the Authority and such reference concerns any Assigned Rights, such reference shall be deemed to refer to the Assignee. (b) The Assigned Rights, and all proceeds therefrom, may be further assigned and reassigned in whole or in part to one or more assignees or subassignees by the Assignee (including, but not limited to, in commection with the creation of fractional interests with institutional investors so long as such assignment complies with applicable State law), without the necessity of obtaining the consent of the City; provided, that any such assignment, transfer or conveyance (i) shall be made only to investors each of whom the transferor Assignee reasonably believes is a "qualified institutional buyer" as defined in Rule 144A(a)(1) promulgated under the Securities Act of 1933, as amended (the "Securities Act") or an "accredited investor" as defined in Sections 501(a)(1), (2), (3) and (7) of Regulation D promulgated under the Securities Act and is purchasing the Assigned Rights (or any interest therein) for its own account with no present intention to resell or distribute the Assigned Rights (or interest therein), subject to each investor's right at any time to dispose of the Assigned Rights or any interest therein as it determines to be in its best interests, (ii) shall not result in more than 35 owners of the Assigned Rights or the creation of any interest in the Assigned Rights in an aggregate principal component that is less than $100,000 and (iii) shall not require the City to make Lease Payments, send notices or otherwise deal with respect to matters arising under this Lease with or to more than one trustee, owner, Servicer or other fiduciary or agent or entity (herein referred to as the "Lease Servicer ") and any trust agreement, participation agreement or custodial agreement under which multiple ownership interests in the Assigned Rights are created shall provide the method by which the owners of such interests shall establish the rights and duties of a single Lease Servicer to act on their behalf with respect to the Assigned Rights, including with respect to the exercise of rights and remedies on behalf of such ov`mers upon the occurrence of an Event of Default hereunder. The Authority (including the initial Assignee pursuant to the Assignment Agreement) and the City hereby acknowledge and agree that the restrictions and limitations on transfer as provided in this Section 7.4 shall apply to the first and subsequent assignees and sub- assignees of any of the Assigned Rights (or any interest therein). (c) No assignment, transfer or conveyance permitted by this Section 7.4 that changes the Lease Servicer or its payment instructions or mailing address shall be effective until the City shall have received a written notice of assignment that discloses the name, payment instructions and address of each such assignee; provided, that if such assignment is made to a bank or trust -21- 8-34 company as trustee or paying agent for owners of certificates of participation; trust certificates or partnership interests evidencing interests in the Assigned Rights, it shall thereafrer be sufficient that the City receives notice of the name; payment instructions and address of such bank or trust company that acts as the Lease Sen°icer. During the Term of this Lease, the City shall keep; or cause to be kept, a complete and accurate record of all such assignments in form necessary to comply ~2th Section 149 of the Code. The City shall retain all such notices as a register of all Assignees and shall make all payments to the Assignee or Lease Servicer designated in such register. The Citv shall not have the right to, and shall not, assert against the initial Assignee or any subsequent Assignee any claim, counterclaim or other right that the City may have against the Authorih~. If the Assignee notifies the City of its intent to assign the Assigned Rights (or any interest therein) to a different Lease Servicer; the City agrees that it shall execute and deliver to the requesting Assignee a notice and acknowledgment of assignment in form reasonably required by such Assignee writhin five (~) business days after its receipt of such request. Section i.5. Assignment and Subleasing by the Ciry. This Lease may not be assigned by the City. With the prior written consent of the Assignee, the City may sublease the Leased Propem~; or any portion thereof; subject to all of the following conditions: (a) This Lease and the obligation of the City to make Lease Payments hereunder shall remain obligations of the Cit<~. (b) The City shall; tinthin 30 days after the delivery thereof, furnish or cause to be furnished to the Authority and the Assignee a true and complete copy of such sublease. (c) Any sublease shall be expressly subject and subordinate to this Lease. (d) \io such sublease by the Cite may cause the Leased Propem~to be used for a purpose other than an essential government function and as may be authorized under the provisions of the laws of the State of California. (e) The City shall furnish the Authority and the Assignee ~~ith a ~;~ritten opinion of Bond Counsel stating that such sublease does not cause the interest components of the Lease Payments to become includable in gross income for purposes of federal income taxation or to become subject to personal income taxation by the State of California. Section i. 6. Amendment Hereof. This Lease may be amended by the parties hereto with the prior written consent of the Assignee. Prior to the effective date of any such amendment, and as a condition precedent to the effectiveness thereof; the City at its expense shall obtain an opinion of Bond Counsel stating that such amendment will not adversely affect the exclusion from gross income of the interest component of the Lease Payments. _22_ 8-35 Section 7.7. Tax Covenants. (a) Generally. The City will not take any action or permit to be taken any action within its control which would cause or which, with the passage of time if not cured would cause, the interest components of the Lease Payments to become includable in gross income for federal income tax purposes. (b) Private Activity Bond Limitation. The City will ensure that the proceeds of the Lease Payments are not so used as to cause the City's obligations hereunder to satisfy the private business tests of Section 141(b) of the Tax Code or the private loan financing test of Section 141(c) of the Tax Code. (c) Federal Guarantee Prohibition. _ The City will not take any action or permit or suffer any action to be taken if the result of the same would be to cause the Lease Payments to be "federally guazanteed" within the meaning of Section 149(b) of the Tax"Code. (d) No Arbitrage. The City will not take, or permit or suffer to be taken, any action with respect to the proceeds of the Lease Payments 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 Lease Payments to be "arbitrage bonds" within the meaning of Section 148(a) of the Tax Code. (e) Arbitrage Rebate. The City will take any and all actions necessary to assure compliance with Section 148(f) of the Tax Code, relating to the rebate of excess investment earnings, if any, to the federal government. Section 7.8. Environmental Covenants. (a) Compliance with Laws, No Hazardous Substances. The City will comply with all Applicable Environmental Laws with respect to the Leased Property and will not use, store, generate, treat, transport, or dispose of any Hazardous Substance thereon or in a manner that vv~ould cause any Hazardous Substance to later flow, migrate, leak, leach, or otherwise come to rest on or in the Leased Property. (b) Notification of Assignee. The City will transmit copies of all notices, orders, or statements received from any governmental entity concerning violations or asserted violations of Applicable Environmental Laws with respect to the Leased Property and any operations conducted thereon or any conditions existing thereon to the Assignee, and the City will notify the Assignee in writing immediately of any release, discharge, spill, or deposit of any Hazardous Substances that has occurred or is occurring that in any. way affects or threatens to affect the Leased Property, or the people, structures, or other property thereon, provided that no such notifications shall create any liability or obligation on the part of the Assignee. (c) Access for Inspection. The City shall permit the Assignee, its agents, or any experts designated by the Assignee to have full access to the Leased Property during reasonable business hours for purposes of such independent investigation of compliance with all Applicable -23- 8-36 Environmental Laws. provided that the Assignee has no obligation to do so; or any liability for anv failure to do so. or anv liabiliri~ should it do so. Section 7.9. Financial Statements; Budgets. .\Vithin 270 days following the end of each Fiscal Yeaz of the City during the Term of this Lease; the Cit}~ shall provide the Assignee v«th a copy of its audited fmancial statements for such Fiscal Year. Such audited fmancial statements shall include a balance sheet; a statement of revenues. expenses and changes in fund balances for budget and actual; a statement of cash flows; notes; schedules and any attachments to the fmancial statements and such other financial information as the Assignee shall reasonable request. Upon Assignee's request; the City ~~211 provide the Assignee with a copy of its annual budget and any interim updates or modifications to such budget. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.1. Events of Default Defined. Any one or more of the folios;2ng events constitutes an Event of Default hereunder: (a) Failure by the City to pay any Lease Payment or other payment required to be paid hereunder at the time specified herein or to maintain insurance as specified in Article V. (b) Failure by the City to observe and perform any covenant; condition or agreement on its part to be observed or performed hereunder; other than as referred to in the preceding clause (a) of this Section; for a period of 30 days afrer ssTitten notice specifying such failure and requesting that it be remedied has been given to the City by the Authority or the Assignee. However; if in the reasonable opinion of the City the failure stated in the notice can be corrected, but not within such 30-day period; the Authority and the Assignee shall not unreasonably withhold their consent to an extension of such time (for a period not to exceed 60 days) if corrective action is instituted by the City within such 30-day period and diligently pursued until the default is corrected. (c) The filing by the City of a voluntary petition in bankruptcy; or failure by the City promptly to lift any execution, garnishment or attachment; or adjudication of the City as a bankrupt, or assignment by the Cit}~ for the benefit of creditors, or the enm 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 Cih~ in any proceedings instituted under the provisions of the Federal Bankruptcy Code, as amended, or under any similaz acts which may hereafter be enacted. (d) Any representation, warranty or certification made by the City hereunder or in connection herewith shall have been incorrect or misleading when made. (e) Any default occurs under any other agreement for borrowing money or receiving credit under which the Cit}~ may be obligated as borrower; if such default _24_ 5-37 consists of (i) the failure to pay any amount when due under such agreement or (ii) the failure to perform any other obligation thereunder and such failure gives the holder of such agreement the right to accelerate the amounts payable thereunder. Section 8.2. Remedies on Default. Whenever any Event of Default has happened and is continuing, the Authority may exercise any and all remedies available under law or granted under this Lease; provided, however, that notwithstanding anything herein to the contrary, there shall be no right under any circumstances to accelerate the Lease Payments or otherwise declaze any Lease Payments not then in default to be immediately due and payable. Each and every covenant hereof to be kept and performed by the City is expressly made a condition and upon the breach thereof the Authority may exercise any and all rights granted hereunder; provided, that.no termination of this Lease shall be effected either by operation of law or acts of the parties hereto, except only in the manner herein expressly provided. Upon the occurrence and during the continuance of any Event of Default, the Authority may exercise any one or more of the following remedies: (a) Enforcement of Payments Without Termination. If the Authority does not elect to terminate this Lease in the manner hereinafter provided for in subpazagraph (b) hereof, the City agrees to and shall remain liable for the payment of all Lease Payments and the performance of all conditions herein contained, and the Authority may take whatever action at law or in equity that may appeaz necessary or desirable to collect each Lease Payment as it becomes due hereunder. The City shall reimburse the Authority for any deficiency arising out of the re-leasing or sale of the Leased Property, or, if the Authority is unable to re-lease or sell the Leased Property, then for the full amount of all Lease Payments to the end of the Term of this Lease, 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 Leased Property or the exercise of any other remedy by the Authority. The City hereby irrevocably appoints the Authority as the agent and attorney-in-fact of the City to enter upon and re-lease the Leased Property upon the occurrence and continuation of an Event of Default and to remove all personal property whatsoever situated upon the Leased Property, to place such property in storage or other suitable place located in the County of San Diego 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 aiising or occasioned by any such entry upon and re-leasing of the Leased Property and the removal and storage of such property by the Authority or its duly authorized agents in accordance with the provisions herein contained. The City agrees that the terms of this Lease constitute full and sufficient notice of the right of the Authority to re-lease the Leased Property in the event of such re-entry without effecting a surrender of this Lease, and further agrees that no acts of the Authority in effecting such re-leasing shall constitute a surrender or termination of this Lease irrespective of the term for which such re-leasing is made or the terms and conditions of such re-leasing, or otherwise, but that, on the contrary; in the event of such default by the City the right to terminate this Lease shall vest in the Authority to be effected in the sole and exclusive manner hereinafter -25- 8-38 provided for in subparagraph (b) hereof. The City agrees to surrender and quit possession of the Leased Property upon demand of the Authority for the purpose of enabling the Leased Property to be re-let under this pazagraph. Any rental obtained by the Authority in excess of all Lease Payments and Additional Payments due hereunder shall be paid to the City. (b) Termination of Lease. If an Event of Default occurs and is continuing hereunder; the Authority at its option may terminate this Lease and re-lease all or anv portion of the Leased Propem~. If the Authority terminates this Lease at its option and in the manner hereinafter provided due to a default by the Cin~ (and nott;~ithstanding any re-entry upon the Leased Property by the Authority in any manner whatsoever or the re-leasing of the Leased Property), the City nevertheless agrees to pay to the Authority all costs, loss or damages howsoever arising or occurring payable at the same time and in the same manner as is herein provided in the case of payment of Lease Payments and Additional Payments. Any surplus received by the Authority from such re-leasing shall be applied by the Authority to Lease Payments due under this Lease. I~'either notice to pay rent or to deliver up possession of the premises given under law nor any proceeding in unlaw=ful detainer taken by the Authority shall of itself operate to terminate this Lease, and no termination of this Lease on account of default by the City shall be or become effective by operation of law, or other~~se, unless and until the Authority shall have given ~Titten notice to the City of the election on the part of the Authority to terminate this Lease. The City covenanu and agrees that no surrender of the Leased Propem; or of the remainder of the Term hereof or anv termination of this Lease shall be valid in any manner or for any purpose whatsoever unless stated or accepted by the Authority by such written notice. (c) Proceedings at Lmv or In Equity. If an Event of Default occurs and continues hereunder, the Authority may take whatever action at law or in equity may appeaz necessary or desirable to collect the amounts then due and thereafter to become due hereunder or to enforce any other of its rights hereunder. (d) Remedies under the Site Lease. If an Event of Default occurs and continues hereunder; the Authority may exercise its rights under the Site Lease. Section 8.3. Ago Remedy Exclusive. No remedy herein conferred upon or reserved to the Authority is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafrer existing at law or in equity. No delay or omission to exercise any right or power accruing upon the occurrence of any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof; but any such right and power may be exercised from time to time and as ofren as may be deemed expedient. In order to entitle the Authority to exercise any remedy reserved to it in this Article VIII it shall not be necessary to give any notice; other than such notice as may be required in this Article VIII or by law. Section 8.~. .Agreement to Pay Attorneys' Fees and Expenses. If either pam~ to this Lease defaults under any .of the provisions hereof and the nondefaulting pam- should employ -26- 8-39 attorneys (including in-house legal counsel) 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 nondefaulting party the reasonable fees of such attorneys (including allocable costs and expenses of in-house legal counsel, if any) and such other expenses so incun•ed by the nondefaulting party. Section 8..i. No Additional Waiver Implied by One Waiver. If any agreement contained in this Lease is breached by either party and thereafter waived by the other party, such waiver is limited to the particular breach so waived and will not be deemed to waive any other breach hereunder. Section 8.6. Assignee to Exercise Rights. Such rights and remedies as aze given to the Authority under this Article VIII will be assigned by the Authority to the Assignee, to which assignment the City hereby consents. Such rights and remedies shall be exercised solely by the Assignee. ARTICLE IX PREPAYMENT OF LEASE PAYMENTS Section 9.1. Security Deposit. Notwithstanding any other provision of this Lease, the City may on any date secure the payment of the Lease Payments in whole or in part by depositing with a trustee, escrow agent or other fiduciary selected by the City and acceptable to the Assignee an amount of cash, which shall be held in a segregated trust or escrow fund under a trust or escrow agreement that is in form and content acceptable to the Assignee, which cash so held is either (a) sufficient to pay such Lease Payments without reinvestment, including the principal and interest components thereof, in accordance with the Schedule.of Lease Payments set forth in Appendix B, or (b) invested in whole or in part in non-callable Federal Securities in such amount as will, in the opinion of an independent certified public accountant (which opinion must be in form and substance, and with such an accountant, acceptable to the Assignee and addressed and delivered to the Assignee), together with interest to accrue thereon and together with any cash which is so deposited, be fully sufficient, without reinvestment of any earning or income on such amounts, to pay such Lease Payments, when due under Section 4.4 or when due on any optional prepayment date under Section 9.2 as the City instructs at the time of said deposit; provided, however, that at or prior to the date on which any such security deposit is established, the City shall deliver to the Assignee a written opinion of Bond Counsel (in form and substance acceptable to the Assignee) to the effect that ariy such security deposit will not adversely affect the excludability of the interest component of Lease Payments from gross income of the owners thereof for federal income tax purposes. If the City posts a security deposit under this Section v<~ith respect to all unpaid Lease Payments, and notwithstanding the provisions of Section 4.3, (a) the Term of this Lease will continue, (b) all obligations of the City under this Lease, and all security provided by this Lease for said obligations, vvill thereupon cease and terminate, excepting only the obligation of the City to make, or cause to be made, all of the Lease Payments from such security deposit and its obligation provided in the next succeeding pazagraph, and (c) the Authoritys leasehold interest in the Leased Property will _27_ 8-40 terminate on the date of said deposit automaticalh~ and without further action by the City or the Authority. The Cit}• hereby grants a first priority securit}~ interest in and the lien on said security deposit and all proceeds thereof in favor of the Assignee. Said security deposit shall be deemed to be and shall constitute a special fund for the payment of Lease Payments in accordance with the provisions of this Lease. Notwithstanding anything in this Section 9.1 or otherwise in this Lease to the contrary, if the amount held in such security deposit shall at anv time be insufficient (for whatever reason) to pay Lease Payments when due in full as provided in clause (a) or (b); as applicable, of the first paragraph of this Section 9.1, the City shall immediately pay to the Assignee on the applicable due date or due dates the amount of an_v such shortfall from funds leeall_v available for such purpose. Section 9.2. Optional Prepayment. The City ma}' prepa}' the unpaid principal components of the Lease Payments in whole; but not in part, on anv Lease Payment Date on or after [ 2019]; by paying a prepayment price equal to 102% of the aggregate principal components of the Lease Payments to be prepaid (which includes a prepayment premium) if such prepayment date occurs on or after ~ , 2019] and on or before ~ 20~, plus accrued interest on such prepaid principal components to the prepayment date. The City shall give the Authority notice of its intention to exercise its option to prepay the Lease Payments under this Section 9.2 not less than 30 days in advance of the date of exercise. Notwithstanding the foregoing; the City may exercise its option to prepay the principal components of the Lease Payments in part solely from Excess Project Funds under Section 3.4, on any Lease Payment Date, by paying a prepayment price equal to the aggregate principal components of the Lease Payments to be prepaid; together with the interest component of such Lease Payment required to be paid on such date; without prepayment premium. Section 9.3. Mandatory Prepayment From Net Proceeds of Insurance or Eminent Domain. The City may prepay the unpaid principal components of the Lease Payments in whole or in part on any date, from and to the extent of anv Net Proceeds to be used for such purpose under Sections 5.4 and 6.2; by paying a prepayment price equal to the principal components of the Lease Payments to be prepaid; together with the interest accrued to such prepayment date; without premium or penalty. The City shall give the Authority notice of its intention to exercise its option to prepay the Lease Payments under this Section 9.3 not less than 60 days in advance of the date of exercise; or such shorter period of time as is acceptable to the Authority-and the Assignee. ARTICLE X D'IISCELLA,\EOUS Section 10.1. >\'otices. Any notice, request; complaint; demand or other communication under this Lease shall be given by first class mail or personal delivery to the party entitled thereto at its address set forth below; or by facsimile transmission or other form of telecommunication; at its number set forth below. Notice shall be effective either (a) upon transmission by facsimile transmission or other form of telecommunication; (b) 48 hours after -28- 8-41 deposit in the United States of America first class mail, postage prepaid, or (c) in the case of personal delivery to any person, upon actual receipt. The Authority, the City and the Assignee may, by v<ritten notice to the other parties, from time to time modify the address or number to which communications aze to be given hereunder. If to the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California Attn: Director of Finance/Treasurer Fax: (619)585-5698 If to the Authority: Chula Vista Municipal Financing Authority 276 Fourth Avenue Chula Vista, California Attn: Chief Financial Officer Fax: (619)585-5698 If to the Assignee: Banc of America Public Capital Corp 11333 McCormick Road Hunt Valley lI M/C MDS-032-07-OS Hunt Valley, Maryland 21031 Attention: Contract Administration Fax: (443) 556-6977 Section 10.2. Binding Effect. This Lease inures to the benefit of and is binding upon the Authority, the City and their respective successors and assigns. Section 10.3. Severability. If any provision of this Lease is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof. Section 10.4. Net-rzet-net Lease. This Lease is a "net-net-net lease' and the City hereby agrees that the Lease Payments are an absolute net return to the Authority, free and clear of any expenses, charges or set-offs whatsoever. Section IO..i. Further Assurances and Corrective Instruments. The Authority and the City agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Leased Property hereby leased or intended so to be or for carrying out the expressed intention of this Lease. Section 10.6. Execution in Counterparts. This Lease may be executed in several counterparts, each of which is an original and all of which constitutes one and the same instrument. -29- 8-42 Section 10.7. .Applicable Lmv. This Lease is governed by and construed in accordance «ith the laws of the State of California. Section 10.8. Captions. The captions or headings in this Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or Section of this Lease. Section 10.9. No Merger. It is the express intention of the Authorit}' and the Cirv that this Lease and the obligations of the parties hereunder aze sepazate and distinct from the Site Lease and the obligations of the parties thereunder. and that during the term of the Site Lease and this Lease no merger of title or interest may occur or be deemed to occur as a result of the respective positions of the Authority and the City thereunder and hereunder. Section 10.10. Third Parry Beneficiary. The Assignee is made a pam~ beneficiary hereunder with all rights of a third pam~ beneficiary. [SIGNATLRE PAGE FOLLOWS] -30- 8-43 IN WITNESS WHEREOF, the Authority and the City have caused this Lease to be executed in their respective names by their duly authorized officers, all as of the date first above written. CHULA VISTA IVIUNICIPAL FINANCING AUTHORITY, as Lessor By Name: Title: Approved as to Form: By Name: Title: Attest: By Name: Title: CITY of CHULA VISTA, California as Lessee By Name: Title: Approved as to Form: By Name: Title: Attest: By Name: Title: Signature Page to Lease Agreement 8-44 STATE OF CALIFO2NIA ) ) COUNTY OF SAN DIEGO ) On July _. 2013 before me, a Notary Public, personally appeazed .who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/aze subscribed to the ~2thin instrument and acknowledeed to me that he/she/they executed the same in his/her/their authorized capacit)~(ies), and that~by his/her/their signature(s) on the instrument the person(s). or the entit<~ upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing pazagraph is true and correct. WITNESS my hand and official seal. Signature of Notary (Affix seal here) Chula Vista bfunicipal Financing Authority 8-45 STATE OF CALIFORNIA ) ) COUNTY OF SAN DIEGO ) On July _, 2013 before me, a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct WITNESS my hand and official seal. Signature of Notary (Affix sea] here) CITY OF CFIULA VISTA, CAIJFOXNIA 8-46 APPENDLC A DESCRIPTION OF THE LEASED PROPERTS' The Leased Property consisu of the following described land located in the City of Chula Vista, Countv of San Diego, State of California; together Huth all buildings, facilities and other improvements which constitute real property and which are located thereon: [To be provided by City] A-1 8-47 APPENDIX B SCHEDULE OE LEASE PAYMENTS LEASE PRINCIPAL INTEREST AGGREGATE PAYMENT DATE COMPONENT COMPONENT LEASE PAYbgNT B-1 8-48 CERTIFICATE OF ACCEPTANCE OF LEASE AGREEMENT This is to certify that the interest in real propem= conv=eyed by the Lease Aereement, dated as of July _; 20li; betty=een Chula Vista Municipal Financine Authorit}=; as lessor; and City of Chula Vista, as lessee (the "City"), is hereby accepted by the undersigned officer on behalf of the City pursuant to the authority conferred by a resolution of the City Council of the City adopted on July 23; 2013, and the City consenu to recordation thereof by its duly authorized officer. Dated: July _, 2013 CITY OF CHULA VISTA. CALIFORA`IA as Lessee By I~'ame: Title: 8-49 DRAFT DATED 7/16/13 PROJECT FUND AGREEMENT This PROJECT Ftm~D AGREEMENT (this "Agreement "), dated as of July _, 2013. is among BANG OF AMERICA PUBLIC CAPITAL CORP, a corporation duly organized and existing under the laws of the State of Kansas (together with its successors and assigns, "BAPCC"), CITY of CHULA VISTA, a municipal corporation and charter city duly organized and existing under and by virtue of the laws of the State of California (the "City "), and DEUTSCHE BAl\~IC TRUST Col-IrANv AMERICAS, a New York banking corporation (the "Custodian "). Reference is made to that certain Lease Agreement dated as of July _, 2013 (the "Lease"), between the Chula Vista Municipal Financing Authority (the "Authority") and the City, relating to the financing of certain solar energy improvements to existing City buildings (the "Project "). Reference is further made to that certain Assignment Agreement dated as of July _, 2013, between the Authority and BAPCC, under which the Authority has assigned certain of its rights under the Lease to BAPCC, including the right to receive lease payments payable by the City under the Lease. It is a requirement of the Lease that the funds for the acquisition, construction and installation of the Project be deposited with the Custodian hereunder for the purpose of providing a mechanism for the application of such amounts to the payment of Project Costs. Capitalized terms used in this Agreement and not otherwise defined will have the respective meanings given such terms in the Lease. The parties agree as follows: 1. Payment of Delivery Costs. The City and BAPCC agree that $ of the amount deposited into the Project Fund pursuant to Section 2(a) hereof shall be used by the Custodian for payment of delivery costs related to the Lease to each payee listed as entitled to such payment in Schedule lA to this Project Fund Agreement and for which the Custodian has received a written invoice. 2. Creation of Project Fund. (a) There is hereby created a special trust fund to be known as the '`City of Chula Vista Project Fund" (the "Project Fund") to be held in trust by the Custodian for the purposes stated herein, for the benefit of the City, to be held, disbursed and returned in accordance with the terms hereof. On the date hereof, the City has caused the amount of $ to be transferred to the Custodian for deposit into the Project Fund. (b) The Custodian will invest and reinvest moneys on deposit in the Project Fund in Qualified Investments (defined below) in accordance with written instructions received from the City. The City will be solely responsible for ascertaining that all proposed investments and reinvestments are Qualified Investments and that they comply with federal, state and local laws, regulations and ordinances governing investment of such funds and for providing appropriate notice to the Custodian for the reim~estment of any maturing investment. Accordingly, neither the Custodian nor BAPCC has any responsibility for any liability, cost, expense, loss or claim of any kind, directly or indirectly arising out of or related to the investment or reinvestment of all or any portion of the moneys on deposit in the Project Fund, and the City agrees to and does hereby release the Custodian and BAPCC from any such liability, cost, expenses, loss or claim. Interest on the Project Fund will become part of the Project Fund, and gains and losses on the investment 3420789 O1 OS 2209708 8-50 of the moneys on deposit in the Project Fund will be borne by the Project Fund. For purposes of this Agreement, the term "Qualified Investments" means any investments which meet the requirements of Sections 53600 et seq. of the California Government Code. (c) Unless the Project Fund is eazlier terminated in accordance v<ith the provisions of paragraph (d) below, amounts in the Project Fund vill be disbursed by the Custodian in payment of amounts described in Section 3 upon receipt of written authorization(s) from the Cit}=; as more fully described in Section 3. If the amounts in the Project Fund aze insufficient to pay such amounts; the City w211 provide any balance of the funds needed to complete the acquisition, construction and installation of the Project. (d) The Project Fund will be terminated at the earliest of (i) the fmal distribution of amounts in the Project Fund, (ii) v~ritten notice given by the City to the Custodian under Section 3.4 of the Lease requesting the Custodian to close the Project Fund and transfer all remaining amounts therein to the Cit}= with the prior w=ritten consent of BAPCC. if applicable. (iii) vritten notice given by BAPCC of the occurrence of a default or termination of the Lease or (iv) on .201_, unless such date is extended by the mutual consent of the City and the Assienee. (e) The Custodian may act in reliance upon any writing or instrument or signature which it, in good faith; believes to be genuine and may assume the validity and accuracy of any statement or assertion contained in such a vtiziting or instrument. The Custodian is not liable in any manner for the sufficiency or correctness as to form, manner of execution, or validity of any instrument nor as to the identity, authority, or right of any person executing the same; and its duties hereunder will be limited to the receipt of such moneys, instruments or other documents received by it as the Custodian, and for the disposition of the same in accordance herewith. (f) Unless the Custodian is guilty of gross negligence or willful misconduct with regazd to its duties hereunder, the Cit}= agrees to and does hereby release and iitdemnif}= the Custodian and hold it harmless from any grid all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense, fees or chazges of any chazacter or nature, which it may incur or w2th which it may be threatened by reason of its actine as the Custodian under this agreement; and in connection therewith; does; to the extent permitted by law, indemnify= the Custodian against any and all expenses; including reasonable attomeys' fees and the cost of defending any action, suit or proceeding or resisting any claim. (g) The Custodian may consult with counsel of its own choice and v,~ll have full and complete authorization and protection with the opinion of such counsel. Tlie Custodian will otherwise not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its willful misconduct. (h) The City has no responsibility= to reimburse the Custodian for its costs and expenses; including those of the Custodian's attomeys; agents and employees incurred for in connection with the administration of the Project Fund and the performance of the Custodian's powers and duties hereunder. -2- 8-51 3. Acquisition, construction and installation of the Project. (a) Construction Contracts; Purchase Orders. The City will arrange for, supervise and provide for, or cause to be supervised and provided for, the acquisition, construction and installation of the Project, with moneys available in the Project Fund, as herein provided. The City represents the estimated costs of the Project aze within the funds estimated to be available therefor, and BAPCC makes no warranty or representation with respect thereto. Neither BAPCC nor the Authority has any liability under any of the construction contracts, energy services contracts or purchase orders. The City will obtain all necessary permits and approvals, if any; for the construction, acquisition and installation of the Project, and the operation and maintenance thereof. (b) Authorized Project Fund Disbursements. Disbursements from the Project Fund will be made for the purpose of paying (including the reimbursement to the City for advances from its own funds to accomplish the purposes hereinafter described) the cost of constructing, acquiring and installing the Project. (c) Requisition Procedure. Prior to disbursement from the Project Fund there will be filed with the Custodian a requisition for such payment in the form of Disbursement Request attached hereto as Schedule 1 B. Each such requisition will be signed by the Director of Finance or Assistant Director of Finance or other authorized representative of the City (an "Authorized Representative "). 4. Deposit to Project Fund. Upon satisfaction of the conditions specified in Section 3.1 of the Lease, the Authority will cause the Lease proceeds to be deposited with the Custodian for disbursement in accordance with this Agreement. The City agrees to pay any costs v<~ith respect to the Project in excess of amounts available therefor in the Project Fund. 5. Excess Project Furzds. Following the final disbursement from the Project Fund upon completion of the Project, or termination of the Project Fund as otherwise provided herein, the Custodian will transfer any remainder from the Project Fund to the City or BAPCC, as directed by the City; for application in accordance with Section 3.4 of the Lease. 6. Securiry Interest. The Custodian and the City acknowledge and agree that the Project Fund and all proceeds thereof aze being held by the Custodian for disbursement or return as set forth herein. The City hereby grants to BAPCC a first priority perfected security interest in the Project Fund, and all proceeds thereof, and all investments made with any amounts in the Project Fund. If the Project Fund, or any part thereof, is converted to investments as set forth in this Agreement, such investments will be made in the name of the Custodian and the Custodian hereby agrees to hold such investments as bailee for BAPCC so that BAPCC is deemed to have possession of such investments for the purpose of perfecting its security interest. 7. Control of Project Fund. In order to perfect BAPCC's security interest by means of control in (i) the Project Fund established hereunder, (ii) all securities entit]ements, investment property and other financial assets now or hereafter credited to the Project Fund, (iii) all of the City's rights in respect of the Project Fund, such securities entitlements, investment property and -3- 8-52 other financial assets; and (iv) all products, proceeds and revenues of and from any of the foregoing personal propem~ (collectively, the "Colla~erol '), the City and the Custodian further aeree as follows: (a) All terms used in this Section 7 which aze defined in the Commercial Code of the State of California ("Commercial Code ") but are not otherwise defined herein will have the meanings assigned to such terms in the Commercial Code, as in effect on the date of this Agreement. (b) The Custodian w711 comply with all entitlement orders originated by BAPCC with respect to the Collateral or anv portion of the Collateral, without further consent by the City. (c) The Custodian hereby represents and warrants that (i) the records of the Custodian show that the City is the sole owner of the Collateral,-(ii) the Custodian has not been served with any notice of levy or received any notice of any security interest in or other claim to the Collateral, or any portion of the Collateral, other than BAPCC's claim under this Agreement, and (iii) the Custodian is not presently obligated to accept any entitlement order from any person with respect to the Collateral, except for entitlement orders that the Custodian is obligated to accept from the Authority under this Agreement and entitlement orders that the Custodian; subject to the provisions of pazagraph (e) below, is obligated to accept from the City. (d) R'ithout the prior written consent of BAPCC; the Custodian will not enter into any agreement by which the Custodian agrees to comply with any entitlement order of any person other than BAPCC or, subject to the provisions of pazagraph (e) below; the City, with respect to any portion or all of the Collateral. The Custodian will promptly notify BAPCC if any person requests the Custodian to enter into any such agreement or otherwise asserts or seeks to assert a lien; encumbrance or adverse claim against any portion or all of the Collateral. (e) Except as othen~~se provided in this pazagraph (e) and subject to Section 2(b) hereof. the Custodian may allow the City to effect sales, wades, transfers and exchanges of Collateral within the Project Fund, but w211 not; without the prior written consent of BAPCC; allow the City to withdraw any Collateral from the Project Fund. The Custodian acknowledges that BAPCC reserves the right, by delivery of written notice to the Custodian; to prohibit the City from effecting any withdrawals (including withdrawals of ordinary cash dividends and interest income), sales; trades, vansfers or exchanges of any Collateral held in the Project Fund. Further, the Custodian hereby agrees to comply with any and all written instructions delivered by BAPCC to the Custodian (once it has had a reasonable opportunity to comply therewith) and has no obligation to, and will not, investigate the reason for any action taken by BAPCC; the amount of any obligations of the City to BAPCC, the validity of any of BAPCC`s claims against or agreements with the City, the existence of any defaults under such agreements; or any other matter. -4- 8-53 (f) The City hereby irrevocably authorizes the Custodian to comply with al] instructions and entitlement orders delivered by BAPCC to the Custodian. (g) The Custodian will not attempt to assert control, and does not claim and will not accept any security or other interest in, any part of the Collateral, and the Custodian will not exercise, enforce or attempt to enforce any right of setoff against the Collateral, or otherwise charge or deduct from the Collateral any amount whatsoever. (h) The Custodian and the City hereby agree that any property held in the Project Fund will be treated as a financial asset under such section of the Commercial Code as corresponds ~~th Section 8-102 of the Uniform Commercial Code, notv»thstanding any contrary provision of any other agreement to which the Custodian may be a party. (i) The Custodian is hereby authorized and instructed, and hereby agrees, to send to BAPCC at its address set forth in Section 8 below, concurrently with the sending thereof to the City, duplicate copies of any and all monthly Project Fund statements or reports issued or sent to the City with respect to the Project Fund. 8. Information Required Under USA PATRIOT ACT. The parties acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Custodian such information as it may request, from time to time, in order for the Custodian to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided. 9. Miscellaneous. This Agreement may not be amended except in waiting signed by the City, the Custodian and BAPCC. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original instrument and each will have the force and effect of an original and all of which together constitute, and will be deemed to constitute, one and the same instrument. Notices hereunder will be made in writing and will be deemed to have been duly given when personally delivered or when deposited in the mail, first class postage prepaid, or delivered to an express carrier, charges prepaid, or sent by facsimile with electronic confirmation, addressed to each parry at its address below: -5- 8-54 If to the City: City of Chula Vista 276 Fourth Avenue Chula Vista. California Attn: Director of Finance/Ireasurer Fax: (619) 585-5698 If to BAPCC: Banc of America Public Capital Corp 1133.1 McCormick Road Hunt Valley II A~I/C MDS-032-07-OS Hunt Valley; Maryland 21031 Attention: Contract Admuustration Fax: (443)556-6977 If to the Custodian: Deutsche Bank Trust Company Americas 60 R%all Street. 27th Floor I~'ew York. NY 10005 Attn: Lisa McDermid Phone: 212-250-6674 Fax: 917-472-1575 [Remainder of page intentionally left blank] -6- 8-55 IN WITNESS WHEREOF, the parties have executed this Project Fund Agreement as of the date first above written. CITY OF CHULA VISTA, CALIFORNIA Name: Title: By BANC OF AMERICA PUBLIC CAPITAL CORP Name: Title: By DEUTSCHE BANK TRUST COMPANY AMERICAS, as Custodian By Name: Title: By Name: Title: Signature Page to the Project Fund Agreement 8-56 SCHEDULElA SCHEDULE OF DELIVERY COSTS AUTHORIZED PAYEE PURPOSE PAl ;~1ET'T 8-57 SCREDULEIB FORM OF DISBURSEMENT REQUEST Re: Lease Agreement dated as of July _, 2013 between the Chula Vista Municipal Financing Authority and the City of Chula Vista, California (the "Lease ") In accordance with the terms of the Project Fund Agreement dated as of July _, 2013 (the "Project Fund Agreement ") among Banc of America Public Capital Corp. ("BAPCC"), the City of Chula Vista, California (the "City"), and Deutsche Bank Trust Company Americas, a New York banking corporation (the "Custodian "), the undersigned hereby requests the Custodian pay the following persons the following amounts from the Project Fund created under the Project Fund Agreement (the "Project Fund ") for the following purposes: PAYEE'S NAME AND ADDRESS DOLLAR AMOUNT PURPOSE (SPECIFY FOR PROJECT) The undersigned hereby certifies as follows: (i) An obligation in the stated amount has been incurred by the City and the same is a proper charge against the Project Fund for Project Costs as described above and provided in the Lease. Such obligation either (a) has not been previously paid by the City, or (b) has been previously paid by the City in an amount which is not less than the amount for which the City is requesting to be reimbursed under this request. Attached hereto is the original invoice with respect to such obligation or, if the City is requesting reimbursement, documentation evidencing that the City has previously paid such obligation. (ii) The undersigned, as Authorized Representative, has no notice- of any vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional sales contracts or security interest which should be satisfied or discharged before such payment is made. (iii) This requisition contains no item representing payment on account, or any retained percentages which the City. is, at the date hereof, entitled to retain. (iv) The Leased Property is insured in accordance with the Lease. Schedule 1B-1 8-58 (v) No Event of Default, and no event which with notice or lapse of time; or both, would become an Event of Default. under the Lease has occurred and is continuine at the date hereof. Dated: (vi) ?~'o material adverse change in the Cit<~`s financial condition has occurred since the date of the Lease. (vii) The representations, warranties and covenanu of the Ciri set forth in the Lease aze true and correct as of the date hereof. CITY OF CHLILA VISTA, CALIFOR\'IA BV Title: Schedule 1B-2 8-59 DRAFT DATED 7/16/13 TO BE RECORDED AND WHEN RECORDED RETURN TO: Stradling Yocca Carlson & Rauth 660 Newport Center Dm~e, Suite 1600 Ness~port Beach, California 92660 Attention: Robert J. Whalen THIS DOCUMENT IS EXEDdPT FROM RECORDING FEES UNDER SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE. ASSIGNMENT AGREEMENT This ASSIGNMENT AGREEMENT, dated as of July _, 2013 (this "Assignment"); is between CHULA VISTA MUNICIPAL FINANCING AUTHORITY, a joint powers agency organized and existing under the laws of the State of California (the `Authority"), and BANG of AMERICA PUBLIC CAPITAL CORD, a Kansas corporation (together with its successors and assigns, the "Assignee "). BACKGROUND: 1. The City of Chula Vista, California (the "City") wishes to finance the acquisition, construction and installation of certain solar energy improvements to existing City buildings (the "Project "). 2. In order to provide funds to finance the Project, the City has agreed to lease to the Authority the land and improvements which constitute the City's Loma Verde Recreation and Aquatics Center, ~~hich is located at , Califomia, and is more particularly described in Appendix A attached hereto and by this reference incorporated herein (such land and improvements being herein referred to as the "Leased Property"), under a Site Lease dated as of July ~ 2013 and recorded concurrently herewith (the "Site Lease"), between the City, as lessor, and the Authority, aslessee, -and the Authority has agreed to lease the Leased Property back to the City under a Lease Agreement dated as of July _, 2013, and recorded concurrently herewith (the "Lease "), between the Authority, as lessor, and the City, as lessee. 3. Under the Lease; the City is obligated to pay semiannual lease payments (the "Lease Payments ") in consideration of the lease by it of the Leased Property thereunder. 4. The Authority wishes to assign its rights as lessee under the Site Lease (including; without limitation, the leasehold estate granted thereunder) and certain of its rights under the Lease as sublessor to the City of the Leased Property, including but not limited to its right to receive and enforce payment of the Lease Payments, to the Assignee for the purpose of providing the funds required for the financing of the Project. 3420791 O] OS 2209708 $-60 AGREEMEA'T: In consideration of the material covenants contained in this Assignment Agreement, the parties hereto hereby formally covenant, agree and bind themselves as follows: Section 1. Covenants, Representations and YVarranties of the Authority. The Authority' makes the followirtg covenants; representations and warranties to the Assignee as of the date of this Assiertment: (a) Due Organization and Existence. The Authority' is a joint powers agency duly organized and existing under the laws of the State of California; has full legal right, po~~'er and authority to enter into the Site Lease, the Lease and this Assignment and to cam' out and consummate all transactions contemplated hereby and thereby, and by proper action the Authority' has duly authorized the execution and delivery of the Site Lease, the Lease and this Assignment. (b) Due Execution. The representatives of the Authority' executing the Site Lease. the Lease and this Assignment aze fully authorized to execute the same under official action taken by the Boazd of Directors of the Authority'. (c) Valid, Binding m:d Enforceable Obligations. The Site Lease; the Lease and this Assignment have been duly authorized, executed and delivered by the Authority' and constitute the legal, valid and binding agreements of the Authority; enforceable against the Authority in accordance v,'ith their respective terms. (d) No Conflicts. The execution and delivery of the Site Lease; the Lease and this Assignment, the consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the terms and conditions hereof and thereof; do not and will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under any applicable law or administrative rule or regulation; or any applicable court or administrative decree or order, or any indenture, mortgage; deed of trust, lease; contract or other agreement or instrument to which the Authorih' is a party or by which it or its properties aze otherwise subject or bound; or result in the creation or imposition of any prohibited lien; chazge or encumbrance of any nature whatsoever upon any of the propem' or asseu of the Authority; which conflict, violation; breach, default, lien; chazge or encumbrance would have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease; the Lease and this Assignment or the financial condition, assets; properties or operations of the Authority'. (e) Consents and Approvals. No consent or approval of any trustee or holder of any indebtedness of the Authority, and no consent, permission, authorization, order or license of; or filing or registration with, any governmental authority' is necessary in connection .with the execution and delivery by the Authority of the Site Lease; the Lease or this Assignment, or the consummation of any transaction herein or therein -2- 8-61 contemplated, except as have been obtained or made and as aze in full force and effect, or except as would not materially adversely affect the transactions contemplated hereby. (f) No Litigation. There is no action, suit, proceeding, inquiry or im~estigation before or by any court or federal, state, municipal or other governmental authority pending or, to the knowledge of the Authority after reasonable investigation; threatened against or affecting the Authority or the assets, properties or operations of the Authority which, if determined adversely to the Authority or its interests, would have a material and adverse effect upon the consummation of the transactions contemplated by or the validity of the Site Lease, the Lease or this Assignment, or upon the financial condition, assets, properties or operations of the Authority, and the Authority is not in default with respect to any order or decree of any court or any order, regulation ~or demand of any federal, state; municipal or other governmental authority, which default might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Site Lease, the Lease or this Assignment or the financial condition, assets, properties or operations of the Authority. Section. 2. Assignment. The Authority hereby assigns to the Assignee all of the Authority's rights, title and interest under the Site Lease and the Lease (excepting only the Authority's rights under Section 7.3 of the Lease and its rights to notice under the Site Lease and Lease) (collectively the "Assigned Rights "), including but not limited to: (a) the right to receive and collect all of the Lease Payments from the City under the Lease, (b) the right to receive and collect any proceeds of any insurance maintained thereunder with respect to the Leased Property, or any eminent domain awazd (or proceeds of sale under threat of eminent domain) paid with respect to the Leased Property, (c) the right to exercise such rights and remedies conferred on the Authority under the Lease as may be necessary or convenient (i) to enforce payment of the Lease Payments and any amounts required to be applied to the prepayment of the Lease Payments, or (ii) otherwise to protect the interests of the Assignee in the event of a default by the City under the Lease, and (d) all right, title and interest of the Authority in and to the Project Fund which has been established under the Project Fund Agreement with respect to the Lease. The assignment made under this Section 2 is absolute and irrevocable, and without recourse to the Authority. Section 3. Acceptance. The Assignee hereby accepts the assignments made herein for the purpose of securing the payments due under the Lease to, and the rights under the Site Lease and the Lease of, the Authority. -3- 8-62 Section 4. Consideration; Deposit of Funds. In consideration of the assiemnent to the Assignee of the Lease Payments and certain other rights of the Authority under Section 2, the Assignee hereby agrees to deposit or cause to be deposited on the Closing Date the amount of $ with Deutsche Bank Trust Company Americas; as custodian (the "Custodian ") under that certain Project Fund Agreement dated as of July _, 20li; among the Cit}~, the Assignee and the Custodian. Of this amount the City will cause the Custodian to (a) apply $ to pay the costs of the fmancing on behalf of the City; and (b) hold, administer and invest $ in the Project Fund for the purpose of fmancing the Project in accordance with the Project Fund Agreement. Section .i. Execution in Counterparts. This Assignment may be executed in any number of counterparts; each of which is an original and all together constitute one and the same agreement. Separate counterparts of this Assignment may be separately executed by the Assignee and the Authorih~, both ~~~th the same force and effect as though the same counterpart had been executed by the Assignee and the Authority. Section 6. Defined Terms. All capitalized tetras used in this Assignment and not otherw2se defined have the respective meanings given those terms in the Lease. Section 7. Binding Effect. This Assignment inures to the benefit of and binds the Authority and the Assignee, and their respective successors and assigns, subject, however; to the limitations contained herein. Section 8. Governing Lmv. This Assignment shall be construed in accordance H7th and governed by the Constitution and laws of the State of California. -4- 8-63 IN WITNESS WHEREOF, the parties have executed this Assignment Agreement by their duly authorized officers as of the day and yeaz first written above. CHULA VISTA MUNICIPAL FRv'ANCB\G AUTHORITY, as Assignor By Name: Title: BANC OF AMERICA PUBLIC CAPITAL CORP, as Assignee By Name: Title: -5- 8-64 STATE OF CALIFO&\L4 ) ) SS: COtJT-I'Y OF SA7; DIEGO ) On Jul}- _, 2013, before me, a ?Votary Public; personally appeared ,who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the ~i2thin instrument and acknowledeed to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY of PERNRY under the laws of the State of California that the foregoing paragraph is true and correct. WIr:.~ESS my hand and official seal. Signature ofNotan' (Affix seal here) Chula Vista Municipal Financing Authority 8-65 STATE OF MARYLAND ) SS: COUI~'TY OF BALTIMORE ) On July _; 2013, before me, a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity; and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing pazagraph is true and correct. VdITA'ESS my hand and official seal. Signature of Notary (Affix seal here) Banc ofAmerica Public Capita! Corp 8-66 APPENDIa A DESCRIPTION OF THE LEASED PROPERT]' The Leased Propem' consists of the follo~'ing described land located in the Citti' of Chula Vista, County of San Diego, State of California, together with all buildings, facilities and other impro~'ements which constitute real property and which are located thereon: [TO BE PROVIDED BI' THE CIT]'] 8-67 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAKING REQUIRED FINDINGS AND AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR IMPROVEMENTS AT .CITY BUILDINGS, AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Chula Vista (the "City') is a municipal corporation and a chartered city duly organized and existing under and pursuant to the Constitution and laws of the State of California (the "State"); and WHEREAS, the Cit}' desires to take certain actions described herein to finance the acquisition; construction and installation of solar photovoltaic arrays at various City buildings as described in Exhibit A hereto (the "Project"); and WHEREAS, the Project will provide a public benefit by reducing City utility costs and improving air quality in the region; and WHEREAS, the City wishes to implement the financing program for the Project with the assistance of the Chula Vista Municipal Financing Authority (the ``Authority') through a lease/leaseback transaction as described below. and WHEREAS, in order to facilitate the financing of the Project, the Authority and.the City will enter into a Site Lease (the "Site Lease') pursuant to which the City will lease to the Authority the real property and improvements comprising the City's Loma Verde Recreation and Aquatics Center (the "Leased Property") and a Lease Agreement (the ``Lease"), pursuant to which the Authority will lease the Leased Property back to the City; WHEREAS, pursuant to the Lease, the City will pay Lease Payments (as defined in the Lease) to the Authority; and WHEREAS, in order to provide the funds for the Project, the Authority will assign its right, title and interest in the Lease and the Site Lease (except for certain reserved rights) to Banc of America Public Capita] Corp. (the "Assignee") under the temps of an Assignment Agreement by and between the Authority and the Assignee (the `'Assignment Agreement'); and WHEREAS, as a condition of its participation in the fnancing the Assignee is requiring that the City, the Assignee and Deutsche Bank Trust Company of Americas (the "Agent') enter into a Project Fund Agreement setting forth the conditions for the release of funds to the City to acquire, construct and install the Project (the "Project Fund Agreement"); and J:Wttorner\FIh'AL RESOS A,\'D ORDIi~'A1dCES\2013\07 23 13W7T847087.doc 7/16/2013 1:02 PM 8-68 Resolution No. Page 2 R%HEREAS, there is_now on file with the Cite Clerk copies of the Site Lease; the Lease, the Assignment Agreement and the Project Fund Agreement, and \\THEREAS; the Cih~ has held a public hearing on the date hereof pursuant to Goverrtment Code Section 6686.6 following publication of notice not less than five days prior to the hearing; concerning the financing of the Project and has determined that the financing of the Project with the assistance of the Authority will result in significant public benefits; and WHEREAS, all acts. conditions and things required by the Constirution and laws of the State to exist; to have happened and to have been performed precedent to and in connection with the consurrtmation of the financing authorized hereby do exist; have happened and have been performed in regular and due time; form and manner as required by law, and the City is now duly authorized and empowered; pursuant to each and every requirement of law; to consummate such financing for the purpose, in the manner and upon the terms herein provided. NO\\/; THEREFORE, the Cit_v Council of the Citv of Chula Vista does hereby resolve as follows: SECTION' 1. Findings. The City Council hereby specifically finds and declares that each of the statements; findincs and determinations of the City in the recitals set forth above and in the preambles of the documents approved herein are true and correct and that the implementation of the financing program for the Project will result in significant public benefits for the residents of the Cit}~ of the type described in Government Code Section 6686 (a) and (d). SECTIO\' 2. Lease/Purchase Agreement. The form of the Lease; between the City and the Authority, presented to this meeting and on file with the City Clerk (the "Clerk`), is hereby approved. Each of the Mayor of the Ciri~ (the "A4ayor -), the Citv i`4anager of the Cite (the "Cin~ Manager') and the Director of Finance of the City (the "Director of Finance') or their designees (collectively; the "Authorized Officers`); acting alone. is hereby authorized and directed; for and in the name and on behalf of the City, to execute and deliver to the Authorin~ the Lease in substantially said form, with such changes therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of the Authorized Officers. SECTION 3. Site Lease. The form of the Site Lease; between the Authority and the City, presented to this meeting and on file with the Clerk; is hereby appro~~ed. Each of the Authorized Officers, actinc alone._ is hereby authorized and directed; for and in the name and on behalf of the Cite, to execute and deliver to the.Authority a Site Lease in substantially said form; with such chances therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution.and delivery thereof by one or more of such Authorized Officers. J:4~ttomer~F'NAL RESOS A.\*D ORDINANCES~?013\Oi 23 13WTT84708 i.doc i/1620li 1:02 PM 8-69 Resolution No. Page 3 SECTION 4. Project Fund Agreement. The form of the Project Fund Agreement, among the City, the Authority and the Agent. presented to this meeting and on file with the Clerk; is hereby approved. Each of the Authorized Officers, acting alone, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Project Fund Agreement in substantially said form, with such changes therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of the Authorized Officers. SECTION ~. Assignment Agreement. The Assignment Agreement between the Assignee and the Authority on file with the Clerk is hereby approved for execution and deliven~ by the Authority in substantially the form on file with the Clerk. SECTION 6. Attestations. The Clerk and such person or persons as may have been designated by the Clerk to act on her behalf, are hereby authorized and directed to attest the signature of the Authorized Officers designated herein to execute any documents described herein, and to affix and attest the seal of the City, as may be required or appropriate in connection with the execution and delivery of the Site Lease, the Lease and the Project Fund Agreement. SECTION 7. Other Actions. The Authorized Officers are each hereby authorized and directed. jointly and severally, to do any and all things and to execute and deliver any and all documents which each may deem necessary or advisable (including an agreement to retain the services of Stradling Yocca Carlson & Rauth, a Professional Corporation to assist the City with the financing and the payment of costs of issuance approved by the Director of Finance or her designee) in order to consummate the financing of the Project and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, the Site Lease, the Lease, the Project Fund Agreement and the Assignment Agreement. Such actions heretofore taken by such officers or designees are hereby ratified, confirmed and approved. In the event that it is determined by the Director of Finance,. or her designee, that there are limitations or restrictions on the ability of the City to lease any portion of the Leased Property as contemplated by the Site Lease and the Lease, the Director of Finance, or her designee, may designate other real property of the City to be leased pursuant to the Site Lease and the Lease, with such designation to be conclusively evidenced by the execution and delivery of the Site Lease and the Lease by one or more of the Authorized Officers. SECTION 8. Effect. This Resolution shall take effect immediately upon its passage. Presented by Maria Kachadoorian Director of Finance Approved as to form by /' lei Goo 1 Ci Attorney J:\Attornev\FIA'AL RESOS AND ORDINANCES\2013\07 23 li\ATT847087.doc 7/I6/2013 1:02 PM 8-~0 Resolution No. Pace 4 EaHIBIT A Project Description The City of Chula Vista's "Municipal Solaz Photovoltaic-Phase B" project would install approximately X68 k\V DC of solar photovoltaic arrays at three sites: Civic Center (Building 100), Loma Verde Recreation Center, and Public \\~orks. The arrays would be roof-mounted onto existine buildine structures and aze expected to generate over 869;000 kWh every year (equivalent to the annual energy use of over 140 homes). Installation of the solar arrays is scheduled to begin in late September and be completed by February ?014. 1:Wttornev\E[\'AL RESOS A\D ORDINANCES\2013\07 23 13WTT8d7087.doc i/16/2013 1:02 P~1 $-~~ RESOLUTION NO. MFA 2013- RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA MUNICIPAL FINANCII~rG AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR IMPROVEMENTS AT .CITY BUILDINGS; AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the Chula Vista Municipal Financing Authority (the ``Authority") is ajoint powers agency organized and existing under Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the "JPA Act") with the authority to assist in the financing of the construction, reconstruction, modernization and equipping of certain capital improvements on behalf of the City of Chula Vista (the "City"); and WHEREAS; the City desires to finance the acquisition, construction and installation of solar photovoltaic arrays at various City buildings (the "Project'); and WHEREAS, the Project will provide a public benefit by reducing City utility costs and improving air quality in the region; and WHEREAS, the City wishes to implement the financing program for the Project with the assistance of the Authority through alease/leaseback transaction as described below, and WHEREAS, in order to facilitate the financing of the Project, the Authority and the City will enter into a Site Lease (the "Site Lease") pursuant to which the City will lease to the Authority the real property and improvements comprising the City's Loma Verde Recreation and Aquatics Center (the "Leased Property") and a Lease Agreement (the ``Lease''), pursuant to which the Authority will lease the Leased Property back to the City; WHEREAS, pursuant to the Lease, the City will pay Lease Payments (as defined in the Lease) to the Authority; and WHEREAS, in order to provide the funds for the Project, the Authority will assign its right, title and interest in the Lease and the Site Lease (except for certain reserved rights) to Banc of America Public Capital Corp. (the "Assignee") under the terms of an Assignment Agreement by and between the Authority and the Assignee (the "Assignment Agreement"); and WHEREAS, there is now on file with the Secretary of the Authority copies of the Site Lease, the Lease and the Assignment Agreement: and WHEREAS, the City has held a public hearing on the date hereof pursuant to Government Code Section 6586.5 following publication of notice not less than five days prior to the hearing, concerning the financing of the Project and has determined that the financine of the Project with the assistance of the Authority will result in significant public benefits; and .1:\Attomev\FINAL RESOS AND ORDINANCES\2013\07 23 13WTT847085.doc 7/16/2013 12:56 PM 8-72 Resolution No. Pase 2 \\%HEREAS; all acts; conditions and things required by the Constitution and laws of the State to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing authorized hereby do exist, have happened and have been performed in reeular and due time; form and manner as required by law; and the Authority is now duly authorized and empowered, pursuant to each and every requirement of law; to consummate such financing for the purpose; in the manner and upon the terms herein provided; NO~b', THEREFORE. the Board of Directors of the Authority does hereb_v.resolve as follows: SECTIO\' 1. Findines. This Boazd of Directors hereby specifically finds and declares that each of the statements. findines and determinations of the Authority in the recitals set fonh above and in the preambles of the documents approved herein are true and correct. SECTION 2. Approval of Documents. The Site Lease; the Lease and the Assienment Agreement (collectively. the "Agreements'') presented at this meeting are approved. Each of the Chairman. Vice Chairman, Executive Director. Chief Financial Officer and Secretary of the Authorih'; or the Chairman s designee; acting alone, is authorized and directed to execute and deliver the Agreements. The Agreements shall be executed in substantially the forms hereby approved; ~+=ith such additions thereto and changes therein as are recommended or approved by counsel to the Authority and approved by the officer or officers of the Authority executing the Agreements, such approval to be conclusively evidenced by the execution and deliven~ thereof by one or more of the officers listed above. SECTION 3. Other Actions. The Chairman, Vice Chairman; Executive Director, Chief Financial Officer; Secretary and other officers of the Authority are authorized and directed; jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or advisable in order to consummate the financing of the Project and the execution of the Agreements and othenyise effectuate the purposes of this Resolution. and such actions previously taken by such officers aze hereby ratified and confirmed. SECTION 4. Effect. This Resolution shall take effect from and after its date of adoption. Presented by Maria Kachadoorian Chief Financial Officer ):Wnomev\FINAL RESOS AND ORDINANCES\2013\07 23 13WTT847085.doc i/16/20li 12:56 Pi`1 8-73 Approved as to form by RESOLUTION NO. 20li- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $2,121,00 OF FINANCING TO THE ENERGY CONSERVATION FUND FOR THE MUNICIPAL SOLAR PHOTOVOLTAIC - PHASE II PROJECT (GG206) AMENDING THE FY2013-14 CAPITAL IMPROVEMENT PROGRAM BUDGET, APPROPRIATING AND AMENDING THE GENERAL FUND BUDGET TO REFLECT THE REDUCTION IN ENERGY COSTS AND TRANSFER OF THESE SAVINGS TO THE ENERGY CONSERVATION LOAN FUND; AND APPROPRIATING FUNDS TO THE ENERGY CONSERVATION LOAN FUND FOR DEBT SERVICE COSTS WHEREAS; renewable energy, such as Solar Photovoltaic (PV) systems; is an integral component of the City's climate action and energy management initiatives; and WHEREAS, Chula Vista has installed approximately 500 kW of renewable energy at 13 facilities, which is contributing to reaching the City's goal of at least 20% renewable energy capacity per the Clsula Vista Municrpal Building Energy Efficiency Policy (Resolution #2005-048); and WHEREAS, Solar PV arrays, which have aState-mandated minimum 2~-year warranty; reduce the City's long-term energy costs by offsetting utility-supplied electricity; and WHEREAS, staff has been working with Sullivan Solar Power to design Solar PV systems for three muJUCipal sites as part of the "Municipal Solar Photovoltaic-Phase II" project (GG206); and WHEREAS, the proposed systems totaling 568 kW DC would generate almost 860,000 kWh every year (equivalent to the annual energy use of over 140 homes); and WHEREAS; staff has been working with Banc of America to finance the project through a $2,121;500 Tax-Exempt Facility Lease Agreement, which would cover all project construction costs as well as associated financing closing costs; and WHEREAS; the financing would be fully repaid over the agreement's 17.5-year term through the projects resulting energy cost savings and California Solar Initiative incentives; and WHEREAS, over the 25-year minimum life of the new Solar PV systems, cumulative cost benefits to the City are estimated at over $1.4 million (assuming a 3% annual utility escalator). 1:\Attorney\FINAL RESOS AND ORDIIJANCES\2013\07 23 13\RESO III-PW-Solar PV Phase II Financing_DRAFTV (2).doc 7/17/2013 10:26 AM 8-74 Resolution No. Page 2 I\tOR~. THEREFORE. the Cit.' Council of the Cin~ of Chula Vista does hereby resoh'e that it. 1. Appropriates 52,121;d00 of financing to the Energy Consen~ation Fund's Capital Impreovement Project expenditure categon~for the D4unicipal Solar Photovoltaic-Phase II project (GG206), and 2. Appropriates 50,930 to the General Fund's Transfers-Out categor}~ and reduces the Utilities budget for the Public Works Department bvy544,4~0 and the Recreation Department by 56;480. and 3. Appropriates 5116;1 15 to the Other Expenses category of the Energy Consen~ation Loans Fund for debt sen'ice costs to be offset b~' a Transfer-In from the General Fund (50,930) and CSI Incentive revenues of 56~;18~. Presented b} Approved as to form b}' Richard A. Hopkins Director of Public V~'orks 1:Wnomev\FI1~`.4L RESOS fv\*D ORDiNA\CES12013\Oi 23 13\RESO III-P\\'-$olar PV Phase II Financing_DRAFF\' (?).doc 7/U!?013 1026 Ail1 8-75 Revised '\19\1? \ -\-C\'Y'\ :tt g RESOLUTION NO. MFA 2013- RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA MUNICIPAL FINANCING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR IMPROVEMENTS AT CITY BUILDINGS, AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the Chula Vista Municipal Financing Authority (the "Authority") is ajoint powers agency organized and existing under Article 4 of Chapter 5 of Division 7 of Title I of the Government Code of the State of California (the "JPA Act") with the authority to assist in the financing of the construction, reconstruction, modernization and equipping of certain capital improvements on behalf of the City of Chula Vista (the "City"); and WHEREAS, the City desires to finance the acquisition, construction and installation of solar photovoltaic arrays at various City buildings (the "Project"); and WHEREAS, the Project will provide a public benefit by reducing City utility costs and improving air quality in the region; and WHEREAS, the City wishes to implement the financing program for the Project with the assistance of the Authority through a lease/leaseback transaction as described below, and WHEREAS, in order to facilitate the financing of the Project, the Authority and the City will enter into a Site Lease (the "Site Lease") pursuant to which the City will lease to the Authority the real property and improvements comprising the City's Lorna Verde Recreation and Aquatics Center (the "Leased Property") and a Lease Agreement (the "Lease''), pursuant to which the Authority will lease the Leased Property back to the City; WHEREAS, pursuant to the Lease, the City will pay Lease Payments (as defined in the Lease) to the Authority; and WHEREAS, in order to provide the funds for the Project, the Authority will assign its right, title and interest in the Lease and the Site Lease (except for certain reserved rights) to Banc of America Public Capital Corp and its successors and assigns (the "Assignee") under the ternlS of an Assignment Agreement by and between the Authority and the Assignee (the "Assignment Agreement"); and WHEREAS, there is now on file with the Secretary of the Authority copies of the Site Lease, the Lease and the Assignment Agreement; and WHEREAS, the City has held a public hearing on the date hereof pursuant to Government Code Section 6586.5 following publication of notice not less than five days prior to the hearing, concerning the financing of the Project and has determined that the financing of the Project with the assistance of the Authority will result in significant public benefits; and. J:lAttomey\FINAL RESOS AND ORDINANCES\2013\07 23 \3IATT847085.doc 711912013 9:27 AM Resolution No. Page 2 WHEREAS, all acts, conditions and things required by the Constitution and laws of the State to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the Authority is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such financing for the purpose, in the manner and upon the terms herein provided; NOW, THEREFORE, the Board of Directors of the Authority does hereby resolve as follows: SECTION I. Findings. This Board of Directors hereby specifically finds and declares that each of the statements, findings and determinations of the Authority in the recitals set forth above and in the preambles of the documents approved herein are true and correct. SECTION 2. Approval of Documents. The Site Lease, the Lease and the Assignment Agreement (collectively, the "Agreements") presented at this meeting are approved. Each of the Chairman, Vice Chairman, Executive Director, Chief Financial Officer and Secretary of the Authority, or the Chairman's designee, acting alone, is authorized and directed to execute and deliver the Agreements. The Agreements shall be executed in substantially the forms hereby approved, with such additions thereto and changes therein as are recommended or approved by counsel to the Authority and approved by the officer or officers of the Authority executing the Agreements, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of the officers listed above. . SECTION 3. Other Actions. The Chairman, Vice Chairman, Executive Director, Chief Financial Officer, Secretary and other officers of the Authority are authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary or advisable in order to consummate the financing of the Project and the execution of the Agreements and otherwise effectuate the purposes of this Resolution, and such actions previously taken by such officers are hereby ratified and confirmed. SECTION 4. Effect. This Resolution shall take effect from and after its date of adoption. Presented by ;,11 . " ~I GlenR. '1/ -G91era1 Maria Kachadoorian Chief Financial Officer J:lAttomeylFINAL RESOS AND ORDINANCES\2013\07 23 I3IATT847085.doc 7119/20139:27 AM Re-vised ,\IQ\I2> I +e.-\'YI 1!: B RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA MAKING REQUIRED FINDINGS AND AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS RELATING TO THE FINANCING OF SOLAR IMPROVEMENTS AT CITY BUILDINGS, AND AUTHORIZING AND DIRECTING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Chula Vista (the "City") is a municipal corporation and a chartered city duly organized and existing under and pursuant to the Constitution and laws of the State of Cali fomi a (the "State"); and WHEREAS, the City desires to take certain actions described herein to finance the acquisition, construction and installation of solar photovoltaic arrays at various City buildings as described in Exhibit A hereto (the "Project"); and WHEREAS, the Project will provide a public benefit by reducing City utility costs and improving air quality in the region; and WHEREAS, the City wishes to implement the financing program for the Project with the assistance of the Chula Vista Municipal Financing Authority (the "Authority") through a lease/leaseback transaction as described below, and WHEREAS, in order to facilitate the financing of the Project, the Authority and the City will enter into a Site Lease (the "Site Lease") pursuant to which the City will lease to the Authority the real property and improvements comprising the City's Lorna Verde Recreation and Aquatics Center (the "Leased Property") and a Lease Agreement (the "Lease"), pursuant to which the Authority will lease the Leased Property back to the City; WHEREAS, pursuant to the Lease, the City will pay Lease Payments (as defined in the Lease) to the Authority; and WHEREAS, in order to provide the funds for the Project, the Authority will assign its right, title and interest in the Lease and the Site Lease (except for certain reserved rights) to Banc of America Public Capital Corp and its successors and assigns (the "Assignee") under the terms of an Assignment Agreement by and between the Authority and the Assignee (the "Assignment Agreement"); and WHEREAS, as a condition of its participation in the financing the Assignee is requiring that the City, the Assignee and Deutsche Bank Trust Company Americas (the "Agent") enter into a Project Fund Agreement sening forth the conditions for the release of funds to the City to acquire, construct and install the Project (the "Project Fund Agreement"); and J:lAuomeylFlNAL RESOS AND ORDINANCESI2013\07 23 131ATT847087.doc 7116/2013 I :02 PM Resolution No. Page 2 WHEREAS, there is now on file with the City Clerk copies of the Site Lease, the Lease, the Assignment Agreement and the Project Fund Agreement; and WHEREAS, the City has held a public hearing on the date hereof pursuant to Government Code Section 6586.5 following publication of notice not less than five days prior to the hearing, concerning the financing of the Project and has determined that the financing of the Project with the assistance of the Authority will result in significant public benefits; and WHEREAS, all acts, conditions and things required by the Constitution and laws of the State to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the City is now duly authorized and empowered, pursuant to each and every requirement of law, to consummate such financing for the purpose, in the manner and upon the terms herein provided. NOW, THEREFORE, the City Council of the City ofChula Vista does hereby resolve as follows: SECTION I. Findings. The City Council hereby specifically finds and declares that each of the statements, findings and determinations of the City in the recitals set forth above and in the preambles of the documents approved herein are true and correct and that the implementation of the financing program for the Project will result in significant public benefits for the residents of the City of the type described in Government Code Section 6586 (a) and (d). SECTION 2. Lease/Purchase Agreement. The form of the Lease, between the City and the Authority, presented to this meeting and on file with the City Clerk (the "Clerk"), is hereby approved. Each of the Mayor of the City (the "Mayor"), the City Manager of the City (the "City Manager") and the Director of Finance of the City (the "Director of Finance") or their designees (collectively, the" Authorized Officers"), acting alone, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver to th~ Authority the Lease in substantially said form, with such changes therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of the Authorized Officers; provided, however, that the amount of the principal component of the lease payments shall not exceed $2,121,500, the scheduled interest components shall accrue at a rate not to exceed 3.95% per annum and the final scheduled lease payment shall not be more than 18 years from the commencement of the Lease (subject to extension as provided in the Lease). SECTION 3. Site Lease. The form of the Site Lease, between the Authority and the City, presented to this meeting and on file with the Clerk, is hereby approved. Each of the Authorized Officers, acting alone, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver to the Authority a Site Lease in substantially said form, with such changes therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of such Authorized Officers. J:\AnomeyIFINAL RESOS AND ORDINANCES\2013\07 23 13\AIT847087.doc 7119/2013 9:24 AM Resolution No. Page 3 SECTION 4. Proiect Fund Agreement. The form of the Project Fund Agreement, among the City, the Authority and the Agent, presented to this meeting and on file with the Clerk, is hereby approved. Each of the Authorized Officers, acting alone, is hereby authorized and directed, for and in the name and on behalf of the City, to execute and deliver the Project Fund Agreement in substantially said form, with such changes therein as the Authorized Officer or Officers executing the same may require or approve, such approval to be conclusively evidenced by the execution and delivery thereof by one or more of the Authorized Officers. SECTION 5. Assignment Agreement. The Assignment Agreement between the Assignee and the Authority on file with the Clerk is hereby approved for execution and delivery by the Authority in substantially the form on file with the Clerk. This Resolution shall constitute a consent of the City pursuant to Government Code Sections 5951 and 5952 for any transfer of interests in the Lease made in accordance with the Assignment Agreement and the Lease. SECTION 6. Attestations. The Clerk and such person or persons as may have been designated by the Clerk to act on her behalf, are hereby authorized and directed to attest the signature of the Authorized Officers designated herein to execute any documents described herein, and to affix and attest the seal of the City, as may be required or appropriate in connection with the execution and delivery of the Site Lease, the Lease and the Project Fund Agreement. SECTION 7. Other Actions. The Authorized Officers are each hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which each may deem necessary or advisable (including an agreement to retain the services of Stradling Y occa Carlson & Rauth, a Professional Corporation to assist the City with the financing and the payment of costs of issuance approved by the Director of Finance or her designee) in order to consummate the financing of the Project and otherwise to carry out. give effect to and comply with the terms and intent of this Resolution, the Site Lease, the Lease, the Project Fund Agreement and the Assignment Agreement. Such actions heretofore taken by such officers or designees are hereby ratified, confirmed and approved. In the event that it is determined by the Director of Finance, or her designee, that there are limitations or restrictions on the ability of the City to lease any portion of the Leased Property as contemplated by the Site Lease and the Lease, the Director of Finance, or her designee, may designate other real property of the City to be leased pursuant to the Site Lease and the Lease, with such designation to be conclusively evidenced by the execution and delivery of the Site Lease and the Lease by one or more of the Authorized Officers. J:lAnomeylFINAL RESOS AND ORDINANCESI2013107 23 131ATT847087.doc 7II 9/20 13 9:24 AM Resolution No. Page 4 SECTION 8. Effect. This Resolution shall take effect immediately upon its passage. Presented by Maria Kachadoorian Director of Finance \ J:lAnomeylFINAL RESOS AND ORDINANCESI2013\07 23 131ATI847087.doc 7/1 9120 13 9:24 AM , Resolution No. Page 5 EXHIBIT A Proiect Description The City ofChula Vista's "Municipal Solar Photovoltaic-Phase B" project would install approximately 568 k W DC of solar photovoltaic arrays at three sites: Civic Center (Building 100), Lorna Verde Recreation Center, ~nd Public Works. The arrays would be roof-mounted onto existing building structures and are expected to generate over 869,000 kWh every year (equivalent to the annual energy use of over 140 homes). Installation of the solar arrays is scheduled to begin in late September and be completed by February 2014. J:\AttorneyIFINAL RESOS AND ORDlNANCES\2013\07 23 13\ATT847087.doc 7119/2013 9:24 AM