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HomeMy WebLinkAbout2020-11-03 Agenda Packet I declare under penalty of perjury that I am employed by the City of Chula Vista in the office of the City Clerk and that I posted the document according to Brown Act requirements. Dated: /D 29 Signed. .--� Cmc of CHULA VISTA • Mary Casillas Salas, Mayor John McCann, Councilmember- District 1 Maria V. Kachadoorian, City Manager Jill M. Galvez, Councilmember- District 2 Glen R. Googins, City Attorney Stephen C. Padilla, Councilmember- District 3 Kerry K. Bigelow, City Clerk Mike Diaz, Councilmember- District 4 Tuesday, November 3, 2020 5:00 PM Via Teleconference Council Chambers 276 4th Avenue, Building A Chula Vista, CA 91910 SPECIAL MEETING OF THE HOUSING AUTHORITY MEETING JOINTLY WITH THE CITY COUNCIL OF THE CITY OF CHULA VISTA Notice is hereby given that the Mayor of the City of Chula Vista has called and will convene a special meeting of the Housing Authority meeting jointly with the City Council on Tuesday, November 3, 2020, at 5:00 p.m. in the Council Chambers,located at 276 Fourth Avenue, Building A, Chula Vista, California to consider items on this agenda. PURSUANT TO THE GOVERNOR OF THE STATE OF CALIFORNIA'S EXECUTIVE ORDER N-29-20, AND IN THE INTEREST OF THE PUBLIC HEALTH AND SAFETY, MEMBERS OF THE CITY COUNCIL AND STAFF MAY PARTICIPATE IN THIS MEETING VIA TELECONFERENCE. IN ACCORDANCE WITH THE EXECUTIVE ORDER, THE PUBLIC MAY VIEW THE MEETING ON TELEVISION AND/OR ONLINE AND NOT IN THE COUNCIL CHAMBERS. HOW TO WATCH: Watch the meeting via livestream at https://chulavista.legistarcom/Calendaraspx, on AT&T U-verse channel 99(throughout the County), and on Cox Cable channel 24(only in Chula Vista). Recorded meetings are also aired on Wednesdays at 7 p.m. (both channels)and are archived on the City's website. HOW TO SUBMIT COMMENTS: Visit the online eComment portal for this meeting at: https://chulavista.legistarcom/Ca/endaraspx. The commenting period will be open shortly after the agenda is published will remain open through the meeting. All comments will be available to the public and the City Council using the eComment portal. Comments must be received prior to the time the Mayor calls for the close of the commenting period. Comments received after such time will not be considered by the City Council. If you have difficulty or are unable to submit a comment,please contact the City Clerk's Office at cityclerk@chulavistaca.gov or(619)691-5041. ACCESSIBILITY: Individuals with disabilities are invited to request modifications or accommodations in order to access and/or participate in a City meeting by contacting the City Clerk's Office at cityclerk@chulavistaca.gov or (619) 691-5041 (Califomia Relay Service is available for the hearing impaired by dialing 711) at least forty-eight hours in advance of the meeting. City of Chula Vista Page 1 Printed on 10/29/2020 City Council Agenda Nlovennb+er 3,2020 CALL 'TCS ORDER ROLL CALL: Ccuncilmembers Diaz, Galvez, McCann, Padilla and Mayr Casillas S la PLEDGE OF ALLEGIANCE TCS THE FLAG AND MOMENT OF SILENCE SPECIAL ORDERS OF THE DA's'' A. 20-0446 COVID-19 UPDATE BY CITY OF C HULA VISTA EMERGENCY SERVICES COORDINATOR MARLON KING B. 0-0455 PRESENTATION CSF A PROCLAMATION TO SUPERVISOR GREG COX PROCLAIMING G FRIDAY, NOVEMBER 6, 2020 AS SUPERVISOR GREG COX LAY IN THE CITY OF CULA VISTA CONSENT NT CALENDAR (111tems 1 - 17 The Council will enact the Consent Calendar staff recommendations by one motion without discussion, unless a Councilmember, a member of the public, or staff requests that an item be removed for discussion. if you wish to comment on one of these items, de so at ht ps.-Ilchulavista.legist,ar.coml"Calendar.aspx 1. 0-0450 APPROVAL OF MINUTES of February 25, March 3 and 10, 2020. R'ecommended,Action: ouncil approve the minutes. 2. 20-0448 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 2.25.105(D) OF THE C► ULA VISTA MUNICIPAL CODE RELATED TO THE PROCESS BY WHICH BOARD OR COMMISSION MEMBERS MAY BE REMOVED FOR CAUSE (SECOND READING AND ADOPTION) Department. City Clerk Environmental Notice: The activity is not a `Project as defined under Section 15378 of the California (Environmental Quality Act State Guidelines; therefore, pursuant to Mate Guidelines Section 1 o o(c)(8) no environmental review is required. Recommended Action Council adopt the ordinance. City of Chula Vista Page 2 Printed on 90/291202+0 2020-11-03 Agenda Packet Page 2 of 509 City Council Agenda Novernber 3,2020 3. 120-0428 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE 2021 LOCAL APPOINTMENTS LIST FOR BOARD, COMMISSION, AND COMMITTEE TERMS EXPIRING IN CALENDAR YEAR 2021 Department: City Clerk Environmental Notice: The activity is not a "Project"' as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 150601(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. 4. 120-0439 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF' CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE ELECTRONIC PLAN REVIEW SOFTWARE IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND E-PLAN, INC. B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE SOFTWARE INTEGRATION PLATFORM IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND VELOSIMO, INC. Department: Development Services Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidlellines Section 150601(c)(3) no environmental review is required., Recommended Action: Council adopt the resolutions. 5. 20-0452 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DESIGNATING OFFICIAL TO CONDUCT A PUBLIC HEARING REGARDING THE ISSUANCE, SALE AND DELIVERY OF MULTIFAMILY HOUSING REVENUE BONDS OF THE CHULA VISTA HOUSING, AUTHORITY Department: Development Services Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 150601(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. City of Chula Vista Page 3 Printed on 1012912020 2020-1.1-0,3 Agenda Packet Page 3 of 509 City Council Agenda Novernb+er 3,2020 . 120-0413 A. RESOLUTION OF THE CHULA VISTA HOUSING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF ITS TAX-EXEMPT MULTIFAMILY HOUSING REVENUE NOTES IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $35,000,00011 FOR THE PURPOSE OF' FINANCING THE ACQUISITION CSN AND CONSTRUCTION OF THE OTAY RANCH APARTMENTS MULTIFAMILY RENTAL HOUSING PROJECT; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY O ANY AND ALL DOCUMENTS NECESSARY TO EXECUTE AND, DELIVER THE NOTES, COMPLETE THE TRANSACTION AND IMPLEMENT THIS R SC L TIO AND RATIFYING AND APPROVING ANY ACTION HERETOFORE 'TAKEN IN CONNECTION WITH 'T H E NOTES B. RESOLUTION OF THE CITY COUNCIL OF THE CITY F' CHULA VISTA APPROVING A DECLARATION O COVENANTS, CONDITIONS, AND RESTRICTIONS,NS, AND DEED OF TRUST BY AND BETWEEN THE CITY OF CHULA VISTA AND OTAY RANCH AFFORDABLE I V81 LP TO PROVIDE 175 RESIDENTIAL UNITS IN OTAY RANCH VILLAGE 8 WEST TO BE OPERATED AS AFFORDABLE RENTAL HOUSING FOR VERY-LOW AND LOW-INCOME HOUSEHOLDS IN SATISFACTION► OF THP CITY'S BALANCED COMMUNITIES POLICY Department: Development Services Department Environmental Notice.: The Project was adequately covered in previously certified Final Environmental Impact IReport (FIEIIR 10-03)- SCN No. 2010062093 for Otay Ranch Village 8 west Sectional Planning Area (SPA)and Tentative Map. Recommended Action: Authority adopt resolution A and Council adopt resolution B. City of Chula Vista Page 4 Printed on 90/291202+0 2020-11-03 Agenda Packet Page 4 of 509 City Council Agenda Novernber 3,2020 7. 120-0412 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 20210-21 CIP BUDGET BY APPROPRIATING $2317800.68 FROM UNANTICIPATED REVENUE FROM LEXINGTON INSURANCE COMPANY TO THE CAPITAL IMPROVEMENT FUND FOR THE CHULA VISTA ELITE ATHLETE TRAINING CENTER PEDESTRIAN BRIDGE REPAIR PROJECT (GGV0241) (4/5 VOTE REQUIRED) Department: Engineering Department Environmental Notice: The Project qualifies for a Categorical Exemption pursuant to the California Environmental Quality Act State Guidelines Section 15301 Class 1 (Existing Facilities) and Section 15303 class 3 (New Construction or Conversion of Small Structures). Notwithstanding the foregoing, the Project was adequately covered in previously adopted/certified Environmental Impact Report,1 EIR 89-11 and Supplemental Environmental Impact (Report, SEIR 89-11 for the Olympic Training Center. Recommended Action: Council adopt the resolution. ITEMS REMOVED FROM THE CONSENT CALENDAR PUBLICCOMMENTS Persons commenting during Public Comments may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from discussing or taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff If you wish to comment, you may do so at htlps.-Ilch ula vista.legistar.com/Calendar.aspx 8. 120-0447 PUBLIC COMMENTS RECEIVED for November 3, 2020 City of Chula Vista Page 5 Printed on 1012912020 2020-1.1-0,3 Agenda Packet Page 5 of 509 City Council Agenda Novennb+er 3,2020 PUBLIC HEARINGS The following iters(s) have been advertised as ,public hearing(s) as required by lave. if you wish to comment on one of these items, you may do so at https.-Ilchulavista.legistancomlCalendar aspx 9. 0-0431 CONSIDERATION OF THE ANNEXATION OF TERRITORY To COMMUNITY FACILITIES DISTRICT No. 7- (PRESERVE MAINTENANCE DISTRICT) A. RESOLUTION OF THE CITY COUNCIL of THE CITY OF CHU A VISTA ACTING AS THE LEGISLATIVE BODY of COMMUNITY FACILITIES DISTRICT No. 7- (PRESERVE MAINTENANCE STRICT), MAKING CERTAIN DETERMINATIONS AND AUTHORIZING SUBMITTAL OF LEVY of SPECIAL TAXES TO THE QUALIFIED ELECTORS OF CERTAIN TERRITORY PROPOSED To BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 97-2. (PRESERVE MAINTENANCE DISTRICT) ANIS IMPROVEMENT ARCA "C" THERETO B. RESOLUTION OF THE, CITY COUNCIL. OF' THE, CITY OF CHUI A VISTA ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES [DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), DECLARING H SUL S OF A SPECIAL_ ELECTION IN THAT TERRITORY DESIGNATED, AS COMMUNITY FACILITIES DISTRICT CT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), IMPROVEMENT AREA "C""" ANNEXATION NO. 11 AND ADDING SUCH TERRITORY TO SUCH IMPROVEMENT AR A ©e,partmrent. Development services Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California (Environmental Quality ,Act State Guidelines; therefore, pursuant to State Guidelines section 1 o o1(e)(3) no environmental review is required. Recommended Action: Council conduct the public hearing and adopt the resolutions. City of Chula Vista Page 6 Printed on 90/291202+0 2020-11-03 Agenda Packet Page 6 of 509 City Council Agenda Novernber 3,2020 BOARD AND, COMMISSION REPORTS The Item(s) listed in this section of the agenda have been brought forward by a City board, commission, or committee and will be considered individually by the Council. If you wish to speak on any item, please fill out a "'Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 10. .20-0433 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE APPOINTMENT OF JOHN CRESSLER, CANEISHA FORTNER, AND MICHAEL JUAN TO THE 2020 REDISTRICTING COMMISSION, PURSUANT TO CHARTER SECTION 300.5,.D Department: City Clerk Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 150601(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. ACTION ITEMS The Item(s) listed in this section of the agenda will be considered individually by the Council and are expected to elicit discussion, and deliberation. If you wish to comment on one of these items, you may do so at ht,ps.-Ilchula vista.legistar.com/Calendar.aspx 1. 120-0385 CONSIDERATION OF ADOPTING THE PENSION AND OTHER PENSION EMPLOYMENT BENEFITS (OPER) RESERVE FUND POLICY, AMENDING THE GENERAL FUND RESERVE POLICY, AND DELEGATING PENSION AND CAPE B RESERVE FUND ACTIVITY TO THE DIRECTOR OF FINANCE/TREASURER RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE PENSION & OPEB (OTHER PENSION EMPLOYMENT BENEFITS) RESERVE FUND, POLICY, AMENDING THE GENERAL FUND RESERVE POLICY FISCAL HEALTPLAN, AND DELEGATING PENSION AND OPEB RESERVE FUND ACTIVITY TO THE DIRECTOR OF FINANCE/TREASURER Department: Finance Department Environmental Notice: The activity is not a "Project" as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 150601(c)(3) no environmental review is required. Recommended Action: Council adopt the resolution. City of Chula Vista Page 7 Printed on 1012912020 2020-1.1-0,3 Agenda Packet Page 7 of 509 City Council Agenda Nlovemb+er 3,2020 12. 20-0442 CONSIDERATION N CSF NAMING THE C TAY VALLEY REGIONAL BIKE SKILLS PARK, "GREG COX PARK" RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE NAME "GREG COX AFT" FOR THE 3.,2-ACRE BIKE SKILLS PARD FACILITY LOCATED D I THE OT'AY VALLEY REGIONAL PARK, RECREATION AREA 6 AND AUTHORIZING AND DIRECTING STAFF TO UNDERTAKE ADDITIONAL ACTIONS AND SEEK ADDITIONAL, APPROVALS AS MAY BE NECESSARY FOR SUCH NAMING Department.: Development Services Department Environmental(Notice: The activity is not a "Project" as defined under Section 1537$ of the California (Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 1 0601(c)( ) no environmental review is required. Recommended Action: Council adopt the resolution. CITY MANAGER'S REPORT'S MAYOR'S REPORTS COU N II EMBERS' COMMENTS CITY ATTORNEY'S REPORTS ADJOURNMENT to the regular City Council meeting on November 17, 2020, at b: O p.m., in the Council Chambers. Materials provided to the City(council related to any open-session item on this agenda are available for public review,please contact the Office of the City dark at cityclerk@chulavistaca.gov or(619) 691-5041. Sign up at www.chulavistaca.gov to receive email notifications when City Council agendas are published online.. City of Chula Vista Page g Printed on 90/291202+0 2020-11-03 Agenda Packet Page 8 of 509 C® of Chula Vista Meetinge Minutes -, Draft Tuesday, February 25,2020 5:00 RM Council Chambers 276 4th Avenue, (Building A Chula Vista, CA 91910 REGULAR MEETING CSF THE CITY COUNCIL The City Council minutes are prepared and ordered to correspond to the City Council Agenda. Agenda items may be taken out of order during the meeting. The agenda items were considered in the order presented, except for Items 9, 7, and 8, which were heard in that order following the Consent Calendar. CALL TO ORDER A regular meeting of the City Council of the City of Chula Vista was called to order at 5:02 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: IP,resent: Councilmember Diaz, Deputy Mayor Galvez, Council ember McCann, Councilmernber Padilla and Mayor Casillas Salas Also present: City Manager Halbert, City Attorney Googins, City Clerk Bigelow and Assistant City Clerk Turner. PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE Councilmember Padilla led the Pledge of Allegiance. SPECIAL ORDERS OF THE DAY A. 20-0079 OATHS OF OFFICE -Devon Boyd, Historic Preservation Commission -Maria Carolina Hoyos, Housing Advisory Commission -Genie Irish, Historic Preservation Commission Youth Action Council: -Antonio Baeza -Steven Hahn -Patricia Bessie -Celina Miranda -Rebeca Castillo -Pranav Nambiar -Annika Daglish -Christopher Garcia City Clerk Bigelow administered the oath of office to Commissioners Boyd, Ho os, and Irish and Youth Action Council members Baeza, Bessie, Castillo, Daglish, Garcia, Miranda and Nambiar. Deputy Mayor Galvez, Councilm,ember Padilla, Councilmember Diaz, and Councilmembe,r McCann presented them with the certificates of appointment. Mr. Hahn was not present. City of Chula Vista Page 1 2020-1.1-0,3 Agenda Packet Page 9 of 509 City Council Meeting Minutes-IDraft. February 25,2020 B. 20-0059 PRESENTATION OF A PROCLAMATION PROCLAIMING FEBRUARY AS SPAY/NEUTER AWARENESS MONTH IN THE CITY OF CHULA VISTA Mayor Casillas ,alas read the ,proclamation and Counc lmember McCann presented it to Animal Care Facility,Administrator Mills. Animal Care Facility Administrator Mills gave a presentation. CONSENT CALENDAR (Items 1 - 6) 11. 20-00 83 APPROVAL OF MINUTES of August 13, 2019. Recommended Action: Council approve the minute. 2. 20-0081 ORDINANCE NO. 3480 OF THE CITY OF CHULA VISTA APPROVING TETT= SECTIONAL.- PLANNING ARTA SPA) PLANNED COMMUNITY DISTRICT (FORM BASED CODE) REGULATIONS FOR OTAY RANCH VILLAGE EIGHT WEST (SECOND READING AND ADOPTION) Recommended Action: Council adopt the ordinance. . -0082 ORDINANCE NO. 3481 OF THE TTY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT, AUTHORIZING THE LEVY OF A SPECIAL TAS IN SUCH DISTRICT (SECOND READING AND, ADOPTION) Recommended Action: Council adopt the ordinance. 4. 191-0580 RESOLUTION NO. 2020-045 OF THE CITY COUNCIL O1= 'TL-II= CITY OF CHULA VISTA AWARDING A CONTRACT FOR THE "RETIING OF TRAFFIC SIGNALS AND INSTALLATION OF FIBER OPTIC/ETHERNET COMMUNICATION SYSTEM jRF0404)11PROJECT TO DBS, INC;. IN THE AMOUNT OF $740,588; AND MAKING VARIOUS AMENDMENT` TO THE FISCAL YEAR 2O 10/,20, C I P PROGRAM B DGETS TO APPROPRIATE F=UNDS T EREFOR (415 VOTE REQUIRED) Recommended Action: Council adapt the resolution. 5. 20-0020 RESOLUTION NO. 2020-045 OF THE CITY COUNCIL. OF THE CITY OF CHULA VISTA ADOPTING COUNCIL POLICY NO. 857-01 (HEALTHY AND SUSTAINABLE MEETING STANDARDS , APPLYING TO ALL INTERNAL MEETINGS AND CITY HOSTED EVENTS Recommended Action: Council adopt the resolution. . 0-0055 RESOLUTION NO. 2520-047 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A SAN DIEGO ASSOCIATION O GOVERNMENTS 2020 GO BY BIKE MINI-GRANT; AND APPROPRIATING FUNDS THEREFOR (415 VOTE REQUIRED) Recommended Action: Council adopt the resolution City of Chula Vista Page 2 2020-11-03 Agenda Packet Page 10 of 509 City Council Meeting Minutes-IDraft. February 25,2020 Approval of the Consent Calend r ACTION: A motion was made by Councilmember McCann, seconded by Counclilmember Padilla, to approve staff s recommendations on the .above Consent Calendar items, headings read,text waived.The motion carried by the following vote: Yes: 5- Diaz, Galvdez, McCann, (Padilla and Casiillas Salas INo: 0 Abstain: 0 ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS The following members of the public spoke in opposition to the Drag Queen Story Time Program: -Vinzent Balaolng -Tony Villafranca, representing San Diego bass Resistance -Steve Dicks -Andres Wong, Chula Vista resident The following members of the public submitted written documentation in opposition to the Drag ween 'tory Time Program and did not wish to speak: -Sheila Lujan, Chula Vista resident -Trevor Aerett -Ricardo Peru -Noelle Tuning -Marcia H. walker, National City resident -Martha Souza, Chula Vista resident -Thomas Tuning Christine Pontecorvo submitted written documentation in opposition to the brag Queen Story Time Program and was not present when called. The following members of the public spoke in support of the Drag Queen Story Time Programa -William Stanhope, Chula Vista resident -Bradley Bang, National City resident -Sara Kent, Chula Vista resident -Matthew Arnold, Chula Vista resident -Kate Bishop -Sara Salas, Chula Vista resident -Carol Kim, San Diego resident -Mitch Thompson, Chula Vista resident -David Myers, La Mesa resident -Tom L emmon -Brenda Arnold -Temika M. Cook David Munoz, Chula Vista resident, was not present when called to speak. Brandon Claypool, Chula Vista resident, submitted written documentation regarding reviving the Chula Vista Mall and bringing back business, and was not present when called to speak. City of Chale Vista Page 3 2020-11-0,3 Agenda Packet Page 1.1. of 509 City Council Meeting Minutes-IDrarft. February 25,2020 Felix Delgado, Chula Vista resident, spoke in support of an ordinance limiting the time storage containers can be placed on private property.. Shane Parmely spoke regarding the Bonita Pest Melodrama and the need for a new location. The following individuals spoke regarding their experience with black mold at an apartment complex on N Street., -Miriam Goff, Chula Vista resident -Jorge Sanchez, Chula Vista resident Dom Nguyen spoke regarding the brag Queen Story Time Program and the need for a ,ban on performers with an existing record. City Attorney Googins stated the City was working with an ACP representative regarding the mold issue in the H Street apartment complex and spoke regarding resources to assist the residents. ACTION ITEMS 7 -0021 ORDINANCE OF NINE CITY OF CH LA VISTA AMENDING CH LA VISTA MUNICIPAL CGDE CHAPTER 5.56 TOBACCO RETAILER), TO PROHIBIT THE SALE OF FLAVORED TOBACCO PRODUCTS AN ELECTRONIC SMOKING DEVICES LACKING A REQUIRED D FOOD AND DRUG ADMINISTRATION MARKETING ORDER (FIRST READING Senior Project Coordinator Kurz and Detective Edlin gave a presentation on the item. Staff answered questions of the Council. The following individuals submitted written documentation in opposition to staffs recommendation and did not wish to speak.- -Mercedes Sovmpholphakdy -Ra ez Louis -Danny Fontan, Chula Vista resident -Salam Zore -Jed Roberto, Chula Vista resident -Christine Dulatre, Chula Vista resident -Mark Mansour The following individuals spoke in opposition to staff's recommendation: -Josue Ramirez, Chula Vista resident -Y'uliana Brambila, Chula Vista resident -Kaarairn Abdulwahid, Chula Vista resident -Arkum Somo, representing the Neighborhood Market Association -lemon Mansour, representing the Neighborhood Market Association -James Mitchell, representing the Neighborhood Market Association -Molly Sylvester, representing Communities for,safer Vaping -Paul Radoiv -bene Malinao, Chula Vista resident -Michael Dulatre, Chula Vista resident -Sergio Feruiza, Chula Vista resident -Nellie Del Rosario, representing Communities for Safer Vaping -Ciselle Torres, representing Communities for Safer Vaping City of Chula Vista Page 4 2020-11-03 Agenda Packet Page 12 of 509 City Council Meeting Minutes-IDrarft. February 25,2020 The following individuals spoke in favor of staffs recommendation: -Michelle Galindo, Chula Vista resident -Manuel Andrade, representing Say San Diego -Chelsea Walczak, representing the American Heart Association -Jessica Newmyer, Chula Vista resident -Lynda Barbour, representing the American Cancer Society Cancer Action Network -Alexa Wohrman, representing the American Heart Association -Debra Kelley, representing the Campaign for Tobacco Free Kids -Aldo Munoz, Chula Vista resident -Carol Green, Chula Vista resident -Becky Rapp -Shane Parmely -Isabella lbarra, Chula Vista resident -duan Kohse, Chula Vista resident Jovita Arellano, representing Institute for Public ,strategies, submitted written documentation in favor of staffs recommendation and did not wish to speak. dazell Belvin, representing the American Lung Association, spoke in favor of staffs recommendation and submitted tobacco products confiscated at a school. Leo Hsu, San Diego resident, submitted written documentation in favor of staff's recommendation and was not present when called. Roy Mikha submitted written documentation in opposition of staff's recommendation and was not present when called.. Douncilmember McCann spoke in support of referring the item back to staff for the following: a review of tobacco licenses, an analysis to ensure fees are appropriate, a review of fines and the penalty structure, information regarding PDA compliance approval, consideration of other ,jurisdictions and their ordinances, additional data about compliance, and the need to create an enhanced educational program to keep kids from smoking. Douncilmember Padilla spoke regarding the smoking industry's motivation to market to youth and spoke in support of Council taking action to protect them. Council discussion ensued.. Councilmember Diaz spoke in support of the fallowing: a review of hookah lounges, more data regarding online tobacco sales, incorporating regulations into Social Hosting, a review of tobacco licenses and density of stores selling tobacco, tobacco-free zones around schools, increasing in license fees in order to provide enforcement and ensure the industry is in compliance, and an increasing in fines. Mayor Casiltas Salas spoke in support of staff looking into increasing fines and fining both the employer and the employee.. Senior Project Coordinator Kurz announced that staff would be scheduling public meetings to provide the Healthy Chula Vista Advisory Commission with additional input City of Chula Vista Page 2020-11-03 Agenda Packet Page 13 of 509 City Council Meeting Minutes-(Draft. February 25,2020 ACTION: A motion was made by Councilmember McCann, seconded by Deputy (Mayer Galvez, to refer the item back to staff for a review of the facts surrounding sales and use patterns, regulatory options, and enforcement options to be brought back to the Council for future action on a more comprehensive ordinance with the understanding that staff would be engaging the public for further input. The motion carried by the following vote: Yes: 5- Diaz, Galvez, McCann, (Padilla and Casillas Salas INo: 0 Abstain: . 20-0038 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 15.260F THE CHD� A VISTA MUNICIPAL CODE TO ESTABLISH MANDATORY ENERGY UPGRADE REQUIREMENTS FOR ADDITIONS AND REMODELS DFL TO SINGLE FAMILY HOMES FIRST READING) At the request of Mayor Casillas .alas, there was a consensus of the Council to continue Item 8 to the City Council meeting of March 8, 2020. 1 20-0067 CONSIDERATION OF INITIATING; AMENDMENTS TO 'THE FORM BASED CODES OF THE SECTIONAL PLANNING AREA PLANS FOR OTAY RANCH VILLAGE 9, VILLAGE 10,, AND THE UNIVERSITY AN INNOVATION DISTRICT RESOLUTION NO. 2020-048 OF THE CITY COUNCIL O1= THE CITY OF CHULA VISTA DIRECTING STAFF TO INITIATE AMENDING THE FORM BASED CODES OF THE SECTIONAL PLANNING AREA PLANS FOR OT'AY RANCH VILLAGE 9, VI -DACE 10, ANIS THE UNIVERSITY AN INNOVATION DISTRICT TO CREATE A UNIVERSITY AND INNOVATION DISTRICT OVERLAY ZONE TO PROMOTE TIME ESTABLISHMENT OF AN EDUCATIONAL USER IN CHULA VISTA AND TCS DEVELOP A PARTNERSHIP AGREEMENT WITH HOMEFED CORPORATION TO FACILITATE THE DEVELOPMENT OF THE UNIVERSITY AND INNOVATION DISTRICT Development Services Director Broughton, Economic Development Director Crockett, and Chris Fdulger, representing HomeFed* gave the presentation and answered questions of the Council. Mitch Thompson, representing Southwest Association of Realtors, Spoke in support of staff's recommendation on the item. ,staff responded to questions of Deputy Mayor Galvez. ACTION: A motion was made by Councilmember Padilla, seconded by Councilmember McCann, to adopt Resolution No. 2020-048, heading read, text waived. The motion carried by the following vete: Yes: a.. Diaz, Galvez, McCann, (Padilla and Casillas Salas INo: 0 Abstain: 0 City of Chula vista Page 6 2020-11-03 Agenda Packet Page 14 of 509 City Council Meeting Minutes-IDrarft. February 25,2020 CITY MANAGER'S REPORT'S City Manager Halbert spoke regarding the California State University (CSU) Capacity Assessment Study Roundtable. AYR'S REPORTS Mayor Casillas Salas reported on her attendance at the following events. the annual Sweetwater Union High School Art Exhibit at the South Chula Vista Library, the V"aping Prevention f=orum at the Civic Center Library, the introduction of the Chula Vista Climate Action Challenge at the Civic Center Library, a Town "all regarding the San Diego Opioid Project, the Albondigas South CountylElevate 2020 Event at M"angia Italiano, and a San Diego Loyal practice at Hilltop High. She also reported on the California Mate University `CSU) Capacity Assessment Study roundtable regarding the vision for a university in Chula Vista. C OUNC►ILM M ER,S' COMMENTS NTS Councilmember McCann spore on the University project, recognized Mark Sheffield and spoke on his attendance at the ribbon-cutting events for School of Rock and the IV Kare Lounge. He spoke regarding his support for the US for warriors Pancake Breakfast. He paid tribute to Sweetwater Union High School Coach Blas and requested"the meeting be adjourned in his memory. Deputy Mayor C'alvez spoke regarding the murals painted" by High Tech High to eliminate blight and expressed concern regarding outdoor storage containers. At the request of Deputy Mayor Galvez, there was consensus of the Council to make a referral to staff to create an ordinance that would specify the length of time a temporary storage container could be placed and would allow Code Enforcement to facilitate the removal of temporary storage containers. Councilmember Padilla reported on his attendance at the California State University "CSU) Capacity Assessment Study roundtable and recognized staff for their efforts. CITY ATTORNEY'S REPORTS There were none. ADJOURNMENT At 9:50 p.m. Mayor Casillas Salas adjourned the meeting in memory Robert Bias. Minutes prepared b :Leah Larrarte, Deputy City Clerk Kerry K. Bigelow, MMC, City Clerk City of Chula vista Page 7 2020-11-03 Agenda Packet Page 15 of 509 C® of Chula Vista Meetinge Minutes -, Draft Tuesday, March 3,2020 5:00 RM Council Chambers 276 4th Avenue, (Building A Chula Vista, CA 91910 REGULAR MEETING CSF THE CITY COUNCIL The City Council minutes are prepared and ordered to correspond to the City Council Agenda. Agenda items may be taken out of order during the meeting. The agenda items at this meeting were considered in the order presented. CALL TO ORDER A regular meeting of the City Council of the City of Chula Vista was calledto, order at 5:03 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: P,resento. Councilmember Diaz, Deputy Mayor Galvez, Councilmember McCann, Councilmernber Padilla and Mayor Casillas Salas Also Present: Assistant City Manager Kachadoorian, City Attorney Googins, City Clerk Bigelow, and Assistant City Clerk Turner PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE Deputy Mayor Galvez led the Pledge of Allegiance. SPECIAL ORDERS OF THE DAY A. 20-0080 OATHS OF OFFICE Youth Action Council:- -Arturo Os,oirio Jr. -Meghan Pglitz -M�ilan�a Rodriguez -Andrea Roji -Rodrigo Tapia Guevara -Hector' idriie -Alejandro Villalvazo -Eliya Yoga City Clerk Bigelow administered the oath of office to Commissioners 0sofio, Palitz' Roji, Guevara, Vidrio, I VillalvazoY and Yoo and Councilmembers presented them with certificates of appointment. Ms. Rodriguez was not present. City of Chula Vista Page 1 2020-1.1-0,3 Agenda Packet Page 16 of 509 City Council Meeting Minutes-IDraft. March 3,2020 B. -0091 PRESENTATION BY SAN DIEGO STRIDE FORCE VICE PRESIDENT OF BUSINESS DEVELOPMENT MENS' AND PLAYER ENGAGEMENT VIVI LIN, INTRODUCING THE ORGANIZATION AND ITS INVOLVEMENT IN THE CITY OF CHULA VITA Vivi Lin and San Diego Strike Force players Michael Carrillo and Melvin Owens gave a presentation on heir involvement in the City. CONSENT CALENDAR (Items 11 .. 4 1. 20-0095 APPROVAL. OF MINUTES of September 10, 2019. Recommended Action: Council approve the minutes. 2. 20-0084 DECLARATION OF VACANCY OF THE FOLLOWING SEAT, PURSUANT TO CHARTER SECTION 502 AND MUNICIPAL CODE SECTION 2.25.1015: - International Friendship Commission Member Venus Molina At-Large Member Seat), Term Exp. 5/30/2022 Recommended Action: Council deem the seat vacant. . 191-055 ' ORDINANCE THE CITY OF CHULA VISTA INCREASING THE SPEED LIMITS AT THE FOLLOWING SEGMENTS: 1 EAST "H" STREET BETWEEN E N SOUS ESTERN DRIVE AND OTAY LAKES ROAD FROM 35 MPH TO 45 MPH, 2 TELEGRAPH CANYON ROAD BETWEEN FOAL ECCE 'T DRIVE AND CREST D IVE/OL ANDS AVENUE FROM 4O MPH TO 45 MPH, AND (3) TELEGRAPH CANYON. ROAD BETWEEN PASEO DEL REY AND OLD TELEGRAPH CANYON LOAD FROM 4 MPH TO 5O MPH, AND AMENDING SCHEDULE x OF THE REGISTER MAINTAINED IN THE OFFICE OF THE CITY ENGINEER TO REFLECT THE ESTABLISHED SPEED LIMITS (FIRSTREADING) Recommended Action: Council place the ordinance on fist reading. 4. 2 -0053 RESOLUTION NO. 2020-049 OF THE, CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A CITY COUNCIL POLICY REGARDING ACCEPTING DONATIONS TO THE CITY Recommended Action: Council adopt the resolution. Approval of the consent Calendar ACTION: A motion was made by Councilmember McCann, seconded by Deputy (Mayor alvez, to approve staff s recommendations on the aboveConsent Calendar items, headings read,text waived.The motion carried by the following vote: Yes: 5- Diaz, Galvdez, McCann, (Padilla and Casiillas Salas No: 0 Abstain: 0 City of Chula Vida Page 2 2020-11-03 Agenda Packet Page 17 of 509 City Council Meeting Minutes-IDraft. March 3,2020 ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS Brandon Claypool, Chula Vista resident, spoke regarding the need to revitalize the Chula Vista mall. Zaneta Encarnacion, Chula Vista resident, spoke in support of the LGBTQ community and the Drag Queen Story Time Program. Kay Bodge, representing Friends of Norman Park Senior Center, expressed concern regarding the Coronavirus and spoke in support of additional parking and a full-time supervisor for the Norman Park Senior Center. Kathleen Lippittx spoke in support of a flavor ban on electronic smoking devices.. David Myers, La Mesa resident, spoke in support of the Drag ween Story Time Program.. The following individuals submitted written documentation in support of the Drag Queen Story Time Program and did not wish to speak- -Dom Nguyen -Carol Kira - Tamika Cook, San Diego resident Shella Lujan, Chula Vista resident, submitted written documentation in opposition to the Drag Queen Story Time Program and did not wish to speak. PUBLIC HEARINGS 5 19�-0335 RESOLUTION NO. 2020-050 OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING AN AMENDMENT TO THE T'RANSNET LOCAL STREET IMPROVEMENT PROGRAM OF PROJECTS FOR FISCAL Y AIDS 2018/19 THROUGH 2022/23 Notice of the hearing was given in accordance with legal requirements, and the hearing was held on the date and no earlier than the time specified in the notice.. Principal Civil Engineer Rivera spoke regarding the item. Mayor Casillas galas opened the public hearing. There being no members of the public who wished to speak, Mayor Casillas Salas closed the public hearing. ACTION: A motion was made by Councilmember McCann, seconded by Deputy Mayer alvez, to adopt Resolution No. 2020-050, heading read, text waived. The motion carried by the following vote: Yes: 5.. Diaz, Galvez, McCann, (Padilla and Casillas Salas No: 0 Abstain: 0 City of Chula Vista Page 3 2020-11-03 Agenda Packet Page 18 of 509 City Council Meeting Minutes-(Graft March 3,2020 ACTION ITEMS . 20-0038 ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 15.260F TISE CHULA VISTA MUNICIPAL CODE TO ESTABLISH MANDATORY ENERGY UPGRADE REQUIREMENTS FOR ADDITIONS AND REMODELS TO SINGLE FAMILY HOMES (FIRST READING) Director of Economic Development Crockett and Conservation Specialist Downs gave a presentation on the item and answered questions of the Council. Carolyn Scofield, Chula Vista resident, spoke in support of slab'"s recommendation. Council discussion ensued regarding the cost of the neve energy efficiency requirements for the existing portion of a dwelling. ACTION: A motion was made by Mayor Casillas Salas, seconded by Councilmember MlcCann, to continue the item to allow staff to incorporate feedback from Council. 'The motion carried by the following vote: Yes: 5- Diaz, Galvez, McCann, (Padilla and Casillas Salas No: 0 Abstain: 0 CITY MANAGER'S REPORTS Assistant City Manager l achadoorian expressed gratitude to Conservation Specialist Downs for his work on the energy item. She stated steps were being taken to combat the Coronavirus and that contractors were cleaning public spaces. 7. 0-0093 CONSIDERATION OF COUNCIL ENDORSEMENT OF THF CENTENNIAL CELEBRATION OF THE CHULA VISTA FIRE DEPARTMENT Fire Chief Geering presented' plans for a year-long display of the Fire Department's history at the Civic Center Library Museum in celebration of the centennial anniversary of the department. ACTION: A motion was made by Mayor Casillas Salas, seconded by Deputy Mayor Galvez, to endorse the centennial celebration of the Chula Vista Fire Department. The motion carried by the following vote: Yes: 5- Diaz, Galvez, McCann, (Padilla and Casillas Salas No: 0 Abstain: 0 City of Chula Vista Page 4 2020-11-03 Agenda Packet Page 19 of 509 City Council Meeting Minutes-IDrarft. March 3,2020 MAYOR'S REPORTS At the request of Mayor Cas llas Salas, there was consensus of the Council to consider a pedestrian safety resolution at the next City Council meeting with an aspirational goal of zero pedestrian deaths within the City. Mayor Casillas Salas stated she had attended the following recent events.- Chula Vista Bayfront Facilities Financing meeting, Third Avenue Village ,association annual meeting, Evening with Cion Harrison at the Civic Center Library, who gave a history on the pioneers of Jewish families in San Diego county, and the City of Champions event. COUNCILM M ER,S' COMMENTS Councilmember Padilla congratulated Mayor Casllas Salas on the City of Champion's event. He referenced election day and expressed gratitude for living in a country where the citizens could choose their leaders. Deputy Mayor C'alvez stated there were two new murals on the corner of Davidson and Broadway that were painted by high Tech High students and their teacher, Chelsea Smith. ,the extended well wishes to her two colleagues who were both candidates on the election ballot that evening. Councilmember McCann expressed gratitude for the civil dialog amongst Councilmembers in discussing Item 6. He stated he had worked with Sweetwater Union High ,school District regarding making a safer drop-off zone at Eastlake High School. He attended the Chamber of Commerce dinner and congratulated the new president, Eric Johnson, and past ,president, Bill Hall. Councilmember McCann announced the upcoming opening of the dog park at Rohr bark. Councilmember Diaz made reference to the upcoming groundbreaking for Fire Station b on Grange ,avenue, and that an opening for Fire Station g on Moss&Naples was forthcoming. At the request of Councilmember Diaz, there was consensus of the Council for staff to work with the school district on constructing a safer drop-off, similar to the one at Eastlake High ,school, for Harborside Elementary School. CIT'''M"ATTORNEY'S REPORTS City,attorney Googins made reference to election night and encouraged everyone to vote. ADJOURNMENT The meeting was adjourned at 7:09 p.m. Minutes prepared by:Sheree Kansas, Deputy City Clerk Kerry K. Bigelow, MMC, City Clerk City of Chula Vida Page 2020-11-03 Agenda Packet Page 20 of 509 C® of Chula Vista Meetinge Minutes -, Draft Tuesday, March 10,2020 5:00 RM Council Chambers 276 4th Avenue, (Building A Chula Vista, CA 91910 REGULAR MEETING CSF THE CITY COUNCIL The City Council minutes are prepared and ordered to correspond to the City Council Agenda. Agenda items may be taken out of order during the meeting. The agenda items at this meeting were considered in the order presented. CALL TO ORDER A regular meeting of the City Council of the City of Chula Vista was called to, order at 5:00 p.m. in the Council Chambers, located in City Hall, 276 Fourth Avenue, Chula Vista, California. ROLL CALL: P,resento. Councilmember Diaz, Deputy Mayor Galvez, Councilrneirnber McCann and Mayor Casillas Salas Excused-. Councilmember Padilla Also Present: City Manager Halbert, City Attorney Googins, City Clerk Bigelow, and Assistant City Clerk Turner PLEDGE OF ALLEGIANCE TO THE FLAG AND MOMENT OF SILENCE Councilmember McCann led the Pledge of Allegiance. SPECIAL ORDERS OF THE DAY A. 20-0107 CITY OF CHULA VISTA CORONAVIRUS, PREPAREDNESS AND RESPONSE Fire Chief Meering, Emergency Services Coordinator King, and Dr. Farah, Medical Director for the Fire Department, gave a presentation on the item. B. 20-0101 SPECIAL RECOGNITION OF THE OLYMPIAN HIGH SCHOOL LADY EAGLES WRESTLING TEAM AS THE METRO CONFERENCE GIRLS WRESTLING CHAMPIONS Olympian High School Coach Chandra Peterson spoke regarding the Lady Eagles Wrestling Team. Mayor Casillas Salas recognized the members of the Olympian High School Lady Eagles Wrestling Team and Deputy Mayor Galvez, Councilmember McCann and Councilmember Diaz presented them with medals. City of Chula Vista Page 1 2020-1.1-0,3 Agenda Packet Page 2 1. of 509 City Council Meeting Minutes-IDraft. (March 10,2020 CONSENT CALENDAR ((terns 11 - 3) 11. -0106 APPROVAL OF MINUTES of September 24, 01 . Recommended Action: Council approve the minute. 2. 20-0105 5 CSR NANC NO. 3482 OF THE CITY OF CHU!L.A VISTA INCREASING THE SPEED LIMITS AT THE FOLLOWING SEGMENTS: (1) EAST "N'1 STREET' BETWEEN SOUTHWESTERN DRIVE AND OTAY LAKES ROAD FROM 35 MPH 'TO 45 MPH) (2) TELEGRAPH CANYON ROA( BETWEEN HALECREBT DRIVE, AND CREST D,RIVE/OL,E,ANER AVENUE FROM 40, MPH TO 45 MPH, AND (3) TELEGRAPH CANYON ROAD BETWEEN PASEO DFL RFY AND OLD TELEGRAPH CANYON ROAD FROM 45 MPH TO 50 MPH, AND AMENDING SCHEDULE X OF THE REGISTER MAINTAINED IN THE OFFICE OF THE CITY ENGINEER TO REFLECT THE ESTABLISHED SPEED LIMITS" (SECOND READING AND ADOPTION) Recommended Action: Council adopt the ordinance. 3. 20-0085 RESOLUTION NO. 2020-051 1 CSF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE LEGAL SERVICES AGREEMENT FOR THE FORMATION OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT BETWEEN THE CITY AND BEST BEST & K IEGER, LLP Recommended Action: Council adopt the resolution. Approval of the Consent Calender ACTION: A motion was made by Deputy Mayor Galvez, seconded by Councilmember McCann, to approve staffs recommendations on the above Consent Calendar items, headings read,text waived.The motion carried by the following vote: Yes: 4- Diaz, Galvez, McCann and Caslillas Salas No: 0 Abstain: 0 ITEMS REMOVED FROM THE CONSENT CALENDAR There were none. PUBLIC COMMENTS Brandon Claypool, Chula Vista resident, spoke regarding bringing back small businesses to Chula Vista and expressed concern regarding vacant buildings in the City. Becky Rapp recommended that the Council consider supporting a state ban on flavored tobacco products ( 793), and spoke in support of banning.- all flavored vaping cartridges, including Marijuana and nicotine, as well as Marijuana businesses that manufactured flavored Marijuana cartridges in the City. Sheila Lujan, Chula Vista resident, submitted written documentation in opposition to the Drag Queen Story City of Chula Vida Page 2 2020-11-03 Agenda Packet Page 22 of 509 City Council Meeting Minutes-IDrarft. (March 10,2020 Time program, and did not wish to speak. Pastor Hodges, Chula Vista resident, spoke in opposition to the Crag Queen Story Time program. Amado Huizar, Chula Vista resident, submitted written documentation in opposition to the Drag Queen Story Time program, and was not present when called. The following members of the public spoke in support of the Drag Queen Story Time program. -Brenda Arnold, Chula Vista resident -Michelle l rug', San Diego resident Patrick Macfarland, submitted written documentation in support of equality for all and the ,drag Queen Story Time program, and did not wish to speak. Logan Braydis submitted written documentation in support of the Drag Queen Story Time program and did not wish to speak. ACTION ITEMS 4 -0030 OVERVIEW OF SENATE BILL 743 IMPLEMENTATION - REQUIRES CHANGE TO TRANSPORTATION IMPACT ANALYSIS FOR CEQA FROM LEVEL OF SERVICE TO VEHICLE MILES TRAVELED Transportation Engineer Barker and Fehr&Peers Consultant Maty Cole game a presentation on the item. Council discussion ensued.. Director of Development Services Broughton and Fehr & Peers Consultant Maty Cole responded to. questions of the Council. CITY MANAGEWS REPITS City Manager Halbert provided an update on the cannabis license appeals. MAYOR'S REPORTS Mayor Casillas Salas reported on her attendance at the following recent events* the groundbreaking! of Fire Station 5, the both Annual Benefit Ginner for Barrio Station, the Sweetwater Union High School District Art Council Cala Awards, the Color of Breams Art Exhibit featuring Marcelo Wong at the South Bay Health and Insurance Services, and the 8th Annual Mariachi Festival at Bayside Park. She also spoke regarding the upcoming Chula Vista Loyals game. COUNCILIVIEMB=RS" COMMENTS Councilmember McCann spoke regarding the opening of the dog park at Mohr Park and thanked Republic Services for providing free dog waste bags. Deputy Mayor C'alvez thanked the Dock Church for a community clean up at a local elementary school and reported on the following. working with lock Church to install a park, her participation on the Citizens' Forum for the S International Boundary and Water Commission, and the memorial service for Leo Fia Marta Diaz. City of Chula Vista page 3 2020-11-03 Agenda Packet Page 23 of 509 City Council Meeting Minutes-IDrarft. IMarch 10,2020 CITY ATTORNEY'S REPORTS There were none. ADJOURNMENT The meeting was adjourned at 6:13 p.m. Minutes prepared by-Leah Larrarte, Deputy City Clerk Kerry K. Bigelow, MMC, City Clerk City of Chula Vista Page 4 2020-11-03 Agenda Packet Page 24 of 509 C'ITY" COIUi "rATEML AG =Lm N D Ai!6' S CITY OF Ali CHUIAVISTA November 3, 2020 File IIS: 20-03 -0445 TI'TLE ORDINANCE of THE CITY" of CHULA VISTA AMENDING CHAPTER 2.25.105(Di) OF THE CHULA VISTA MUNICIPAL CODE RELATED To THE PROCESS BY WHICH BOARD OR COMMISSION MEMBERS MAY BE REMOVED FOR CAUSE (SECOND READING A ADOPTION) ACTIONRECOMMENDED Council adopt the ordinance. SUMMARY Adoption of the ordinance ,would revise the process by which board and commission members may be removed for cause. ENVIRONMENI'At.REVIEW The Director of Development Services has reviewed the proposed activity for compliance witthe California Environmental Quality Act CEQA and has determined that the activity is not a "Project" as defined under Section 15378 of the State CE ,A Guidelines because it will not result in a physical change in the environment; therefore,pursuant to Section. 1,5060(c)(3) of the State CEQA Guidelines,the activity is not subject to CE A. Thus,no environmental review is required. DISCUSSION Currently, Chula Vista Municipal Code (CVMC) section 2. 5.105D calls for a Council subcommittee, comprised of the Mayor and Deputy Mayor, to monitor board and commission member attendance and training records and potentially mare recommendations to the full Council to consider removing a member for cause.Reasons a member may be removed for cause are specified in the CVMC and include absence from more than 50 percent of the meetings in one fiscal year and failure to attend mandatory training. Due to the potentially sensitive and {quasi-personnel matters that may be considered during the board and commission member review process,and in response to a referral on September 1,2020 from the Board and Commission Member Review Subcommittee,staff is recommending that the board and commission member review process be revised. Instead of a subcommittee that is required to consider such matters during a public meeting, under the revised process the Mayor would conduct the review. After consulting with the .staff liaison,nominating authority,the City Clerk,and City Attorney,if the Mayor found removal of a member 1111. 0 0 1 P � 11 2020-11-0,3 Agenda Packet Page 25 of 509 for cause warranted,the Mayor could make a recommendation to the full Council for a vote, on the removal of a member. DECISION-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently,the Soo-foot rule found in California Code of'Regulations Title 2,section 187'02.2(a)(11),is not applicable to this decision for purposes of'determining a disqualifying real property-related financial conflict of interest under the Political Reform Act(Cal. Gov't Code§87100,et seq.).Staff is not independently aware, and has not been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACT None., ONGOING FISCAL IMPACT None. ATTACHMENTS 1. Ordinance- Redline version Staff Contact.-Leah Larrarte, City Clerk's Office P 2 2020-1.1-0,3 Agenda Packet Page 26 of 509 S ECOND READING AND ADOPTION ORDINANCE NO. ORDINANCE of TIME CITY of CHULA VISTA AMENDING CHAPTER 2.25.105(D) of TIME CHULA VISTA MUNICIPAL CODE RELATED To TIME PROCESS Y WHICH BOARD OR COMMISSION MEMBERS MAY BE REMOVED FOR CAUSE WHEREAS, Chula Vista Municipal Code (CVMC) section 2.25.105(D), provides reasons for which a board or commission member may be removed from their seat for cause, including excessive absences and failure to attend mandatory training sessions; and. WHEREAS, section 2.25.105(D) calls for a Council subcommittee, comprised of the Mayor and Deputy Mayor, to monitor board and commission member attendance, training records, and other situations that may be cause for a member's removal, and potentially make recommendations endations to the full Council to consider removing members and WHEREAS, the subcommittee's conduct is subject to the Brown. Act, requiring its meetings to be open to the public; and.. WHEREAS, due to the potentially sensitive and quasi-personnel matters that may be considered during the board and commission member review process, the subcommittee recommended revising the process by which board and commission members may be removed for cause; and. WHEREAS, the City Council desires to revise the process such that the Mayor would conduct the review and., after consulting with the staff liaison, nominating authority, the Citi Clerk, and City Attorney, if the Mayor found removal of a member for cause warranted, the Mayor could make a recommendation to the full Council for a vote on their removal. NOW THEREFORE the City Council of the City of Chula Vista does ordain as follows: Section I. Section 2.25.105., subsection D., of the Chula Vista Municipal Code is hereby amended read as follows [Subsections 2.25.105..x. through C, and E., remain unchanged] 2.25.105 Membership —Vacancies. D. Remav�ai far �"ause. 1. A.member may be removed for cause by three affirmative votes of the City Council.. ,. A.member may be removed for cause for the following reasons.. C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies\eaI T F 1( BCL 54(F 1cr,BCF ,540EB+CC9.docx 2020-11-03 Agenda Packet Page 27 of 509 Ordinance Page 2 a. Absence from more than 50 percent of the meetings of the board or commission in one fiscal year, whether or not excused by a majority vote of its members; b. Unavailability or conduct which interferes with the board or commission's ability to conduct business; c. Failure to attend training sessions mandated by the City; d. Violation of any City policies or City, state or federal regulations that are the subject of mandatory training sessions; or e. Violation of the City's code of ethics, which shall be processed in accordance with Chapter 2,.28 CVMC. 3. The Mayor shall monitor attendance and training records submitted pursuant to CVMC 2.25.120 and reports of situations described in subsections (D.),,(2) b through,(DLd) ,) 2,) of this section. 4. After consultation with the staff liaison for the subject Board or Commission, the nominating authority for the subject Board or Commission position (if any), the City Clerk and the City Attorney, if the Mayor finds removal of a member for cause is warranted, the Mayor may make recommendations to the full Council for a vote on the removal of such member for cause. 5. Prior to the Mayor making a recommendation to the full Council for a vote on the removal of a member for cause, the member shall be notified and provided a reasonable opportunity to submit an explanation for the Mayor and Council's, consideration. 6. Should the Council vote affirmatively to remove the member for cause, the vacancy shall be effective on the date of the Council's action. Section 11. Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall, not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the ordinance be declared invalid, unenforceable or unconstitutional. 2020-11-03 Agenda Packet Page 28 of 509 ordinance Page 3 Section 111. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. Section IV, Effective Date This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented by Approved as, to form by Kerry K. Bigelow, MMC Glen R. Googins City Clerk City Attorney 2020-11-03 Agenda Packet Page 29 of 509 2.25.105 Membership —Vacancies. [Sections 2.25.10�5(A)through 2.25.105(C)remain unchanged] D. Removalfbr Cause. 1. A member may be removed for cause by three affirmative votes of the City Council. 2. A member may be removed for cause for the following reasons: a. Absence from more than 50 percent of the meetings of the board or commission in one fiscal year,whether or not excused by a majority vote of its members, b. Unavailability or conduct which interferes with the board or commission's ability to conduct business-, c. Failure to attend training sessions mandated by the City; d. Violation of any City policies or City, state or federal regulations that are the subject of mandatory training sessions; or e. Violation of the City's code of ethics,which shall be processed in accordance with Chapter 2.28 CVMC. 3. 'I"'he A t sij,-be7( )-4:1-the Mayor Del-i-t-t-ty shall monitor attendance and training records submitted pursuant to CVMC 2.25.120 and reports of situations described in, subsections(D)(2)(b)through(D)(2)(d)of this section. fl, i ,t 't �a, Yri"It"I'l-ISS-vhvhvh1vhvhvhvh flj 4. After COTISUItatiop witi-11 fl-le sta" I't"lizi,ison ft)r Bo rd or C( .�nonivhvhvhvh _inatiria �I,ttfllority fbr t1je, an s�J,.'J ty_k,`, -d die C"ity AttorngL it' ----------------- --- J.gj ----------------- ------ . ......... +F+t fl-ie Mqyqr,.J,-Irid,s retnoval ofa tnetnber for cg,gse is warra,rite(I die T s i *t R-e-e may make Ik----------------- recommendations to the full Council for a vote on the removal ofa­.s. c I,] member for cause. 54. Prior to the I' yt ee making a recommendation.to the full Council for a vote on,the removal of a mernber for cause,the member shall be notified and[,)-e provided a reasonable opportunity to submit an explanation for the Nryryry44-Yor-and Council's consideration.. . Should the Council vote affirmatively to remove the member for cause,the vacancy shall be effective on the date of the Council's action. [Section 2.25.105(E)remains unchangedl 2020-1.1-03 Agenda Packet Page 30 of 509 zmr, ..' l v r r C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT l 1 CITY, OF CHUIAVISTA November 3,2020 File ID: -0428 ,TITS RESOLUTION OF THE CI"T,Y COUNCIL OF THE CITY of CHULA VISTA ACCEPTING THE 20'21 LOCAL APPOINTMENTS LIST FOR BOARD, COMMISSION, AND COMMITTEE TERMS EXPIRING IN CALENDAR YEAR 2021 RECOMMENDEDT Council adopt the resolution. SUMMARY The Maddy Act (Government Code section 54970 et seq.), requires a 'Local Appointments List," containing information about all boards, commissions, and committees appointed by the City Council, as well as all board, commission,and committee terms expiring in the following calendar year,be prepared by December 31 of each year and made available to the public. By adopting the proposed resolution,the City Council will accept the 2021 Local Appointments List and direct the City Clerk to post the list and make it available to the public,as required. ENVIRONMENTAL REVIEW The Director of Development Services has reviewed the proposed activity for compliance with the California Environmental Quality pct (CEQA)i and has determined that the activity is not a "Project)' as defined under Section 15378 of the State CEQA Guidelines because it will not result in a physical charge in the environment; therefore, pursuant to Section 150o(c) 3 ' of the State CEQA Guidelines, the activity is not subject to CE A.Thus,no environmental review is required. DISCUSSION The Maddy Act (Government Code section 54972, et seq.) was enacted to provide public awareness of opportunities for citizen participation on boards, commissions and committees. The Maddy pct requires, in part, that on or before December 31 of each year, the City Council must prepare a "Local Appointments List" of all regular and ongoing boards, commissions, and committees that are appointed by the City Council. The Local Appointments Dist roust contain the following information: a :A. list of all appointive terms which will expire during the next calendar year,with the name of the incumbent appointee,the date of appointment,the date the terra expires,and the necessary qualifications for the position., and (b),A list of all boards, commissions, and committees whose members serve at the pleasure of the legislative boder, and the necessary qualifications for each position. 1 . 0 0 1 P Ii1 2020-11-03 Agenda Packet Page 31. of 509 The purpose of this list is to provide the public with information, such as the seat qualifications and term expirations, so that they may have an opportunity to participate in and contribute to the operations of local government by serving on such boards,, commissions, and committees. In addition to posting the Local Appointments List at City Hall and the Civic Center Library, the City Clerk also makes the list available on the City's website. By adopting the proposed resolution,the City Council accepts the 2021 Local Appointments List(Exhibit 1) and directs the City Clerk to post the list and make it available to the public,as required. DECISION-MAKER C"ONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently,the 500-foot rule found in California Code of Regulations'Title 2, section 18702.2(a)(11), is not applicable to this decision for purposes of determining a disqualifying real property-related financial conflict of interest under the Political Reform Act (Cal. Govt Code § 87100, et seq.). Staff is not independently aware, and has not been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACT There is none. ONGOING FISCAL IMPACT There is none., A""'rTACHMENTS 1. Exhibit 1 - Local Appointments List Staff Contact:Leah Larrarte P 2 2020-1.1-0,3 Agenda Packet Page 32 of 509 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING THE 2021 LOCAL APPOINTMENTS LIST FOR BOARD, COMMISSION, AND COMMITTEE TERMS EXPIRING IN CALENDAR YEAR 2021 WHEREAS, The Maddy Act (California Government Code section 54972 et seq.) requires a "Local Appointments List," containing information about all boards, commissions,, and committees appointed by the City Council, as well as all board, commission, and committee terms expiring in the following calendar year, be prepared by December 31 of each year and made available to the public; and WHEREAS, the City Clerk has prepared the 2021 Local Appointments List, attached hereto as Exhibit I, in accordance with the Maddy Act, which includes board, commission, and committee terms expiring in calendar year 2021 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it accepts the 2021 Local Appointments List (Exhibit 1) and directs the City Clerk to post the list and make it available to the public, in accordance with best practices and as required by the Maddy Act. Presented by Approved as, to form by Kerry K. Bigelow, MMC. Glen R. Googins City Clerk City Attorney 2020-1.1-0,3 Agenda Packet Page 33 of 509 CITE' OF CH LAV AND COMMISSIONS Local Appointments, List a 01 For Terms Expiring in 2,02,1 Except as provided in the City of Chula Vista Charter Section 602(d),and Municipal Code Title 2,candidates must be residents of Chula Vista and registered to vote in City ofChula Vista elections. Board/Commission Name AppoiOntment rite ria =Appolintment Date Board of Appeals&Advisors Doria,Jose Shall be qualified by training and experience to pass on matters pertaining to 05/26/15 building construction,including applicable building codes,regulations,and ordinances. Board of Ethics Welling,Alex Within the past 10,years prior to the date of appointment,cannot have been 10/01/19 convicted of any felony or a crime involving moral turpitude,found to have committed a criminal violation of the Fair Political Practices Act,or have a conflict of interest as defined in Chapter 2.28.050 Board of Library Trustees Swanson,Mayra Must be a qualified elector in the City of Chula Vista. 02/09/16 Charter Review Commission Buddingh,Jan Must be a qualified elector in the City of Chula Vista. 07/24/18 Charter Review Commission ho ida,Edgat11 Must be a qualified elector in the City of Chula Vista. 08115/17 Charter Review Commission VACANT Must be a qualified elector in the City of Chula Vista. 02114/12 Civil Service Commission Carbuccia,Jennifer A ointed by City Council 02104/1 Civil Service Commission Gersten,William Council appt from nomination by Classified employees;Must be a qualified 10/15/13 elector,in the City of Chula Vista. Commission on Aging Allan,Monica Representative of the total racial,religious,ethnic and social spectrum of the 05/26/15 ,senior citizens Cultural Arts Commission Rodriguez,Jennifer Arts Professional;Appointed from among artists,educators,and those with 07/17/12 professional qualifications and experience in disciplines of arts and culture, including the performing arts,fine arts,culinary arts,media arts or related arts disciplines Growth Management Oversight Commission Caudillo,Rodney Business Representative;Must be a qualified elector in the City of Chula Vista. 01/14/16 Growth Management Oversight Commission Juarez,Gloria District 3 Rep.;Must reside in the City Council district they wish to represent 01/14/16 and shall reside in their respective City Council district for the duration of their membership on the commission Healthy Chula Vista Advisory Commission De Murguia,Mora Land Use Expert; Must have expertise and experience in at least one of the 04/12/16 focus areas of the Healthy Chula Vista Action Plan:land use,transportation, nutrition,health care,physical activity and/or environment Healthy Chula Vista Advisory Commission VACANT Transportation Expert;Must have expertise and experience in at least one of 04/12/16 the focus areas of' the Healthy Chula Vista Action Plan: land use, transportation,nutrition,health care,physical activity and/or environment Historic Preservation Commission Dennis,Kristen Must demonstrate an interest, competence or knowledge in historic 01/16/18 reservation;Must be a qualified elector in the City of Chula Vista. Historic Preservation Commission Orso,Mario Qualified Professional;Must be disciplined in one of the following categories: 06/16/15 history,architecture,architectural history,planning,prehistoric archaeology, folklore, cultural anthropology, curation, conservation, landscape architecture or related disciplines ositzop�� rineformation on the specific duties of a board or commission,please visit our web aj WWW..Ch�ulavistaca.qovLboards or contact the City ClerTo mpk-� .Rgen 276 Fourth Ave,Chula Vista, CA 91910, 619- 91-5t -e Housing Advisory Commission Cabral,Anna Must be a qualified elector in the City of Chula Vista and must,throughout 08/15/17 their terms,maintain their residency and elector status. Housing Advisory Commission Merino,James Expert Representative;Must have expertise and experience in at least one of 08/16/16 the following fields: lending,urban planning,real estate development,and real estate brokerage Housing Advisory Commission Quero,Sergio Expert Representative(Lending);Must have expertise and experience in at 11/15/11 least one of the following fields: lending, urban planning, real estate development,and real estate brokerage Human Relations Commission VACANT (1)representative of the diversity of the City;(2)specifically chosen to reflect 11/07/17 Human Relations Commission VACANT the interests and concern with protection of civil liberties of all people which 11/07/17 make up the City's residents; (3) committed to fostering better human relations in the City of Chula Vista; and (4) associated with the business and/or civic activities of the City. International Friendship Commission Duran,Miguel Must be a qualified elector in the City of Chula Vista. 05/24/16 International Friendship Commission Gallardo,Judy Must be a qualified elector in the City of Chula Vista. 09112ZI7 Measure A Citizens Oversight Committee Anaya,Pedro District 2 Rep.;must be a resident of the corresponding Council district 09/20/18 and must maintain their district residency throughout their tenure. Measure A Citizens Oversight Committee Roberts,Darrell Chula Vista International Association of Fire Fighters Rep.;Must be an 09/20/18 active member of the specified association. Measure A Citizens Oversight Committee VACANT District 3 Rep.;must be a resident of the corresponding Council district 09/20/18 and must maintain their district residency throughout their tenure. Measure P Citizens Oversight Committee Firsht,Leon Public Works Director Rep.;Must have expertise and experience in 03/02/17 engineering or a related discipline(including construction) Measure P Citizens Oversight Committee Freels,Mona District Rep.;May be a resident of any one of the four districts 03/02/17 Measure P Citizens Oversight Committee Garcias,David San Diego&Imperial Counties Labor Council Rep.;Must be a qualified elector 03/02/17 in the City of Chula Vista. Measure P Citizens Oversight Committee Hunter,Donald Police Chief Rep.; Must be a qualified elector in the City of Chula Vista. 03/02/17 Measure P Citizens Oversight Committee Lengyel,T.Michael Growth Management Oversight Commission Rep.; Must be a member from 03/02/17 this commission. Measure P Citizens Oversight Committee Martinez,Greg District 1 Rep.;must be a resident of the corresponding Council district and 11/28/18 must maintain their district residency throughout their tenure. Measure P Citizens Oversight Committee Redo,Christopher District 2 Rep.;must be a resident of the corresponding Council district and 03/02/17 must maintain their district residency throughout their tenure. Measure P Citizens Oversight Committee Romo,Oscar Sustainability Rep.;Must be a member from this commission. 10/17/17 Measure P Citizens Oversight Committee Sheridan,Christopher District 4 Rep.;must be a resident of the corresponding Council district and 03/02/17 must maintain their district residency throughout their tenure. Measure P Citizens Oversight Committee Vigilante,Silvestre Chula Vista Youth Sports Council Rep.;must be a Youth Sports Council Board 03/02/17 Member Measure P Citizens Oversight Committee Voorhees,Todd San Diego Taxpayers Association Rep.;must have expertise and experience in 03/02/17 at least one of the following areas: accounting, finance, engineering, or a related disciline(including construction) Measure P Citizens Oversight Committee Ziomek,Robert Fire Chief Rep.;Must be a qualified elector in the City of Chula Vista. 03/02/17 Measure P Citizens Oversight Committee VACANT Parks and Recreation Commission Rep.; Must be a member from this 09/11/18 commission. Measure P Citizens Oversight Committee VACANT Chamber of Commerce Rep.;must have expertise and experience in at least 03/02/17 one of the following areas: accounting, finance, engineering, or a related discipline(including construction) Measure P Citizens Oversight Committee VACANT District 3 Rep.;must be a resident of the corresponding Council district and 03/02/17 �si ���� rinPformation on the specific duties of a board or commission,please visit our webt aj ih�ulavista,ca.go,vLbo,ards or contact the City ClereTo mFkMP-fiyRen1 276 Fourth Ave,Chula Vistal CA 91910, 619-691-5 must maintain their district residency throughout their tenure. Measure P Citizens Oversight Committee VACANT Alliance of Californians for Community Empowerment Rep.; Must be a 03/02/17 qualified elector in the Cidy of Chula Vista. Mobilehome Rent Review Commission Acerro,Theresa Must be a qualified elector in the City of Chula Vista. 08/08/17 Mobilehome Rent Review Commission Epsten,Amy Ex-Officio(Park Owner Representative);must be an owner of a mobilehome 09/10/13 park within the City at the time of appointment and throughout the member's term. Mobilehome Rent Review Commission Smith,Kenneth Ex-officio(Tenant Representative);must be a tenant in a mobilehome park 09/10/13 within the City at the time of appointment and throughout the member's term. Parks and Recreation Commission Zarem,John District 1 Rep.;must be a resident of the corresponding Council district and 06/28/17 must maintain their district residency throughout their tenure. Planning Commission Burroughs,Krista Must be a qualified elector in the City of Chula Vista. 06/28/17 Planning Commission Nava,Javier Qualified Professional (Architect); should be sensitive to design 09/25/13 consideration and interested in townscape matters. Persons qualified for these seats should include architects, landscape architects, land planners, urban planners,civil engineers and other design professionals with suitable experience. Safety Commission Hidinger,Ronald Must be a qualified elector in the City of Chula Vista. 1110SZ13 Safety Commission Munoz,JerrMust be a qualified elector in the City of Chula Vista. 12102ZI4 Sustainability Commission Kor an,Christos Must be a qualified elector in the City of Chula Vista. 07109ZI9 Sustainability Commission Matthias,Tina Must be a qualified elector in the City of Chula Vista. 08115Z17 Veterans Advisory Commission ission Sears,Bill Must be a qualified elector in the City of Chula Vista. 11108ZI6 Veterans,Advisory Commission VACANT Must be a qualified elector in the City of Chula Vista. 09/12/17 Youth Action Council Bae,za,Antonio 02/18/20 Youth Action Council Bessie,Patricia 02/18/20 Youth Action Council Castillo,,Rebeca 02/18/20 Youth Action Council Daglish,Annika 02/18/20 Youth Action Council Garcia,Christopher 02/18/20 Youth Action Council Hahn,Steven Students must be Chula Vista residents;high school students in grades 10, 02/18/20 Youth Action Council Miranda,Celina Luisa 02/18/20 Youth Action Council Nambiar,Pranav 11,or,12.The members'high school location is not limited to Chula Vista, 02/18/20 Youth Action Council Osorio,Arturo as long as members are a resident of Chula Vista.Members may represent 02/18/20 Youth Action Council Palitz,Meghan public or private high schools,or a home-schooled organization. 02/18/20 Youth Action Council Rodriguez,Milana 02/18/20 Youth Action Council Roji,Andrea 02/18/20 Youth Action Council Tapia Guevara,Rodrigo 02/18/20 Youth Action Council Vidrio,Hector 02/18/20 Youth Action Council Villalvazo,Alejandro 02/18/20 Youth Action Council Yoo,Eli 02/18/20 ositzop�� rineformation on the specific duties of a board or commission,please visit our web ai)IVWW..Ch�ulavistaca.qovLboards or contact the City ClerTo mpk-� .Rgen 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; e Do,ID WI CITY OF H A VISTA BOARDS AND COMMISSIONS Except as provided in the City of Chula Vista Charter Section 602(d),and Municipal Code Title Z candidates must be residents of Chula Vista and registered to vote in City ofChula Vista elections. For more information,please visit our website:https://www.chulavi.staca.gov/boards Seat Qualifications Board of Appeals&Advisor5 Members Total(Chula Vista Municipal Code Chapter2-26) (5)Members At-Large Shall be qualified by training and experience to pass on matters pertaining to building construction,including applicable building codes,regulations,and ordinances. Board of Ethics-7 Members'Total,( 'hula Vista Municipal Code,Chapter 2.28) (7)Members At-Large No person shall be app�ointed as a member of the Board of Ethics,or shall be entitled to retain their membership,if he or she,within the past 10 years prior to the date of appointment,has been convicted of any felony or a crime involving moral turpitude,has been found to have committed a criminal violation of the Fair Political Practices Act,or has a conflict of interest as defined in Chapter 2.28.050. Board of Library Trustees- 5,Members'Total(Chula Vista Municipal Code Chapter 2.45) (5)Members At-Large Must be a qualified elector in the City of Chula Vista. Charter Review Commission 7 Members Total(Chula Vista Municipal Code Chapter 2.29) (7)Members At-Large Must be a qualified elector in the City of Chula Vista. ositzov o er information on the specific duties of a board or commission,please visit our web aj WW..0 ulavistacuoyLboards or contact the City Clerk, To mF� �' Rgen aN 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; t -e / Civil Service Commission- 5 Members'Total(Chula Vista Municipal Code Chapter 2.43) (1)Member Appointed by the City Council (1)Member Appointed by the City Council (1)Member Council appointment from nomination by Commission Must be a qualified elector in the City of Chula Vista. (1)Member Council appointment from nomination by Classified Employees (1)Member Council appointment from nomination by Classified Employees Commission on Aging- 7 Members'Total(Chula Vista Municipal Code Chapter 2.37), (7)Members At-Large The members shall be representative of the total racial,religious,ethnic and socials ectrum of the senior citizens. Cultural Arts Commiss ion-9 Members'Total(Chula Vista Municipal Code Chapter 2.33) (3)Members At-Large All nine members shall demonstrate competence,knowledge and experience in cultural arts; and a minimum of six members shall be appointed from among artists,educators,and those (6)Members Arts Professional with professional qualifications and experience in disciplines of arts and culture,including the performing arts,fine arts,culinary arts,media arts or related arts disciplines., Growth Management Oversight Commission-9 Members Total(Chula Vista Municipal Code Chapter 2.40) (1)Member District 1 Representative (1)Member District 2 Representative These members must reside in the City Council district they wish to represent and shall reside (1)Member District 3 Representative in their respective City Council district for the duration of their membership on the commission. (1)Member District 4 Representative (1)Member Education Representative Shall represent local educational interests. (1)Member Development Representative Shall represent development interests. (1)Member Environmental Representative Shall represent environmental interests. (1)Member Business Representative Shall represent business interests. (1)Member Planning Commission Representative Shall be a member of the Planning Commission. ositzov�� rineformation on the specific duties of a board or commission,please visit our web aj WW..0 ulavistauoyLboards or contact the City ClerTo mFkMRgen 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; t -e Healthy Chula Vista Advisory Commission-9 Members Total(Chula Vista Municipal Code Chapter 2.47) (1)Member District I Representative (1)Member District 2 Representative These, members must reside in the City Council district they wish to represent and shall maintain their residency in their respective City Council district for the duration of their (1)Member District 3 Representative terms. (1)Member District 4 Representative (5)Members Expert Representative Five members shall have expertise and experience in at least one of the focus areas of the Healthy Chula Vista Action Plan: land use, transportation, nutrition, health care, physical activity and/o�r environment. Historic Preservation Commission 71' embers Total(Chula Vista Municipal Code Chapter 2.49) (2)Members At-Large Must be a qualified elector in the City of Chula Vista. (1)Member Realtor Representative Member should be a California licensed real estate agent. All seven members shall demonstrate an interest,competence or knowledge in (4)Members Qualified Professional Appointed from among professionals in the historic preservation. disciplines of history, architecture, architectural history, planning, prehistoric archaeology,folklore,cultural anthropology, curation, conservation, landscape, architecture or related disci lines. Housing Advisory Commission-9 Members Total(Chula Vista Municipal Code"ha,pter 2.35) (2)Members At-Large Must be a qualified elector in the City of Chula Vista. (3)Members Expert Representatives Members shall have expertise and experience in at least one of the following fields:lending, urban planning,real estate development,and real estate brokerage. (1)Member Tenant Representative(62 years of age or older) Shall be appointed as representatives of tenants of the Housing Authority,and shall,at the (1)Member Tenant Representative time of their appointments and throughout their terms,reside in assisted housing or receive Section 8 rental housing assistance from the Housing Authority;one of these two members ,shall be 62 years of age or older. (2)Members Ex-Officio(non-voting) Ex officio members are not required to be registered voters and are subject to term limits as described in the Charter and CVMC 2.25.080 and 2.25.100.Ex officio members are not entitled to vote or to make motions. XVMC 2.25.03g) osizop�� rinPformation on the specific duties of a board or commission,please visit our web aj WW..0 ulavistacuoyLboards or contact the City ClerTo mFkMRgent 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; t e Human Relations Commission- 11 Members Total(Chula Vista Municipal Code Chapter 2.36) (11),Members At-Large Members shall be: (1) representative of the diversity of the City; (2) specifically chosen to reflect the interests and concern with protection of civil liberties of all people which make up the,City's residents; (3)committed to fostering better human relations in the City of Chula Vista;and(4)associated with the business and/or civic activities of the City., International Friendship Commission—9 Members Total(Chula Vista Municipal Code Chapter 2.38) (9)Members At-Large Must be a qualified elector in the City of Chula Vista. Measure A Citizens'Oversight Committee— 12 Members Total(Chula Vista Municipal Code Chapter 2.63 (1)Member District 1 Representative (1)Member District 2 Representative These, members must reside in the City Council district they wish to represent and must (1)Member District 3 Representative maintain their district residency throughout their tenure. (1)Member District 4 Representative (1)Member Growth Management Oversight Commission Representative Must be a member of the Growth Management Oversight Commission. (1)Member Chula Vista Police Chief Representative Must be a qualified elector in the City of Chula Vista. (1)Member Chula Vista Fire Chief Representative (1)Member Chula Vista Mid-Managers Professional Employees Representative (1)Member Chula Vista Police Officers Association Representative (1)Member Chula Vista International Association of Fire Fighters Must be an active member of the specified association. Representative (1)Member Association of Chula Vista Employees Representative (1)Member Chula Vista Chamber of Commerce Representative Must be a member of the Chula Vista Chamber of Commerce. ositzov�� reinformation on the specific duties of a board or commission,please visit our web aj WW..0 ulavistacuoyLboards or contact the City Clerk, To mp� �' �gen 276 Fourth Ave,Chula Vista, CA 91910, 619- 91-5t Measure P Citizens'Oversight Committee- 16 Members'Total(Chula Vista Municipal Code Chapter 2.61) (1)Member District I Representative (1)Member District 2 Representative These,members must reside in the City Council district they wish to represent and must (1)Member District 3 Representative maintain their district residency throughout their tenure. (1)Member District 4 Representative (1)Member Growth Management Oversight Commission Representative (1)Member Parks&Recreation Commission Representative Must be a member of the specified commission. (1)Member Sustainability Commission Representative (1)Member At-Large (1)Member Chula Vista Police Chief Representative (1)Member Chula Vista Fire Chief Representative Must be a qualified elector in the City of Chula Vista. (1)Member San Diego&Imperial Counties Labor Council Representative (1)Member Alliance of Californians for Community Empowerment Representative (1)Member Chula Vista Public Works Director Representative Must have expertise and experi,ence in engineering or a related discipline (including construction). (1)Member Chula Vista Youth Sports Council Representative Must be a Youth Sports Council Board Member. (1)Member Chula Vista Chamber of Commerce Representative Must have expertise and experience in at least one of the following areas:accounting,finance, (1) Member San Diego Taxpayers Association Representative engineering,or a related discipline(including construction). Mobilehome Rent Reviser Commission- 7 Members Total (Chula isMunicipal Code Chapter2.31) (1)Member At-Large,nominated by Council Seat#1 (1)Member At-Large,nominated by Council Seat#2 (1)Member At-Large,nominated by Council Seat#3 No member shall own or be a tenant in a mobilehome park. (1)Member At-Large,nominated by Council Seat#4 (1)Member At-Large,nominated by Mayor (1)Member Ex-Officio(non-voting),Tenant Representative One ex-officio member shall be a tenant in a mobilehome park within the City at the time of appointment and throughout the member's term. (1)Member Ex-Officio(non-voting),Park Owner Representative One ex-officio member shall be an owner of a mobilehome park within the City at the time of appointment and throughout the member's term. osizop�� rinPformation on the specific duties of a board or commission,please visit our web ai.WWW..Ch�ulavistaca.qovLboards or contact the City ClerTo mFkMRgent 276 Fourth Ave,Chula Vistal CA 91910, 619-691-5; t -e 1, Parks and Recreation Commission-7 Members Total(Chula Vista Municipal Code Chapter 2.41) (3)Members At-Large Must be a qualified elector in the City of Chula Vista. (1)Member District 1 Representative (1)Member District 2 Representative Members must be a resident of the corresponding Council district and must maintain their (1)Member District 3 Representative district residency throughout their tenure. (1)Member District 4 Representative Redistricting Commission�—7 Members Total(Chula Vista Municipal Code Chapter 2.51) (7)Members At-Large Must be a qualified elector in the City of Chula Vista.Ineligible to apply for and serve on the Commiss,ion:(a) the Mayor,a Councilmember,any other elected City official,or a member of the,City Charter Review Commission; (b) a relative by blood or marriage within the second degree,or any domestic partner within the meaning of California law(including Family Code ,section 297),of the Mayor,any Councilmember,or any other elected City official;(c) ap�erso�n who,at any time within the four(4)years immediate,ly preceding the date of their application for selection to the Commission,has served as the Mayor,a Councilme,mber,or an elected City official; (d) a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City;(e) a person who,atany time,within the four(4)years immediately preceding the date of their application for selection to the Commission, has worked as a lobbyist. For purposes of this provision), the term "lobbyist"' means a person who, for compensation, has direct communication with a City official),including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision;(0 a person who is currently an officer in any local political party organization,including,but not limited to,officers of a political party county central committee; and (g) a person who, at any time within the four (4) years immediately preceding the date of their application for selection to the Commission,has served as a paid campaign worker or paid campaign or political consultant for an elected City official. Planning Commission Roster— 7 MembersTotal(Chula Vista Municipal Code Chapter2.42) (4)Members At-Large Must be a qualified elector in the City of Chula Vista. (3)Members Qualified Professional A minimum of three members of the Planning Commission should be persons sensitive to design consideration and interested in townscape matters.Persons qualified for these seats ,should include architects,landscape architects,land planners,urban planners,civil engineers and other design professionals with suitable experience. Safety Commission— 7 MembersTotal(Chula Vista Municipal Code Chapter 2.44) (7)Members At-Large Must be a qualified elector in the City of Chula Vista. Sustainability Commission—7 Members Total(Chula Vista Municipal Code Chapter 2.32) (7)Members At-Large Must be a qualified elector in the City of Chula Vista. osizop o Pr information on the specific duties of a board or commission,please visit our web aj WW..0 ulavistacuoyLboards or contact the City Clerk, To mFkMP_fiYRgent aN 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; t -e /_01 10 W�l Veterans Advisory Commission-7 MembersTotal (Chula Vista Municipal Code Chapter 2,39) (7)Members At-Large Must be a qualified elector in the City of Chula Vista. Youth Action Council- 15 MembersTotal (Council Policy 110�-15) (15)Members At-Large Members shall be Chula Vista residents;shall be high school students in grades 10,11,or 12.The members'high school location is not limited to Chula Vista,as long as members are a resident of Chula Vista.Members may represent public or private high schools,or a ho�me-schooled organization. *WI'ldll'fe Advisory Group�-4 Members Total(Resolution 2016-231) (1)Member Southwest Representative Shall be a resident of the area Must demonstrate involvement in one of more,of the south of L Street and west of La following areas: Media/Otay Lakes Road. 1.Wildlife-related issues such as habitat restoration (1)Member Northwest Representative Shall be a resident of the area or wildlife management. north of L Street and west of La 2.Ecology,biology,chemistry,water quality or Media/Otay Lakes Road. watershed protection. (1)Member Southeast Representative Shall be a resident of the area 3.Ecosystem management and restoration. east of La Media/Otay Lakes 4.Nature-based or environmental education and Road. similar fields. S.Wildlife rehabilitation and/or predator management. (1)Member Sustainabilit,y Commission Representative Must be a member of the Sustainability Commission. *Bayfront Cultural&Design Committee- 3 Members Total(BayfrontSettlementAgreemen�t Section 13.1) (1)Member Planning Commission Representative (1)Member Planning Commission Representative Must be a member of the specified commission. (1)Member Sustainability Commission Representative *Regional Boards comprised of representativesfrom various cities and agencies within San Diego. The Chula Vista City Council or City boards or commissions make appointments ofone or'more members to these boards;however,the City does not operate these boards. osit�op o pr information on the specific duties of a board or commission,please visit our web ajWWWX ulavistacuoyLboards or contact the City Clerk, To mpk_�P%Y.Rgen a aN 276 Fourth Ave,Chula Vista, CA 91910, 619-691-5; t -e -1 01 1 .),U!�, C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0439 'TITLE A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE ELECTRONIC PLAN REVIEW SOFTWARE IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND E-PLAN,INC. B., RESOLUTION OF THE CITY COUNCIL, OF' THE CITY OF CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE SOFTWARE INTEGRATION PLATFORM IMPLEMENTATION, LICENSING,, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND VELOSIMO, INC. RECOMMENDED AC1710N Council adopt the resolutions. SUMMARY The City conducted a Request for Proposal (RFP P03-20/21) to solicit proposals for an electronic p�lan check solution that integrates with the City's existing permitting software. If approved,Resolution A would award a contract for electronic plan review software implementation,licensing,support,,and maintenance services to the selection committee's preferred vendor, e-Plan, Inc. (dba. e-PlanSoft). Resolution B would award a contract for software integration platform licensing, support,and maintenance services to the City's current provider,Velosimo, Inc. ENVIRONMENTAL REVIE'W The proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a"Project P) as defined under Section 15�378, of the State CEQA Guidelines because it will not result in a physical change in the environment;therefore,,pursuant to Section 15060(cl)(3) of the State CEQA Guidelines, the activity is not subject to CEQA,. 'Thus, no environmental review is necessary. BOARD/COMMISSIO�N/COMMI'TTEE RECOMMENDAI`rION Not applicable. DISCUSSION The City has contracted with Accela, Inc. for permit processing software since 1991. S,ince originally purchasing software from Accela, we have implemented numerous upgrades, including transitio�ning from 1111. 0 0 1 PIi3ge 1 1 2020-1.1-0,3 Agenda Packet Page 44 of 509 Permits Plus to Accela Automation in 2013,. Since 1991, the City has also undertaken a number of integrations with, and enhancements to, the Accela permitting platform, including the addition of'Accela Citizen Access,Accela Mobile Office,and Selectron's Interactive Voice Response (IVR) system. The Development Services Department identified several automation enhancement goals in conjunction with its 2,017 fee study. Chief among them was the implementation of electronic plan review., With limited exceptions,permit applicants are currently required to provide hard copy plan submittals. Multiple plan sets are required for each plan review cycle, and most app�lications go through two to three plan review cycles before their plans are approved. In addition to the significant cost to the applicant to produce these hard copy plans, distribution of the plans is a time-consuming routing process for Development Services Front Counter staff'. The cost of producing these plans can be significant for large projects, and the storing and tracking of physical plans is an ongoing cost to the City. As a direct result of the COVID-19 p�andemic and related orders by the Governor of the State of California,the need to move forward with a host of permitting automation enhancements,including electronic plan review, has been significantly accelerated. Electronl"c Plan Revi"ew Vendor Selecti'on The City posted RFP P03-20/21 seeking an electronic plan review solution on the City's purchasing portal, Plane�tBids and viable vendors were notified, in accordance with the City's procurement policies. Two companies, e-PlanSoft and DigePlan submitted qualified responses to the RFP and the qualifications o�f'each were evaluated by a panel consisting of City employees based on the following criteria: expertise and experience,demonstrated results and scope of services,allocation of resources,and price. e-PlanSoft was determined to offer the best solution to meet the City's needs and is the recommended vendor. e-PlanSoft is an Accela preferred partner with more than 30 clients that have integrated with Accela using Velo,simo platform. Entering into an agreement with e-PlanSoft for electronic plan review software implementation, licensing, support, and maintenance is recommended. The proposed agreement includes an initial term of five (5) years,with five optional one-year extensions, for a total possible term of ten (10) years. Other Development Automatleon Initiatives The City recently implemented a new permit application and form submittal platform,SeamlessDocs. While Acc�e�la Automation offers the CitizenAccess portal for permit applications and status updates,most users find the system difficult to navigate and administration is cumbersome,. In addition, there are still processes requested by our customers that are not appropriate for tracking in a system like Ac�cela (e.g.,transportation permits, requests for copies of p�lans and permits, etc.). With the Governor's initial stay at home order as a result of the COVID-19 pandemic, it was critical that the C�ity quickly pivot to a simple, user friendly portal for online applications. We selected SeamlessDocs for this purpose and have already rolled out a number of online forms using the platform, including the Economic Development Department's Social Distancing & Sanitation Protocols, the new Temporary Curb Caf6/Parklet Encroachment Permit application, and Garage Sale License applications. P �3ge 2 2020-1.1-0,3 Agenda Packet Page 45 of 509 Velosi'mo Software Integration Platform With the selection of SeamlessDocs,the City was introduced to the Velosimo software integration p�latfo�rm, which connects the data collected in S,eamlessDocs with our Accela. permitting system. Started by former Accela. employees, the Velosimo platform is a one-of-a-kind integration solution. 'Typically, software integrations are custom designed by a third-p�arty consultant. As the integrated app�lications are subsequently updated,the integrations often break,and a consultant must be brought back to fix the custom integration(for an additional fee). In addition,if the City modifies one or more of the integrated applications, a new custom integration must be developed. Again, the third-party consultant must be brought back to assist,for an additional fee. The Ve,losimo integration platform as a service is a comp,letely different approach. Once the integrations are, initially constructed, they are automatically maintained by Velosimo, ensuring our integrations keep pace with software upgrades. In addition, the integration platform provides a graphical user interface that City staff can use to modify the integrations in-house. For example,if the City were to begin collecting a new data set with our Tenant Improvement building permits, we simply add that field in Accela, add the field in the SeamlessDoc,s online form,and then map the integration using Ve�losimo. No consultant support is required and no additional fees are charged. Velo�simo's current contract was awarded on a sole source basis pursuant to CVMC Section 2.56.070(B)(4). The software and services provided by Velosimo are unique in the market,both in terms of the functionality of the so�ftware as well as compatibility with the City's existing development automation software (Accela Automation, e-PlanSoft, Laserfiche, Tyler Cashiering, SeamlessDo�cs). Velosimo is also a certified Accela. Technology Partner. In order to support remote work,we are currently working with Velosimo to integrate Accela Automation, Seamless Docs,LaserF'iche,and Tyler Cashiering. The graphic below illustrates the integrations currently in process. A, AMP= 111�10 0 1199W In I With the additional integration between the e-PlanSoft electronic plan review software and Accela, staff is requesting Council approval of an agreement with Velos,imo for software integration platform licensing, support, and maintenance services with an initial term of five (5) years, with five optional one-year extensions,for a total possible term of ten(101)years. The proposed agreement encompasses both the above described integrations and integration between Accela.Automation and e-PlanSoft,with the exception of the integration between Seamle,s,sDocs and Accela,which is included in the existing SeamlessDoc,s agreement. P �3ge 13 2020-1.1-0,3 Agenda Packet Page 46 of 509 DECISION-MAKER C"CINFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently, the real property holdings of the City Council members do not create a disqualifying real property-related financial conflict of interest under the Political Reform Act(Cal.Govt Code§87100�,et seq,.),. Staff is not independently aware and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision-make conflict of interest in this matter. CURRENT-YEAR FISCAL IMPACT There is no current-year fiscal impact to the General Fund or the Development Services Fund as a result of this action. The initial implementation and first year license, support, and maintenance fees will be funded using CARES Act funds. Approval of the proposed agreements supports, telework capabilities for City employees, enabling compliance with COVID�-19 public health precautions. Initial implementation and year-one license fees are as summarized in the table below., e-PlanSoft Implementation $ 28,800 $ - 75 User Licenses $ - $ 75)0001 Velo�simo* Velosimo Connect Accela to Laserfiche $ 10)0001 Velosimo, Connect Accela to Tyler Cashiering $ 16,000 $ 10)00101 Velosimo, Connect Seamle,s,sDocs to Laserfiche $� 510,00, Velosimo, Connect SeamlessDocs to Tyler Cashiering $ 10)00101 Velosimo, Connect Accela to e-PlanSoft $ 12,000 $� 10)0010 Subtotal $ 56,800 $ 120p000 Year One Total $176,800 *Velosimo one-time costs of$16,000 plus thefirst 3years of annual licensefees($35,0,010 per year) were paid under the existing sole source agreement and no additional payment will be required in the currentfiscalyear. ONGOING FISCAL IMPAC oil The Development Services Fund will be responsib�le for ongoing annual fees for the Velosimo, integrations. Costs associated with the e-PlanSoft licenses will be allocated based on the license users (i.e., the Development Services Fund will pay for licenses for Development Services Fund staff,the General Fund will pay for General Fund staff, etc.). The e-PlanSoft user license fees, will be sub�ject to a 5% annual escalator during the first five years of the agreement(base term). For each of the five optional one-year extensions,the license fees may be increased up to a maximum of 10%. The Velosimo, connector license fees will not increase during the first five years of the agreement (base term) but may be increased up to a maximum of 8% with each of the five optional one-year extensions. P �3ge 4 2020-1.1-0,3 Agenda Packet Page 47 of 509 ATTAC14MENTS 1. Agreement with e-Plan, Inc. 2. Agreement with Velosimo, Inc. Staff Contact.- Tiffany Allen, Development Services Department P �3ge 5 2020-11-03 Agenda Packet Page 48 of 509 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE ELECTRONIC PLAN REVIEW SOFTWARE IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND E- PLAN, INC. WHEREAS,, the City requires an electronic plan review solution that integrates with the City's permitting software, Accela Automation; and WHEREASI in order to procure these services,the City issued Request for Proposals(RFP) P03-20/2 1, soliciting proposals in accordance with Chula Vista Municipal Code (CVMC) Section 2.5 6.0 8 0; and WHEREASI the City received two proposals in response to RF'P P03-20/2 1; and WHEREASI a selection committee composed of City staff reviewed the proposals and recommends entering into an agreement with e-Plan, Inc. (the "Consultant") to provide electronic plan review software licensing, support, and maintenance services; and WHEREASI Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the Agreement to Provide Electronic Plan Review Software Implementation, Licensing, Support, and Maintenance, between the City and e-Plan, Inc., in substantially the form presented,with such modifications as may be approved by the City Manager and the City Attorney, a copy of which shall be kept on file in the Office of the City, and authorizes and directs the City Manager to execute same. Presented by Approved as to form by Tiffany Allen Glen R. Googins Director of Development Services City Attorney C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies\easyPD F 8\@,BCL@,380E287D\@�),BCL(j�),380E287D.docx 2020-1.1-0,3 Agenda Packet Page 49 of 509 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT TO PROVIDE SOFTWARE INTEGRATION PLATFORM IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES BETWEEN THE CITY AND VELOSIMO,, INC. WHEREAS,, the City requires a software integration platform as service to integrate various development automation technology solutions, including Accela Automation, SeamlessDocs, Laserfiche!, Tyler Cashiering, and e-PlanS,oft; and WHEREASI Velosimol Inc. (the "Consultant") offers the only so�ftware integration platform as service specifically designed for the government sector; and WHEREAS, Consultant is the Accela preferred partner for integrations with Accela Automation, resulting in unique performance capabilities; and WHEREASI Consultant offers a uniquely proprietary product, preferred for integrations with the City's permit processing software, resulting in unique compatibility requirements and unique performance capabilities and therefore a formal solicitation of proposed services would not be productive; and WHEREAS,pursuant to Chula Vista Municipal Code(CVMC)Section 2.56.0�7O�(B)(4)and the above facts,,the Purchasing Agent has determined that Consultant is uniquely qualified to serve as the Consultant for this,project and that the proposal shall not be subject to competitive bidding requirements; and WHEREAS, Consultant warrants and represents that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it approves the Agreement to Provide Software Integration Platform Software Implementation, Licensing, Support, and Maintenance, between the City and Velosimo, Inc., in substantially the forin presented, with such modifications as may be approved by the City Manager and the City Attorney, a copy of which shall be kept on file in the Office of the City, and authorizes and directs the City Manager to execute same. Presented by Approved as to form by Tiffany Allen, Glen R. Googins Director of Development Services City Attorney C:\Users\legistar\AppData\Local\Tei-np\BCL Technologies\easyPD F 8\((�,BCLC6�,DOOD�63BA\((-�,'�BCL((�,DOOD63BA.docx 2020-1.1-0,3 Agenda Packet Page 50 of 509 CITY OF CHULA VISTA CONSULTANT SERVICES AGREEMENT WITH�E-PLAN, INC. TO PROVIDE ELECTRONIC PLAN REVIEW SOFTWARE IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES, This Agreement is entered into effective as of I�4ovember 4, 2020�("Effective Date") by and between the City of Chula Vista, a chartered municipal corporation("City") and e-Plan, Inc., a California Corporation("Consultant") (collectively, the "Parties" and, individually, a"Party") with reference to the following facts: RECITALS WHEREAS,the City requires an electronic plan review solution that integrates with the City's permitting software, Accela Automation, and WHEREAS, in order to procure these services, the City issued Request for Proposals (R.FP) P03-20/21, soliciting proposals in accordance with Chula Vista Municipal Code (CVMC) Section 2.56.080; and WHEREAS, the City received two proposals in response to the solicitation and the selection committee recommends entering into an agreement with e-PlanSoft to provide electronic plan review software implementation, licensing, support, and maintenance services. WHEREASI Consultant warrants and represents,that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. [End of Recitals. Next Page Starts Obligatory Provisions.] ,i City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 5 1. of 509 OBLIGATORY PROVISIONS NOW, THEREFORE, in consideration of the above recitals, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, City and Consultant hereby agree as follows: 1. SERVICES 1.1 Required Services. Consultant agrees to perform the services, and deliver to City the "Deliverables" (if any) described in the attached Exhibit A, incorporated into the Agreement by this reference, within the time frames set forth therein, time being of the essence for this Agreement. The services and/or Deliverables described in Exhibit A shall be referred to herein as the "Required Services." 1.2 Reductions in Sco-pe of Work. City may independently, or upon request from Consultant, from time to time, reduce the Required Services to be performed by the Consultant under this, Agreement. Upon doing Sol City and Consultant agree to meet and confer in good faith for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. However, number of licenses shall not reduced for the next five years. 1.3 Additional Services. Subject to compliance with the City's Charter, codes, policies, procedures and ordinances governing procurement and purchasing authority, City may request Consultant provide additional services related to the Required Services ("Additional Services")�. If so, City and Consultant agree to meet and confer in good faith for the purpose of negotiating an amendment to Exhibit A, to add the Additional Services. Unless otherwise agreed, compensation for the Additional Services shall be charged and paid consistent with the rates and terms already provided therein. Once added to Exhibit A, "Additional Services" shall also become "Required Services" for purposes of this Agreement. 1.4 Standard of Care. Consultant expressly warrants and agrees that any and all Required Services hereunder shall be performed in accordance with the highest standard of care exercised by members of the profession currently practicing under similar conditions and in similar locations. 1.5 No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual approval only and does not relieve the Consultant of responsibility for complying with all laws,codes,industry standards, and liability for damages caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. 1.6 Security for Performance. In the event that Exhibit A Section 4 indicates the need for Consultant to provide additional security for performance of its duties under this Agreement, Consultant shall provide such additional, security prior to commencement of its Required Services in the fon-n and on the terms prescribed on Exhibit A, or as otherwise prescribed by the City Attorney. 1.7 ompliance with Laws. In its performance of the Required Services, Consultant shall comply with any and all applicable federal, state and local laws, including the Chula Vista Municipal Code. 1.8 Business License. Prior to commencement of work, Consultant shall obtain a business license from city. 1.9 Subcontractors. Prior to commencement of any work, Consultant shall submit for City's information and approval. a list of any and all subcontractors to be used by Consultant in the performance of the Required 2 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 52 of 509 Services. Consultant agrees to take appropriate measures necessary to ensure that all subcontractors and personnel utilized by the Consultant to complete its obligations under this Agreement comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local. In addition, if any subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, Consultant shall ensure that each and every subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. 1.10 'Term. This Agreement shall commence on the earlier to occur of the Effective Date or Consultant's commencement of the Required Services hereunder, and shall tenninate when the Parties have complied with all their obligations hereunder; provided, however, provisions which expressly survive termination shall remain in effect. 2. COMPENSATION 2.1 General. For satisfactory performance of the Required Services,City agrees to compensate Consultant in the amount(s) and on the terms set forth in Exhibit A, Section 4. Standard terms for billing and payment are set forth in this, Section 2. 2.2 Detailed Inv . Consultant agrees to provide City with a detailed invoice for services performed each monthl within thirty (30) days of the end of the month in which the services were performed, unless otherwise specified in Exhibit A. Invoicing shall begin on the first of the month following the Effective Date of the Agreement. All charges must be presented in a line item format with each task separately explained in reasonable detail. Each invoice shall include the current monthly amount being billed, the amount invoiced to date, and the remaining amount available under any approved budget. Consultant must obtain prior written authorization from City for any fees or expenses that exceed the estimated budget. 2.3 Payment to Consultant. Upon receipt of a properly prepared invoice and confirmation that the Required Services detailed in the invoice have been satisfactorily performed, City shall pay Consultant for the invoice amount within thirty(30)days.Payment shall be made in accordance with the terms and conditions, set forth in Exhibit A and section 2.4, 'below. At City's discretion, invoices not timely submitted may be subject to a penalty of up to five percent (5%) of the amount invoiced. 2.4 Reimbursement of Costs. City may reimburse Consultant's out-of-pocket costs incurred by Consultant in the performance of the Required Services if negotiated in advance and included in Exhibit A. Unless specifically provided in Exhibit A,Consultant shall be responsible for any and all out-of-pocket costs incurred by Consultant in the performance of the Required Services. 2.5 Exclusions. City shall not be responsible for payment to Consultant for any fees or costs in excess of any agreed upon budget, rate or other maximum amount(s) provided for in Exhibit A. City shall also not be responsible for any cost: (a) incurred prior to the Effective Date- or (b) arisinc� out of or related to the errors, I %_� omissions, negligence or acts of willful misconduct of Consultant, its agents, employees, or subcontractors. 2.6 Payment Not Final App oval. Consultant understands and agrees that payment to the Consultant or reimbursement for any Consultant costs related to the performance of Required Services does not constitute a City final decision regarding whether such payment or cost reimbursement is allowable and eligible for payment under this Agreement, nor does it constitute a waiver of any violation by Consultant of the terms of this Agreement. if City determines that Consultant is not entitled to receive any amount of compensation already paid, City will notify Consultant in writing and Consultant shall promptly return such amount. 3 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 53 of 509 3. INSURANCE 3.1 Required Insurance. Consultant shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant shall procure and maintain for the duration of the Agreement insurance claims arising out of their professional services and including,but not limited to loss,damage,theft or other misuse of data, infringement of intellectual property, invasion of property and breach of data. 3.2 Minimum Scove and Limit of Insurance. Coverage shall be at least as broad as: 3.2.1 Commercial General Liability (CGL)-. Insurance Services Office Form CG 00 01 covering CGL on an "occurrence" basis, including products and completed operations, property damage,, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04)or the general aggregate limit shall be twice the required occurrence limit. 3.2.2 Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant's profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, copyright, trademark, invasion of privacy violations, information theft, release of private information, extortion and network security. The policy shall provide coverage for breach response costs as well as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. a. The Policy shall include, or be endorsed to include,property damage liability coverage for damage to, alteration of, loss of, or destruction of electronic data and/or information 44property" of the Agency in the care, custody, or control of the Vendor. If not covered under the Vendor's liability policy, such "prop�erty"' coverage of the Agency may be endorsed onto the Vendor's Cy'ber Liability Policy as covered property as follows: b. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information 44property" of the Agency that will be in the care, custody, or control of Vendor. c. The Insurance obligations under this agreement shall be the greater of I—all the Insurance coverage and limits carried by or available to the Vendor; or 2—the minimum Insurance requirements shown in this agreement. Any insurance proceeds in excess of the specified limits and coverage required, which are applicable to a given loss, shall be available to Agency. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the indemnity or other obligations of the Vendor under this agreement. 3.3 Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. At the option of the City, either: the contractor shall cause the insurer shall to reduce or eliminate such self-insured retentions as respects the City,its officers,officials,employees,and volunteers;or the Contractor shall provide 4 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 54 of 509 a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. 3.4 Other Insurance Provisions. The insurance policies are to contain, or be endorsed to contain, the following provisions: 3.4.1 Additional Insured Status. City, its officers, officials, employees, and volunteers must be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment fumished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 M CG 20 261 CG 20 33, or CG 20 38 and CG 20 37 forms if later revisions used). 3.4.2 Primary Coverage. For any claims related to this contract, the Consultant's 'insurance coverage shall be primary insurance primary coverage at least as broad as ISO CG 20 0104 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self- insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. 3.4.3 Notice of Cancellation. Each insurance policy required above shall state that coverage shall not be canceled, except with notice to the City. 3.4.4 Waiver of Subro . Consultant hereby grants to City a waiver of any right to subrogation which any General Liability insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation,but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. 3,.4.5 Self-Insured Retentions. Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. 3.4.6 Acceptability of Insurers. Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than ANII, unless otherwise acceptable to the City. 3,.4.7 Claims Made Policies,. If any of the required policies pro�vide coverage on a claims-made basis: a. The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. b. Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the contract of work. 5 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 55 of 509 c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a Retroactive Date prior to the contract effective date, the Consultant must purchase "extended reporting" coverage for a minimum of five (5) years after completion of contract work. 3.4.8 Verification of Cov . Consultant shall furnish the City with original Certificates of Insurance including all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy listing all policy endorsements to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. 3.4.9 Subcontractors. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. 4. INDEMNIFICATION 4.1. General. To the maximum extent allowed by law, Consultant shall protect,defend, indemnify and hold harmless City, its elected and appointed officers, agents, employees and volunteers (collectively, "Indemnified Parties"), from and against any and all claims, demands, causes of action, costs, expenses, (including reasonable attorneys' fees and court costs)�, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Required Services, the results of such performance, or this Agreement. This indemnity provision does not include any claims, damages, liability, costs and expenses, arising from the sole negligence or willful misconduct of the Indemnified Parties. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions,of the Indemnified Parties which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 4.2. Modified Indemnity here Agreement Involves Pro essional. Services. Notwithstanding the forgoing, if the services provided under this Agreement are design professional services, as defined by California Civil Code section 2782.8, as may be amended from time to time, the defense and indemnity obligation under Section 1, above, shall be limited to the extent required by California Civil Code section 2782.8. 4.3 'Costs of Defense and Award. Included in Consultant's obligations under this Section 4 is Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all suits, actions or other legal proceedings that may be brought or instituted against one or more of the Indemnified Parties directly related to using the software. Subject to the limitations in this Section 4, Consultant shall. pay and satisfy any judgment, award or decree that may be rendered against one or more of the Indemnified Parties for claims, but such obligation shall. be limited to $1,000,000. 4.4. Consultant's Obligations Not Limited or Modified. Consultant's obligations under this Section 4 shall notbe limited to insurance proceeds, if any,received by the Indemnified Parties, or by any prior or subsequent declaration by the Consultant. Furthermore, Consultant's obligations under this Section 4 shall in no way limit, modify or excuse any of Consultant's other obligations or duties under this Agreement. (i Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 56 of 509 4.5. Enforcement Costs. Consultant agrees to pay any and all costs City incurs in enforcing Consultant's obligations under this Section 4. 4.6 Survival. Consultant's obligations under this Section 4 shall survive the termination of this Agreement. 5. FINANCIAL INTERESTS OF CONSULTANT. 5.1 Form 700 F The California Political Reform Act and the Chula Vista Conflict of Interest Code require certain government officials and consultants performing work for government agencies to publicly disclose certain of their personal assets and income using a Statement of Economic Interests form(Form 700). In order to assure! compliance with these requirements, Consultant shall comply with the disclosure requirements identified in the attached Exhibit B, incorporated into the Agreement by this reference. 5.2 Disclosures; Prohibited Interests. Independent of whether Consultant is required to file a Form 700, Consultant warrants and represents that it has disclosed to City any economic interests held by Consultant, or its employees or subcontractors who will be performing the Required Services, in any real property or project which is the subject of this Agreement. Consultant warrants and represents that it has not employed or retained any company or person, other than a bona fide employee or approved subcontractor working solely for Consultant,to solicit or secure this Agreement. Further, Consultant warrants and represents that it has not paid or agreed to pay any company or person, other than a bona fide employee or approved subcontractor working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this, Agreement. Consultant further warrants and represents that no officer or employee of City, has any interest, whether contractual, non-contractual, financial or otherwisel in this transaction, the proceeds hereof, or in the business of Consultant or Consultant's subcontractors. Consultant further agrees to notify City in the event any such interest is discovered whether or not such interest is,prohibited by law or this Agreement. For breach or violation of any of these warranties, City shall have the right to rescind this Agreement without liability. 6. REMEDIES 6.1 'Termination for Cause. If for any reason whatsoever Consultant shall fail to perform the Required Services under this Agreement, in a proper or timely manner, or if Consultant shall, violate any of the other covenants, agreements or conditions of this Agreement (each a "D�efault"), in addition to any and all other rights and remedies City may have under this Agreement, at law or in equity, City shall have the right to terminate this Agreement by giving thirty (30�) days written notice to Consultant. Such notice shall identify the Default and the Agreement termination date. If Consultant notifies City of its intent to cure such Default prior to City's specified termination date, and City agrees that the specified Default is capable of being cured, City may grant Consultant up to thirty(30�) additional days after the designated termination date to effectuate such cure. In the event of a termination under this Section 6.1, Consultant shall immediately provide City any and all "Work, Product" (defined in Section 7 below)prepared by Consultant as part of the Required Services. Such Work Product shall be City's sole and exclusive property as provided in Section 7 hereof Consultant may be entitled to compensation for work satisfactorily performed prior to Consultant's receipt of the Default notice; provided, however, in no event shall such compensation exceed the amount that would have been payable under this Agreement for such work, and any such compensation shall be reduced by any costs incurred or projected to be incurred by City as a result of the Default. 6.2 Termination or Suspension for Convenience of Cily. City may suspend or terminate this Agreement, or any portion of the Required Services, at any time and for any reason, with or without cause, by giving 7 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-11-03 Agenda Packet Page 57 of 509 specific written notice to Consultant of such termination or suspension at least ninety (90) days prior to the effective date thereof. Upon receipt of such notice, Consultant shall immediately cease all work under the Agreement and promptly deliver all"Work Product"(defined in Section 7 below)to City. Such Work Product shall be City's sole and exclusive property as provided in Section 7 hereof. Consultant shall be entitled to receive just and equitable compensation for this Work Product in an amount equal to the amount due and payable under this Agreement for work satisfactorily performed as of the date of the te!rmination/suspension notice plus any additional remaining Required Services requested or approved by City in advance that would maximize! City's value under the Agreement. 6.3 Waiver of Claims. In the event City terminates the Agreement in accordance with the! terms of this Section, Consultant hereby expressly waives any and all claims for damages or compensation as a result of such termination except as expressly provided in this Section 6. 6.4 Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this Agreement against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, 'as same may be amended,the provisions of which, including such policies and procedures used by City in the implementation of same, are incorporated herein by this reference. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 6.5 Governing Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in San Diego County, State of California. 6.6 'Service of Process. Consultant agrees that it is subject to personal Jurisdiction in California. If Consultant is a foreign corporation, limited liability company, or partnership that is not registered with the California Secretary of State, Consultant irrevocably consents to service of process on Consultant by first class mail, directed to the individual, and address, listed under"For Legal Notice," in section I.B. of Exhibit A to this Agreement, and that such service shall be effective five days after mailing. 7., OWNERSHIP AND USE OF WORK PRODUCT All software isbeing licensed in accordance with the e-PlanSoft Master Agreement, attached as Exhibit C. Software is being licensed by the City and no ownership of Work Product is being provided. If there is a conflict between this Agreement and the terms of Exhibit C, this Agreement shall control. 8., GENERAL PROVISIONS 8.1 Amendment. This Agreement maybe amended, but only in writing signed by both Parties. 8.2 A,,s,,,s,,i,,gnment. City would not have entered into this Agreement but for Consultant's unique qualifications,and traits. Consultant shall not assign any of its rights or responsibilities under this Agreement, nor any part hereof, without City's prior written co�nsent, which City may grant, condition or deny in its sole discretion. 8.3 'Autbo The person(s) executing this Agreement for Consultant warrants and represents that they have the authority to execute same on behalf of Consultant and to bind Consultant to its obligations hereunder without any further action or direction from Consultant or any board, principle or officer thereof. 8 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 58 of 509 8.4 Counter-parts. This Agreement may be executed in counterparts, each of which shall be deemed an original,but all of which shall constitute one Agreement after each Party has signed such a counterpart. 8.5 Entire Agreement. This Agreement together with all exhibits attached hereto and other agreements expressly referred to herein, constitutes the entire! Agreement between the Parties with respect to the subject matter contained herein. All exhibits referenced herein shall be attached hereto and are incorporated herein by reference. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are superseded. 8.6 Record Retention. During the course of the Agreement and for three (3) years following completion of the! Required Services, Consultant agrees to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the performance of the Agreement, including accounting for costs and expenses charged to City, including such records in the possession of sub- contractors/sub-consultants. 8.7 Further Assurances. The Parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions, of the Parties. 8.8 Independent Contractor. Consultant is and shall at all times remain as to City a wholly independent contractor. Neither City nor any of its officers, employees, agents or volunteers shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents ("Consultant Related Individuals"), except as set forth in this Agreement. No Consultant Related Individuals shall be deemed employees of City, and none of them shall be entitled to any benefits to which City employees are entitled, including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Furthermore, City will not withhold state or federal income tax, social security tax or any other payroll tax with respect to any Consultant Related Individuals; instead, Consultant shall be solely responsible for the payment of same and shall hold the City harmless with respect to same. Consultant shall not at any time or in any manner represent that it or any of its Consultant Related Individuals are employees or agents of City. Consultant shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, orbind City in any manner. 8.9 Notices. All notices, demands or requests provided for or permitted to 'be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any Party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such Party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified in this Agreement at the places of business for each of the designated Parties as indicated in Exhibit A, or otherwise provided in writing. 8.10 Electronic Signatures. Each Party agrees that the electronic signatures,whether digital or encrypted, of the Parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures,pursuant to the California Uniform Electronic Transactions Act (Cal. Civ. Code §§ 1633.1 to 1633.17) as amended from time to time. 0 (End of page. Next page is signature page.) 9 Cit;of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-11-03 Agenda Packet Page 59 of 509 SIGNATURE PAGE CONSULTANT SERVICES AGREEMENT IN WITNESS, WHEREOF, by executing this Agreement where indicated below, City and Consultant agree that they have read and understood all terms and conditions of the Agreement, that they fully agree and consent to bound by same, and that they are freely entering into this Agreement as of the Effective Date. E-PLAN, INC. CITY OF CHULA VISTA BY: BY: David Avila Maria V. Kachadoorian National Sales Director City Manager APPROVED AS TO FORM BY: Glen R. Googins City Attorney to City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 6,0 of 509 EXHIBIT A SCOPE OF WORK AND PAYMENT TERMS 1. Contact People for Contract Administration and Legal Notice A. City Contract Administration: ,Tiffany Allen Development Services Department 276 Fourth Avenue Chula Vista, CA 919 1 O� 619�-691-5179� tallengchulavistaca.gov� For Legal Notice Copy to: City of Chula Vista City Attorney 276 Fourth Avenue, Chula Vista, CA 91910 619-691-5037 CityAttomeygchulavistaca.gov B. Consultant Contract Administration: e-Plan, Inc. Attn: Marianne Peffer 220 Technology Drive, Suite I 10 Irvine, CA 92618� mpeffergplansoft.com, For Legal Notice Copy to: Michael Chegini, 220 Technology Drive, Suite I 10 Irvine, CA 92618� Enter Phone Number mcheginigeplansoft.com� 2. Required Services A. General Description: Consultant will provide electronic plan review (EPR) software licenses, support, and maintenance services associated with an electronic plan. review solution. that integrates with the City's permitting software (Accela Automation)using the Velosimo integration platform. B. Detailed Description: Consultant shall perform the following Tasks and provide to City the corresponding Defiverables: Task Description Deliverables I Contract Acceptance O�pen forum p�roject kickoff presentation (2 hours) i it City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 6,1. of 509 2 Discovery 0 Pro ect launch meeting (4-6 hours 0 Project timeline schedule 0 Discovery of deliverables 3 Configuration 0 Creation of user accounts 0 Confirm EPR groups (departments) 0 Configure EPR application and project type lists 0 Configure one Correction Report template 0 Upload standard comments into the EPR Comment Library 0 Configure the EPR color scheme branding and login page landing image 0 Upload electronic stamps (.png format) and assign to appropriate reviewers Confirm/configure EPR permission settings Setup outgoing email account Create sample projects and upload sample plans for staff training 4 Integration Participate in Velosimo integration 5 User Acceptance Testing Confirm that configured workflows and EMSE script in Accela are working properly and that the data and document versioning passed to EPR are being recorded correctly. 6 User Training Velosimo Training for Administrators (I session, I hour) EPR Training for Administrators (l session, 2 hours) EPR Training for Intake and Deliverables (I session, 3 hours) EPR Training for Reviewers (2 sessions, 3 hours) 7 Go Live—Client Signoff 0 Soft launch 0 Communication event re: electronic plan review acceptance Conduct workshop events to train constituents 8 Ongoing License, Support, and 0 EPR Software as a Service (Saas) Subscription Maintenance Services 0 75 named user licenses Additional detail provided in Exhibit D, Statement of Work. If there is a conflict between the Required Services set fortb above and Exbibit D, the above shall control. 3. Term: In accordance with Section 1.10 of this Agreement, the term of this Agreement shall begin�November 41 2020,and end on November 3, 20�25 �for completion of all Required Services. 12 City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-11-03 Agenda Packet Page 6,2 of 509 4�. Compensation: A. Form of Compensation FX_1 Fixed Fee Paid in Increments. For the completion of each Deliverable of the Required Services, as identified in section 2.13., above, City shall pay the fixed fee associated with each Deliverable, in the amounts set forth below: Task Amount Amount No. Deliverable One-Time Annual, Ongoing 1 - 6 Contract Acceptance (due upon signing) (80%) $23 M40 7 Go Live—Client Signoff(20%) $5760 8 Annual License SU Dort., and Maintenance Services PJ_ • Year I (November�4, 2020—November 3, 202 1) $75000 • Year 2 (November�4, 2021 —November 3, 2022) $78750 • Year 3 (November 4, 2022—November 3, 2023) $82687 • Year 4 (November 4, 2023 —November 3, 2024) $86,1822 $91 163 Year 5 (November 4, 2024—November 3, 2025)_T B. Reimbursement of Costs, Z Invoiced or agreed-upon amounts as follows: Travel expenses shall be billed at actual cost. Reimbursement of such costs shall be subject to review, and prior written approval, by City. � Notwithstanding the foregoing, the maximum amount to be paid to the Consultant for services performed through 2025 shall not exceed $500,006 November 3,, 5. Special Provisionslo, Z,Permitted Su'b-Consultants: None, Z Security for Performance: None�, Z Notwithstanding the completion date set forth in Section 3 above, City has option to extend this Agreement for 5 additional terms, defined as a one-year increment. The City Manager or Director of Finance/Treasurer shall be authorized to exercise the extensions on behalf of the City. If the City exercises an option to extend, each extension shall be on the same terms and conditions contained herein, provided that the amounts specified in Section 4 above may be increased by up to 10�% for each extension. The City shall give written notice to Consultant of the City's election to exercise the extension via the Notice of Exercise of Option to Extend document. iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliillillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilliilillillilliillillillillillillilliillillillillillillilliillillillillillillilI 113 City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 6,3 of 509 EXHIBIT B CONSULTANT CONFLICT OF INTEREST DESIGNATION The Political Reform Act' and the Chula Vista Conflict of Interest Code 2 ("Code") require designated state and local government officials, including some consultants, to make certain public disclosures using a Statement of Economic Interests form (Form 700). Once filed, a Form 700 is a public document, accessible to any member of the public. In addition, consultants designated to file the Form 700 are also required to comply with certain ethics training requirements.3� FX-1 A. Consultant IS a corporation or limited liability company and is therefore EXCLUDED 4 from disclosure. El B. Consultant NOT a corporation or limited liability company and disclosure designation is as follows: APPLICABLE DESIGNATIONS FOR INDIVIDUAL(S) ASSIGNED TO PROVIDE SERVICES (Category descriptions available at www.chulavistaca,..,go,ylde c.i,ty-clerklcontlict-,ot-,inter,est-co,de. partmentsl Name Email Address AM�lic,ante DesW' nation Enter Name of Each Individual Enter email address(es) EIA. Full Disclosure Who Will Be Providing Service Under the Contract—If El B. Limited Disclosure (select one or more of individuals have different the categories under which the consultant shallfile): disclosure requirements, �El 1. F-12. E13. F-14. 05. 06. F-17. duplicate this row and Justification: complete separatelyfi)r each individual EIC. Excluded from Disclosure I.Required Filers Each individual who will be performing services for the City,pursuant to the Agreement and who meets the definition of"Consultant,"pursuant to FPPC Regulation 18700.3, must file a Form 700. 2.,Required Filing Deadlines Each initial Form 700 required under this Agreement shall be filed with the Office of the City Clerk via the City's online . J filing system,Neffile, within 30 days of the approval of the Agreement. Additional Form 700 filings will be require.. annually on April I during the term of the Agreement, and within 30 days of the termination of the Agreement. 3.Filing Designation The City Department Director will designate each individual who will be providing services to the City pursuant to the Agreement as,full disclosure, limited disclosure, or excludedftom disclosure, based on an analysis of the services the Consultant will provide. Notwithstanding this designation or anything in the Agreement, the Consultant is ultimately responsible for complying with FPPC regulations and filing requirements. If you have any questions regarding filing requirements, please do not hesitate to contact the City Clerk at (619)691-5041, or the FPPC at 1-866-ASK-FPPC, or (866)275-3772 *2. Pursuant to the duly adopted City of Chula Vista Conflict of Interest Code,this document shall serve as the written determination of the consultant's requirement to comply with the disclosure requirements set forth in the Code. I Cal. Gov. Code §§8 1 O�00 et seq.- FPPC Regs. 18 700.3 and 18704. 2 Chula Vista Municipal Code §§2.02.010-2.02.040. 3 Cal. Gov. Code §§53234,etseq. 4 CA FPPC Adv.A-15-147 (Chadwick)(2015);Davis v. Fresno Un4ied School District(20 15)23 7 Cal.App.4"26 1;FPP,C Reg. 18700.3 (Consultant defined as an"individual"who participates in making a governmental decision; "individual"'does not include corporation or limited liability company). iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillilililI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliilillilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilI 14 City of Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-11-03 Agenda Packet Page 6,4 of 509 Completed by*- Tiffany Allen, Development Services Department iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillilillilI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliilliillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillillI ,i,!- City o Chula Vista Agreement No.:2020-133 Consultant Name:e-Plan,Inc. Rev. 9/15/20 2020-11-03 Agenda Packet Page 6,5 of 509 A P MASTER AGREEMENT ATTENTION!THE FOLLOWING TERMS AND CONDITIONS(""TERMS OF SERVICE"') WILL BE LEGALLY BINDING ON LICENSEE ("LICENSEE" OR "LICENSEE") UPON EXECUTION OF THE E-PLANSOFT ("LICENSOR") MASTER AGREEMENT INCLUDING ANY REFERENCED SCHEDULES AND ADDENDUMS ("A' GREEMENT-"'). LICENSEE SHOULD CAREFULLY READ THE FOLLOWING TERMS OF SERVICE BEFORE EXECUTING THE AGREEMENT. Section, Headings and Numbers. Certain Sections may hiave been renamed and/or renumbered in this document for convenience only and such renaming and/or renumbering will not affect the validity, construction or interpretation of the Agreement. References in the Terms of Service to any Section names or num,bers under,this document wil�l be deemed to be a reference to the identified or corresponding provisions in this document to accomplish the reasonable intent and objectives of such provisions to the greatest extent possible under appl�icabl�e law. 1. Definitions "Sales Order" means estimate, quote, renewal notification,sales order, or order form provided by Licensor in the name of and executed by Licensee or its Affiliate and accepted by Licensor which specifies the Service,and any Support Services and/or Professional Services to be provided by Licensor subject to the terms of this Agreement. "Subscription," means using the use of Service by Licensee by a defined number of unique Licensee users in compliance with Sales Order details for a period of time defined in Sales Order. "Ser�vice" means, collectively, Licensor's SaaS products, maintenance updates, online documentation, and technical support. The Service is provided to Licensee as a Subscription for a period of time defined in the Sales Order, including renewal terms and renewal rates.No perpetual license is granted to Licensee when using Service. "Execution of Licensor Master Agreement" means acceptance of the terms and conditions defined by Agreement when, a) upon the first use of Service by the first authorized user after Licensor provides a license key and username and password, and b)when the Licensee signs the Agreement prior to rece�iving the license key and use�rname and password for the first authorized user. "User" or"Users" means individuals who are authorized by Licensee to use the Service pursuant to this Agreement or as otherwise defined, restr,icted or limited in an Sales Order or amendment to this Agreement,for whom subscriptions to a Service have been procured, and who have been supplied user identifications and passwords by Licensee (or by Licensor at Licensee's re�quest). Users may include but are not limited to License and Licensee Affiliates' employees, consultants,contractors and agents. "Affiliates"' me�a�ns any entity which directly or indirectly,through,one or,more intermediaries, controls, or is controlled by, or is under common control with a party to this Agreement, by way of miajority voting stock ownership or the ability to otherwise direct or caiuse the direction of the management and policies of such party. "Confidential Information" means: (a�) Licensee Data; (b)the terms of this Agreement and (c)any commercial,financial, marketing, business, technical or other data, security measures and procedures, �know-how or other information disclosed by or on behalf of the disclosing party to the receiving party for purposes arising out of or in connection with this Agreement,that: (i) in the case of information in tangible form, is marked "confidential" or"proprietary;" (ii) in the case of information disclosed orally, visually or any other intangible form, is designated confidential or proprietary at the time of disclosure, and if disclosed orally, is summarized in reasonable detail in a writing delivered to the receiving party within ten (10) days following disclosure; (iii) under the circumstances, a person exercising reasonable business e-P1 anSoft Master Agree ment 1 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 6,6 of 509 A P judgment would understand to be confidential or proprietary; and (iv) will include any reproduction of such information in any form,or medium, or any part of such information,.The following will not be deemed Confidential Information: (1) informiation that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the receiving party; (2) information that was rightfully in the receiving party's possession without restriction prior to disclosure; (3) information that was rightfully disclosed to the receiving party by a Third�-Party without restriction (4) information that was independently developed by employees and/or contractors of the receiving party who did not have aiccess to and without use of or reference to the disclosing party's Confidential Information and (5) aggregate data collected or generated by Licensor or on behalf of Licensor regarding Licensor's products a�nd services (for purposes of providing or improving Licensor products and services, benchmarking system performance, preparing statistics and system metrics, marketing and other purposes) that does not contain any personally identifiable or Lice nsee-specif ic information. "Licensee Data"means all electronic data or information submitted to and stored in the Service by Users. "Electronic Corn�munlcations" means any transfer of signs, signals, text, images,, sounds, data or intelligence of any nature transmitted in who�le or part electronically received and/or transmitted through the Service. "Help Doc=entation" means the online English language help center documentation describing the Service features, includ�ing User Guides which may be updated from time to time. "Professional Services" means the general consulting, project management, implementation and/or training services. "Third-Party Applications" means applications, integrations, services, or implementation, custornization and other consulting services related thereto, provided by a party other than Licensor, as further described in Section 2.4("Third- Party Applications")that interoperate with the Service. "U�ser Guides" means the online English language user guides for the Service, accessible via https-.ZZeplansoft.atlaissian.net/wiki,,'_as updated from time to time. Licensee acknowledges that it has had the op�portunity to review the User Guides through a free trial account made available by Licensor., Licensee agrees not to duplicate or share User Guides beyond the expected use of these materials by Licensee's Users. 2. Terms of Service Licensee acknowledges and agrees to the following Terms of Service, which together with the terms of this Agreement entered into between Licensee and Licensor, will govern Licensee's access and use of the Service. Capitalized terms not otherwise defined in these Terms of Service will have the meaning given to them in the Agreement. 2.1.Accuracy of Licensee's Contact lnfor�rnation. Licensee will provide aiccurate, current and complete information on Licensee's lega�l business name, address, email address, and phone number, and maiinitain and promptly update this information if it should change. 2.2. Users:Access and Notification. Licensee will authorize access to and assign unique user names to the number of Users procured by Licensee on the Sales Order. User logins are for designated Users and cannot be shared or used by more than one User. If the Licensee chooses to deactivate a User account, create a new account for a new User, or re- activate an existing account, Licensee may do so as long as the terms and conditions of Subscription and the number of licenses specified in the Sales Order are in compliance. Licensee will also be responsible for all Electronic Communications., including those containing business information, account registration, account holder information, financial information, Licensee Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Licensee's account. Licensor will act as though any Electronic Communications it receives under Licensee's passwords, user name, and/or account number will have been sent by Licensee. Licensee will use commercially reasonable efforts,to prevent unauthorized access to or use of the Service and will promptly notify Licensor of any unauthorized access or use of the Service and any loss or theft or unauthorized use e-PI anSoft Master Agree ment 2 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 6,7 of 509 A P of any User's password or name and/or Service accou�nt numbers. 2.3. General Restrictions. General. Licensee is responisible for all activities conducted under its User logins and for its Users' compliance with this Agreement. Licensee's use of the Service will not include service bureau use, outsourcing, renting, reselling, sublicensing, concurrent use of a single User login, or time-sharing of the Service. Licensee will not a�nd will not permit any Third-Party within its control to: (a�)copy,translate,,create a derivative work of, reverse engineer, reverse assemble, disa�ssemble, or clecompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service in any ma�nner or form unil�ess expressly allowed in the Hel�p Documentation; (b) access or use the Service to circumvent or exceed Service account limitations or requirements; (c) use the Service for the purpose of building a similar or competitive product or service, (d) obta�in una,uthorized access to the Service (including without limitation permitting access to or use of the Service via another system or tool, the primary effect of which is to enable input of requests or transactions by other thain authorized Users); (e) use the Service in a manner that is contrary to applica,ble law or in vio�lation of any Third-Party rights of privacy or intellectual property rights; (f) intentionally publish, post, upload or otherwise transmit Licensee Data that contains any viruses,Trojan horses,worms,time bombs,corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or(g) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Service. Licensee will comply with all applicable local, state,federal, and foreign laws, treaties,, regulations, and conventions in connection with its use of the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation., Licensee will comply with the export laws and regulations of the United States and other applicable jurisdictions,in using the Service and obtain any permits, licenses and authorizations required for such compliance., Without limiting the foregoing, (i) Licensee represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Licensee will not permit Users to access or use the Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Licensee will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which its Users are located. Licensee will not send any Electronic Communication from the Service that is unlawful, harassing, libelous, defamatory or threatening. Except as permitted by this Agreement, no part of the Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. Licensee agrees not to access the Service by any means other than through the interfaces that are provided by Licensor. Licensee will not do any "mirroring"' or "'framing" of any part of the Service, or create Internet links to the Service which include log- in information, user names, passwords, and/or secure cookies. Licensee will not in any way express or imply that any opinions contained in Licensee's Electronic Communications are endorsed by Licensor. Licensee will ensure that all access and use of the Service by U�sers is in accordance with the terms and conditions of this Agreement. Any action or breach by any of such User will be deemed an action or breach by Licensee. (b�)HIPAA. Licensee agrees that: (i) Licensor is not acting on Licensee's behalf as a Business Associate or subcontractor; (ii) the Service may not be used to store, maintain, process or transmit protected health information ("RHI") and (iii) the Service will not be used in any manner that would require Licensor or the Service to be compliant with the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented ("HIPAA"). In the preceding sentence, the terms "Business Associate," "subcontr�actor," "'protected" health information" or "PHI" will have the meanings described in HIPAA. 2.4. Third-Party Applications. Licensor may offer certain Third-Party Applications under Sales Orders. Any procurement of such Third-Party Applications by Licensee will be subject to the terms specified in such Sales Orders. In addition, Licensor or Third-party providers may offer Third-Party Applications through the Service or otherwise related to Licensees" use of the Service. Except as expressly set forth in the Sales Order', Licensor does not warrant any such Third-Party Applications, regardless of whether or not such Third-Party Applications are provided by a third- party that is a member of a Licensor partner program or otherwise designated by Licensor as "Built For Licensor," "certified,"' ",approved" or "r,ecom mended." Any procurement by Licensee of such Third-Party Applications or, services is solely between Licensee and the applicable Third-Party provider. Licensee may not use Third-Party Applications to enter e-PI anSoft Master Agree ment 3 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 6,8 of 509 A P and/or subm,it tra�nsactions to be processed and/or stored in the Service, unless Licensee has procured the appl�icabl�e subscription to the Service for such use and access. Licensor is not responsible for any aspect of such Third-Party Applications that Licensee may procure or connect to through the Service, or any descriptions, promises or other information related to the foregoing. If Licensee installs or enables Third-Party Applications for use with the Service, Licensee agrees that Licensor may enable such Third-Party providers to access Licensee Data as required for the interoperation of such Third-P,arty Applications with the Service, and any exchange of data or other interaction between Licensee aind a Third-Party provider is solely between Licensee and such Third-Party provider pursuant to a, separate privacy policy or other terms governing Licensee's access to or use of the Third-Party Applications. Licensor will not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by Third-Party Applications or Third-Party providers. No procurement of such Third-Party Applications is required to use the Service. If Licensee was referred to Licensor by a member of one of Licensor's partner programs, Licensee hereby authorizes Licensor to provide such member or its successor entity with access to Licensor's business information related to the procurement and use of the Service pursuant to this Agreement, includ�ing but not limited to User names and email addresses, support cases and billing/payment information. 2.5. Transmission of Data. Licensee understands that the technical processing and transmission of Licensee's Electronic Communications is fundamentally necessary to use of the Service. Licensee is responsible for securing DSL, cable or another highspeed Internet connection and up-to-date "browser" software to utilize the Service. Licensee expressly consents to Licensor's interception and storage of Electronic Communications and/or Licensee Data, and Licensee acknowledges and understands that Licensee's Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Licensor. Licensee further acknowledges and understands that Electronic Communications, may be accessed by unauthorized parties, when communicated across the Internet, network communications facilities, telephone or other,electronic means. Licensor,is not responsible for any Electronic Communications and/or Licensee Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by Licensor, including, but not limited to,the Internet and Licensee's local network. 2.6. Service Level. Dur�ing the Term, the Service will meet the service level specified in the "Service Level Agreement". If the Service fails to achieve the service level,then Licensee will be entitled, as its sole and exclusive remedy,to a credit for the Service in accordance with the terms set forth herein. The Service's system logs and other records will be used for calculating any service level events. Service, Credits are based on a percentage of the total monthly service fees you paid for the affected e-PlanSoft service during the month in which the Downtime occurred, calculated as specified in the schedule below. Monthly service fees do not include any one-time payments such as upfront payments and prepayments,and exclude any fees paid for professional services and/or technical support or maintenance. Monthly Uptime Percentage Service Credit Percentage Less than 99.,95%but equal to or greater than 9�9'.0% 10% Less than 99.0% 20% We will apply any Service Credits only against future e-PlanSoft payments otherwise due from you. At our discretion, we may issue the Service Credit to the credit card you used to pay for the billing cycle in which the Downtime occurred. Service Credits will not entitle you to any refund or other payment from e-PlanSoft. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar($1 USD). Service Credits may not be transferred or applied to any other account., Unless otherwise provided in the Terms of Service,your sole and exc,lusive remedy for, any unavailability, non-performance, or other failure by us to provide e- PlanSoft Services is the receipt of a Service Credit(if eligible) in accordance with the terms of this Agreement. e-PI anSoft Master Agree ment 4 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 6,9 of 509 A P 2.7. Licensor"s Support Services and Professional Services. As part of the Service, Licensor will provide Licensee with online help documentation and other online resources to assist Licensee in its use of the Service. Licensor also offers, optional "for fee" Support Services and Professional Services including but not limited to Project Management,Training, and Configuration. The training of designated Licensee Contacts during initial implementation of the Service by e- PlanSoft or e-PlanSoft certifie�d trainers as defined in the Sales Order. Licensee shall ensure that one or more Designated Contacts have been trained and or certified in the use of Service supported by e-PlanSoft.Any training received by the Designated Contacts should be provided by either e-PlanSoft or e- PlanSoft certified trainers. In a case where the Licensee does not comply with the aforementioned requirement, the Licensee acknowledges that e-PlanSoft reserves the right to withhold certain services related to e-PlanSoft Support Services. Only Designated Contacts in the Licensee agency/organization are authorized to communicate with e-Pla,nSoft support organization, including(but not limited to)�: opening Incidents, requesting resolution status, and requesting information about Service functionality. 2.8. Security. Licensor will maintain commercially rea,sona�ble administrative, physicail and technical safeguard�s designed for the protection,confidentiality and integrity of Licensee Data. 2.9�. Confidentiality. Each party agrees to use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (at all times exercising at least a commercially reasonable degree of care in the protection of such confidential information) not to u�se or disclose Confidential Information except to the extent necessary to perform its obligations or exercise rights under this Agreement or as directed by Licensee. Either party m,ay disclose Confidential Information on a, need to know basis to its Affiliates, contractors and service providers who have executed binding written, agreements requiring confidentiality and nion-u�se obligations at least as restrictive as those in this Section. Additionally, Licensee must input personally identifiable information, incl�ud�ing but not limited to credit card information,, social security numbers, birth dates only in the fields designated for such data in the Service if the Service requests su�ch data to be entered. Nothing in this Agreement will prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. Notwithstanding the,foregoing, Licensor acknowledges that Licensee is a municipal corporation subject to certain public disclosure laws, including but not limited to the California Public Records Act, which may require Licensee to disclose certain Confidential Information. Licensor agrees that d�isclosure of Confidential Information as required by such laws in Licensee's sole discretion,shall not constitute a breach of this Agreement. 2.10. Intentionally left blaink. 2.11. Ownership ofLicensee Data. As between Licensor and Licensee, all title and intellectual property rights in and to the, Licensee Data is owned exclusively by Licensee. Licensee agrees that Licensor may use Licensee,data to perform necessary and reasonable activities during software engineering activities to ensure that the Service functionality continues to work with Licensee's data. 2.12. Licensor Intellectual Property Rights. All rights, title and interest in and to the Service (including without limitation all intellectual property rights therein and all modifications, extensions, custornizations, scripts or other derivative works, of the Service provided or developed by Licensor) are owned exclusively by Licensor or its licensors. Except as provided in this Agreement,,the rights granted to Licensee do not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto., Licensee grants Licensor a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Service (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Licensee or any Users related to the operation or functionality of the Service. Any rights, in the Service or Licensor's intellectual property not expressly granted herein by Licensor are reserved by Licensor. Licensee agrees not to display or use the Licensor trademarks, logos, and service marks in any manner without Licensor's express prior written permission. The trademarks, logos and service marks of Third-Party Application providers ("Marks") are the property of such third parties. Licensee is not permitted to use these Marks without the prior written consent of such Third-Party which may own the Mark. e-P1 anSoft Master Agree ment 5 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 70 of 509 A P 2.13. U.S. Government Rights. The Service is a "commercial item"as that term is defined at FAR 2.101., If Licensee or User is a US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Licensor provides the Service, including any related software, technology, technical data, and/or professional services in accordance with the following: (a) if acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technicail data and software customarily provided to the public as defined in this Agreement; or (b) if acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data — Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative Agency or Federal Judicial Agency will obtain only those rights in technical data and software customarily provided to the public as set forth in this Agreement. If any Federal Executive Agency, Federal Legislative Agency, or Federail Judiciail Agency has a, need for,rights not conveyed under the terms described in this Section, it must negotiate with Licensor to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specificaill�y conveying such, rights must be included in, any applicable contract or agreement to be effective.This U.S. Government Rights Section is in, lieu of, and supersedes, any other FAR, DFARS, or other clau�se, provision, or supplemental regul�ation that addresses Government rights in, comipu�ter software or technical data under thiis Agreement. 2.14. Dispute Resolution. (a)The parties agree to maintain the conficlential nature of al�l disputes and disagreements between them,, inicluding, but not limited to, informal negotiationis, mediation or arbitration,except as m,ay be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. Except as provided in 2.14(b), each party agrees that before it seeks mediation, arbitration, or any other form of legal relief, it will provide written notice to the other of the specific issues in dispute (and referencing the specific portions of any contract between the parties and which are alleged�ly being breached). Within thirty days after such notice knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conferenice) for the purpose of attempting in good faith to resolve the dispute. Except as provided in 2.14(b), ainy a�nd all disputes, claims or controversies arising out of or relating to this Agreement will be, submitted to a mutually acceptable mediator for mediation before arbitration or a�ny other form of legal relief may be instituted. Mediation may be commenced by a, party providing a written request for mediation setting forth the subject of the dispute and the relief requested. The parties will cooperate by selecting a single mediator and scheduling a mediation,which should take place within 45 days following a request for mediation. The mediator will be a retired judge who has had experience with technology disputes. The pairties agree that they will participate in the mediation in good faith aind share equal�ly in its costs. The med�iation will take place in San Diego County, California. (b) The dispute resolution procedures in this Agreement will not apply prior to a party seeking a, provisional remedy related to claims of misappropriation or ownership of intellectual property,trade secrets or Confidential Information. 3. Fees and Payments 3.1 Fees. Licensee will pay all fees specified in all Sales Orders. Except as otherwise specified herein, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non- refundable, and (iii) the number of Licensed Users cannot be decreased during the relevant term stated in the Sales Order. 3.2. Invoicing and Payment. Licensee will provide Licensor with a vailid purchase order or alternative document reasonably accepta�ble to Licensor. Licensor will invoice Licensee in advanice a�nd otherwise in accorclance with the relevant Sales Order. Unil�e�ss otherwise stated, invoiced charges are due Net 30 days from the invoice date. Licensee is responsible for providing complete and accurate billing and contact information to Licensor and notifying Licensor of any changes to such information,within five(5) clays. e-PI anSoft Master Agree ment 6 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 7 1. of 509 A P 3.3.Overdue Charges. If any charges are not received from Licensee by the due date,then at Licensor"s sole discretion, (a) such charges may accrue late interest at the rate of 1.5%, of the outstanding balance per month, or the maximum rate permitted by law,whichever is lowe�r,from the date such payment was due until the date paid, and/or(b) Licensor may condition future Subscription renewals on payment terms shorter,than those specified in the Agreement. 3.4. Suspension of Service and Acceleration. If any amount owing by Licensee under this or any other Agreement, is 30 or more days overdue (or 10 or more days overdue in the case of amounts Licensee has a,uthorized to charge to a credit card), Licensor may, without limiting Licensor's other rights and remedies, accelerate Licensee's unpaid fee obligations so that all such obligations become immediately due and payable and suspend Service to Licensee until such amounts are paid in full, but only after Licensor has provided Licensee two(2) delinquency notices, and at least thirty (30) days have passed since the transmission of the first notice. Licensee agrees that Licensor will not be liable to Licensee or to any Licensee Affiliate or,other Third-Par,ty for any suspension of the Service pursuant to this Section. 3.5. Payment Disputes. Licensor will not exercise Our rights under Section 3.3 (Overdue Charges) or 3.4 (Suspension of Service and Acceleration) if Licensee is disputing the applicable charges reasonably and in good faith and are cooperating d�iligentl�y to resolve the d�ispute. 3.6. Taxes. Unless otherwise stated, Licensor fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to vailue-added, sales, use or withholding taxes, a�ssessa,ble by ainy local�, state, provincial, federal or foreign juriscliction (collectively, "Taxes"). The Licensee is a governmentail entity and is therefore exempt from state and loca�l sa�les and use tax. The Licensee wil�l not pay for or reimburse any sales or use tax that may not directly be imiposed against the Licensee. 3.7.Additional Users. During the term of thiis Agreement, Licensee will pay Licensor for any additional Users who may use the Service at the rate specified in the Sales Order.This fee wil�l be charged or invoiced to the Licensee on the date these additional Users are authorized to use Service. 3.8.Audit of Authorized Users. Licensee will miaintain reasonable business practices and records necessary to ensure that the num,ber of Users is in comipliance with this Agreement and any executed Sailes Orders.The Licensee wil�l notify Licensor If any additional Users will be added to use the Service.The Licensor at its sole discretion reserves the right to request Licensee records to determine if Licensee is in compliance with the terms of Master Agreement and any executed Sales Orders. If Licensor determines that Licensee has more Users than authorized by this Agreement and any executed Sales Orders,the fees for additional Users become immediately due. 4. Warranties 4.1. Warranty of Functionality. Licensor warrants that: (i) the Service will achieve in all material respects, the functionality described in the User Guides applicable to the Service procured by Licensee, and (ii) such functionality of the Service will not be materially decreased during the then-current subscription term. Licensee's sole and exclusive remedy for Licensor's breach of this warranty will be that Licensor will be required to use commercially reasonable efforts to modify the Service to achieve in all material respects the functionality described in the User Guides and if Licensor is, unable to restore such functionality, Licensee will be entitled to terminate the Agreement and receive a pro- rata refund of the subscription fees paid under the Agreement for its use of the Service for the terminated portion of the then-current subscription term. Licensor will have no obligation with resp�ect to a warranty claim unless notified of such claim within s,ixty (60) days of the first instance of any material functionality problem, and such notice must be sent to mcheginii-@eplansoft.com. The warranties set forth in this Section are made to and for the benefit of Licensee only. Such warranties will only apply if the applicable Service has been utilized in accordance with the User Guides, this Agreement and applicable law. 4.2. Warranty of No Malicious Code. Each party warrants that it will not intentionally introduce viruses,Trojan horses, worms,spyware,or other such malicious code("Malicious Code")into the Service. e-PI anSoft Master Agree ment 7 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 72 of 509 A P �5. Disclaimer of Warranties EXCEPT AS STATED IN SECTION 3.1 AND 3.2 ABOVE, LICENSOR DOES NOT REPRESENT THAT LICENSEE'S USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICE WILL MEET LICENSEE'S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICE AND/OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND LICENSEEOS LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.THE WARRANTIES STATED IN SECTION 3 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY Licensor. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY., FITNESS FOR A PARTICULAR PU�RPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT AS STATED IN SECTIONS 2.6, 3.1, and 3.2 ABOVE, THE SERVICE IS PROVIDED TO LICENSEE ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND IS FOR COMMERCIAL USE ONLY. LICENSOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT LICENSEE'S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS, INCLUDING WITHOUT LIMITATION HIPAA OR THE GRAMM-LEACH-BLILEY ACT OF 19991. LICENSEE ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR LICENSEE'S PURPOSES. 6. Limitations of Liability TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANYONE FOR LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM B,REACH OF WARRANTY, BREACH OR REPUDIATION OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL CAUSE OF ACTION FROM OR IN CONNECTION WITH TH�IS AGREEMENT (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW TH�E EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN WHICH CASE SUCH DAMAGES WILL BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE FOLLOWING PARAGRAPH. THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE, USE OR OTHER EMPLOYMENT OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE, WILL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF THREE (3) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIME OF THE EVENT., AND IN THE EVENT OF A BREACH OF SECTION 2.9 (CONFIDENTIALITY) OF THESE TERMS OF SERVICE, SUCH MAXIMUM LIABILITY OF EITHER PARTY WILL BE AN AMOUNT EQUAL TO THE EQUIVALENT OF SIX(6) MONTHS OF SUBSCRIPTION FEES APPLICABLE AT THE TIM�E OF THE EVENT. NOTWITHSTANDING THE PREVIOUS SENTENCE, NEITHER PARTY WILL BE LIABLE TO TH�E OTHER PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE OTHER PARTY'S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEM�ENT. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON THEIR LIABILITY.THE LIMITATIONS OF LIABILITY SET FORTH IN THE SECOND PARAGRAPH OF TH�IS SECTION WILL NOT APPLY TO: (A) FEES DUE UNDER THIS AGREEMENT; (B) A B,REACH OF SECTION 2.3 OF TH�ESE TERMS OF SERVICE; OR (C) EITH�ER PARTY'S INDEMNITY OBLIGATIONS EXCEPT AS SET FORTH IN SECTION 7 BELOW. 7. Indemnification 7.1. Infringement. Subject to the terms and conditions set forth in this Section, Licensor will, at its own expense, defend Licensee from and against any and all allegations,threats,claims,su�its,and proceedings brought by third parties (collectively"Claims") alleging that the Service, as used in accordance with this Agreement, infringes such Third-Party's copyrights or trademarks, or misappropriates such Third-Party's trade secrets and will indemnify Licensee from and against liability, clamages, and costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys'fees)(collectively,"Losses")to the extent based upon such a Claim. e-PI anSoft Master Agree ment 8 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 73 of 509 A P Licensor will have no liability for Claims to the extent arising from (a) use of the Service in violation of this Agreement or applicable law, (b) use of the Service after Licensor notifies Licensee to discontinue use because of an infringement claim, (c) modifications to the Service not made by Licensor or miade by Licensor based on Licensee specifications or requirements, (d) u�se of the Service in com,bination with any non-Licensor software, application, or service, or (e) services offered by Licensee or revenue earned by Licensee for such services., If a Claim of infringement as set forth above is brought or threatened, Licensor will, at its sole option and expense, use commercially reasonable efforts either (a) to procure a license that will protect Licensee against such Claim without cost to Licensee; (b)to modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the Agreement and refund to the Licensee a pro-rata refund of the subscription fees paid for under the Agreement for the terminated portion of the Term. The rights and remedies granted Licensee under this Section 7.1 state Licensor's entire liability, and Licensee's exclusive remedy, with respect to any claim of infringement of the intellectual property rights of a Third-Party. 7.2. Indemnification Procedures and Survival. In the event of a potentia�l indemnity obligation under this Section,the indemnified party will: (i) promptly notify the indemnifying party in writing of such Claim; (ii) allow the indemnifying party to have sole control of its defense and settlement; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party's cost and expense, with the indemnifying party in the investigation, trial, and defense of such Claim and any appeal arising therefrom. The indemnification obligations under this Section are expressly conditioned upon the indemnified party's compliance with this Section 7.3 except that failure to notify the indemnifying party of such Claim will not relieve that party of its obligations under this,Section but such Claim will be reduced to the extent of any damages attributable to such failure. The indemnification obligations contained in this Section will survive termination of this Agreement for one year. 8. Suspension and Termination 8.1. Suspension for Ongoing Harm. Licensor may with reasonably contemporaneous telephonic notice to Licensee suspend access to the Service if Licensor reasonably concludes that Licensee's Service is being used to engage in denial of service attacks, spamming, or illegal activity, and�/or use of Licensee's Service is causing immediate, material aind ongoing harm to Licensor or others., In the extraordinary event that Licensor suspends access to the Service., Licensor will use commercially reasonable efforts to limit the suspension to the offending portion of the Service and work with Licensee to resolve the issues causing the suspension of Service. Licensee agrees that Licensor will not be liable to Licensee nor to any Third-Party for any suspens,ion of the Service under such circumstances as described in this Section. 8.2. Termination for Cause, Expiration. Either party may immediately terminate this Agreement and all Estimates/Order Forms issued hereunder in the event the other party commits a material breach of any provision of this Agreement which is not cured within thirty(30�) days of written notice from the non-breaching party., Such notice by the complaining party will expressly state all of the reasons for the claimed breach in sufficient detail so as to provide the alleged breaching party a meaningful opportunity to cure such alleged breach and will be sent to the General Counsel of the alleged breaching party at the address listed in the heading of this Agreement (or such other address that may be provided pursuant to this Agreement), ("Notice"'),. Upon termination or expiration of this, Agreement, Licensee will have no rights to continue use of the Service. If this Agreement is,terminated by Licensee for any reason other than a termination expressly permitted by this Agreement, then Licensor will be entitled to all of the fees due under this Agreement for the entire Term. If this Agreement is terminated as a result of Licensor's breach of this e-PI anSoft Master Agree ment 9 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 74 of 509 A P Agreement,then,Licensee will be entitled to a refund of the pro rata portion of any subscription,fees paid by Licensee to Licensor under thiis Agreement for the terminated portion of the Term. 8.3. Handling of Licensee Data Upon Termination/Expiration. Following expiration or termination of the Agreement or a Licensee account, if applicable, Licensor may immediately deactivate the applicable Licensee account(s) and wil�l be entitled to delete such Licensee account(s) from Licensor's "live" site following a forty (40) day period. Licensee further agrees that Licensor will not be lia�ble to Licensee nor to a�ny Third-Party for any termination of Licensee access to the Service or deletion of Licensee Data, provided that Licensor is in compliance with the terms of this Section. 9. M�od�ifications & Disconti'nuati'on of Service 9.1 To the Service. Licensor may make modifications to the Service or particular components of the Service from time to time and will use commercially reasonable efforts to notify Licensee of any material modifications. Licensor reserves the right to discontinue offering the Service at the conclusion of Licensee's then current subscription term for such Service. Licensor will not be lia,ble to Licensee nor to any Third-Party for,any modification of the Service ais described in this Section. 10. Entire Agreement This Agreement cannot be amended or modified without a written signature on paiper by both parties agreeing to the change. 10.1 Severabillity. If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision will be severed from the remainder of this Agreement, which will otherwise remain in full force and effect. 10.,2 Waiver. No waiver of any provision of this Agreement will be effective u�nless in writing and executed by the party waiving the right. Failure to properly demand compliance or performance will not constitute a waiver of a party's rights hereunder. The waiver by either party of a brea,ch or right under this Agreement will not constitute a waiver of ainy subsequent bre�aich or r,ight. 103 Governing Law. This Agreement will be governed by, and construed in accordance with, the substantive laws of the State of California without regard to conflict of law principles. The federal and state courts situated in San Diego County,California will have exclusive jurisdiction for the resolution of all disputes related to this Agreement. 101.,4 Notices. Notices will be sent by Certified Mail, Return Receipt Requested, postage prepaid and will be deemed received three(3)days after the date of deposit in the US Mail. 101.,5 Non-Assignabillity. Neither party may assign any of its rights or obligationis hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may a�ssign this Agreement in its entirety (including all Estimates/ Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization,or sale of all or substantially all of its assets not involving a direct competitor of the other party.A party's sole remedy for any purported assignment by the other party in, brea�ch of this paragraph shall be, at the non-assigning pa�rty's election, termination of this Agreement upon written notice to the assigning party. In, the event of such a, termination, Licensor will refund to Licensee any prepaid fees covering the remainder of the term, of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties,their respective successors and permitted assigns. 10.6 Term; Renewal.The initial term of this Agreement shall expire one year after the Effective Date. This Agreement e-PI anSoft Master Agree ment 10 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 75 of 509 A P shall automatically renew for successive one-year terms unless Licensee provides written notice of termination to Licensor no less than sixty(60) days prior to the expiration of the then-currenit term. The initiail term and any renewal terms are referred to herein as,the"Term 10.7 Travell Expenses. Licensee shal�l reimburse licensor for reasonable travel expenses and per diems that are approved by Licensee in advance and in writing. e-PI anSoft Master Agree ment 11 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 76 of 509 A P This Agreement is entered into, and effective as of ("Effective Date")�, by and between e-PlanSoft, a California Corporation with its principal place of business at 220 Technology Dr�ive, Suite 110 Irvine, CA 92618 ("Licensor")and, ("Licensee"),with its principal place of business located at, Individual signing this Agreement on behalf of Licensee states that he/she is authorized to enter into such Agreement on behalf of Licensee. Licensee e-RlanSoft Full name Full name Title Title Signatu�re Signature Date Date e-PI anSoft Master Agree ment 12 Rev.01/24/2020 2020-1.1-0,3 Agenda Packet Page 77 of 509 A P ACCOMPANYING SCHEDULES 2020-1.1-0,3 Agenda Packet Page 78 of 509 f00731986.DOCX/I e F�l I a',.,iiS,aft \AAAM.e�o I t3' S, (�")'f c 0"ll 200 1""'e c 1,�'i ri o���o g y A I I h��vine CA 91"?6'18 Prepared by c a�n 51 of-111 8 77,6 5 143�'�7 5 2 Seari flooj�')er UNION UNION UNION UNION MINIMUM UNION UNION MINIMUM! A wo Aim AF A6 ago", W"" A 'I m MLI. C ULAVI"3 'A, A'L pillimul �j jjll� w Ul .............. = io C o e Is PRODUCTOVERVIEW................................................................................................................................................. ..4 EPLAN5DFTREVEVV- ...................................................................................................................................................... ..4 VELOSIMOCONNECT............................................................................................................................................................-5 CHANGES TOACCELACITIZEN ACCESS...................................................................................................................................-5 PROJECTSUK4MARY.......................................................................................................................................................6 THE E-PLANSOFTPROJECT TEAM ............................................................................................................................... ........7 THE CLIENT CORE PROJECT TEAM ......................................................................................................................................7 PROJECTW1|LESTONES .........................................................................................................................................................8 DESCRIPTION O[THE INTEGRATION....................................................................................................................................9 meLos xxO vvomurLovv DIAGRAM.......................................................................................................................................................9 1. VALIDATION Or PLAN REVIEW DOCUMENTS............................................................................................................................oo AcCeLmINTAKE COMPLETENESS CHECK............................ _............................................................................................................10 2. UPLOAD noEPR................................................................ -........................- .......................................................................zo PERFORMING PLAN REVIEW.......................................................................................................................................................................zz 3. COMPLETING YOUR ASSIGNMENT IN EPR........................................................................................................................................zz 4. CHECKING IN'DEu�VemAaLES1...................................................................................................................................................zz s. REQUESTING REsuBmnTALS FROM THE APPLICANT...............................................................................................................zz upmAmmG ACA-REQUESTING mcXr SuBmrrrA/.............................................................................................................................12 RETURNING THE APPROVED/FINAL PLAN SET....................................................................................................................................z2 6. CLOSING THE PROJECT IN AcCsLA................................................................ -.......................................................................12 PROJECTLAUNCH.............................................................................................................................................................l3 1zCONTRACT ACCEPTANCE MILESTONE..................................................................................................................................I3 OPEN FORUM PROJECT KICKOFF PRESENTATION.......................................................................................................................................z3 2zDISCOVERY MILESTONE..........................................................................................................................................................23 PROJECTLAUNCH MEETING........................................................................................................................................................................z3 PROJECT TIMELINE SCHEDULE............................................................................................................................................................z4 DISCOVERY OF DELIVERABLES............................................................................................................................................................. 3: EPR CONFIGURATION MILESTONE.................................................................................................................................15 EPC TO EPR DATA CONVERSION.........................................................................................................................................................z5 4:VELDSI�MO DESIGN AND DEVELOPMENT............ 5: USER ACCEPTANCE TESTING(UAT).................................................................................................................................l6 uATTRmm|wG FOR INTAKE STmFr/MAmmG ERS/RemEWERS.............................................................................................................z6 6zCONDUCTING EP,R TRAINING..........................................................................................................................................17 TRAINING MATERIALS.........................................................................................................................................................................z7 rmAIm|mG cmmnomwvcNc------------------------------------------------------r7 = io COMMUNICATION............................................................. _............................................................................................................z8 KFYASSUMPDON8...........................................................................................................................................................l9 PLAN REVIEW WORKSTATIONS................................................................................................................................ -79, PERMIT INTAKE WORKSTATIONS.................................................................................................................................79, PROJECT CHANGE MANAGEMENT...............................................................................................................................2O ACCEPTANCE--...................................................................................................................................................................21 PROJECTPRICING .................................................................................................................................................................24 PAYMENT SCHEDULE ................................................................................................................................................. 25 id,`1011 r M U C OV E-PLANREVIEW e-PlanREVIEW (EPR) is an industry-leading, cloud based collaborative platform for team-based design review, permitting. The platform is designed by industry experts for architectural,, engineering, and construction (AEC) companies, as well as state, county, and municipal agencies, tasked with code compliance and enforcement. EPR improves results and �lowers the cost of doing business in both the private and public, sectors by replacing printing, shipping and storage expenses of paper plans with convenient online document uploa�ds and concurrent,collaborative web-based electronic plan reviews.Our m�is,sion is simiple: To fundamentally change and improve how the construction industry and permitting agencies work. This Scope of Work describes our cl�oud-hosted deployment of e-PlanREVIEW(EPR)in partnership with Velosimo to implement bi-directional integration between the Accela Civic Platform (Accela)and EPR.The Velosimo integration platform as a service has been purchased via a separate contract and will be utilized in this project to connect EPR and Accela. Following best practices,Accela will remain the'source of tr�uth"for permitting project information,document management and document ver�sioning as well as plan review assignments. This streamlined connectivity between Accela and EPR p�rovides the City of Chu�la Vista, CA a�nd its constituents a best of breed solution to improve staff efficiency and plan review turnaround time. After completion of thi's project, EPR will provide the following functionality: 1. Accept permit data, plan review documents and plan review assignments from Accela. a. Incoming plan review documents are evaluated in Accela and Accela Citizen Access Portal (ACA) by our Scout PDF Inspector. Documents,not approved by Scout will not be accepted for electronic plan review. 2. Receive updates from Accela to the permit data record. (For example,when the project is closed in Acc,ela.) 3. Receive updates to plan review assignments from Accela. For example,the assignment due date is changed in Accela. 4. Conduct web-based,simultaneous plan reviews. 5. Complete each plan review assignments in EPR by choosing either'acceptance'o�r'resubmit'status. a. Return the assignment status to Accela in, real time so that assocliated workflows are notified as appropr�ia�te. 6. Generate custom Correction Reports. 7. Check in'reviewed plans',correction reports and any supporting document to the Accela back office,for return to the applicant in AC,A,as appropriate. 8. Check in approved plans to the Accela back office for long-term retention. 9. Receive"corrected plan sets'from Accela for back check. a. Carry forward existing markups and comments to the most recent document version. b. Reset existing assignments to a 'Not Started"status. c. Accept new assignments from Accela,as necessary. 10. Apply electronic'stamps'to the reviewed plans,as appropriate. 11. Manage EPR permissions, pre-configured for best practices for each user role, as desired., 12. Die�sign/Modify Correction Report templates,as desired. 13. Modify/Manage Email alert notifications to EPR users,as desired. 14. Import/Manage standard comments and checklists into the EPR Comment Library for use by the plan review staff. 15. Utilize EPR for paper plan reviews to leverage the tools and processes across all reviews. 10.28.2020 Page 4 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id"1011 r M VELOSIMO CONNECT Velosimol Inc. is revolution izing the approach to government software integration with the Ve�losimo Connect integration platform. Velosimo Co�nnect is a complete integration pilatform as a service (iPaaS) solution designed specifically for the software endpoints in government software. With the Velosimo integration platform typica�l integration challenges are solvable and sustainable. Velosimo specializes in providing integration to Accela,e-PlanSoft, and many other government software systems. As our integration partner, Velosimo will provide and maintain the ongoing application programming interface (API) connectivity between Accela and EPR. IN CHANGES TO ACCELA CITIZEN ACCESS PORTAL It is anticipated that changes may be required in Accela Citizen Access*(ACA) user interface and or/workflows to facilit�ate the ability for your constituents to: 1. Upload their plan review documents and supporting attachments. 2. Download the reviewed plans that require corrections and correction reports themselves. 3. Resubmit corrected plans as the"next submittal',when appropriate. a. ACA must provide the ability to associate an incoming document as the next submittal. 4. Download the approved plans, if appropriate. The Client should consider engaging an Accela Service Implementor to conduct a gap analysis aimed at identifying changes needed on any currently configured workflows or scripts. If no such resource is available, please request assistance. *Velosimo will ensure that the Scout PDF inspector is deployed in ACA a�nd the Accela back office to evaluate whether incoming plans can be acc�epted. 10.28.2020 Page 5 id,`1011 r M S L1 ��111\4 �Vl A This Statement of Work(SOW)sets forth the scope and definition of the consulting/professional services,work and/or project(collectively, the "Services")to be provided by e-Plan SoftTM ("e-Plan") to the City of Chula Vista, CA("Client"), for a c,loud hosted deployment of e-PlanREVIEW(EPIR)with integration to Velosimo Connect. At the core of that plan is a detailed Project Schedule Timeline that includes the activities for the project',the resources required to perform those activities,and the schedule for completing them,including critical dependencies. The Project Schedule Timeline will be provided to the Client following the project kickoff meeting. We have provided this preliminary statement of work based on current understanding of the activities necessary to produce the required deliverables; we will refine our plan with, the Client to ensure activities are clearly defined, to review timeframes, and to ensure each activity reflects an appropriate level of detail. Ea�ch activity will be owned by person(s) who are responsible for ensuring it is completed successfully. The project plan will be updated regularly throughout the course of the project and communicated to all participants and stakeholders via email. It is important to identify the project's critical path after the,detailed project plan has been developed and prior to the start of the project.The project's critical path is the longest sequential set of activities that must occur in order, based on identified dependencies.The comb�ined end-to-end duration of activities represents required project duration and the project"s critical path. This does not account for activities that may occur in parallel, but do not contribute to the project's critical path. The project team will schedule weekly conference calls. An updated schedule and an updated progress report that includes the following will be provided: 0 Activities completed within the current reporting period., 0 Activities planned for the next reporting period. M Updated schedule including milestones and their statuses(originally scheduled da�te,current target date�,and the number of changes to the date). N Issues or problems requiring resolution. 0 The status of any changes that affect scope,cost,or schedu�le.Any work affecting cost will be done only with written consent from the Client. 10.28.2020 Page 6 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M THE E-PLANSOFT PROJECT TEAM The following e-Plan personnel will be assigned to ensure the successful completion of this project for the Client: Team Members Role Responsibilities Cathy Rogers Project Manager Responsible for overseeing the Project Timeline.Responsible for e-Plan project management activities and creating project management deliverables.,Primary point of contact with the,Client"s Project Manager and responsible for providing status and issue reports to the Client. Kris Trujill�o Velosimo CEO Responsible for Velosimo integration between Accela and EPR including ACA and Accela scri pt/conf igu ration changes as defined in this SOW. Jason,McDonald Velosimo Cu�stomier Responsible for Velosimo integration between Accel�a and EPR including Success Manager ACA and Accela scri pt/conif igu ration changes as defined in this SOW. Amber Anderson, Implementation Assists with product configuration of EPR,conducts user training Manager sessions and oversees our customer support team. Jorge Raya-Navarro Technical Support Provides expertise on the solution architecture,business anailysis and Manager facilitates communication between client support requests and the product engineers., Sean Hooper Customer Success Ensures the end result of the project implementation meets Client Manager expectations per this SOW. THE CLIENT CORE PROJECT TEAM Dedicated involvement of the following Client personnel will ensure the successful completion of this project for the Client. Some overlap in staff responsibilities in the chart below, is understood. The core team should be comprised of subject matter experts(SME's). Ro�le Responsibilities Project Managers Individual(s)with extensive knowledge of the Client's permit intake and assignment distribution requirements. Project Coordinators Individuals who perform permit intake,counter reviews and may be responsible for distributing plan review assignments. Individuals who prepare deliverable packages with the reviewed plans and correction report(s)for return to the applicant. �Depart�ment/G'iroup Individuals who manage plan review staff and may be responsible for distributing plan review Manager(s) assignments for their staff and may be responsible for generating deliverable packages with the review plans and correction report(s)for return,to the applicant. Plan Reviewers Individuals who cond�uct plan,review and may be responisible for generating the correction report for return to the applicant. Contributors Individuals who will collaborate with the Reviewers to discuss/respond to issues,but who will not conduct plan review. 10.28.2020 Page 7 id,,1011 r M PROJECT MILESTONES The milestone solution implementation has become a common practice in the industry to address critical business needs quickly and mitigate the risks associated with what has been termed "big bang" approaches that attempt to do too much too soon. The milestones included in the schedule of work,and outlined in more detail be�low are: 1. Contract Acceptance 2. Discover 3. Configuration 4. Inte �ra�tio�n 5. User-Accepta nice Te 6. User Training 7. Go Live—Client Signoff 10.28.2020 Page 8 1� 1 11 IIII I I 1�1 1� I 1� �i I II �1� ........................ id,`1011 r M DESCRIPTION OF THE INTEGRATION VELOSIMO,WORKFLOW DIAGRAM The Client uses EPR as a tool for reviewing and marking building plans associated with permits managed within the Accela Civic Platform.The Client uses the Accela Civic Platform to manage permit and plan review related activities. Applicants applying for building permits requiring plan review interact with Client using Accela Citizen Access. The purpose of this diagram is to integrate EPR with the Accela Civic Platform as it pertains to The Client process configuration within the Accela Civic Platform. The following is a high-level diagram that describes the integration.See below for a descriptive narrative of each touchpoint in the integration. "I'll............... ,1.Validate Plan(s) Caill Scolut PDF inispector 2.,Record:Ready for�EPR Greate Project/Assignmienits Update WorkflGw 3.,Update Assigni"nent Status ACCELA Addl DOCUrnents VELOSIM0 4 Check in�'d e l�l ivera b Iles" EPR, 5 Pass next SubmittaI(s) Version,next Submittai(s) Repeatftom,#1 6.Approve/Issiue Project Update Project Status .........lo'00/01' llntegrafic�n Diagram Veiosimo maniages,API caiis between Accela and ERR 10.28.2020 Page 9 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id"1011 r M 1.VALIDATION OF PLAN REVIEW DOCUMENTS ........................................................ Applicants The App�lic,ant starts the process by creating a new building permit application in ACA. Diuring the building permit creation process the Applicant uploads,all required plans as,part of the application. At the time of upload*the system initiates the Scout PDF inspection to analyze incoming plan review documents for known issues.Scout"s inspection will return a response to the Applicant, rejecting any plans that do not pass validation. Plan review documents that are validated may be uploaded to the Accela back office. The Accela system creates the building permit appl�ication and assigns the Project Intake workflow task for the new building permit application to the appropriate The Client staff. *Any plan review documents uploaded to Accela, outside of ACA,will also trigger a ca�ll to Scout PDF for validation. ACCELA INTAKE COMPLETENESS CHECK Next Intake personnel assigned the Project Intake workflow tasks will see the task i'n their Accela tasks li'st. This user completes the Intake task to confirm that all required data and docurnents were provided by the Applicant. Upon updating this workflow task to a ReadyforReview process,the Accela system activates the Plan Review workflow tasks for the building permit and sends an EMSE workflow update event to Velosimo Connect letting the platform know a new building permit in Accela is ready for EPR. 2. UPLOAD TO EPR Velosimo Connect then calls Accela to gather the: M Permit information 0 Contact information 0 Plan Review files and Supporting Documents 0 Plan Review Assignments Velosimo then creates,the corresponding project, contact, document, and assignment data records in EPR. From this point forward,any updates to the Accela Project record are captured by Velosimo Connect and passed to EPR so that the EPR project record is up to date. 10.28.2020 Page 10 ......................... id,`1011 r M PERFORMING PLAN REVIEW At this point each The Client Plan Reviewer has been assigned a workflow task for their respective review in Accela and has a corresponding assignment i'n EPR. From the Accela Tasks list,reviewers choose,their assigned plan review which automatically opens the document in the EPR Review page on a new browser window. Providing EPR login credentials is not required. 3. COMPLETING YOUR ASSIGNMENT IN EPR In EPR,this user conducts their electronic plan review and when desired, 'completes'their assignment by choosing the appropriate Assignment Status in the Review Page.Velosimo Connect intercepts this change and passes to Accela to update the Accela workflow task for this respective task The Correction Report is the�n generated in EPR to capture open/unresolved comments that need to be addressed by the Applicant. 4. CHECKING IN 'DELIVERABLES' When the Client chooses to,the reviewed plans and correction report(s)are checked in to Velosimo,from the EPR D�eliverables page. Velosimo adds these reviewed documents to the project record in Accela,setting the appropriate virtualfolders and information necessary for tracking within Accela. Note*Velosimo can be configured to automatically pull the generated correction report and marked up plan set upon a "cycle compete"'status. 5. REQUESTING RESUBMITTALS FROM THE APPLICANT If all plan review tasks have been marked as 'approved',the Accela workflow will continue and no further review assignment activity will occur for this permit. If plan review assignments require corrections from the Applicant, then the and the necessary information is sent to the Applicant via Accela to upload another submittal of the plan. Once the Applicant has the next submittal ready for review the Applicant returns to Accela Citizen Access and uploads the corrected documents as a new submittal to the original plan set. At this point the flow logic clescribed above is repeated. When Velosimo, sends the next "submittal' to EPR, all markups and comments are carried forward automatically in the Review Page and the previously created assignments are reset to a Not Started status. EPR users conduct there reviews again,marking comment records as closed.When all comments are resolved or marked as conditionally approved,the final plan set can be prepared. 10.28.2020 Page 11 I� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M U PDATI NG ACA—REQU ESTI NG N EXT SU BM ITTAL Assuming corrections are required,the document record in ACA will be flagged with a 'Resubmit"status and the Applicant will be notified. Corrected plan review documents are then uploaded a�s the'next submittal'and the process repeats from step 1. RETURNING THE APPROVED/FINAL PLAN SET EPR users should apply the appropriate electronic stamps via the EPR Review page for each plan review assignment before approving their assignment. The final approved plan set should be checked into Accela and placed in the Client's long-term retention location. Velosimo then adds the response documents to the record in Accela setting the appropriate virtual folders and necessary version information for tracking within Accela. At the Client's discretion',the same deliverable can be returned to the Applicant via ACA for download. 6. CLOSING THE PROJECT IN ACCELA When the Accela project record is closed,Velosimo,will update the matching EIPR project record accordingly. Should the project reopen for revisions after the permit has been issued,the EPR project record will reopen as well. Documents submitted for Revisions are handled in the same manner as described above�. 10.28.2020 Page 12 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M ��N C City Acceptance Criteria: Upon the provision of Milestone completion signoffs,the Client is responsible for either accepting the milestone as complete or providing grounds for non-acceptance within 10 days of delivery., Non-correspondence will result in the de-facto acceptance of the milestone or could result in change orders due to additional project time required which i's out of scope for this project. 1: CONTRACT ACCEPTANCEMILESTONE Following formal acceptance of the Contract/Purchase Order,the e-Plan p�roject manager will schedule the Discovery/Project Kickoff meeting with the Client. OPEN FORUM PROJECT KICKOFF PRESENTATION The p,roject kickoff presentation is a formal meeting that includes Client project stakeholders,Client executives,Client staff as well as the e-Plan Sales and project team members. During this 2-hour presentation.,we will review the high-level project plan,discuss the short,and long-term goals and generally describe the Accela to EPR connectivity and functionality. This open forum is an excellent opportunity for the Client executives to'rally"the staff and set expectations for the what the finished implementation will deliver. 2: DISCOVERY MILESTONE Following the project kick off presentation,the Discovery milestone is dedicated to collecting information needed for configuring the products to conduct the training and rollout of EPR with connectivity to the Accela back office., It has several steps and components: PROJECT LAUNCH MEETING In the Project Launch meeting,the e-Plan project manager and core Client personnel shall meet onsite to discuss the following. (This meeting typically takes 4-6 hours.) 1. Identify the Project Manager who has deep expertise in the Client's internal processes regarding permitting and plan review. This individual will be responsible for ensuring all deliverables are provided to the e-Plan Team on schedule, coordinating time with the Client subject matter experts as well as coord�inating user training and prod�uct rollout/go live.The desired go/live date will be confirmed in the kickoff meeting. 2. During the meeting, e-Plan will require an in-depth review of the Client's current standard operating procedures(SOP)regarding how plan review projects are created in your back-office applica�tion(s). Obtaining an updated copy of these SOPs for the kick-off is recommended. 3. Confirm the internal terminology regarding project workflow status,assignment status,document cycles,etc. used in-house is identified to ensure that EPR is configured to use the same terminology. 4. Another item for discussion will be to define how and where electronic documents will be archived for long term retention. 5. Velosimo to consult with Client to pre,pare the Functional Specifications Document (FSD) to confirm the 10.28.2020 Page 13 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M proposed integration touchpoints and workflow. 6. Identify the Client's subject matter experts (the project team) who will participate in the integration testing, product configuration and user acceptance testing(U�AT). 7. Discuss and confirm the Project Timelin�e schedule for each m,ilestone and all del�iverables. 8. Confirm the schedule for remote project management meetings (weekly). 9. Discuss the Discovery Deliverables(see below)that the Client will need to gather. EPR/Velosimo Responsibilities: Provide timely and appropriate responses to Agency's request for information Coordinate project planning activities Complete Baseline Project Plan,, Project Status Report Template,and Project Initiation Presentation deliverables with input from appropriate Agency resources Agency Responsibilities: 0 Identify and set expectations with key resources and subject matter experts for ongoing participation in the project 0 Provide timely and appropriate responses to e-PlanSoft and Velosimo,requests for project planning input and meeting logistics requests 0 Provide meeting facil�ities for Project Kickoff or Virtu�al Kickoff and other o,nsite activities PROJECT TI�MELINE SCHEDULE Following the kickoff meeting,the e-Plan PM will share the Project Timeline, generated in smartsheets., with the appropriate project team members.This schedule will be relied on to confirm each milestone event, critical dependencies and to document progress,decisions,and the plan of action. A secure ShareFile site will be deployed via which the team can exchange documents. DISCOVERY O,F DELIVERABLES The Client shall gather the following deliverab�les*, listed below, in the format desired by e-PlanSoft.This information will be used to configure EPR and Accela in preparation of integration and user acceptance testing(UAT). N List of all Accela records.As a�n CSV export with the fou�r-level structure.Group>Type>Sub-Type>Cate,gory • List of all Workflow Processes associated with the list of records • List of Workflow tasks and statuses that will be used to integrate with EPR M An updated staff o�rganizational chart for the departments/agencies involved i'n the project. 0 User names, user ro,les,department/agency affiliation, user email and phone number.An XLS document will be provided. M A sample representative document(s)for the Correction Report letter in Word format. N A representative sample of electronic stamps(saved in PNG format),for use by the EPR plan reviewers. o PNG images with transparent backgrounds are recommended. N Standard Comments/Checklists in Word or Excel format to be uploaded into the EPR Standard Comment Library,via an XLS template,provided by e-Plan. 0 A matrix that describes in any format that conta�ins: o A list of EPR users who should automatically be added to new project "teams' based on the type of project being reviewed. 10.28.2020 Page 14 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id"1011 r M 0 File-naming requirements for incoming documents. A Cl�ient email account(for example: don�otrep�ly@d�omainname.com)that EPR can use to send automated emails to Client staff(email notification a�lerts). Requires opening firewall port 25. EPR/Velosimo Responsibilities: Provide EPR/Accela expertise and answer any questions related to the integration Complete EPR/Accela integration analysis Agency Responsibilities: 0 Provide Velosimo an Accela user and all the Accela login details 0 Provide Accela records • Workflow processes • Task a�nd Status integration points 0 Provide all samples Correction reports 0 Provide all Standard Comments 3: EPR CONFIGURATION MILE,ST'O,NE Using the Configuration milestone to conduct hands-on training for the EPR Administrators has been determined to provide the method for retention. Once these tasks are complete, EPR training can begi'n. 0 Creation of User accounts. 0 Confirm the EPR groups(departmenits/agen�cies). 0 Configure the EPR application and project type lists. 0 Configure one Correction Report template. 0 Upload standard comments into the EPR Comment Library. N Configure the EPR color scheme"branding"and login page landi'ng image. 0 Upload Electronic stamps(.PNG format)and assign them to the appropriate Reviewers. N Confirm/configure the EPR permission settings. 0 Enter the Client email account th�at EPR will u�se to send autornated email�s to Client staff. For example: DoNotReply@Clientdomain.org 0 Create sample projects and upload sample plans for training of Client staff. Plans shall meet electronic submittal requirements. D�uring the completion of this milestone,the Client will validate that configuration for EPR is complete. The project schedule will be updated to indicate the completion of the Configuration milestone., EPR/Velosimo, Responsibilities: 9 Complete EPR Configuration Agency Responsibilities: 0 Validate EPR Configuration 10.28.2020 Page 15 1� 1 11 IIII I I 1�1 1� I 1� �i I II �1� ........................ id,`1011 r M 4: VELO�SIMO DESIGN AND DEVELOPMENT The Velosimo Connect product sits as a'middle tier' between Accela and EPR and will be responsible for triggering, watching and intercepting calls.This Scope includes connecting five(5)Accela record types and (2)two workflows. The following process will be�req�uired to complete the integration development between Accela and Velosimo: 1. Create an Agency support channel on Slack 0 �Invite agency to Velosimo support on its Slack channel. 2. Obtain access to or deploy a copy of the Accela sandbox for development and integration testing. 3. Perform a business,analysis&requirements gathering in,the Acce�la and ACA platforms to evalu�a�te scripting, workflow and business processes. 4. Capture requested or,out of scope functionality not included in this SOW for implementation. 5. Obtain Client sign off on the proposed integration bu�siniess plan. 6. Engineer and smoke test the bi-dir�ectiona�l integration touchpoints to EPR on the Accela development server, as defined in the FSD. 7. Proceed to User Acceptance Testing(UAT)to confirm the workflow process end to end. During the Accela integrat�ion configuration phase there are time requirements by City staff or contracted staff for the success of the project. The requirements during this phase of the project are as follows: 1. Subject matter expert(SME)for the City Acce�la process:40%of FTE 2. Accela technical staff: 60%of FTE These time requireme�nts can be fulfilled by one SME or multiple different people. PROPOSED SOLIFF/0N This section will cover all the integration connection points between Accela and Velosimo-EPR. The diagram is a high-level illustration of the five connection points in an EPR-Velosimo-Accela project life cycle. This is a mash up of screenshots form other agencies that are already live with EPR. iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliilil ' I 11111111111111111111,S"COLA Validatib iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillilillill,����Rlo,,U't,,eRec,�ol,rdiiiiiiiiiiillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillll> fi6L.i C;reafe Assignments t Acc,e�la Vdlnnsi�,Jmo eRlan,'Sof U pdalle W,"o i*f I ow Tasill, iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillillillillillillillillillillillillillillilliillillillillillillilliillillillillilliillillillilli ', -to Delivera, 11,111G,-e no ra 'ble,111111111111111111 10.28.2020 Page 16 ........................ id"1011 r M 5: USER ACCEPTANCE, TESTING MAT) In this milestone, the core project team will devote a dedicated period to test the full workflow from end to end between Accela, Velosimo and EPR. Requirements on the City for UAT testi'ng is typi'cally 1-2 of testing per workflow for each record type. The desired goal is to confirm that configured workflows and ESME script in Accela are working properly and that the data/documents and document versioning passed to EPR are being recorded correctly. Additionally, EPR calls to return information and documents to Accela are being properly captured. UAT TRAINING FOR INTAKE STAFF/MANAGERS/REVI EWERS Testing EPR and Accel�a includes the following: M Submitting the project in Accela Citizen Access M Processing incoming documents from Accela through intake to distribute plans to the appropriate staff. 0 Confirming the project is created in EPR with all the correct data 0 Confirming o�ptical character recognition (OCR)of the sheet numbers on,the incoming plans. 0 Performing plan review including adding comments, markups,stamps, measurements. 0 Completing an assignment task and confirming the corresponding Accela workflow task is updated correctly. 0 Genieratin�g a Correction Report. 0 Preparing a deliverable package for return to Accela. 0 Sending back the resubmit deliverable package from EPR to Accela. M Resubmitting plans in Accela Citizen Access. M Accepting and routing the next submittal to the,plan reviewers. M Stamping the final approved set of plans. M Downloading the a�pproved final set for long term retention. M Sending the Approved deliverab�le from EPR to Accela M Closing the project record in Accela. The Client needs to test every record and workflow process in ACA/Accela to be successful. Velosimo will provide assistance to help the Agency to see that the configuration meets definitions in all the deliverables. Velosimo will provide eighty(80) hours of during the overall project including consultation during UAT. Velosimo will assist the Agency in the testing and validation of the configuration and its readi'ness to be migrated to production for active use and will assist in transferring the system configuration and any required data from Dev/Test/Support to Production.The testing effort will require a significant time investment by the Agency,and coordination,of resources is critical. At this point in the implementation process,the Agency can further test individual components,of functionality of the configuration (i.,e.,functional and/or unit testing),and can al�so test to ensure th�at the interrelated parts of the Accela Automation and e-PlanSoft configuration are operating properly(i.e., integration testing). Velo�simio will provide assista�nce to the Agency as needed by providing User Acceptance Testing(UAT)support.Velosimo will address and rectify issues discovered d�uring the UAT process as Agency staff executes testing activities.Velosimo uses Slack for real-time customer support,some issues do not need a ticket and can be resolved in r�eal-time using this method. Velosimo recommends that the Agency develop a test plan and scripts,as well as an issue log to track the progress of testing. During User Acceptance testing,the Agency should expect to spend 2-4 hours per person, per record for testing all the EPR/Accela integration points and whole process in Accela 10.28.2020 Page 17 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id"1011 r M For example, if an Agency has 50 records to test it will take one person anywhere from 100 hours(2%weeks)to 200 hours(5 weeks). If during this time the Agency does not dedicate adequate resources to user acceptance testing, Velosimo will be forced to assess the progress and potentially assign resources to other projects until testing is properly executed by the Agency. EPR/Velosimo Responsibilities: Provide timely responses to Agency"s UAT bugs and questions related to Accela/Velosimo/Eli Fix all go-live critical bugs and log bugs not being fixed and provide a mitigation, plan on when bug will be resolved Agenicv Responsibilities: Identify Test cases for UAT Perform UAT and provide signo�ff 6: CONDUCTING EPRTRAINING e-PlanSoft will provide comprehensive training for EPR users per the schedule below.These sessions will occur onsite in the mornings and afternoons,over a two-day period. Training is offered as follows: Course Description intended Audience Session(s) Duration L'_111 Vellosirno training for Administrators: EPR and Accela Administrators 1 1 hour Monitoring the Velosimo dashboard API events. EPR training for Administrators: EPR and Accela Administrators 1 2 hours User accounts,permissions,configuration. EPIR training for Intake and Deliverables: Permit Intake staff,Group managers, 1 3 hours Scout inspection and OCR. Permit QA Supervisors Preparing Correction reports and project deliverables. EPIR training for Reviewers: Reviewers,Group managers,Permit QA 2 3 hours Performing plan review. Supervisors. Plain review using paper-based plans. Preparing Correction reports and project deliverables. *Additional training is available per the rate indicated on your Purchase Order/Sales Order. The Client will be requested to sign off on UAT when this milestone completes., TRAINING MATERIALS EPR online help can be accessed from within the products by selecting the help icon. Several traiining videos for users of the EPIR Review page are available. 10.28.2020 Page 18 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M TRAINING ENVIRONMENT To faci'litate the best possible experience, user training should be held in a classroom environment that provides: 1. Workstations/laptop for your staff running the latest version of Chrome. a. 27-inch monitors. 2. A large screen TV/projector. 3. A speaker phone. 4. A maximum c,lass size of 15 users is recommended to complete the training in the time allotted. 7: GO-LIVE - CLIENT SIGN OFF This completes the implementation of the project. All milestone deliverables are complete. SOFT LAUNCH FOR TARGETED CLIENTS We recommend a soft launch approach as,the Client rolls out to a targeted number of your constituents who have attended the ACA training session.This will provide some time for everyone to settle in and get comfortable with the process changes,,after which the Client can expand the offering on more clients in a m�a�naged schedule. COMMUNICATION Schedu�le communication event Client wide re:electronic plan review acceptance.,Announce a Go-Live date and update the Client website. Conduct Workshop events for training constituents on using ACA. It has been ou�r experience tha�t Applicants struggle with uploading documents as the 'next submittal'. Thiis is a critical function that can be resolved in Accel�a back office by your staff, but ongoing train�ing fo�r Applicants will be the most effective means of redu�cing this from occurring. 10.28.2020 Page 19 1� 1 11 1111 1 1 1�1 1� I 1� i 111 �1� ........................ id"1011 r M Y AS S U �M 0�N S • The Client has contracted Directly with Velosimo,to subscribe to the Velosimo Integration Platform as a Service to be connected as part of this project integrating e-PlanREVIEW and Accela Civic Platform. • The Client shall provide the required documentation for configuring the product as specified in this SOW. • The e-Plan Project Manager and Client POC will schedule weekly conference calls throughout the life cycle of this project. • The Client commits the necessary staff and dedicated resources be available for the agreed upon, project schedule Timeline. N Delays to the project caused by staff unavailability will negatively impact the project schedule. ..................... EPR is supported on the Chrome and EDGE browsers although Chrome is the preferred browser. EPR requi'res popups,to be enabled for the specific domain to which EPR is deployed. (Any Client policy to disable browser popups,must be allowed for your EPR URL.) We recommend that Adobe Reader be installed on workstations. EPR Reviewers should have at minimum two 27"+inch monitors running in high definition (1920x1080p). A graphics card capable of supporting two 27-inch+monitors is recommended. �1\4 I �N]TA WO 11(S AT�DNS EPR is supported on the Chrome and EDGE browsers although Chrome is,the preferred browser. EPR requires popups,to be enabled for the specific domain to,which EPR is deployed,. (Any Client policy to disable, browser popups,must be allowed for your EPR URL.) We recommend that Adobe Pro be installed on the Permit Intake workstations. 10.28.2020 Page 20 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id,`1011 r M The purpose of Project Change Management is to define the process that will be utilized by the project to manage and account for changes to project scope,cost, and schedule.All project tasks must be approached with an understanding of the project scope and critically examined within the context of project scope,cost,and schedule management. The purpose of Project Change Management is, not to eliminate change, but rather to define a process allowing the proposed changes to be properly identified,evaluated,and escalated as necessary.The Change Order Process is defined anyth�ing that cha�nges the Statement of Work,duration of the project or contract values.The Change Order Processes will follow the steps outlined below. A Change Order Request Form must be completed for all changes requested by either e-PlanSoft or the Client that further clar�ify impact or deviate from the approved SOW or MSA.The e-PlanSoft Project Manager will be responisible for managing all Change Order requests submitted on the project in accordance with the following process: N All requests must be submitted in writing to the e-PlanSoft Project Manager either by e-mail or hard copy to be recognized as a forma�l request.Verbal requests or voice mails will not be considered formal change order requests.The Change Order Request Form,shown in an Appendix of this SOW,should be used to document in detail the change and provide justification for why it is needed.The i'nitial submission must also document the estimated work effort and cost specifically for investigating what it would take to implement the change if approved. Based on the impact analysis and the estimated work effort and cost, representatives from both e-PlanSoft and the Client will jointly determine whether to proceed with the investigation. If the investigation is rejected,then the Change Order request is considered rejected and no further action is required. If it is accepted,then the requester(or its assignees)will then determine the impact of implementing the change on the project.The Client is responsible for completing any additional paperwork required as a result of this change(i.e. internal contract change documents). N In investigating the impact of the Change Order on the project,the requester(or its assignees)will determine the impact and change on the cost,schedule,and manpower originally estimated for the project.The requester will also determine the impact on the SOW and any revisions to,the la�nguage that may be required, as well as the estimated work effort a�nd cost to implement the Change Order.Once the investigation, ha�s been completed,the requester will complete the Change Order Request Form with the information gathered in this step and resubmit it to the project manager for coordinating the review and approval. 0 Based on the estimated work effort and cost, representatives from both e-PlanSoft and the Client will jointly determine whether to proceed with implementing the Change Order. If the implementation is rejected,then the Change Order request is considered rejected,and no further action is required. If the Change Order is accepted,the Change Order request is considered approved.Once all appropriate signatures have,been obtained for the Change Order,the approved Change Order will become part of the overall agreement and an amendment to the SOW.The amended SOW will become the new baseli'ne document upon which any new changes will be based. N Hourly rates defined in your Purchase Order/Sales Order will apply. 10.28.2020 Page 21 1� 1 11 1111 1 1 1�1 1� I 1� i 111 �1� ........................ id"1011 r M 011f CHANGE ORDER FORM Proposed Change(s)AND ReasonlJustification for Change(indicate Urgency Level) Urgericy Level: ffigh Medilum i.ow Project Name and Cuntro! NUMBER:, Requestor: 0irganalzatioll." Date of Request: Description of Change Impact of Change(s). Irnpact o�ri Resources-, Irnpact o�ri SchedWIei: Impact oii RequirerrieiMs:� 10.28.2020 Page 22 id"1011 r M Impact mn Cost,: Assumptions/Risk.15- Altematives to Proposed Change(s)(if any) SUMMARY of Total Impact of Change Resources: Schedule: Requirements-. Cost" 10.28.2020 Page 23 id,,1011 r M Please indicate the Client contact responsible for authorizing this SOW: Name: Title: Signature: Phone Number(s): Email: 10.28.2020 Page 24 id"1011 r M 011,111,111 C C G SUBSCIRI]'.)T'11011'�J Qu('11)"I"InE License e-P,IanREVIEW-Subscription Fee List Price $ 21000.00 $ e-PlanREVIEW-Subscription Fee Preferred Cu�stomier 75, License Discount $ 1,000.00 75,000.00 Subscription Fee Su�b-totaI $ 75,,000.00 IMPLEMENTATION, TRAINING 48 Hours Project Management $ 2010.0�O $ 91600.00 40 Hours EPIR Deployment,Set Up and Configuration $ 200.00 $ 81000-00 40 Hours Accela Integration Platform Configuration S,upport $ 20�0.0�O $ 8,000.00 Web Based User Training-Train the Traiiner(Onsite 1 Day(s) Optional) $ 11600-00 $ 11600-00 1 Day(s) Virtual GoLive Support(Onsite Optionia,l) $ 1,600.00 $ 1,600.00 Implementation Sub-totaI $ 28,,800�.00 ,Subscription and Implementation Fee Total $ 103,,800.00 Recurring Subscdption fee e-PlanREVIEW-Subscription Fee Preferred Cu�stomier 75 License Discount $ 11000.00 $ 7510�00.00 Recurring Subscription Total $ 75,0000.00 This Quote is governed by the e-PlanSoft Master Services Agreement. *Subscription License fees are charged annually and include cloud hosting,feature rele�ases,produ�ct updates,user documentation,,telephone,email,and online support. Discount: 50%discount based on a three(3)year contract agree�me�nt. Any reduction of licenses within this period will result in increase in of user license,to list price. *Subscription License Fees are subject to an annual adjustment of 5%. *Su�bscription,fees are due at time of signing. *Travel expenses&Per Diem billed at Cost. 'This Quote is valid until for 90 days. 10.28.2020 Page 25 1� 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ id"1011 r M Payment Milestone Schedule City of Chula Vista, CA Contract Signed e-PlanREVIEW-Subscription Fee Preferred Customer Discount $75.,000.00 Total Year 1 Subscription Fee (Due at Signing) $75?000.00 Professional Services- Milestones Contract Acceptance (Due at Signing) 80% $23,040.00 Go Live-Cl�ient Signoff 20% $5,760-00 Total Professional Services Fee $28,p8OO.00 Total Year I Project Fee $103.,800.00 Recurring e-PlanREVIEW SUbscrip�tion Year 2: e-PlanREVIEW-Subscription Fee Preferred Customer Discount $78,350.00 Year 3: e-PlanREVIEW-Subscription Fee Preferred Customer Discount $82,1687.00 Year 4: e-PlanREVIEW-Subscription Fee Preferred Customer Discount $86?822.00 Year 5: e-PlanREVIEW-Subscription Fee Preferred Customer Discount $91,1163.00 *e-PlaInIREVIEW License Due on date of contract execution. *P,rofessional services invoiced upon milestone completion. *Yearly Subscription Fees due on anniversary of contract signing. *Travel expenses billed at cost 10.28.2020 Page 26 1 1 1 11 1111 1 1 1�1 1� I 1� �i 111 �1� ........................ CITY OF CHULA VISTA CONSULTANT SERVICES AGREEMENT WITH i YELOSIMO, INC.� TO PROVIDE SOFTWARE INTEGRATION PLATFORM IMPLEMENTATION, LICENSING, SUPPORT, AND MAINTENANCE SERVICES, This Agreement is entered into effective as of I�4ovember 4, 2020�("Effective Date") by and between the City of Chula Vista, a chartered municipal corporation ("City") and Velosimo, Inc., a Delaware Corporation ("Consultant"), (collectively, the "Parties" and, individually, a"Party") with reference to the following facts: RECITALS WHEREAS,the City requires a software integration platform as service to integrate various development automation technology solutions,including Accela Automation, SeamlessDocs,Laserfiche,Tyler Cashiering, and e-PlanSoft�- and WHEREAS,Consultant offers the only software integration platform as service specifically designed for the government sector�, and WHEREAS, Consultant is the Accela preferred partner for integrations with Accela Automation,resulting in unique performance capabilities,- and WHEREAS, Consultant offers a uniquely proprietary product, preferred for integrations with the City's, permit processing software, resulting in unique compatibility requirements and unique performance capabilities and therefore a formal solicitation of proposed services would not be productive; and WHEREAS, pursuant to Chula Vista Municipal Code (CVMC) Section 2.56.070(B)(4) and the above facts, the Purchasing Agent has determined that Consultant is uniquely qualified to serve as the Consultant for this project and that the proposal shall not be subject to competitive bidding requirements. WHEREAS,, Consultant warrants and represents,that it is experienced and staffed in a manner such that it can deliver the services required of Consultant to City in accordance with the time frames and the terms and conditions of this Agreement. [End of Recitals. Next Page Starts Obligatory Provisions.] Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 105 of 5019 OBLIGATORY PROVISIONS NOW, THEREFORE, in consideration of the above recitals, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, City and Consultant hereby agree as follows: 1. SERVICES 1.1 Required Services. Consultant agrees to perform the services, and deliver to City the "Deliverables" (if any) described in the attached Exhibit A, incorporated into the Agreement by this reference, within the time frames set forth therein, time being of the essence for this Agreement. The services and/or Deliverables described in Exhibit A shall be referred to herein as the "Required Services." 1.2 Reductions in Scope of Work. City may independently, or upon request from Consultant, from time to time, reduce the Required Services to be performed by the Consultant under this, Agreement. Upon doing Sol City and Consultant agree to meet and confer in good faith for the purpose of negotiating a corresponding reduction in the compensation associated with the reduction. 1.3 Additional Services. Subject to compliance with the City's Charter, codes, policies, procedures and ordinances governing procurement and purchasing authority, City may request Consultant provide additional services related to the Required Services ("Additional Services")�. If so, City and Consultant agree to meet and confer in good faith for the purpose of negotiating an amendment to Exhibit A, to add the Additional Services. Unless otherwise agreed, compensation for the Additional Services shall be charged and paid consistent with the rates and terms already provided therein. Once added to Exhibit A, "Additional Services" shall also become "Required Services," for purposes of this Agreement. 1.4 Standard of Care. Consultant expressly warrants and agrees that any and all Required Services, hereunder shall be performed in accordance with the highest standard of care exercised by members of the profession currently practicing under similar conditions and in similar locations. 1.5 No Waiver of Standard of Care. Where approval by City is required, it is understood to be conceptual, approval only and does not relieve the Consultant of responsibility for complying with all laws,codes, industry standards, and hability for damages, caused by negligent acts, errors, omissions, noncompliance with industry standards, or the willful misconduct of the Consultant or its subcontractors. 1.6 Performance. In the event that Exhibit A Section 4 indicates the need for Consultant to provide additional security for performance of its duties under this Agreement, Consultant shall provide such additional security prior to commencement of its Required Services in the form and on the terms prescribed on Exhibit A, or as otherwise prescribed by the City Attorney. 1.7 Compliance with Laws. In its performance of the Required Services, Consultant shall comply with any and all applicable federal, state and local laws, including the Chula Vista Municipal Code. 1.8 Business License. Prior to commencement of work, Consultant shall obtain a business license from city. 1.9 Subcontractors. Prior to commencement of any work, Consultant shall submit for City's information and approval a list of any and all subcontractors to be used by Consultant in the performance of the Required Services. Consultant agrees to take appropriate measures necessary to ensure that all subcontractors and 2 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 106 of 5019 personnel utilized by the Consultant to complete its obligations under this Agreement comply with all applicable laws, regulations, ordinances, and policies, whether federal, state, or local. In addition, if any subcontractor is expected to fulfill any responsibilities of the Consultant under this Agreement, Consultant shall ensure that each and every subcontractor carries out the Consultant's responsibilities as set forth in this Agreement. 1.10 Term. This Agreement shall commence on the earlier to occur of the Effective Date or Consultant's commencement of the!Required Services hereunder, and shall terminate when the Parties have complied with all their obligations hereunder; provided, however, provisions which expressly survive termination shall remain in effect. 1.11 Other Agreements. The Parties previously entered into the Velosimo Services Agreement, attached as Exhibit E to this Agreement.Exhibit Al,"Scope of Work,"and its Attachment 1,"Description of Services," of the Velosimo Services Agreement set forth the work and are incorporated into this Agreement and the work described therein is incorporated into the Required Services, of this Agreement. In all other respects, this Agreement supersedes the Velosimo Services Agreement and the terms of this Agreement control the relationship between the Parties,with respect to the subject matters herein,is incorporated into this Agreement and its terms and conditions shall apply. In the event of a conflict in provisions between the Velosimo Services Agreement and this Agreement, the terms and conditions of this Agreement shall take precedence. 2. COMPENSATION 2.1 General. For satisfactory performance of the Required Services,City agrees to compensate Consultant in the amount(s) and on the terms set forth in Exhibit A, Section 4. Standard terms for billing and payment are set forth in this, Section 2. 2.2 Detailed Inv . Consultant agrees to provide City with a detailed invoice for services perfon-ned each month, within thirty (30) days of the end of the month in which the services were performed, unless otherwise specified in Exhibit A. Invoicing shall begin on the first of the month following the Effective Date of the Agreement. All charges must be presented in a line item format with each task separately explained in reasonable detail. Each invoice shall include the current monthly amount being billed, the amount invoiced to date, and the remaining amount available under any approved budget. Consultant must obtain prior written authorization from City for any fees or expenses that exceed the estimated budget. 2.3 Payment to Consultant. Upon receipt of a properly prepared invoice and confirmation that the Required Services detailed in the invoice have been satisfactorily performed, City shall pay Consultant for the invoice amount within thirty(30)days.Payment shall be made in accordance with the terms and conditions, set forth in Exhibit A and section 2.4, 'below. At City's discretion, invoices not timely submitted may be subject to a penalty of up to five percent (5%,) of the amount invoiced. 2.4 Retention Policy. City shall retain ten percent(10%)of the amount due for Required Services detailed on each invoice (the "holdback amount"). Upon City review and determination of Project Completion, the boldback amount will be issued to Consultant. 2.5 Reimbursement of Costs. City may reimburse Consultant's out-of-pocket costs incurred by Consultant in the performance of the Required Services if negotiated in advance and included in Exhibit A. Unless specifically provided in Exhibit A,Consultant shall be responsible for any and all out-of-pocket costs incurred by Consultant in the performance of the Required Services. 3 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 107 of 5019 2.6 Exclusions. City shall not be responsible for payment to Consultant for any fees or costs in excess of any agreed upon budget, rate or other maximum amount(s) provided for in Exhibit A. City shall also not be responsible for any cost: (a) incurred prior to the Effective Date; or (b) arising out of or related to the errors, omissions, negligence or acts of willful misconduct of Consultant, its agents, employees, or subcontractors. 2.7 Payment Not Final Approval. Consultant understands and agrees that payment to the Consultant or reimbursement for any Consultant costs related to the performance of Required Services does not constitute a City final decision regarding whether such payment or cost reimbursement is allowable and eligible for payment under this Agreement, nor does it constitute a waiver of any violation by Consultant of the terms of this Agreement. If City determines that Consultant is not entitled to receive any amount of compensation already paid, City will notify Consultant in writing and Consultant shall promptly return such amount. 3. INSURANCE 3.1 Required Insurance. Consultant must procure and maintain,, during the period of performance of Required Services under this Agreement, and for twelve months after completion of Required Services, the policies of insurance described on the attached Exhibit B, incorporated into the Agreement by this, reference (the "Required Insurance")�. The Required Insurance shall also comply with all other terms of this Section. 3.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions relating to the Required Insurance must be disclosed to and approved by City in advance of the commencement of work. 3.3 Standards for Insurers. Required Insurance must be placed with licensed insurers admitted to transact business in the State of California with a current A.M. Best's rating of A V or better, or, if insurance is placed with a surplus lines, insurer, insurer must be listed on the State of California List of Eligible Surplus, Lines Insurers (LESLI) with a current A.M. Best's rating of no less than A X. For Workers' Compensation Insurance, insurance issued by the State Compensation Fund is also acceptable. 3.4 Subcontractors. Consultant must include all sub-c ons,ultants/sub-contractors as insureds under its policies and/or furnish separate certificates and endorsements demonstrating separate coverage for those not under its policies. Any separate coverage for sub-consultants must also comply with the terms of this Agreement. 3.5 Additional Insureds. City, its officers, officials, employees, agents, and volunteers mustbe named as additional insureds with respect to any policy of general liability, automobile, or pollution insurance specified as required in Exhibit B or as may otherwise be specified by City's Risk Manager.. The general liability additional insured coverage must be provided in the form of an endorsement to the Consultant's insurance using ISO CG 2010 (11/85) or its equivalent; such endorsement must not exclude Products/Completed Operations coverage. 3.6 General Liability Coverage to be 'Vrimary." Consultant's general. liability coverage must be primary insurance as it pertains to the City, its officers, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers is wholly separate from the insurance provided by Consultant and in no way relieves Consultant from its responsibility to provide insurance. 3.7 'No Cancellation. No Required Insurance policy may be canceled by either Party during the required insured period under this Agreement,except after thirty days' prior written notice to the City by certified mail, 4 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 108 of 5019 return receipt requested. Prior to the effective date of any such cancellation Consultant must procure and put into effect equivalent cove!rage(s)�. 3.8 Waiver of Subrogation. Consultant's insurer(s) will provide a Waiver of Subrogation in favor of the City for each Required Insurance policy under this Agreement. In addition, Consultant waives any right it may have or may obtain to subrogation for a claim against City. 3.9 Verification of Coverage. Prior to commencement of any work, Consultant shall furnish City with original certificates of insurance and any amendatory endorsements necessary to demonstrate to City that Consultant has obtained the Required Insurance in compliance with the terms of this Agreement. The words 44will endeavor" and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents, or representatives"or any similar language must be deleted from all certificates. The required certificates and endorsements should otherwise be on industry standard forms. The City reserves the right to require, at any time, complete, certified copies of all required insurance policies, including endorsements evidencing the coverage required by these specifications. 3.10 Claims Made Policy Requirements,. If General Liability,Pollution and/or Asbestos Pollution Liability and/or Errors & Omissions coverage are required and are provided on a claims-made form, the following requirements also apply: a. The "Retro Date"must be shown, and must be before the date of this Agreement or the beginning of the work required by this Agreement. b. Insurance must be maintained, and evidence of insurance must be provided, for at least five (5) years after completion of the work required by this Agreement. c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a "Retro Date" prior to the effective date of this Agreement, the Consultant must purchase "extended reporting"coverage for a minimum of five(5)years after completion of the work required by this Agreement. d. A copy of the claims reporting requirements must be submitted to the City for review. 3.11 Not a Limitation of Other Obligations. Insurance provisions under this section shall not be construed to limit the Consultant's obligations under this Agreement, including Indemnity. 3.12 Additional Cover . To the extent that insurance coverage provided by Consultant maintains higher limits than the minimums appearing in Exhibit B, City requires, and shall be entitled to coverage for higher limits maintained. 4. INDEMNIFICATION 4.1. General. To the maximum extent allowed by law, Consultant shall protect,defend,indemnify and hold harmless City, its elected and appointed officers, agents, employees and volunteers (collectively, "Indemnified Parties"), from and against any and all, claims, demands, causes of action, costs, expenses, (including reasonable attorneys' fees and court costs)�, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged acts, omissions, negligence, or willful misconduct of Consultant, its officials, officers, employees, agents, and contractors, arising out of or in connection with the performance of the Required Services, the results of such performance, or this Agreement. This indemnity provision does not include any claims, damages, liability, 5 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 109 of 5019 costs and expenses arising from the sole negligence or willful misconduct of the Indemnified Parties. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the Indemnified Parties which may be in combination with the active or passive negligent acts or omissions of the Consultant, its employees, agents or officers, or any third party. 4.2. Modified Indemnity Where Agreement Involves Design Professional Services. Notwithstanding the forgoing, if the services provided under this Agreement are design professional services, as defined by California Civil Code section 2782.8, as may be amended from time to time, the defense and indemnity obligation under Section I, above, shall be limited to the extent required by California Civil Code section 2782.8. 4.3 Costs of Defense and Award. Included in Consultant's obligations under this Section�4 is Consultant's obligation to defend, at Consultant's own cost, expense and risk, any and all suits, actions or other legal proceedings that may be brought or instituted against one or more of the Indemnified Parties. Subject to the limitations in this Section 4, Consultant shall pay and satisfy any judgment, award or decree that may be rendered against one or more of the Indemnified Parties for any and all related legal expenses and costs incurred by any of them. 4.4. Consultant's Obligations Not Limited or Modified. Consultant's obligations under this Section 4 shall not be limited to insurance proceeds, if any,received by the Indemnified Parties, or by any prior or subsequent declaration by the Consultant. Furthermore, Consultant's obligations under this Section 4 shall in no way limit, modify or excuse any of Consultant's other obligations or duties under this Agreement. 4.5. 'Enforcement Costs. Consultant agrees to pay any and all costs City incurs in enforcing Consultant's obligations under this Section 4. 4.6 Survival. Consultant's obligations,under this Section 4 shall survive the termination of this Agreement. 5. FINANCIAL INTERESTS OF CONSULTANT. 5.1 Form 700 F The California Political Reform Act and the Chula Vista Conflict of Interest Code require certain government officials and consultants performing work for government agencies to publicly disclose certain of their personal assets and income using a Statement of Economic Interests form(Form 700). In order to assure compliance with these requirements,, Consultant shall comply with the disclosure requirements identified in the attached Exhibit C, incorporated into the Agreement by this reference. 5.2 Disclosures-, Prohibited Interests. Independent of whether Consultant is required to file a Form 700, Consultant warrants and represents that it has disclosed to City any economic interests heldby Consultant, or its employees or subcontractors who will be performing the Required Services, in any real property or project which is the subject of this Agreement. Consultant warrants and represents that it has not employed or retained any company or person, other than a bona fide employee or approved subcontractor working solely for Consultant,to solicit or secure this Agreement. Further, Consultant warrants and represents that it has not paid or agreed to pay any company or person, other than a bona fide employee or approved subcontractor working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. Consultant further warrants and represents that no officer or employee of City, has any interest, whether contractual, non-contractual, financial or otherwise, in this transaction, the proceeds hereof, or in the business of Consultant or Consultant"s subcontractors. Consultant further agrees to notify City in the event any such interest is discovered whether (i Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11.0 of 5019 or not such interest is prohibited by law or this Agreement. For breach or violation of any of these warranties, City shall have the right to rescind this Agreement without liability. 6. REMEDIES 6.1 Termination for Cause, If for any reason whatsoever Consultant shall fail to perform the Required Services under this Agreement, in a proper or timely manner, or if Consultant shall violate any of the other covenants, agreements or conditions of this Agreement (each a "Default"), in addition to any and all other rights and remedies City may have under this Agreement, at law or in equity, City shall have the right to terminate! this Agreement by giving five (5) days written notice to Consultant. Such notice shall identify the Default and the Agreement termination date. If Consultant notifies City of its intent to cure such Default prior to City's specified termination date, and City agrees that the! specified Default is capable of being cured, City may grant Consultant up to ten (10) additional days after the designated termination date to effectuate such cure. Consultant may be entitled to compensation for work satisfactorily performed prior to Consultant's receipt of the Default notice; provided, however, in no event shall such compensation exceed the amount that would have been payable under this Agreement for such work, and any such compensation shall be reduced by any costs incurred or projected to be incurred by City as a result of the Default. 6.2 'Termination or Suspension for Convenience of City. City may suspend or terminate this Agreement, or any portion of the Required Services, at any time and for any reason, with or without cause, by giving specific written notice to Consultant of such termination or suspension at least fifteen (15) days prior to the effective date thereof. Consultant shall be entitled to receive just and equitable compensation in an amount equal to the amount due and payable under this Agreement for work satisfactorily performed as of the date of the termination/suspension notice plus any additional remaining Required Services requested or approved by City in advance that would maximize City's value under the Agreement. 6.3 Waiver of Claims. In the event City terminates the Agreement in accordance with the terms of this Section, Consultant hereby expressly waives any and all claims for damages or compensation as a result of such termination except as expressly provided in this Section 6. 6.4 'Administrative Claims, Requirements, and Procedures. No suit or arbitration shall be brought arising out of this Agreement against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures, set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may be amended,the provisions of which, including such policies and procedures used by City in the implementation of same, are incorporated herein by this, reference. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 6.5 Goveming Law/Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in San Diego County, State of California. 6.6 'Service of Process. Consultant agrees that it is subject to personal. jurisdiction in California. If Consultant is a foreign corporation, limited liability company, or partnership that is not registered with the California Secretary of State, Consultant irrevocably consents to service of process on Consultant by first class mail directed to the individual and address listed under"For Legal Notice," in section I.B. of Exhibit A to this Agreement, and that such service shall be effective five days after mailing. 7 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-11-03 Agenda Packet Page 11,1 of 5019 7. OWNERSHIP AND USE OF WORK PRODUCT The Velosimo Master Subscription Agreement, attached as Exhibit D, is incorporated into this Agreement and its terms and conditions govern City's subscription to and license and use of the Velosimo software products detailed in Exhib�it A, hereto. Software is being licensed by the City and no ownership of Work Product is being provided. In the event of a conflict in provisions between the Velosimo Master Subscription Agreement and this Agreement, the terms and conditions of this Agreement shall take precedence. 8. GENERAL PROVISIONS 8.1 Amendment. This Agreement may be amended, but only in writing signed by both Parties. 8.2 Assignment. City would not have entered into this Agreement but for Consultant's unique qualifications and traits. Consultant shall not assign any of its rights or responsibilities under this Agreement, nor any part hereof, without City's prior written consent, which City may grant, condition or deny in its sole discretion. 8.3 Autho The person(s) executing this Agreement for Consultant warrants and represents that they have the authority to execute same on behalf of Consultant and to bind Consultant to its obligations hereunder without any further action or direction from Consultant or any board, principle or officer thereof. 8.4 Counterparts. This Agreement may be executed in counterparts., each of which shall be deemed an original,but all of which shall constitute one Agreement after each Party has signed such a counterpart. 8.5 Entire Agreement. This Agreement together with all exhibits attached hereto and other agreements expressly referred to herein, constitutes the entire Agreement between the Parties with respect to the subject matter contained herein. All exhibits referenced herein shall be attached hereto and are incorporated herein by reference. All prior or contemporaneous agreements, understandings, representations, warranties and statements, oral or written, are superseded. 8.6 Record Retention. During the course of the Agreement and for three (3) years following completion of the Required Services, Consultant agrees to maintain, intact and readily accessible, all data, documents, reports, records, contracts, and supporting materials relating to the performance of the Agreement, including accounting for costs and expenses charged to City, including such records in the possession of sub- contractors/sub-consultants. 8.7 Further Assurances. The Parties agree to perform such further acts and to execute and deliver such additional documents and instruments as may be reasonably required in order to carry out the provisions of this Agreement and the intentions of the Parties. 8.8 Indep ndent Contractor. Consultant is and shall at all times remain as to City a wholly independent contractor. Neither City nor any of its officers, employees, agents or volunteers shall have control. over the conduct of Consultant or any of Consultant's officers, emp�loyees, or agents ("Consultant Related Individuals"), except as set forth in this Agreement. No Consultant Related Individuals shall be deemed employees of City, and none of them shall, be entitled to any benefits to which City employees are entitled, including but not limited to�, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Furthermore, City will not withho�ld state or federal income tax, social security tax or any other payroll tax with respect to any Consultant Related Individuals; instead, Consultant shallbe solely responsible for the payment of same and shall hold the City harmless with respect to same. Consultant shall 8 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,2 of 5 019 not at any time or in any manner represent that it or any of its Consultant Related Individuals are employees or agents of City. Consultant shall not incur or have the power to incur any debt, obligation or liability whatsoever against City, or bind City in any manner. 8.9 Notices. All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any Party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such Party, postage prepaid, registered or certified, with return receipt requested,, at the addresses identified in this Agreement at the places of business for each of the designated Parties as indicated in Exhibit A, or otherwise provided in writing. 8.10 Electronic Signatures. Each Party agrees that the electronic signatures,whether digital or encrypted, of the Parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic so�und, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures,pursuant to the California Uniform Electronic Transactions Act (Cal. Civ. Code §§ 1633.1 to 1633.17) as amended from time to time. (End of page. Next page is signature page.) 9 City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-11-03 Agenda Packet Page 11,3 of 5 019 SIGNATURE PAGE CONSULTANT SERVICES AGREEMENT IN WITNESS, WHEREOF, by executing this Agreement where indicated below, City and Consultant agree that they have read and understood all terms and conditions of the Agreement, that they fully agree and consent to bound by same, and that they are freely entering into this Agreement as of the Effective Date. VELOSIMO, INC. CITY OF CHULA VISTA BY: BY: Peter Grace Maria V. Kachadoorian President and COO City Manager APPROVED AS TO FORM BY: Glen R. Googins City Attorney to City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,4 of 5 019 EXHIBIT A SCOPE OF WORK AND PAYMENT TERMS 1. Contact People for Contract Administration and Legal Notice A. City Contract Administration: ,Tiffany Allen Development Services Department 276 Fourth Avenue Chula Vista, CA 919 1 O� 619�-691-5179� tallengchulavistaca.gov� For Legal Notice Copy to: City of Chula Vista City Attorney 276 Fourth Avenue, Chula Vista, CA 91910 619-691-5037 CityAttomeygchulavistaca.gov B. Consultant Contract Administration: Velosimo, Inc* Attn: Peter Grace 6217 Acacia Avenue Oakland, CA 94618� �510-520-520$ petergvelosimo.com, For Legal Notice Copy to: .Legal Department 6217 Acacia Avenue Oakland, CA 94618� 510-520-520$ legalgvelosimo.com, 2. Required Services A. General Description: Consultant will provide a software integration platform as service to integrate various development automation technology solutions, including Accela Automation, SeamlessDocs, Laserfiche, Tyler Cashiering, and e- PlanSoft B. Detailed Description: Consultant will provide integration between Accela Automation and Laserfiche, Accela Automation and Tyler Cashiering, Accela Automation and e-Plan Soft, SeamlessDocs and Laserfiche, SeamlessDocs and Tyler Cashiering, to include the following Tasks and Deliverables: iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillillillI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliilillillilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilliillilliilillillillillillillillilliillillillillillillilliillillillillillillilI i it City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,5 of 5 019 Task Description Defiverables I Design and Development 0 Obtain access to, or deploy, test environment 0 Perform a business analysis & requirements gathering to evaluate scripting, workflow, and business processes, as applicable 0 Capture requested or out of scope functionality 0 Obtain client sign-off on the proposed integration business plan 0 Engineer and test bi-,directional integrations 0 Proceed to user acceptance testing 5 User Acceptance Testing 0 Confirm that configured workflows and scripts are working properly and that the data and document versioning passed between systems are being recorded correctly 8 Ongoing License, Support, and Velosimo 3.0 Connect integration Platform as a Maintenance Services Service (iPaas) Subscription for the following: • Accela Automation to Laserfiche • Accela Automation to Tyler Cashiering • Accela Automation to e-PlanSoft • SeamlessDocs to Laserfiche • SeamlessDocs to Tyler Cashiering 3. Term-,o In accordance with Section 1.10 of this Agreement, the term of this Agreement shall begin November 41� 2020,and end on November 3, 2025 �for completion of all Required Services. 4. Compensation: A. Form of Compensation FX Fixed Fee Paid in Increments. For the completion of each Deliverable of the Required Services, as identified in section 2.B., above, City shall pay the fixed fee associated with each Deliverable, in the amounts set forth below: Task Amount Amount 0 No. Deliverable One-Time Annual, Ongo�ing 1 - 5 Contract Acceptance (due upon signing) $121000 8 Annual License Support, and Maintenance Services • Year I (November 4, 2020—November 3, 20�2 1) $10000 * Accela Automation to Laserfiche $0 * Acc,ela Automation to Tyler Cashiering $0 * Accela Automation to e-PlanSofi $1 0�000 * SeamlessDocs to Laserfiche $0 * SeamlessDocs' to Tyler Cashiering $0 • Year 2 (November 4, 2021 —November 3, 20�22) $101000 o Acc,ela Automation to Laserfiche $0 12 City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,6 of 5 019 o Accela Automation to Tyler Cashiering $0 o Accela Automation to e-PlanSqft $10,000 o SeamlessDocs to Laserfiche $0 o SeamlessDocs to Tyler Cashiering $0 • Year 3 (November�4, 2022—November 3, 2023) $10000 • Accela Automation to Laserfiche $0 • Accela Automation to Tyler Cashiering $0 • Accela Automation to e-PlanSoft $10,000 • SeamlessDocs to Lase�fiche $0 • SeamlessDocs to Tyler Cashiering $0 • Year 4 (November�4, 2023 —November 3, 2024) $4500 • Accela Automation to Laserfiche $10,000 • Accela Automation to Tyler Cashiering $10,000 • Accela Automation to e-PlanSqft $10,9000 • SeamlessDocs to Laserfiche $51000 • SeamlessDocs to Tyler Cashiering $10,9000 • Year 5 (November 4, 2024—November 3, 2025) $45,1000 • Accela Automation to Lase�fiche $101000 • Accela Automation to Tyler Cashiering $10,9000 • Accela Automation to e-PlanSqfi $101000 • SeamlessDocs to Laserfiche $5,000 • SeamlessDocs to Tyler Cashiering $101000 B. Reimbursement of Costs, FX Invoiced or agreed-upon amounts as follows: Travel expenses shallbe billed at actual cost, subject to prior written approval, and confirmation of costs, by City. , Notwithstanding the foregoing, the maximum amount to be paid to the Consultant for services performed through November 3,, 2025, shall not exceed $300,000�- 5. Special Provisions: FX,Permitted Su'b-Consultants: None, X Security for Performance.- None,, FX_� Notwitb standing the completion date set forth in Section 3 above, City has option to extend this Agreement for 5 additional,terms, defined as a one-year increment. The City Manager or Director of Finance/Treasurer shall be authorized to exercise the extensions on behalf of the City. If the City exercises an option to extend, each extension shall be on the same terms and conditions contained herein, provided that the amounts specified in Section 4 above may be increased by up to 8%for each extension. The City shall give written notice to Consultant of the City's election to exercise the extension via the Notice of Exercise of Option to Extend document. iiiiiiiiiiiiiiiiiiiiill��illillillillillillilliillillilillilllI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliililillillillillillillillillilliillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilI 1131 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,7 of 5 019 X71 EXHIBIT B INSURANCE REQUIREMENTS Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Consultant, its agents, representatives, or employees. Consultant shall procure and maintain for the duration of the contract insurance claims arising out of their professional services and including, but not limited to loss, damage, theft or other misuse of data, infringement of intellectual property, invasion of privacy and breach of data. MINIMUM SCOPE AND LIMIT OF INSURANCE Coverage shall be at least as broad as: 1. Commercial General Liability (CGL),- Insurance Services Office Form CG 00 01 covering CGL on an (.4occurrence" basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $1,0�O�O�,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit. 2. Automobile Liability: Insurance Services Office Form Number CA 0001 covering, Code 1. (any auto), or if Consultant has no owned autos, Code 8 (hired)and 9 (non-owned), with limit no less than$1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation insurance as required by the State of California, with Statutory Limits, and Employer's Liability Insurance with limit of no less than $1,0�O�O�,000 per accident for bodily injury or disease. (Not required if consultant provides written verification it has no employees) 4. Technology Professional Liability Errors and Omissions Insurance appropriate to the Consultant's profession and work hereunder, with limits not less than $2,000,000 per occurrence. Coverage shall be sufficiently broad to respond to the duties and obligations as is undertaken by the Vendor in this agreement and shall include, but not be limited to, claims involving infringement of intellectual property, copyright, trademark, invasion of privacy violations, information theft, release of private information, extortion and network security. The policy shall provide coverage for breach response costs as well, as regulatory fines and penalties as well as credit monitoring expenses with limits sufficient to respond to these obligations. a. The Policy shall include,or be endorsed to include,property damage liability coverage for damage to, alteration of, loss o�f, or destruction. of electronic data and/or informatio�n "property" of the Agency in the care, custody, or control of the Vendor. If not covered under the Vendor's liability policy, such "property" coverage of the Agency may be endorsed onto the Vendor's Cyber Liability Policy as covered property as follows: b. Cyber Liability coverage in an amount sufficient to cover the full replacement value of damage to, alteration of, loss of, or destruction of electronic data and/or information "property" of the Agency that will be in the care, custody, or control, of Vendor. c. The Insurance obligations under this agreement shall be the greater of I—all the Insurance coverage and limits carried by or available to the Vendor; or 2— the minimum Insurance 14 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 11,8 of 5 019 requirements shown in this agreement. Any insurance proceeds in excess of the specified limits and coverage required, which are applicable to a given loss, shall be available to Agency. No representation is made that the minimum Insurance requirements of this agreement are sufficient to cover the indemnity or other obligations of the Vendor under this agreement. If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the City requires and shall be entitled to the broader coverage and/or the higher limits maintained by the contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Self-Insured Retentions Self-insured retentions must be! declared to and approved by the City. At the option of the City, either: the contractor shall cause!the! insurer shall to reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City. Other Insurance Provisions The insurance policies are to contain, or be endorsed to contain, the following provisions: Additional Insured Status The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to the Consultant's insurance (at least as broad as ISO Form CG 20 10 11 85 or both CG 20 1 O� CG 20 26� CG 20 33, or CG 20 3 8; CG 20 37 forms if later revisions used). Primary Coverage For any claims related to this contract, the Consultant's 'insurance coverage shall be primary insurance primary coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its, officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it. Notice of Cancellation I Eac"n insurance policy required above shall state that coverage shall not be canceled, except with notice to the City. Waiver of Subrogation Consultant hereby grants to City a waiver of any right to subrogation which any insurer of said Consultant may acquire against the City by virtue of the payment of any loss under such insurance. Consultant agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation, but this provision applies regardless of whether or not the City has received a waiver of subrogation endorsement from the insurer. iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillillillI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliillillilillllillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilliillillillillillillillillillillilliillillillillillillilliillillillillillillilI 15 City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-11-03 Agenda Packet Page 11,9 of 5 019 Setf-'Insured Retentions Self-insured retentions must be declared to and approved by the City. The City may require the Consultant to *de proof of ability to pay losses and related investigations, claim administration and defense expenses provi I I within the!retention. The policy language shall provide, or be endorsed to provide, that the! self-insured retention may be satisfied by either the named insured or City. Acceptability of Insurers Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best's rating of no less than ANII, unless otherwise acceptable to the City. Claims Made Policies If any of the required policies provide coverage on a claims-made basis: L The Retroactive Date must be shown and must be before the date of the contract or the beginning of contract work. 2. Insurance must be maintained and evidence of insurance must be providedfor at leastfive(5)years after completion of the contract of work. 3. If coverage is canceled or non-renewed, and not replaced with another claims-made policyform with a Retroactive Date prior to the contract effective date,, the Consultant must purchase "extended reporting" coverage for a minimum offive (5) years after completion of contract work. Verification of Coverage Consultant shall furnish the City with orivrinal Certificates of Insurance includima, all required amendat endorsements (or copies of the applicable -policy language effectima, cover required by this clause) and a copy of the Declarations, and Endorsement Page of the CGL policy listing all policy endorsements,.to City before work begins. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The City reserves, the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time. Subcontractors Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. Special Risks or Circumstances City reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances. iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillillI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliilillillillillillillilllillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillillilillillilillillillillillillillilliillillillillillillilliillillillillillillilI 'F6 Cit;of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 120 of 5019 EXHIBIT C CONSULTANT CONFLICT OF INTEREST DESIGNATION The Political Reform Act' and the Chula Vista Conflict of Interest Code 2 ("Code") require designated state and local government officials, including some consultants, to make certain public disclosures using a Statement of Economic Interests form (Form 700). Once filed, a Form 700 is a public document, accessible to any member of the public. In addition, consultants designated to file the Form 700 are also required to comply with certain ethics 3 training requirements. 10 �A. Consultant IS a corporation or limited liability company and is therefore EXCLUDED 4 from disclosure. El B. Consultant NOT a corporation or limited liability company and disclosure designation is as follows: APPLICABLE DESIGNATIONS FOR INDIVIDUAL(S) ASSIGNED TO PROVIDE SERVICES (Category descriptions available at www.chulav,istaca,..,go.yldepartmentslc,i.ty-clerklconllic interest-co,de.) Name Email Address AMlicante Desination Enter Name of Each Individual Enter email address(es) EIA. Full Disclosure Who Will Be Providing Service Under the Contract—If 1:1 B. Limited Disclosure (select one or more of' individuals have different the categories under which the consultant shallfile): disclosure requirements, El 1. El 2. El 3. El 4. E]5. E]6. El 7. duplicate this row and Justification: complete separatelyfor each individual EIC. Excluded from Disclosure I.Required Filers Each individual who will be performing services for the City pursuant to the Agreement and who meets the definition of"Consultant,"pursuant to FPPC Regulation 18700.3., must file a Form 700. 2.,Required Ftling Deadlines Each initial Form 700 required under this Agreement shall be filed with the Office of the City Clerk via the City's online filing system,Neffile, within 30 days of the approval of the Agreement. Additional Form 700 filings will be required annually on April I during the term of the Agreement, and within 30 days of the termination of the Agreement. 3.Filing Designation The City Department Director will designate each individual who will be providing services to the City pursuant to the Agreement as,full disclosure, limited disclosure, or excludedftom disclosure, based on an analysis of the services the Consultant will provide. Notwithstanding this designation or anything in the Agreement, the Consultant is ultimately responsible for complying with FPPC regulations and filing requirements. If you have any questions regarding filing requirements, please do not hesitate to contact the City Clerk at(619�)691-5041, or the FPPC at 1-866-,ASK-,FPPC, or (866)275-3772 *2. Pursuant to the duly adopted City of Chula Vista Conflict of Interest Code,this document shall serve as the written determination of the consultant's requirement to comply with the disclosure requirements set forth in the Code. Completed bye-, Tiffany Allen, Development Services Department I Cal. Gov. Code §§8 1 O�00 et seq., FPPC Regs. 18 700.3 and 18704. 2 Chula Vista Municipal Code §§2.02.010-2.02.040. 3 Cal. Gov. Code §§53234,etseq. 4 CA FPPC Adv.A-15-147 (Chadwick)(2015);Davis v. Fresno Un4ied School District(20 15)23 7 Cal.App.4"26 1;FPP,C Reg. 18700.3 (Consultant defined as an"individual"who participates in making a governmental decision; "individual"does not include corporation or limited liability company). iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillilillillilililI iiiiiiiiiiiiiiiiiiiiiillillillillillillilliillillillillillillilliilillilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilliilliilillillillillillillillillilliillillillillillillilliillillillillillillilI 17 City of Chula Vista Agreement No.:2020-134 Consultant Name:�Velosimo,hlc.� Rev. 9/15/20 2020-1.1-0,3 Agenda Packet Page 121 of 5019 IELO'SIMO Ma�ster Subscription Agree�me�nt January 3,0, 2019 This Agreement permits Customer to license and use Velosimo's P�ro�ducts and Services (as ap�p�licable), pursuant to a Velosi'mo order foirm referencing this Agreement ("Order Form(s)") and sets forth the basic term�s and conditions. This Ag�reemenit shall govern Customer's initial purchase a�s well as any future purchases made by Customer which reference th�is Agreement. Velosimo provides the Products and Services listed on a�n Order Fo�rm on a subscr�iptio�n basis.The term of each Subscription is designated i'n the applicable Order Form�. 1. Definitions. 1.1. "Confi'dentia�l Information" mean�s all code, inventions, know-howl bu�siness, tec,h�n�ical and f'i'n�ancial information that one party ("Receiving P�a�rty"") obtains from the other party ("Disclosing Party"); provided that such information is identified as confidential at the time of disclosu�re o�r should be reas,ona�bly known by the Receiving Party to be Confidential Information due to the nature of the information d�isclosed and the circumstances s,urrounding the d�is,closure; and provided further that any software, documentation or technical information provided by Velosimo (o�r its agents), performance info�rmation relating to the Product, shall be deemed Confidential Information of Velosimo without any marking or further d�esigna�tio,n. 1.2. "Customer Data" means electronic data submitted by Customer to a Velosimo Product or created by Customer in the course of using a Velosimo, Product. 1.3. "Documentation" mean�s the online documentation and user guides provided by Velosimo in connection with the license of a Velosimo Product. 1.4. "M�aterials,," means any materials provided by Velosimo, to Cu�stom�er 'in connection with the p�rovis,io�n of Services. 1.5. "Order Form"' means a Velosimo, standard ordering document referencing this Agreement and refl�ecting the Products a�nd Services provided to Customer. 2020-1.1-0,3 Agenda Packet Page 122 of 5019 1.6. "Order Form Effective D�a�te" means the later to occur of (i) Order Form signed by Customer a�nd Velosimo, and (ii)the date of access granted to the Velosimo Product, if any. 1.7. "Product" means Vel�o�simoi's proprietary web-biased products, and services that may be set forth oin an Order Form and subsequently made availab�le by Velosimo to Customer via the means designated by Velos,imo incl�uding a�ssocia�ted offline components, as describied i'n the Documentation (but excluding Third Party Components or inf'rastructur�e). 1.8. "Services" means pr�ofessionial c,onsulti'ng services purchased by Customer in the ap�p�licable Order Form, or SOW and relating to, training and assistance w,i'th the installation, dep�loyment, or usage of Vel�osimo Prold�u�cts. 1.9. "SOW" means a Statement of Work between Velosimo and Customer with respect"to Services. 1.101. "Subscription" means the Customer's right to access and use the relevant Velosimo Product and Support and Maintenance on a su�bscription basis, as and to the extent listed on a mutu�a�ll�y executed Order Form. 1.11. "Sub�s,cri'pition Te,rm" means the duration of a Subscription a�s set forth, on, an, Order Form or as specified in Section 3.1. 1.12. "Support and Mainte�n�a�nce�" means the applicable support and m�ai'n�tena�nce servi'ces a�s identified in the Order Form. 1.13. "Term" means,the period commencing as of the Order Form Effective Date and expiring on the day that the l�a�st Subscription Term u�nd�er this Agreement terminates. 1.14. "'Third Pia�rty Components" mea�ns online applications and offline software that are provided by entities oir individuals other than Velosimo and that initeroperate with the Velosimo Product. 1.15. "Users"" mea�ns the Clustomer's employees and contractors, which are authorized by Cu�stomer to access and use the Velosimo �Prold�uct purch�ased under an Order'Form. i.16. "Warranty Period" mean�s a period of thirty (30) d�ays following the commencement of the relevant Sub�s,cripition Term., 2. License(s); Ownership. 2.1. License and Use., Velosimo wil�l make the Product available to Customer and 'its, users pursuant to thi's, Agreement and the relevant Order Forms during the Subscription Term. Su�bject to the terms and conditions of this Agreement and the relevant Order Form(s), Velosimo grants Customer a 2020-1.1-0,3 Agenda Packet Page 123 of 5019 limited, worldwide, non-assignable and nion-exclusi've license during the relevant Subscription Term to a�ccess and use the Products and Services in accordance with the term�s of thi's Agreement. 2.2. Restrictions. Customer will not (i'), permit any third party to access the Products, except a�s permitted herein a�nd in the relevant Order Form, (i'i) create deri'vate works based on the Products, (iii) copy, frame or mirror any part or content of the Products,, (iv) decom�pi'le, disassemble, tr�anslate�, reverse engi'neer oir otherwise attem�pt to derive source code from the Products, in whole or in part, nor will Customer use a�ny �mech�a�nical�, electronic or other method to trace, decompile, disassembile, or identify the source code of the Products, or encourage or per�mit others to, do so (exce�pt a�nd only to the extent that applicable law prohibits or restricts reverse engineer�ing �re�strictio�n�s),, (v) access the Prod�u�cts 'in order to (a) build a competitive product or ser�vi'ce, or (b) copy any features, functions o�r graphi'cs of the Products, (vi) se�ll, resell, rent or lease the Products beyond the scope of the ap�p�licable Order Form, (vi'i) use the Products to store or transmit infringing, libelous, or otherwise unlawful or tortious materia�l, or to store or transmit material in violation of third-pa�rty privacy rights (or otherwise use the Products in violation of the Documentation or any Velosimo terms of s,er�vice�), (viii) store or transmit virus or other malicious code th�ro�u�gh the, Products, (ix) interfere with or disrupt the inte,gr�ity or �plerform�ance of the Products or third-party products or data conta�i'ned therein', or, (x) attem�pt to gain unauthor�ized a�ccess to the Products or, their related systems or networks. Customer acknowledges th�a�t Cu�stomer is solely responsible for complying with, and cove�n�a�nts to comply with, al�l laws app,l�ica�bl�e to Cu�stomer and to Custo�mer"s use of the Prod�u�cts, incl�uding without l�imitation all laws and regulations rel�ating to the protection and non- disclosure of Cu�stomer Data., Without limiting the genera�lity of the foregoing,the Customer is solely res,ponsib�l�e for using the Products in comp�lianice with any applicable data privacy or pers,onal�ly identifi'ab�l�e inf'orm�a�tion laws,and regulations,. 2.3. AWS Terms. Vel�osimo uses the Amazon Web, Service ("AWS"") cloud infrastructure for its Products. Customer acknowledges the use of Velosimo Products is subject to the terms and r�I E,!,"I limitations,set forth in the AWS Customer Agreement: t/,"". 2.4. Ownership. Notwithstanding anything to the contrary contained here�in, except for the limited license rights expressly provided under a fully paid Subscription, Velosimo and its suppliers have and will retain all right, tit'le and inte�rest in and to the Prod�u�cts (including, without, lim�itlation, all patent', copyright, trademark, trade secret and other intellectual property r�ights) and all copies,, modifications and derivative works thereof. Customer acknowledges that it is o�btaining on�ly a l�i'mited l�i'cens,e right to access and use (a�s the ca�se may be) the Products and th�at irrespective of any 2020-1.1-0,3 Agenda Packet Page 124 of 5019 use of the words "purchase," "sale," or like terms hereunder no ownership rights are bei'n�g conveyed to Customer under this Agreement or otherwise. In, addition, Velosimo wil�l have a r�oya�lty- free, worldwide, irrevocable, perpetu�al licen�se to use for any purpose any suggestions, enhancement req�uests,, recommendations or other feedback provided by Customer, inclu�d�ing Users', rel�a�ting to the Products. 2.5. Services Work Product. Clu�stomer shall h�ave a li'cense right to use or, access a�ny work piroduct or Materials delivered a�s part of the Services, solely for its internal business purposes and solely in connection with the Products, regarding which the Services were commissioned. Other than the limited license described in the prior sentence, Velosimo sh�a�ll retain all right, title and i'nte�rest in and to, any such Materials and Services work product and any derivative, enhancement or modification thereof a�nd Customer maintains ownersh�ip of its Confidential Information. 3. Sub�s,cri'pit�ion Term; Payment. �3.1. Sub�s,c,ri'pit�ion Term and Renewals., Un�less, otherwi'se de�signated in the Order Form, the term of any Sub�s,c,ri'pit�ion shall be one (1) year commencing on the O�rd�er Form Effective Date of the applicable, Order Form., Each Subscription Term s,hall automatica�l�ly renew for subsequent periods of the same length as the initial Subscription Term unless either party gives the other written notice of termination at least thirty (3,0) days, prior to expira�tion of the then-current Subscription Term. The rates for any Subscription 'Term are as specified o�n the applicable Order Form, and renewals, or additional Subscriptions shal�l be at Velosimo's then-current list Subscription rates, u�n�less specifically provided in an Order Form,. �3.2. Payme�n�t Terms., All fees are as set forth in the applicable Order Form and SOW are due u�pon receipt of invoice and shall be paid by Customer thirty (30�) days, from invoice unl�e�ss otherwise specified in the applicable Oirde�r Form o,r SOW. Cu�stomer shiall be res,p�ons,ible for all ta�xes, withholdings, duties and levies a�rising from the order (excluding ta�xes �ba�sed on the net income of Velosimo). Fees a�re non-refundable upon payment. Payments will be made without right of set-off or chargeback. Any late payments, shall be subject to a service charge equal to 1.5,% per month, of the amount due or the maximum amount allowed by law, whichever is le�ss. If payment of any fee is overdue, Velosimo may also suspend provision of(as the case may be) the Product's or Services until such delinquency is corrected. 2020-1.1-0,3 Agenda Packet Page 125 of 5019 A 4+ Support & Maintenance. Duri'nig the time that Customer ha�s paid the applicable Subscription fees, Velosimo s,hall provide Support and Maintenance cluring the Subscription Term in accorclance with Velosimo's t,hen-cu�rrent stanclard support policies. Customer agrees to provide Velosimo with s,uch cooperation, materials,, information, access anid s,upp�ort whi'ch Vel�olsimo deems to be reas,onab�ly re�quired to a�llow Velosimo to successfully p�rovide the Products/ and Support and Maintenance. Customer understands, a�nd agrees that Velosimo's obligation�s hereunder are expressly conditioned upon Customer p�rovid�ing such cooperation, materials, information, access,and support. 5. T'hi'rd Pla�rty Compo�ne�n�ts. Under this Agreement Velosimo provides only the Products and Services and Support and Maintenance with respect to each of the Products. Velosimo does not provide, any warranty on, and doe�s not provide, Support and Maintenance on, the Third Party Com�ponents,. Customer may need to li'cen�se, modify and install Third Party Components., Vel�osimo may provide, Customer with links and instructions for obtaining Third Party Components oir provide, access to them (e.g., through Velosimo cloud connectors),, but it is Customer's sol�e resp�onsib�ility to prope,rly license and install any required Third Party Components from the relevan�t�, third party providers., Velosimo will have no liability with respect to any Third Party Components. If applicable, p�rior to Velosimo starting any Services that require the use of Third Pa�rty Com�ponents,, Customer wil�l p�rovide documentation to Velosim�o confirming th�a�t Cu�stom�er can, provide the rights necessa�ry to allow Vel�os,imo to mod�ify the Third Party Solution Com�ponent software if necessary., 6. Services. Vel�os,imo shal�l provide the Services purchased in the applicable Order Form, or SOW, a�s the ca�se may be. Services may be ordered by Customer p�ursuanit to an SOW describing the wolrk to be performed, fees and any ap�p�licable milestones, dependencies and othe�r technical specifications or related information. Each SOW must be signed by both parties before Velosimo shall commence wo�rk under,such SOW. If the parties do not execute a separate Statement of Work,,the Services shall be provided as stated on the Order Form. 7'. Te�rm and Termination. 7.1. Te�rm and Termination. This Agreement is effective during the Term. Either party may te�rminate this Agreement (including al�l related Order Forms) if the other party: (a�)fails,to cure a�n�y material breaclh of this, Agreement within thirty (30�) clays after written notice of such breach; (b) ceases operation 2020-11-03 Agenda Packet Page 126 of 5019 without a successor�; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable p�roceeding, o�r if any such proceeding is, instituted agai'nst such party(and not dismissed within 60 days thereafter)). 7'.2. Effects of Termination. Upon expi'rati'on or termination of this Agreement for any rea�s,o�n: (a) any amounts owed to Velosimo under this Agreement before such termination will be immediately due and payable; (b) Customer shal�l cease any and al�l use of the Products, and destroy all c,op�ies, of the latter and so certify to Velosimo in writing;, (c) e�a�ch party will return to the other party the Confidential Information of the other party that it obtained during the course of this Agreement; and (d) Customer must certify in writing to Velosimo th�a�t it has returned or destroyed al�l Velosimo Confidential Information., 7'.3. Sus,p�ens,ion of Products. In addition to its other r,ights u�nder this Section 4, Velosimo may su�spend or t�erm�inate Customer's access to the Products upon written notice in order to: (a) prevent damage,to or degradation of, the, Products, caused by Customer; o�r (b) comply with any law, regul�atio�n�, co�u�rt order, or othe�r gove,rnmental req�uest or order which requires, immed�iate action�. If suspended, Velosimo will promptly restore use of the Products to Customer as soon a�s the event giving rise to the suspension has been resolved to Velosimo"s sati'sfacti'on. 7'.4. Survival. Sections 2.21 2.41 8.1 91, 10.1 11 and 12 sh�a�ll survive any ter�mina�tioln or expiration of thi's, Agreement., 8. Warranties,. 8.1. Limited Warranties. Ve�losimo warrants, for Customer's, benefit only,, that dur�ing the Warranty Period, the Product shall perform m�aterially in accorclance with the Documentation. If dur�ing the Warranty Period the �Prod�ucts do not perform m�aterially in accordance with the Documentation, Velosimo's sole liability (and Cu�stomer's sole and exclusive remed�y), for any breach of'this warranty s,hall be for Vel�osimo to correct the defects in the Products. Customer acknowledges that the Products are subscr,iption-based and that, in order to provide improved customer experience�, Velos,imo may make changes, to the Products and that in such event, Velosimo will update the Documentation accordingly. 8.2. With respect to Services, Velosim�o warrants only that the relevant Services will be performed cons,istent with general�ly recogni'zed commercial practices and stanclards for similar services., If the Services do not conform to such warranty, Velosimo will re-perform the non-co�n�for�ming Services. 2020-11-03 Agenda Packet Page 127 of 5019 These remedies, are Customer/s so�le and exclusive remedies for brea�ch of the relevant warranty and are Velos,imo's sole and excl�usive lia�bility fo�r brea�ch of such wa�rra�nty. 8.3. Warranty Exclusions. The limited warranties set forth above, are made to and for the benefit of Customer only. The warranties will a�pply only if (a) the relevant Velosimo product has been properly instal�led and used in accordance with the instructions i'n, the appl�i'cable Documentation/ (b) no mod�i'fication, alteration or addition h�as been m�ade to the relevant Velosimo prold�uct by anyone other than Velosi'mio; and (c) Velosi'm�o receives wri'tten notification of the breach dur�ing the Warranty Period, and in the case of Services,, withi'n ten (10�) days following the performance of the rel�eva�nt Services. The above warranties, shall not app�l�y.- (i) to defects in the Veloisimo product due to negligence, abuse or improper use by Customer; or (ii) items provided on a no charge or evaluation basis. 8.4. DISCLAIMER O,F WARRANTIES. VELOSIMO'S, WARRANTIES IN THIS SECTION 8 ARE EXCLUSIVE, AND VELOSIMO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIESI EXPRESS, STATUTORY OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED HEREBY AN�D THE TECHNOLOGY AND SERVICES TO BE PROVIDED HEREUNDER (OR ANY RESULTS TO BE OBTAINED FROM THE USE THEREOF), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, FOR A PARTICULAR PU�RPOS�E OR USE., ACCURACY, NON-INFRINGEMENT, COMPLETENESS AND ORIGINALITY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE O,F TRADE OR THEIR EQUIVALENTS UNDER THE LAW OF'ANY JURISDICTION. 9. Lim,itation of Liability and Da�m�ages. VELOSIMO SHALL NOT BE LIABLE FO,R (1) ANY COST OF COVER OR ANALOGOUS COSTS RELATED TO, THE PROCUREMENT O,F REPLACEMENT SERVIC,ES�; OR (11), ANY LOSS O,F USE, LOST DATA, INTERRUPTION OF BUSINESS, O,R ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM O�F ACITION, WHETHER IN CONTRACT, TORT (INCLUDINGI NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, VELOSIMO"S TOTAL AGGREGATE LIABILITY U�ND,ER TH�IS AGREEMENT SHALL BE LIMITED, TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED, TH�E �FEES ACTUALLY PAID BY CUSTOMER TO VELOSIMO UNDER THIS AGRE,EM�E,NT DURING THE, TWELVE (1,2), MONTH PERIOD IMMEDIATELY PRECEDING THE DATE O,F TH�E CLAIM. 2020-1.1-0,3 Agenda Packet Page 128 of 5019 10�. Indemnification. 1 O�.1. indemnity by Velos,imo. S,ubject, to the remainder of this Section 10, Velosimo shal�l defend Customer against any third party cla�im thia�t the Product"(s) infringes such third party"s patent or, copyright (an "Infringement Claim"), and i'ndemini'fy Customer from the resulting costs, and dam�a�ges awarded aga�i'ns,t Customer to the third party m�aking such Infringement Claim, by a court of comipe�te�nt juriscliction or agreed to in settlem�ent; p�rovi'ded that Customer.: (i) notifies, Velosimo promptly in writing of such Infringement Claim, (ii) reason�ably cooperates i'n, response to a Velos,imo request for assistance. Velosimo wi'll have the exclusive right to defend any such Infringement Cl�ai'm and make settlements thereof at its own di'screti'on, and Customer may not settle or compromise su�ch Infringement Claim, except with prior written consent of Ve�losimo. 10.2. Options,. Should any Products become, or in Velosimo's opinion be likely to be�come, the sub�ject of s,uch an Infringement Claim, Velosim�o shia�ll, at its, opt�ion and expense, (a) procure for Customer the right to ma�ke continued use of Products, (b�), repl�ace or modify such so th�a�t it becomes non- infringing, oir (c) request termination of the access to the Products and upon such request the corresponding li'censes shall be terminated and Velosimo shall refund the price, paid by Customer fo�r the Subscription Term in which the Infringement Claim wa�s asse,rted, less a pro rata po�rtion of the Subscription fee reflecting th�a�t portion of the Subscription Term th�a�t wa�s fulfilled prioir to te�rm,ination., 10.3. Exclusions. Vel�osimio will hiave no obligation for claims of' infringement resulting from (i) any modification of the Software by a party other than Velosim�o if such infringement would have been avoided in the absence of su�ch �modificlations; (ii) Custo�mer's, fa�il�ure, within a reasonable tim�e frame, to implement a�ny replacement or modification, of the �Products provided by Ve�losimo; (iii) any combina�tio�n, operation, or use of the Products with any products, equipment, software, hardware, data, or business processes not supplied by Velosimo, including without limitation Third Party Components and Customer Data, if such infringement would not hiave occurred without the com,bination (iv) use for a purpolse or, in a m�anner for which the Products were not clesigned, (v) any intellectual property right owned or, licensed by Custlom�er, excluding the Products,, (vi) Customer us,ing the Products after Velosimo notifies Customer to discontinue using due to such a claim. 10.4. Limitation. THIS SECTION STATES THE PARTIES SO,LE AND EXCLUSIVE REMEDY AND ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS. 2020-1.1-0,3 Agenda Packet Page 129 of 5019 11. Confidential Information., 11.1. Non-Disclosure and Non-Use. Each party (a) shia�ll treat as confidential all Confidential Information of the other party; (b) shall not" disclose such Confidential Information to any third party, except on a "ne�e�d to, know" basis to third parties that have signed a non-disclosure agreement conitain�ing s,ub�s,tantially the terms of this Agreement; and (c) s,hall not use such Confidential Information except in connection with performing its obligations or exercising its rights, under this Agreement. 11.2. Exceptions,., Confidential Information wi'll not include any information, w,hi'ch (i) was publicly known and made general�ly available prior to the time of di'scl�osure by the disclosing party; (ii) become�s p�ub�lic,ly known and made generally avail�able after di'sclos,ure by the disclosing party to the rec,eivi'n�g party through no action o�r inaction of the, receiving party; (iii) is already in the possession of the receiving party at the time of disc,losure; (iv) is ob�tai'nied by the receiving party fro�m a third party without a bre�a�ch of su�ch third �plarty"s obligations of confidentiality; (v) is independently developed by the receiving, party withiou�t use of or reference to the, disclosing �party's Confidential Information; or (vi) is, required by law to be disclosed by the receiving party, provided that the receiving party gives the discl�o�si'ng party prompt written notlice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public discl�osu�re,. N�o�twith�sta�nding, the fo�regoing, Licen�sor acknowledges, that Licensee is a municipal corporation su�bjeclt to certa�i'n pub�lic disclosure laws, incl�u�d�ing bu�t not limited to the Ca�lifo�rnia Pu�blic Records Act, which m�ay require Licensee to d�is,close certain Confidential Information. Licensor agrees that discl�osu�re of Confidential Information as required by such laws, in Licensee's sole discretion, shall not constitute a breach of this Agreement. 11.3 For the Products,, Velosimo does, not directly store, monitor, track, or inspect Customer Data,, including pe�rsonally identifiab�le information (PII),, and personal healthcare info�rmation (PHI)�. Customer may configure the appropriate software settings based on, Custom�er's use and security sta�ndards. Velosimo will not (a�) modify Customer Data, (b) disclose Customer Data except as, compelled by law or as expressly plerm�it,ted in w,riting by Customer,, or, (c), access Customer Data, except to acce�ss to addre�ss service or technical problems. Any exchange of data between Customer and any Third-Party Components Components (or by Customer between two or more Third Party Components)�, is, solely between C,u�stomer and the apip�licable p�rovider of the Third-Party Components. 2020-1.1-0,3 Agenda Packet Page 130 of 5019 12. General 12.1. Severab�ility. If a provision of this Agreement is, deemed unenforcea�ble or invalid�, that provi'sion shall be limited to the minimum extent,necessary so that this Agreement shall otherwise remain in effect,. 12.2. Governing Law; Jurisdiction and Venue. Th�is, Agreement sh�a�ll be governed by the l�aws of the State of California a�nd the United States wi'thout regard to conflicts of laws pirovision�s thereof. The Jurisdiction and venue for actions related to the s,ublj'ect matter hereof shall be the California state and Uni'te�d State�s federal courts located in San Diego, California, and both parties i'rrevocabl�y consent to such personal jur�isd�iction of such courts and waive al�l objections thereto. The pre�vai'li'ng party i'n any action to enforce this Agreement will be entitled to recover its attorneys' fe�e�s and costs in connection with such a�ction., 12.3. Notices. Any notice hereunder shiall be in writing to the notice address set forth above, and shall be deemed given: (i) upon receipt if by personal delivery; (i'i) upon receipt if sent by certified or registered U�.,S. mail (return receipt requested); or (iii') one, day after it is sent�, if by next day delivery by a major colmme,rcia�l delivery ser�vice. 12.4. Amendments; Waivers. No supplement, modification, or amendment of this Agreement, shall be bincling, unless executed in writing by a duly authorized representative of each party to this Agreement. No, waiver will be implied from conduct or failure to exercise righ�ts under this Agreement., No provision of any purchase order or other bus,iness form em�ployed by Customer will supersede the terms and conditions, of this Agreement, and any su�ch document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. 12.5. Injunctive Relief. Both pa�rties acknowledge that the disclosure of any a�spect of the confidential information of the other party s,hall immediately give rise to continuing irre�parabile injury to the non-disclosing party inadequately co�mpensable in damages at law and without prejudice to any other remedy available to the non-clisclosing party, and shall entitle the non-disclosing pa�rty to seek injunctive rel�ief., 12.6. Assignment,, Subcontracting. N�either party may assign this Agreement in whole or, in part without the p�rior written consent of the ot'her party except to the acquirer of substantially all of the assigning p�artyl s, assets a�nd business by merger or p�urc,hase who assurnes that par�ty's obligations under this Agreemen�t., Velosimo reserves the right to d�elega�te or subcontract its obligations under thi's, Agreement to third parties but remains, responsible for the acts, a�nd ornissions, of its subcontractors. Customer may not assign its rights under the Agreement to a new or different 2020-1.1-0,3 Agenda Packet Page 131 of 5019 agency entity which has the effect of creating a s,ub�s,ta�ntive change or increase in use or capacity requirements or creates use is a new jurisdiction. 12.7. Force Ma�jeure., N�o delay or failu�re of Velosimo to perform any of its obligations under the Agreement may be considered a breach of this Agreement if it re�sults from any cause beyond its control including, without limitation, any act of God, earthquake, hurricane, flood, fire,, n�atural ca�tas,trophe�, severe weather, publ�ic emergency, accident, third party strike, lock-out or other dispute, riot, civil commotion, insurrection, or third party equipment or system failure (i'n�cluding any failure of access circuits (other, than those ca�used solely by Velosimo), the unavailability of', or interruption or delay in, telecomm�uni'cations, power or other th�ird party system, or any failure of thi'rd party software (in each case, a "Force Majeur�e Event")�. 12.8. Relationship of the Pa�rties., No agency, partnership, joint venture, or employment relationship is created or may be inferred by the existence or performance of this Agreement, and neither party has any authority to bind the other in any respect whatsoever. 12.9. Customer Acknowledgement. Customer agrees thiat Velosimo may from time to time identify Customer (with Customer's name, logo, or trade�mark) a�s a Velosimo customer in or on Vel�o�simo's website, sales a�nd marketing materials, or press re,lea�se,s. Velosimo may not use Customer's name, logo, or trademark for any other purpose without obtain�ing Customer's p�rior written consent. 2020-1.1-0,3 Agenda Packet Page 132 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 SERVICES AGREEMENT This Services Agreement ("Agreement") is entered into as of July 28, 2020, by and between Velo�simo, Inc. ("Veloisimo") and City of Chula Vista ("Customer"). WHEREAS, Velosimo will provide services to Customer under the terms and conditions of this Agreement. Nothing herein will be construed to create any benefits, rights, or responsibilities in any other parties. FOR AND IN CONSIDERATION OF the mutual agreements herein, Velosimo and Customer agree as follows: 1. Definitions. (a) "Delliverables" means any materials, information and work product developed or modified in the course of providing Services, to include, software, enhancements,, revisions, object code, and Documentation, other than Integration Software and its enhancements, revisions, object code, and Documentation provided to Customer pursuant to a Subscription, expressly identified as a "Deliverable" in a Statement of Work. Deliverables are for the use and benefit of Customer only and not for any other party, except where expressly and specifically agreed in writing. (b) "Customer" the entity that has contracted with the Velosimo, in relation to the Services hereunder, as identified above. (c) "End User" means the Customer's users of the Deliverables pursuant to the terms and conditions provided herein. (d) "Intellectual Property"' means registered and unregistered trademarks, trade names, service marks, certification marks, copyrights and future copyrights, patents, trade secrets, kno�w-how, mask works, processes, designs,, ideas, data, instructions, blueprints, inventions, and any other tangible or intangible assets, recognized under any laws, or international co�nvention(s), and in any country(ies) or jurisdiction(s) of the world, as intellectual creations to which rights of ownership accrues to the owner and/or proprietor known by any other name; 0 11 (e) "Confidential Information means all information designated as 'Confidential' and/or 'Proprietary' by the discloser or which by its nature should be reasonably understood to be confidential. Without prejudice to the above, Confidential Information shall include but not limited to technical, business and financial information, data pertaining to personnel, customers, vendors, products, offerings, Specifications and computer programs. Mi "Servi"ces" means the work and activities to be performed by Velosimo in accordance with the requirements and Specifications identified in a Statement of Work. Page 1 2020-1.1-0,3 Agenda Packet Page 133 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 (g,) "Object Code"' means the object code either furnished by Velosirno or as included in a Deliverable. (h) "Statement of 'Work" or "SOW" means the Schedule attached hereto specifying the Services and Deliverables to be provided by Velosirno to Customer i pursuant to this Agreement. The terms of any SOW may be varied by mutual agreement signed by both Parties and appended to this Agreement. Velosimo shall not commence services prior to establishing an agreed SOW pursuant to this Agreement. (ii) "Date of Dellivery" means the date agreed upon between Velosimo and Customer for delivery of Deliverables. "Documentatlion" means all documents included with the Deliverables to be provided by Velosimo. (k) 44Project" means the specific Project to be performed by Velosimo for Customer under this Agreement and any relevant SOW. (1) "Project Manager" means the Project Manager appointed by Velosimo or Customer in relation to the Services being executed under this Agreement and any relevant SOW. 0 �1 (m)"Speclifications mean the specifications of the Deliverables as to their intended functionality and features provided as expressly agreed in an executed SOW and measured by the expressly agreed Acceptance Criteria. (n) "Acceptance Crifterliall means the mean the specific criteria expressly agreed in an executed SOW to measure conformance with the agreed Specifications. 11. Term and Termination. A. Term. This Agreement is effective as of execution, by the parties ("Effective Date") and will. continue until terminated as specified in Subsection,B—Termination. B. Termination. Either Party may terminate this Agreement and any or all related Exhibits or any SOW or portion thereof, if the other Party materially breaches this Agreement, and after receiving a written notice describing the circumstances of the default, fails to correct the breach within thirty(30)days. For any reason or no reason, Either Party may terminate all or any part of any Project, Statement of Work., or services hereunder', with twenty (20)business days written notice to the other Party. In the event of any such termination, Velosimo shall be compensated for any services rendered prior to the notice, and where termination is requested by Customer, for reasonably incurred, non,- cancellable expenses resulting from the termination("Close-Out expenses"). Where Customer terminates,as provided in this paragraph, and Velosimo's compensation is based on fixed-price fee for deliverables, Velosimo�will be compensated at the hourly rates for verifiable hours of Page 12 2020-11-03 Agenda Packet Page 134 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 service completed toward the deliverable(s,),, but in no event will this amount due to Velosimo exceed the total amount of the fees that were to be received for the deliverable(s). Any compensation allocated to Services that were yet to be rendered with regard to any canceled aspect of the Services shall.then be eliminated. 111. Descrip����� A. Servi*ces. 1'. Performance. Specific services (the"Services")to be performed by Velosimo will,be set forth in separate, mutually agreed upon Statements of Work("SOW") executed by the parties pursuant to the terms and conditions of this Agreement, and attached hereto by reference as Exhibits A and numbered sequentially. Velos,imo will provide to Customer all Services necessary to provide and perform,the requirements, set forth in each SOW, except as specifically agreed in the applicable SOW. Any and all SOW entered into by the parties pursuant to this Agreement shall be, by this reference, deemed who�lly incorporated herein. The Services are provided solely for Customer and without any third-party beneficiaries. As required, Customer agrees to provide Velosimo, with appropriate access to Customer's facilities,personnel, data systems, and other resources. Customer acknowledges that the implementation process described in,this Agreement is cooperative in nature and that Customer must complete its designated tasks in,a timely manner in order for Velosimo to proceed with and complete the Services. Customer delays during the implementation,period may have adverse collateral effects on Vel.osimo's overall work schedule. Although Velosimo,will endeavor to immediately resume Services following such a delay, Customer acknowledges that the schedule of Services may be delayed by more than the number of days of the delay by Customer. Velosimo shall.be entitled to rely on all. information provided by, and the decisions and approvals of Customer in connection with Services and Velosimo is not responsible for any increase is costs attributable to information provided, or decisions or approvals made, by Customer personnel.that were not complete, accurate or current. 2. Amendments/Changes. Changes, to the Services will be subject to the mutual agreement of the Parties and shall be memorialized by written Change Orders/Amendments to the applicable SOW. Either Party may, at any time, by written notice, propose changes or additions to work or services within the general scope of this contract. If any such change or addition causes an increase or decrease in, the cost of, or in the time required fo�r, performance of the Agreement, Velosimo shall draft an estimate for the requested work. The Change Order/Amendment is subject to mutual agreement by both Parties. Upon, mutual acceptance in writing of the terms of the Amen dment/Chan ge Order, the Velosimo, shall perform, such Change Order/Amendment. A template Am.endment/Change Order Form is attached as Exhibit C. 3. Order of Precedence. This Agreement will take precedence where there is a conflict with any Statement of Work or Amendment or Change Order thereto, except where the SOW or its Change Page 3 2020-1.1-0,3 Agenda Packet Page 135 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 Order(s)/Am.endment(s) express in,writing that, as to a specific subject matter or requirement, it shall take precedence over the applicable provisions of the Agreement. 4,. Personnel. Should Velosim.o need to replace it personnel., it will.provide Customer with reasonable advance written notice when possible and will propose replacement personnel with substantially comparable qualifications. B. Payment. 1'. Compensation. In exchange for Services rendered under this Agreement, Customer will pay to Velosimo all undisputed amounts described in each SOW within thirty(30) calendar days following receipt of invoice. Any disputed amounts will.be promptly communicated to Velosim.o by Customer for discussion and resolution. Should any substantive, undisputed amount remain unpaid for more than 60 days, or any substantive amount remains in dispute for more than 30 days,Velosimo may suspend its Services until resolution,or payment is achieved. 2. Invoices. i. Time and Material: To the extent the SOW provides for time and material payment, then Velosim.o will invoice Customer monthly for time spent and expenses incurred or as specified in,the applicab�le SOW or Amendment. Invoices will indicate the number of hours,worked by the resources and detail of expenses incurred unless otherwise required pursuant to the applicable SOW. Proper support for time and expenses will be provided to Customer upon request. ii. Fixed Price: To the extent that the SOW provides for fixed price payment, then for services provided on a fixed-p,rice basis, Velosimo shall, for such fixed price, complete all the work required to be performed for the fixed price as provided in the SOW. 3. Payment Disputes. Should Customer dispute any item(s) on,an invoice, Customer will provide prompt written notice to Velo�simo and will make payment of the undisputed amounts. The amounts and reasons for such disputed item(s),will be promptly documented to Velosimo. Disputed items which are subsequently justified or modified to Customer's satisfactio�n will be paid within five (5)business days consistent with,the payment terms above. 4,. Provisions Applicable to All Work. The hourly rates, fixed fees or other compensation in,an SOW shall be deemed inclusive of any and all expenses incurred and Velosimo is not entitled to impo�se any other charges or be reimbursed by Customer for any expenses incurred by the Velosimo in providing such services,, unless such fees or expense are expressly provided for in an SOW. Page 4 2020-11-03 Agenda Packet Page 136 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 V1. Deliverable Acceptan�e����� A. Deliverable Acceptance Deliverables must materially conform to Specifications memorialized in the Acceptance Criteria of the applicable Statement of Work. Where Deliverables are not in compliance with this requirement, Velosimo will revise and provide Deliverables within a reasonable time to Customer. B. Ownership Deliverables provided pursuant to the terms of the Agreement are the intellectual. property of Velosirno. Customer will have a license to use the Deliverables consistent with the terms and conditions of the applicable Subscription Order for the Integration Services Software executed by Customer. Velo�simo and Customer may expressly agree in,writing in,a Statement of Work to designate a Deliverable as a"Custom Deliverable" and that such "Custom Deliverable"may be owned by Customer. All data and other records provided by Customer to Velosimo are, and shall remain, the sole property of Customer. Velosimo shall not copy or use such data or records except to carry out contracted work under the terms herein. Within thirty (301) business days of conclusion of services and request by Customer, Velo�simo will return all data and records to Customer and shall destroy all duplicate data and records in,its possession. Each Party shall retain all intellectual property rights to any of its pre-existing intellectual property provided to the other party pursuant to this Agreement. Each party grants only the licenses and rights specified in this Agreement. No other rights or licenses are granted either directly, by implication or otherwise. V. Warranties. A. Performance. Velosimo warrants that it will perform the Services in a manner in,material. comphance with all applicable standards consistent with,the nature of its services and pursuant to the requirements included in any Statement of Work. B. Conformance to Specifications Velosimo warrants that (i) any Deliverable(s) that it creates or provides to Customer, shall materially conform to the expressly agreed Specifications for a period of 45—days from acceptance by Customer. Services required to conform a Deliverable will be at no additional. cost to Customer. Velosimo will have no obligation, under this section where a non-conformance results from unauthorized modifications. "Conform" shall mean to operate in material accordance with the Specificatio�ns. Page 15 2020-1.1-0,3 Agenda Packet Page 137 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 V1. Insurance,Indemnification and limitation of flabilitty A. Insurance. Velosimo will provide the insurance coverage indicated in Exhibit D at its own expense. Such.insurance must remain in effect until completion of all work specified to be performed under this Agreement and until the expiration of any and all applicable warranties. B. Limitation of Liability Vel.osimo's liability to Customer, or anyone bringing a claims on the Customer's behalf, for any claim, loss or liability arising out of, or connected with.the products or services provided, and whether based upon default, or other liability such as breach of contract., warranty, negligence, misrepresentation, or otherwise, shall in no case exceed direct damages in, an, amount equal. to the amount to be paid by Customer to Velosimo pursuant to the Statement of Work from which the claims arises. Neither Velosimo or Customer shall. be liable for any consequential, indirect or special damages of any kind. Velosim.o shall have no liability for any third party's use of or reliance on the Deliverables. The Limits of this paragraph, shall not apply to a Party's indemnity obligations hereunder, except where expressly stated herein. C. Indemnification Velosimo agrees to defend, indemnify and hold Customer harmless fro�m.any and all claims, actions., damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of or relating to any third party claim that any of the Deliverables provided to Customer by Velosim.o hereunder misappropriate any trade secret or infringe any copyright or other Intellectual Property Right of any third party when unmodified and used as reasonably contemplated by the Subscription for the Integration, Services Software. This indemnity shall not apply where the cause of the infringement claim is the use of the Deliverables in combination with materials not provided by Velosirno, or where the infringement results from Velosimo's provision of Deliverables in accordance with custom Specifications provided by Customer. Each.Party agrees to indemnify, defend, and hold the other Party and its officers, agents, and emp,loyees harmless against any claims, suits, or damages arising out of physical property damage or bodily injury caused by the negligence or misconduct of the Party or its employees or agents. Customer shall defend, indemnify and hold Velosimo,harmless from any and all claims, actions., damages, liabilities, costs and expenses, including reasonable attorneys' fees and expenses, arising out of or relating to any third party claim, related to Velosimo's performance of Services hereunder where Velosirno has performed accordance with its requirements and obligations. Page 6 2020-11-03 Agenda Packet Page 138 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 VII. Compliance with Laws. A. Generally. (a) Each Party will comply with applicable laws, rules, ordinances,and regulations of the United States and the state designated in the governing law provision below, and with any other jurisdiction,in which it acts, including but not limited to,the laws of foreign countries relating to government procurement,payment to government officials or employees and conflicts of interest. VIII. Relationship__p����. A. Independent Contractor. It is understood that in connection herewith, Velosimo will be acting as an independent contractor. The partners, employees, officers and agents of one party, in the performance of this Agreement, will act only as representatives of that party and not as employees, officers, partners or agents of the other party and will not be deemed for any purpose to be employees of the other. Nothing in this Agreement will.be deemed or construed to create a joint venture, partnership, fiduciary, or agency relationship between,the parties for any purposes. Velosimo assumes full responsibility for the actions of its personnel.while they are performing services pursuant to this Agreement and will be solely responsib�le for their supervision, daily direction and control, payment of salary(including withholding of income taxes and social security), workers compensation, disability benefits,and the like. Neither party Will, commit, nor be authorized to commit or bind.,the other party in any manner. B. Velosimo Personnel. Velosimo understands, represents and agrees that its Personnel.are not employees of Customer. C. Non-Solicitation. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter., neither party will attempt to hire, attempt to engage the services of, or offer to pay commissions, compensation, or any other incentives to any of the other's employees without advance express written consent from the other party. The limitations of this section shall not apply where an employee responds to a general solicitation for employment. D. Change of Control. With any change of legal. control of a Party, the other Party may terminate this Agreement or any Statement of Work for its convenience, should the change of Page 7 2020-1.1-0,3 Agenda Packet Page 139 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 control create a substantive, adverse change in the operational characteristics or commercial value of the Services or relationship between the Parties. IX. Dispyjg_j���� Dispute Resolution, Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American,Arbitration Association under its Commercial Arbitration Rules., including the Emergency Interim Relief Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall.be within the greater metropolitan area of San Francisco., California. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction, any interim or provisional.relief that is necessary to protect the rights or property of that party, pending the arbitral tribunal's determination of the merits of the controversy. Each party shall initially bear its own expenses and an equal. share of the costs of the arbitration,but the prevailing party may be awarded its expenses, reasonable attorneys' fees, and costs. The failure of either party to object to a breach of this Agreement shall.not prevent that party from thereafter objecting to that breach or any other breach of this Agreement. In the event Customer has a law, ordinance or other legis,lative rule prohibiting arbitration for the applicable dispute,this provision shall not apply. X. Governing Law. All.questions arising under or in connection with,this Agreement will be governed and determined by the laws of California, without giving effect to its conflict of law rules. X1. Force Majeure. Neither Party will be liable for losses, defaults, or damages under the resulting Agreement which result from delays in performing, or inability to perform, al.1 or any of the obligations or responsibilities imposed upon it pursuant to the terms and conditions of the resulting Agreement, due to or because of acts of God, the public enemy, , earthquakes, floods, civil strife, fire or any other cause beyond the reasonable control of the party that was so delayed or so unable to perform,, provided that such party was not negligent and shall have used reasonable efforts to avoid and overcome such cause. Such party will resume full performance of such obligations and responsibilities promptly upon removal.of any such cause. X11. Waiver. Any waiver by a Party hereunder must be made in writing, and failure at any time to require its performance of any obligation under this Agreement shall not affect the Party's right to subsequently require performance of that obligation. X111. Severablility and Amendment. Page 18 2020-11-03 Agenda Packet Page 140 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 If any particular provision of this Agreement is determined to be invalid or unenforceable, that determination,will not affect the other provisions of this Agreement, which will be construed in all respects,as if the invalid or unenforceable provision were ornitted. No extension, modification., or amendment of this,Agreement will be effective unless it is described in writing and signed by the Parties. XIV. Publicity and Trademarks. During the term of this Agreement,Velosimo shall not publicly disclose its ongoing business relationship with Customer materials without prior,written authorization. XV. Confidentiality. Each party(a) shall treat as confidential all Confidential Information,of the other party; (b) shall not disclose such Confidential Information to any third party, except on a"need to know"basis to third parties that have signed a non-disclosure agreement containing substantially the terms of this Agreement; and(c) shall not use such Confidential Information except in connection with, performing its obligations or exercising its rights under this,Agreement. Exceptions. Confidential Information will not include any information,which (i)was publicly known and made generally available prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through.no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidential ity; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information; or(vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such.disclosure and ass,istance in obtaining an order protecting the information from public disclosure. IN WITNESS WHEREOF.,the parties hereto have executed this Agreement as of the date first written above. VELO�SIMO r—DocuiSigned by: CUSTOMER By: By: ��MC—B,659701304E9— (Authorized Signature) (Authorized Signature) Peter Grace Name: Name:'Tiffany Allen (Printed or Typed), (Printed or Typed), Title: President and coo Title:Director of Development Services (Printed or Typed), (Printed or Typed), Date: Date:09/22/2020 Page 19 2020-1.1-0,3 Agenda Packet Page 141 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 Exhibit Al - STATEMENT OF WORK Accela integration with Tyler Cashiering This Statement of Work ("SOW") effective as of the Start Date set forth below ("SOW Effective Date"), is, a part of and incorporated into the Services Agreement ("Agreement") between Velosirno and Customer, dated 1 2020. Capitalized terms not defined in this SOW are as defined in the Agreement. In the event of any conflict between the Agreement and this SOW, the terms of the Agreement shall govern. 1 Contacts Information: Customer Representative". Tiffany Allen Address: 276 Fourth Avenue Chula Vista, CA 919101 Telephone number: 619.691.5179 Velosirno Representative: Address: Telephone number: Email address,: 2. Start Date: July 28, 2020 3. Services to be Performed; Schedule of Delliverables; Specifications and Acceptance Criteria; Due Dates: The Description of services to be performed is attached hereto as Attachment One. 4. Payment terms: A. Fees: The Fees for the Services,will be as described in the attached description of Services. Page 10 2020-11-03 Agenda Packet Page 142 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 B. Payment schedule: Fees for the Services shall be as established and paid in accordance with the schedule included in the attached Description of Services. If no schedule is included, invoice an payment shall be as provided in the Master Services Agreement between the Parties. C. Travel and Other Expenses: reasonable and necessary travel and living expenses required and incurred to perform the service will be compensated by Customer in addition to Velos,imo I s fee/rate for services, upon s,ubmiss,ion and approval pursuant to the Agreement. IN WITNESS WHEREOF, the authorized representatives of the parties have executed this SOW to become effective as of the SOW Effective Date. Velosirno, Inc. Customer �—DocuiSigned by: IzAll Signature Peter Grace Signature' I(...... Tiffany Allen Printed Name Printed Name President and coo Director of Development Services Title Title 9/22/2020 019/22/2020 Date Date Page I 11 2020-1.1-0,3 Agenda Packet Page 143 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 Attachment I�-Description of Services 1 .1 Over,vi'"ew Chula Vista, CA is looking for a solution to enable integration between Accela & Seamless and Laserfiche for electronic document management and Tyler Cashier for cashiering. (a) Solution - Laserfiche Velosimo's Laserfiche adapter is an Accela certified Electronic Document Management System (EDMS) Adapter for Laserfiche version 1 O�.3 or higher. The adapter provides Laserfiche integration for all document storage functions of the Accela platform and Seamless. The following diagram illustrates the architecture of the solution. Slmndard Velosim"'D Laserfiche Acc�,ela 4--- E DM S velosi""Jmo IIINI Laserfiche Adapter ,API On Premlsa 1 .2 Solution — Tyler Cashi"e�ri"ng Velosimo Connect is an integration platform service designed specifically for the software endpoints in government software Acc,,61a V&Ios,`,Jmo 4( 011 Tyler Cashiering Velosimo will configure an integration between Accela & Seamless to Tyler Cashiering allowing for a bi-directional experience between the two, products. The diagram above illustrates the high-level design of the integration with high-level features of: Payment �Looikup - the ab�ility to lookup invoice data in Accela from Tyler Cashiering Page 112 2020-11-03 Agenda Packet Page 144 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 • Payment Inquiry - the ability to look up, the invoice detail in Accela from Tyler Cashiering • Payment Update - the ability to apply payment within Tyler Cashiering and reflect that payment to Accela To provide a detailed statement of work on the Accela & Seamless toTyler Cashiering integration Velosimo needs an additional 1-2 hour session with the Chula Vista Team to walk throug�h the detailed use cases and expectations of the end result of the integration. From this meeting, Velosimo will create a detailed statement of work. Velosimio anticipates this work to take between 2-4 weeks to complete g�iven the high-level understanding of the requirements. Administration of the Velosimio Accela & Seamless to Laserf'iche and Tyler Cashiering adapter is done using the Velosimo Admin interface. The Admin interface provides a robust interface for configuring the integration settings between Accela to Laserfiche and Tyler Cashiering. 'The tool provides for the visual mapping of Accela to Laserfiche and Tyler Cashiering data fields. EAM11 ESSDOCS Dashboard EDMS,Settings Authorizations �D ro p Hp Las-erfiche &111'2111C�DOHN� GlobM Seftings Folirms settnqs, Enable Laserfiche? ACCIFLA Authoirizations, E D�M S-YE N D OR--S TA IN��D�A R D;U�R��L h I I p�/c on n ec t.ve I os�no,c o m:3 OBOY Acce�l�a��D�o c Li m e n 1,SVrC?Sto r a g e I a se rfic�hiie,&s t u g a pp V 6 1�o s ii E DiM S Base folder javdev Recard P 101(n D I I a l 11(r.",n-1 l 0 c��o I cl 1-4,"Ircel l n s r"I','��)n Pa r-t E v i d n e e I (],A Subfolders A(Jd /Ranning Rl@ninang /Records DefaUll Map Ficlds? Te mp I ate Relc,�,,td t,(-,�rnlNlates Vehicle Sticker Application t Laserfiche Mlapp�ngs Acid rnapl,,jing- Go to Advanced First Name IMMEEM Page 13 2020-11-03 Agenda Packet Page 145 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 One Time Confi�uration Product Description Quantity �Rate Price Discount Net Price Set up and configuration 4 connecto�rs above 1 N/A N/A N/A $16,000 Page 114 2020-1.1-0,3 Agenda Packet Page 146 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 Exhibit C: SOW ChanRe Order/Amendment,Template CHANGE ORDER/AMENDMENT TO STATEMENT OF WORK This Change Order/Amendment Number One (the "Chang�e Order/Amendment") to, the Statement of Work dated (the "SOW") is made as of (the "Effective D�ate"), by and between ("Customer"') and ("Velosimo�"). WHEREAS, Customer and Veloisimo entered into a Services Agreement dated (the "Agreement"); and WHEREAS, Customer and Veloisimo entered into an SOW, dated and-, WHEREAS, Customer and Veloisimo wish to amend the Statement of Work as to the following particulars only: NOW, THEREFORE, the parties agree as follows': [1. Section —, is amended [to, modify the services as follows],-. 2. Section is amended so that the duration of the services is amended such that the services, are now scheduled to be completed by 3. Section(s) is amended to memorialize the change in the cost of services to reflect a fee change [INCREASE/DiECREASE] of$ pursuant to this Change O�rder/Amendment and a new total fees for the SOW of $ .1 [SERVICE DESCRIPTION CAN ALSO BE ATTACHED AND REFERENCED HERE] Unless expressly modified herein, all of the terms and conditions set forth in the Statement of Work shall remain in full force and effect. Capitalized terms not otherwise defined in this Change Order/Amendment shall have the meaning set forth in the Agreement. Customer and Velosimo have caused this Change O�rder/Amendment to be executed as of the Effective Date, which may be in duplicate counterparts, each of which will be deemed to be an or,iginal instrument. Vellosimo, Inc. Custome�r Signature Signature Printed Name Printed Name Title Title Date Date Page 115 2020-1.1-0,3 Agenda Packet Page 147 of 5019 DocuSip Envelope ID: 17BO05F4-2067-455D-87OB-70430912El7B6 Exhibit D: Insurance coverage ,Z2 Velosimo Certificate of Insurance follows this page. Page 116 2020-11-03 Agenda Packet Page 148 of 5019 4"�Si� �f�e "00000 CITY OF Off'is ce of the, City Clerk CHULAVISTA is Click the link below for November 3, 2 02 0 City Council Meeting Supplemental Materials: in httpo,llcvai)vs,.chulavi"stacal,glov/w�eblink8/b�rowse,ia x*?starti,d=2291912, 'Idiiig A, Chtfla, Vista,. CA 91910 (619) 6'9`1-5(")41, 01, 11 k la-vistaca-,,)-o. 2�76 FOLH-th Avell'u'(3 BUI 'I ')"pcl 0'r v ��w��ww.cll,u,"Ia��v�i.s,ta.ca.g,ov 2020-1.1-0,3 Agenda Packet Page 149 of 5019 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0413 A. RESOLUTION OF THE CHULA VISTA HOUSING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF ITS TAX-EXEMPT MULTIFAMILY HOUSING REVENUE NOTES IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $35,000,000 FOR THE PURPOSE OF FINANCING THE ACQUISITION AND CONSTRUCTION OF' THE OTAY RANCH APARTMENTS MULTIFAMILY RENTAL HOUSING PROJECT;APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF ANY AND ALL DOCUMENTS NECESSARY TO EXECUTE AND DELIVER THE NOTES,, COMPLETE THE TRANSACTION AND IMPLEMENT THIS RESOLUTION, AND RATIFYING AND APPROVING ANY ACTION HERETOFORE TAKEN IN CONNECTION WITH THE NOTES B. RESOLUTION OF'THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS AND DEED OF TRUST BY AND BETWEEN THE CITY OF CHULA VISTA AND, OTAY RANCH AFFORDABLE I V8) LP TO PROVIDE 175 RESIDENTIAL UNITS IN OTAY RANCH VILLAGE 8 WEST TO BE OPERATED AS AFFORDABLE RENTAL HOUSING FOR VERY-LO,W AND LO�W-INCOME HOUSEHOLDS IN SATISFACTION OF' THE CITY'S BALANCED COMMUNITIES POLICY RECOMMENDED ACTION Authority adopt resolution A and Council adopt resolution B. SUMMARY On October 1, 2019,the City Council (CC) and the Chula Vista Housing Authority (CVHA or the "Authority") took preliminary actions needed for the issuance by the CVHA of tax-exempt multifamily revenue notes for the purpose of financing the construction of Otay Ranch Apartments (the "Project"). Located at the northwest corner of La Media Parkway South and Main Street East in the Otay Ranch Village 8 West master planned community, the Project will provide 175 affordable rental units to be restricted for 55�-years for occupancy by very low-,and low-income families,with two units for resident managers. The CVHA is asked to authorize the execution and delivery of the multifamily housing notes for the Project based upon an award of$35,000,0100 in bond allocation from the California Debt Limit Allocation Committee ("CDLAC") to finance the Project. CC is asked to approve the execution and recordation of a Declaration of Covenants, Conditions, and Restrictions and a Deed of Trust in satisfaction of Otay Ranch Village 8 West's obligations under the City's Balanced Communities Policy. 1111. 0 0 1 P �3ge 1 2020-1.1-0,3 Agenda Packet Page 150 of 5019 ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed project for compliance with the California Environmental QualityAct(CEQA)and has determined thatthe Projectwas adequately covered in previously certified Otay Ranch Village 8 West Sectional Planning Area and'Tentative Map Final Environmental Impact Report(FEIR 10-03) -SCH No. 20100620�93. Thus,no further CEQA review is necessary., BOARD/COMMISSION/COMMIT rEE RECOMMENDATION The Housing Advisory Commission will be provided with an update of the Project at its meeting on October 28; 2020. DISCUSSION On October 1, 2019, at a public hearing held in compliance with Section 147(o of the Internal Revenue Service Code of 1986,reflecting the,Tax Equity and Fiscal Responsibility Act of 198,2 (TEFRA),the Chula Vista City Council by CC Resolution No. 2019-193 and the Chula Vista Housing Authority by CVHA Resolution No�. 2019-005 approved the use ofmultifamily housing revenue notes, to be issued by the CVHA, to finance the new construction and operation of the Project located at northwest corner of La Media Parkway South and Main Street East (Attachment 1: Locator Map). An application was submitted to the California Debt Allocation Committee (CD�LAC), the State bonding authority, and to the California Tax Credit Allocation Committee (CTAC) for the companion tax credits. In February 2020,the Project received a 2020 State Ceiling on Qualified Private Activity Bonds Allocation in the amount of$35,,000,000 (the "Allocation"), pursuant to CDLAC Resolution No. 20-434. Additionally, the Project received a Preliminary Reservation Letter from the California Tax Credit Allocation Committee ("CTCAC") for federal and state tax credits. The bond allocation and tax credit contributions will be used to substantially finance the Project. The City and Authority were advised on this matter by a financing team consisting of Stradling Yocca Carlson & Rauth, as special counsel and bond counsel (together, "Special Co�unsel") and Ross Financial as Financial Advisor. Staff requests that the CVHA app�rove in substantial final form all documents related to the execution and delivery of the notes and bonds to finance the Pro�ject. As the Project is being developed in satisfaction of the City's General Plan Housing Element's Balanced Communities Policy for Otay Ranch Village 8 West,which requires new construction residential projects to provide housing for low income households,the Council is asked to authorize the execution of a Declaration of Covenants, Conditions, and Restrictions (CC&Rs) to restrict occupancy of the Project in compliance with this Policy. Since one year has lapsed since CC's T'EFRA hearing and approval on October 1, 20�19,the Chula Vista City %-.J Counc�il or its appointee will be asked to conduct a new TEFRA(public) hearing(tentatively scheduled for November 17, 2020�) to provide an opportunity for public comments on the issuance of the bonds and the project for which the bond funds will be allocated. P �3ge 2 2020-1.1-0,3 Agenda Packet Page 151 of 5019 Reso�lutio�ns and the note and bond documents presented for the City Council's and CVHA's consideration have been prepared by Stradling Yocca Carlson&Rauth,serving as Special Counsel for the City of Chula Vista and CVHA. The Development Team The Project is being developed by Meta Housing Corporation, a for-pro�fit affordable housing developer ("Project Sponsor"). At bond closing, a limited partnership, Otay Affordable I V8, LP', will be created to construct, maintain and operate the Project as the owner and borrower of the bond proceeds. Otay Affordable I V8, LLC will serve as the Administrative General Partner, with JMH Investments, LLC as the manager. FFAH V Otay Ranch 1, LLC will serve,as the Managi,ng General Partner. E WIN WIN ME I I I I I I I I I MM 11 WIN WIN 11 1 IS 1 11 1 1 1 1 1 1 1 Role FIRM/ ONTACT Ownership Otay Affordable I V8, LP Managling General Partner 0.01 % FFAH V Otay Ranch 1, LLC Admi'ni'strative General Partner 0.09% Otay Affordable I V8, LLC JMH Investments,LLC, Ma,nyq Tax Credi't Investor/Li'mi'te d Partner 99.99% Boston Financial Investment Management, LP Property Management WSH Property Management Lender/Purchaser Citibank Architect Dahlin Gr�oup�, Inc. The Project Sponsor will be responsible for managing the construction of the property through completion and cost certification, with a general contractor overseeing construction. Meta will also be responsible for preparation of annual prop erty-sp�ecific budgets, marketing, leasing, overseeing property management and maintenance,income-qualification of residents,annual reporting to investor and lender,payments to lenders and provide resident services.WSH Property Management will serve as the day to day property manager'. The Project Sponsor was se�lecte�d by the master developer of Otay Ranch Village 8 West as their partner in developing affordable housing in compliance with the City 11 s Balanced Communities Po,licy. Meta Housing has developed over 80 affordable communities,totaling 6,400 units,throughout California with the majority of the communities within Los Angeles County. 'Their communities include special needs housing, senior housing,family housing,and mixed-us e/transit-oriented developments. Otay Ranch Apartments represents the first bond and tax credit financed affordable housing development for Meta Housing in the San Diego region. The Project The Project will be built within the Otay Ranch Village 8 West master p�lanned community in eastern Chula Vista. 'The low-income units will satisfy the requirements of the City T s Balanced Communities Policy for the provision of affordable housing within this community. The Project envisions a total of 175 units,with 173 affordable to very low- and low-income households and 2 units for the resident managers. It will consist of 55 one-bedroom units, 72 two-bedroom units, 46 three-bedroom units. Two of the two-bedroom units will P �3ge 13 2020-1.1-0,3 Agenda Packet Page 152 of 5019 be reserved for on-site resident managers. Project amenities include community rooms, property management offices,game room, outdoor courtyards,and a tot lot. The Pro�ject is ideally located for the convenience of residents.The Project is within comfortable walking and biking distance to recreational opportunities and neighborhood services and has direct access to public transportation. Nearby amenities and services are located: Less than 1.5 miles from grocery store and other shopping; and, Less than 0.50 mile from a planned park and elementary school. Total Project costs for both acquisition and construction is estimated at$73.5 million. Construction&Soft Costs $ 65,.1121980 $ 372,074 $ 374 Developer Costs $ 8)400)000 $ 48)000 $48 TOTAL Dwelling Units (DUs) 175 TOTAL Gross Bldg Sq Ft 174,050 Income&Rent Restri*cti"ons For bond financing, Section 142 (d) of the Internal Revenue Code requires either a minimum of 20 percent of the rental units in the Project be available for occupancy by very low-income persons or families whose income does not exceed 50 percent of the area median income(AMI) for the San Diego Primary Metropolitan Statistical Area, or alternatively, at least 40 percent of the rental units are required to be available for occupancy by low-income persons or families whose income does not exceed 60 percent of the AMI. The units are made available at affordable rents established by the applicable State law. The project will exceed the affordability requirements of bond financing with 173 of the 175, units of the Project to be restricted as affordable for very low- and low-income households,with two units reserved for, the resident managers,see Table 3.The Project proposes to maintain the income and rent restrictions for 5,5 years from the effective date of the bond financing agreements. 'These income and rent restrictions will be outlined within the bond regulatory agreement to be recorded against the property and shall be in compliance with the CDLAC Committee Regulations and the Low Income Housing Tax Credit program as set fo�rth in Section 42 of the Internal Revenue Code in 1986,,as amended ("LIHT'C"). P �3ge 4 2020-1.1-0,3 Agenda Packet Page 153 of 5019 Table 3 -Affordabi'lity&Estlimated Monthly Rent/Income (Effective April 2020) 1 Bdrm/1 Ba 41 1fi083 $40fi45O* 14 1fi299 48fi45O* 2 Bdrm/1 Ba 7 $ 1;300 $46;2,00* 65 $ 1fi560 $ 55,440* 2 3 Bdrm 5 $ 1)501 $ 52)000* 41 $ 1�802 $ 62J00* TOTAL DUS 5 3 120 2 175 1 11 *Assumes 1 person occupying a one-bedroom,2 persons occupying a two-bedroom, and three persons occupying a three- bedroom. Max Annual Income would increase depending on actual occupancy. Compliance with the income and rent restrictions will be subject annually to a regulatory audit and annual tax credit certification. Compliance with strict property management policies and procedures will ensure that income and rent restrictions will be maintained for the full 55-year compliance period. FI'nanci'ng The Tax-Exempt Multi-Family Revenue Bonds and Low-Income Housing Tax Credit financing will support the majority of the estimated $73.5 million total development cost of the Project. The Project Sponsor has requested the CVHA consider the issuance of' one series of tax-exemp�t ob�ligations with a total aggregate principal not to exceed $35 million. Citibank, N.A. ("Citi") will provide a construction-co�nverting-to�- permanent loan (Tax-Exempt Series). The Project Sponsor is receiving$2,351,924 in annual Lo�w-Income Housing Tax Credits for the next 10 years ($28.2 million) and $4,375,000 in State Credits. Boston Financial Investment Management, LP will be the Tax Credit Investor. The balance of needed funds for the construction and permanent financing o�f'the Project is proposed to be provided by a subordinate taxable loan made directly by Citibank to the Borrower, deferred developer fee and seller carryback financing by HomeFed Village 8,, LLC, as seller of the property. No financial assistance from the City or the CVHA is being requested for the Project.A summary of the estimated sources and uses submitted by the Project Sponsor is provided in Attachment 2. Financial Advisor's Feasibility Analysis Ross Financial is the CVHA's Financial Advisor for this transaction. After evaluating the terms of the proposed financing and the public benefits to be achieved,it is the Financial Advisor's recommendation that the CVHA proceed with execution and delivery of the notes. The Financial Advisor's analysis and recommendation is inc�luded as Attachment 3. P �3ge 5 2020-1.1-0,3 Agenda Packet Page 154 of 5019 Bond Structure The Housing Authority is being asked to authorize the issuance of one series of'notes and bonds (Series 2020 A) to finance development costs. 'The Note will be purchased in a private placement by Citi or another affiliate. Citi has committed to provide tax-exempt and taxable construction and permanent financing for the Project., The Note will meet all requirements of the CVHA's Multifamily Housing Revenue Bond Program and will fully comply with the City bond disclosure policies., At this time,the Housing Authority is being asked to approve in substantial final form all documents related to the execution and de,livery of the notes and bonds. Note and bond documents presented for the CVHA's consideration have been prepared by Stradling Yocca Carlson & Rauth, serving as Special Counsel to the CVHA. These documents are listed below: The Funding Loan Agreement describes the terms and conditions between the Issuer and the Funding Lender for advancing funds and application of these for the purpose of funding a loan to the Borrower (Attachment 4). The Loan Agreement specifies the terms and conditions of the Loan financing for the Project (see Attachment 5). The Bond Regulatory Agreement and Declaration of Restrictive Covenants specifies the regulations for the use and operation of the Project(Attachment 6). Balanced Communi"ties PolECY The City Council is being asked to approve the execution and recordation of a Deed of Trust and a Declaration of Covenants, Conditions,and Restrictions (CC&Rs) to provide 175 residential units within the Project to be operated as affordable rental housing for very-low and low-income households to satisfy Village 8 West's Low-and Moderate-income obligation (Attachment 8 and 9,respectively). Financial Disclosure Government Code Section 5852.1 requires that the governing body of a public body obtain and disclose certain information about a financing, including conduit revenue obligations, prior to authorizing the issuance of bonds with a term of greater than 13 months. Such information is to be based on good faith estimates of the following information made available in a meeting open to the public. Attachment 7,Public Disclosures Relating to Conduit Revenue Obligations,satisfies this requirement. DECISION-MAKER CONFLICT Staff has reviewed the property holdings, of the City Council and the CVHA members and has found no property holdings within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real prop erty-related financial conflict of interest under California Code of Regulations Title 2, section 18702.2(a)(7) or (8), for purposes of the Political Reform Act(C�al. Govt Code§87100,et seq.). Staff is not independently aware, and has not been informed by any City Council or CVHA member,, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. P �3ge 6 2020-1.1-0,3 Agenda Packet Page 155 of 5019 CURRENT-YEAR FISCAL IMPACT Multifamily Housing Revenue,Bond Financing is a self-supporting program,with the borrower,the property owner, responsible for the payment of all costs of issuance and other costs of the notes. The CVHA will receive compensation for its services in execution and delivery of the notes by charging an origination fee equal to 20 basis points (0.20%) of the total original principal amount of the notes,with a minimum fee of $70�000 (.20% of $70M), with the final amount determined at the transaction closing., The borrower is responsible for payment of all costs under the financing,including Bond Co�unse,l, Outside,Counsel, Financial Advisor Fees,and Trustee Fees. ONGOING FISCAL IMPACT Multifamily Housing Revenue Bond Financing is self-supp�or�ting program. Staff costs associated with monitoring compliance of the regulatory restrictions and administration of the outstanding notes will be reimbursed from an annual administrative fee of'$17,000 paid to the CVHA by the borrower., The notes will not constitute a debt of the City or financially obligate the City of the CVHA because the security for the repayment of the notes will be limited to specific private sources of the development. Neither the faith and credit nor the taxing power of the City or the CVHA will be pledged to the payment of the notes. 'The borrower is responsible for payment of all costs under the financing,including CVHA's annual administrative fee. Al"TACHMENTS 1. Locator Map 2. Revised Project Pro Forma (10.2020) 3,. Financial Advisor's Feasibility Analysis Bond Loan Documents(Transaction Documents) 4. Funding Loan Agreement 5. Borrower Loan Agreement 6. Bond Regulatory Agreement and Declaration of Restrictive Covenants Other: 7. Public Disclosures Relating to Conduit Revenue Obligations 8. Deed of Trust Balanced Communities Policy 9. Declaration of Covenants, Conditions and Restrictions-Balanced Communities Policy Staff Contact: Leilani Hines, Housing Manager Chula Vista Housing Authority P �3ge 7 2020-1.1-0,3 Agenda Packet Page 156 of 5019 PUBLIC DISCLOSURES RELATING TO CONDUIT REVENUE OBLIGATIONS Pursuant to California Government Code Section 5852.1, the borrower (the "Borrower") identified below has provided the following required information to the Chula Vista Housing Authority (the "Authority") prior to the Authority's regular meeting (the "Meeting") of its Board of Commissioners (the "Board") at which Meeting the Board will consider the authorization of conduit revenue obligations as identified below. 1. Name of Borrower: OTAY AFFORDABLE I V8,L.P.,a California limited partnership. 2. Board of Commissioners Meeting Date,-. November 3,,2020. IN 3. Name of Bond Issue / Conduit Revenue Obligations: Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A (the III Note"). 4. X Private Placement Lender or Bond Purchaser,-Underwriter or Financial Advisor (mark one) engaged by the Borrower from which the Borrower obtained the following required good faith estimates relating to the Notes,-. (A) The true interest cost of the Note, which means the rate necessary to discount the amounts payable on the principal and interest payment dates to the purchase price received for the new issue of the Note (to the nearest ten-thousandth oIf'oIne percent): 3.77% (estimated as of 10/22/201- final interest rate to be set closer to Bond closing,estimmated on 11/17/2,0; Note currently pro forma'ed at 3.77%). (B) The finance charges of the Note, which mean the sum of all fees and charges paid to third parties: collectively, $1,649,7001 ($660,700 paid upfront, $377,000 paid during the term of the Note and$612,000 paid from Note maturity through the end of the 55 year compliance period in the Regulatory Agreement). (C) The amount of proceeds received by the public body for sale of the Note less the finance charges of such Note described in subparagraph (B) and any reserves or capitalized interest paid or funded with proceeds of such Note: $35,0010,0010. (All finance charges funded from a source other than the proceeds of the Note). (D) The total payment amount,which means the sum total of all payments the borrower will make to pay debt service on the Note plus the finance charges of the Note described in subparagraph (B) not paid with the proceeds of such Note (which total ,payment amount shall be calculated to the final maturity of such Note),: $58,353,7591.95 (consisting of estimated principal and interest payments of $56,704,059.95 and estimated finance charges identifiedin (B)),. This document has been made available to the public at the Meeting of the Board. Dated: October 22, 2020 2020-1.1-0,3 Agenda Packet Page 157 of 5019 NO CHARGE ON THIS DOCUMENT PER CALIFORNIA GOVERNMENT CODE SECTION 6103 Recording Requested By: When Recorded Mail To: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 919 10 DEED OF TRUST (Otay Ranch Apartments), THIS DEED OF TRUST ("Deed of Trust") is dated as of the day of 20,2011 by Otay Affordable I V8, L.P., a California limited partnership ("Trustor"), whose address is 11150 W. Olympic Blvd., Suite 620, Los Angeles, California 90064, First American Title Insurance Company("Trustee") and the City of Chula Vista("Beneficiary"), whose address is City of Chula Vista, C/O Housing Division, 276 Fourth Avenue, Chula Vista, California, 91910. TRUSTOR HEREBY irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale,all that property in the City of Chula Vista,County of San Diego, State of California, described as-. (See Legal Description - Exhibit"A") FOR THE PURPOSE OF SECURING: (a) The performance of each agreement and covenant of Trustor under that certain Declaration of Covenants, Conditions and Restrictions (Otay Ranch Apartments) of even date herewith and recorded concurrently herewith affecting the Property ("Declaration") and any renewals, extensions, modifications or amendments to the Declaration; and (b) The performance of each agreement contained in this Deed of Trust. A* 'TO PROTECT THE SECURITY OF 'THIS DEED OF TRUST, 'TRUSTOR AGREES. I. Maintenance and Repair. To keep the Property in good condition and repair; not to remove or demolish any buildings on the Property; to complete or restore promptly and in good and workmanlike manner any building that may be constructed, damaged, or destroyed on the Property; to pay when due all claims for labor performed and materials furnished for the Property; to comply witb all laws affecting the Property or requiring any alterations or improvements to be made on the Property; not to commit or permit waste of the Property (reasonable wear and tear 2020-1.1-0,3 Agenda Packet Page 158 of 5019 excepted); not to commit, suffer, or permit any act upon the Property in violation of law; and to cultivate, irrigate, fertilize, fumigate, prune, and do all other acts that from the character or use of the Property may be reasonably necessary. 2. Fire Insurance. To provide,, maintain, and deliver to Beneficiary fire insurance satisfactory to and with loss payable to Beneficiary as its interest may appear. The! amount collected under any fire or other insurance policy may be applied by Beneficiary upon any indebtedness secured by this Deed of Trust and in any order determined by Beneficiary, or at the option of Beneficiary the entire amount so collected or any part of that amount may be released to Trustor. This application or release shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act done pursuant to such a notice. Notwithstanding the foregoing, in the event of any fire or other casualty to the Property, Trustor shall have the right to rebuild the Property, and to use all available insurance proceeds therefor, provided that (a) such proceeds are sufficient to rebuild the Property in a manner that provides adequate security to Beneficiary for repayment of the indebtedness, secured hereby or if such proceeds are insufficient then Trustor shall have funded any deficiency, (b) Beneficiary shall have the right to approve (which shall not be unreasonably withheld or delayed) plans and specifications for any major rebuilding and the right to approve(which shall not be unreasonably withheld or delayed)disbursements of insurance proceeds for rebuilding under a construction escrow or similar arrangement, and (c) no material default then exists hereunder or under either the Declaration. If the casualty affects only part of the Property and total rebuilding is not feasible, then proceeds may be used for partial rebuilding and partial repayment of the indebtedness secured hereby in a manner that provides adequate security to Beneficiary for repayment of the remaining indebtedness secured hereby. 3. Defense of Sec . To appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary, or Trustee; and to pay all costs and expenses, including cost of evidence of title and attorneys,' fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust. 4. Payment of Liens and Taxes. To pay all taxes and assessments affecting the Property prior to such payments becoming due, including assessments on appurtenant water stock, all encumbrances, charges, and liens,with interest, on the Property or any part of the Property, which appear to be prior or superior to this Deed of Trust; and all costs, fees, and expenses of this Deed of Trust. If Trustor fails to make any payment or to do any act as provided in this Deed of Trust, then Beneficiary or Trustee may (but is not obligated to) make the payment or do the act in the required manner and to the extent deemed necessary by Beneficiary or Trustee to protect the security of this Deed of Trust. The performance by Beneficiary or Trustee of such an act shall not require notice to or demand upon Trustor and shall not release Trustor from any obligation under this Deed of Trust. Beneficiary or Trustee shall also have the following related rights and powers: to enter upon the Property for the foregoing purposes; to appear in and defend any action or proceeding purporting to affect the security of this Deed of Trust or the rights or powers of Beneficiary or Trustee; to pay,purchase, contest, or compromise any encumbrance, charge, or hen that in the judgment of either appears to be prior or superior to this Deed of Trust; to employ counsel; and to pay necessary expenses and costs, including reasonable attorneys' fees. 2 2020-11-03 Agenda Packet Page 159 of 50�9 5. Reimbursement of Costs. To pay immediately and without demand all sums expended by Beneficiary or Trustee pursuant to this Deed of Trust, with interest from date of expenditure at the amount allowed by law in effect at the date of this Deed of Trust, and to pay any amount demanded by Beneficiary (up to the maximum allowed by law at the time of the demand) for any statement regarding the obligation secured by this Deed of Trust. 6. Use. That Trustor will not permit or suffer the use of any of the Property for any purpose other than the use for which the same was intended at the time this Deed of Trust was executed. 7. Incorporation of Declaration. The Declaration is incorporated herein by this reference. 8. Performance of Other Obligations. To perform, in a timely manner, each agreement and covenant by and between Trus,tor on any and all notes, loans and deeds of trust that are senior and/or junior to this Deed of Trust. A default in any of these obligations and the expiration of any applicable notice or cure period shall constitute a default under this Deed of Trust. B. THE PARTIES AGREE THAT: 9. Condemnation Award. Any award of damages in connection with any taking or condemnation,, or for injury to the Property by reason of public use, or for damages for private trespass or injury to the Property,, is hereby assigned and shall be paid to Beneficiary (subject to the rights of any senior lenders), as its interest may appear as further security for all obligations secured by this Deed of Trust. Upon receipt of such proceeds, Beneficiary may hold the proceeds as further security, or apply or release them in the same manner and with the same effect as provided in Section 2 of this Deed of Trust for the disposition of proceeds of fire or other insurance. 10. Waiver of Late Payments. By accepting payment of any sum secured by this Deed of Trust after its due date, Beneficiary does not waive its right either to require prompt payment when due of all other sums so secured or to declare default for failure to pay any indebtedness secured by this Deed of Trust. It. Full Recopyeyance. Upon expiration of the term of the Declaration and written request of Beneficiary, and payment of Trustee's fees and charges, Trustee shall reconvey,without warranty, the Property then subject to this Deed of Trust. The recitals in the reconveyance shall be conclusive proof of the truthfulness of the recitals. The grantee in the reconveyance may be described as "the person or persons legally entitled thereto 12. Ass,,i J 'Rents. As additional security, Trustor hereby gives to and confers upon ,,gnment oi_ Beneficiary the right,power, and authority during the continuance of this Deed of Trust, to collect the rents, issues, and profits of the Property, but reserves the right, prior to any default, which continues beyond any applicable notice and cure periods, by Trustor in payment of any amounts secured by this Deed of Trust or in the performance of any agreement under this Deed of Trust, to collect and retain these rents, issues, and profits as they become due and payable. Upon any such uncured default, Beneficiary may, without notice and without regard to the adequacy of the security for the amounts secured by this Deed of Trust, either personally or by agent or court- appointed receiver, do the following: enter upon and take possession of the Property or any part of 3 2020-1.1-0,3 Agenda Packet Page 160 of 50�9 the Property; sue for or otherwise collect all rents, issues, and profits, including those past due and unpaid; and apply these rents, issues, and profits, less costs and expenses of operation and collection (including reasonable attorneys' fees), upon any indebtedness secured by this Deed of Trust, in any order determined by Beneficiary. The exercise of the foregoing rights by Beneficiary shall not cure or waive any default or notice of default under this Deed of Trust or invalidate any act done pursuant to such a notice. 13. Default; Foreclosure. Upon default under the Declaration by or in the performance of any obligation under this Deed of Trust, after the expiration of any and all applicable notice or cure periods, Beneficiary may declare all sums secured by this Deed of Trust immediately due and payable by delivering to Trustee a written declaration of default and demand for sale and a written notice of default and election to sell the Property. Trustee shall cause the notice of default and election to sell to be recorded. After the required time period has lapsed following the recordation of the notice of default, and after notice of sale has been given as required by law, Trustee,without demand on Trustorl shall sell the Property at the time and place s,p�ecified in the notice of sale, either as a whole or in separate parcels, and in any order determined by Trustee, at public auction to the highest bidder for cash in lawful money of the United States, payable at the time of sale. Trustee may postpone sale of all or any portion of the Property by public announcement at the time and place of sale, and from time to time thereafter may postpone the sale by public announcement at the time fixed by the preceding postponement. Trustee shall deliver to the purchaser at the auction its deed conveying the Property sold, but without any covenant or warranty, express or implied. The recital in the deed of any matter or fact shall be conclusive proof of the truthfulness of the recital. Any person, including Trustor, Trustee, or Beneficiary, may purchase at the sale. After deducting all costs, fees, and expenses of Trustee and Beneficiary under this paragraph, including costs of procuring evidence of title incurred in connection with sale, Trustee shall apply the proceeds of sale to payment of.- all sums expended under the terms of this Deed of Trust, not then repaid, with accrued interest at the amount allowed by law in effect at the date of this Deed of Trust; all other sums then secured by this Deed of Trust; and the remainder, if any,to the person or persons legally entitled to the remaining proceeds. Trustor's limited partner shall have the right, but not the obligation, to cure defaults of Trustor hereunder, and the Beneficiary hereby agrees to accept any cure of any default made or tendered by Trustor's limited partner on the same basis as if made or tendered by Trustor. Copies of all notices which are sent to Trustor hereunder shall also be sent to Trustor's limited partner: 14. Due on Sale or Further Encumbrance. Trustor shall not sell, transfer or otherwise dispose of the real property described in this deed of trust, or any portion thereo�f, or any interest therein unless the proposed transferee shall have executed and delivered to the Beneficiary an express written assumption of all of Trustor's obligations hereunder this deed of trust,on a form reasonably acceptable to the Beneficiary. Consent to one transaction. of this type will not constitute a waiver of the right to acquire consent to future or successive transactions. 4 2020-11-03 Agenda Packet Page 161 of 50�9 15. General Provisions. This Deed of Trust applies to, inures to the benefit of, and binds all parties to this Deed of Trust and their heirs, legatees, devise!es, administrators, executors, successors, and assigns. The term "Beneficiary" shall mean the City of Chula Vista, and its successors and assigns. In this Deed of Trust, whenever the! context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. 16. Substitution of Trustees. Beneficiary, or any successor in ownership of any obligations secured by this Deed of Trust,may from time to time, by written instrument, substitute a successor or successors to any Trustee named in or acting under this Deed of Trust. The substitution instrument shall contain the name of the!original Trustor,Trustee, and Beneficiary under this Deed of Trust, the book and page where this Deed is recorded, and the name and address of the new Trustee. When executed by Beneficiary and duly acknowledged and recorded in the office of the recorder of the county or counties where the Property is situated, the substitution instrument shall be conclusive proof of proper substitution of the successor Trustee or Trustees. Any successor Trustee or Trustees shalL without conveyance from the predecessor Trustee, succeed to all its title, estate, rights, powers, and duties. 17. Cumulative Powers and Remedies. The powers and remedies conferred in this Deed of Trust are concurrent and cumulative to all other rights and remedies,provided in this Deed of Trust or given by law. These powers and remedies may be exercised singly, successively, or together, and as often as deemed necessary. 18. Conclusiveness of Recitals. The recitals contained in any reconveyance, trustee's deed, or any other instrument executed by Trustee from time to time under the authority of this Deed of Trust or in the exercise of its powers or the performance of its duties under this Deed of Trust, shall be conclusive evidence of their truth, whether stated as specific and particular facts, or in general statements or conclusions. Further, the recitals shall be binding and conclusive upon Trustor, its heirs, executors, administrators, successors, and assigns, and all other persons. 19. Attomey,s,,,,,,""""""""""F,,,e,,es. If any action is brought for the foreclosure of this Deed of Trust or for the enforcement of any provision of this Deed of Trust(whether or not suit is filed), Trustor agrees to pay all costs and expenses of Beneficiary and Trustee, including reasonable attorneys' fees; and these sums shall,be secured by this Deed of Trust. The prevailing party in any litigation, including but not limited to arbitration, writ petitions,, complaints, and/or actions for declaratory relief, brought to enforce, interpret or reform the provisions of this Deed of Trust shall, be entitled to reasonable attorneys' and experts' fees, costs and out-of-pocket expenses (whether or not considered recoverable "costs"under applicable statute) incurred in sucb litigation. 5 2020-1.1-0,3 Agenda Packet Page 162 of 50�9 20. Request for Notices of Default and Sale. In accordance with Section 2924b of the California Civil Code, request is hereby made that a copy of any Notice of Default and a copy of any Notice of Sale under any deeds of trust recorded in the Official Records of San Diego County, California, with respect to the Property, in which Beneficiary, is named as beneficiary, be mailed to: City of Chula Vista c/o Housing Division 276 Fourth Avenue Chula Vista, California 919 10 NOTICE: A copy of any notice of default and of any notice of sale will be sent only to the address contained in this recorded request. If your address changes, a new request must be recorded. 21. Inspections. Trustor shall permit Beneficiary and its agents or representatives, to inspect the Property at any and all reasonable times, upon 48 hours advance notice to Trustor. Inspections shall be conducted so as not to interfere with the tenants' use and enjoyment of the Property. 22. Hazardous Materials Defined. For purposes of this Deed of Trust, "Hazardous Materials" means and includes any flammable, explosive, or radioactive materials or hazardous, toxic or dangerous wastes, substances or related materials, or any other chemicals, materials or substances, exposure to which is prohibited, limited or regulated by any federal, state, county,regional or local authority or which, even if not so regulated,may or could pose a hazard to the health and safety of the occupants of the Property or of property adjacent to the Property, including, but not limited to, asbestos, PCBs, petroleum products and byp�roducts, substances defined or listed as "hazardous substances" or "toxic substances" or similarly identified in, pursuant to, or for purposes of, the California Solid Waste Management, Resource Recovery and Recycling Act (California Government Code Section 66700 et .), the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (42 U.S.C. Section 9601, �gt .), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et .), the Resource Conservation and Recovery act (42 U.S.C. Section 6901, et .), Section 25117 or Section 25316 of the California Health & Safety Code; and any so-called "Superfund" or "Superlien" law, or any other federal, state or local, statute,, law, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards of conduct concerning any hazardous, toxic or dangerous waste, substance or material; or any substances or mixture regulated under the Toxic Substance Control Act of 1976, as now or hereafter amended (15 U.S.C. Section 2601 et .); and any "toxic pollutant" under the Clean Water Act, as now or hereafter amended (3-3 U.S.C. Section 1251 et ); and any hazardous air pollutant under the Clean Air Act, as now or hereafter amended (42 U.S.C. Section 7901 et ). Notwithstanding the above, the ten-n "Hazardous Materials"' shall not include small amounts of chemicals, cleaning agents and the like commonly employed in routine household uses in a manner typical of occupants in other similar residential properties provided they are used in compliance with applicable laws. The term"Hazardous Materials Laws" means any federal, state or local law, code, statute, ordinance, rule, regulation, rule of common law or guideline relating to Hazardous Materials now or hereafter enacted or promulgated 6 2020-1.1-0,3 Agenda Packet Page 163 of 50�9 (collectively, and including, without limitation, any such laws which require notice of the use, presence, storage,generation,disposal or release of any Hazardous Materials to be provided to any party). 23. Trustor's Hazardous Materials Representations and Warranties and Inde In addition to the general and specific representations, covenants and warranties set forth in the Deed of Trust or otherwise, Trustor represents, covenants and warrants, with respect to Hazardous Materials, as follows: (a) Neither Trustor nor, to the best knowledge of Trustor, any other person, has ever caused or permitted any Hazardous Materials to be manufactured,placed,held,located or disposed of on, under or at the Property or any part thereof, and neither the Property nor any part thereof, has ever been used(whether by Trustor or, to the best knowledge of Trustor, by any other person) as a manufacturing site, dump site or storage site (whether permanent or temporary) for any Hazardous Materials. "Hazardous Materials" for purposes of this Section 23(a) shall not include substances typically used in the ordinary course of developing, operating and maintaining apartment complexes, provided that such substances are used in accordance with all applicable laws. (b) Trustor hereby agrees to indemnify Beneficiary,its officers,employees, contractors and agents, and hold Beneficiary, its officers, employees, contractors and agents harmless from and against any and all losses, liabilities, damages, injuries, costs, expenses and claims of any and every kind whatsoever paid, incurred or suffered by, or asserted against Beneficiary, its officers, employees,contractors or agents for,with respect to,or as a direct or indirect result of,the presence or use, generation, storage, release, threatened release or disposal of Hazardous Materials on or under the Property or the escape, seepage, leakage, spillage, discharge, emission or release of any Hazardous Materials from the Property (including, without limitation, any losses, liabilities, damages, injuries, costs, expenses or claims asserted or arising under CERCLA, any so-called "Superfund" or "Superlien" law, or any other federal, state or local statute, law, ordinance, code, rule,regulation,order or decree regulating,relating to or imposing liability or standards of conduct concerning any Hazardous Materials)regardless of whether or not caused by or within the control of Trustor. The foregoing indemnification shall not apply to any liability resulting from (i) an event that occurs after a transfer of the Property due to any foreclosure sale(judicial or nonjudicial) or a deed in lieu of foreclosure, or(ii) acts or omissions of Beneficiary or its agents. (c) Trustor has not received any notice of(i) the happening of any event involving the use, spillage, discharge,or cleanup of any Hazardous Materials("Hazardous,Discharge")affecting Trustor or the Property or(ii) any complaint, order, citation or notice with regard to air emissions, water discharges, noise emissions or any other environmental, health or safety matter affecting Trustor or the Property("Environmental Complaint")from any person or entity,including,without limitation., the United States Environmental Protection. Agency ("EPA"). if Trustor receives any such notice after the date hereof, then Trustor will give, within seven (7)business days thereafter, oral and written notice of same to Beneficiary. (d) Without limitation of Beneficiary's rights under this Deed of Trust, Beneficiary shall have the right, but not the obligation, to enter onto the Property or to take such other actions 7 2020-1.1-0,3 Agenda Packet Page 164 of 50�9 as it deems necessary or advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with, any such Hazardous Materials or Environmental Complaint upon its receipt of any notice from any person or entity, including without limitation, the EPA, asserting the existence of any Hazardous Materials or an Environmental Complaint on or pertaining to the Property which, if true, could result in an order, suit or other action against Trustor affecting any part of the Property by any governmental agency or otherwise which, in the sole opinion of Beneficiary, could jeopardize its security under this Deed of Trust. All reasonable costs and expenses incurred by Beneficiary in the exercise of any such rights shall be secured by this Deed of Trust and shall be payable by Trustor upon demand together with interest thereon at a rate equal to the highest rate payable by law. (e) The foregoing representation, covenants, indemnities and warranties shall be continuing and shall be true and correct for the period from the date hereof to the release of this Deed of Trust (whether by payment of the indebtedness secured hereby or foreclosure or action in lieu thereof), and these representations, covenants, indemnities and warranties, shall survive such release. 24. Non-Discrimination. Trustor covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, nor shall Trustor or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation of any person or group of persons on account of any basis listed in subdivision(a) or(d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1. subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, with reference to the selection, location, number, use or occupancy of tenants,, lessees, subtenants, sublessees, or vendees of the Property. The foregoing covenants shall run with the land. 25. Provisions to be Included in Documents. Trustor shall refrain from restricting the rental, lease and sale of the Property and any dwelling unit thereon on the basis of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability of any person. All such deeds, leases or contracts for the rental, lease or sale of the Property or any dwelling unit, shall contain or be subject to substantially the following nondiscrimination or nonsegregation.clauses: (a) Deeds. In deeds "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall. the grantee itself or any person. claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, 8 2020-1.1-0,3 Agenda Packet Page 165 of 50�9 sublessees or vendees in the land herein conveved. The foregoing covenants shall run with the land." (b�) Leases. In leases "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees, in the land herein leased." (c) Contracts. In contracts for the rental, lease or sale of the Property or any dwelling unit"There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status,, source of income, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees,, subtenants, sublessees or vendees, of the land." 26. All individuals signing this D�eed of Trust for a party which is a corporation,a partnership or other legal entity, or signing under a power of attorney,or as,a trustee, guardian, conservator, or in any other legal capacity, covenant to the Beneficiary that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. 27. Low Income Housing Tax Credits. If the Property is allocated low-income housing tax credits under the provisions of Sections 17058 and 23610.5 of the Revenue and Taxation Code of State of California and under the Section 42 of the Internal Revenue Code of 1986, as amended ("Code"), then the Property will be subject to certain requirements of Section 42 of the Code, including, but not limited to Section 42(h)�(6)�(e)(ii), which does not permit the eviction or termination of tenancy(other than for good cause) of an existing tenant of any low-income unit or any increase in the gross rent with respect to such unit not otherwise permitted under Section 42 for a period of three (3) years after the date the Property is acquired by foreclosure or deed in lieu of foreclosure. Beneficiary acknowledges the provisions of Section 42 of the Code and agrees that, if and to the extent applicable to Beneficiary in connection with the Property, tieneficiary will comply therewith. (SIGNATURE PAGE TO FOLLOW.) 9 2020-1.1-0,3 Agenda Packet Page 166 of 50�9 'TRUSTOR: Otay Affordable! I V8, L.P., a California limited partnership By:FFAH V Otay Ranch 1, LLC, a California limited liability company Its-, Managing General Partner By: Foundation for Affordable Housing V, Inc., a California non-profit corporation Its: Sole Member By: Deborrah A. Willard, President By:Otay Affordable I V8, LLC, a California limited liability company Its: Adminsitrative General Partner By: George Russo, Chief Financial Officer 10 2020-1.1-0,3 Agenda Packet Page 167 of 50�9 ACKNOWLEDGMENT A notary pu�blic or other o�fficer completing this certificate verif'ies only the identity of the individual who signed the clocurnent to whiich, this,certificate is attached, and not the truthfulness, aiccuracy,or validity of thiait clocurnent. State of California County of San Diego On 2020, before me, 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 (Seal) 2020-11-03 Agenda Packet Page 168 of 5019 ACKNOWLEDGMENT A notary pu�blic or other o�fficer completing this certificate verif'ies only the identity of the individual who signed the clocurnent to whiich, this,certificate is attached, and not the truthfulness, aiccuracy,or validity of thiait clocurnent. State of California County of San Diego On 2020, before me, 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 p�erjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 12 2020-11-03 Agenda Packet Page 169 of 5019 Exhibit "A" Property Description All that certain real property situated in the City of Chula Vista, County of San Diego, State of California, described as follows: LOT 3 AS SHOWN ON THE MAP ENTITLED, "'CITY OF CHULA VISTA TRACT NO. 19- 03"' FILED 12020 IN BOOK OF MAPS, MAP NO. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTING THEREFROM ALL OIL, OIL RIGHTSI MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND�, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO RED�RILL, RETUNNEL, EQUIP, MAINTAIN� REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT,HOWEVER,THE RIGHT TO DRILL,MINE, STORE,EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500) FEET OF THE SUBSURFACE OF THE PROPERTY, AS RESERVED BY OTAY LAND COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY IN GRANT DEED RECORDED OCTOBER 29120181 AS INSTRUMENT NO. 2018-04,50260 OF OFFICIAL RECORDS. APN: 640-070-16-00� 644-070-19-00 & 644-070-24,-00 13 2020-1.1-0,3 Agenda Packet Page 170 of 50�9 NO CHARGE ON THIS DOCUMENT PER CALIFORNIA GOVERNMENT CODE SECTION 6103 Recording Requested By: When Recorded Mail To: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 919 10 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS (Otay Ranch Apartments)� THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS ("Declaration") is dated as of the day of 1 20201 by Otay Affordable I V8, L.P., a California limited partnership ("D�eclarant") in connection with that certain parcel of real property ("Property") located in the City of Chula Vista, County of San Diego, California, described in Exhibit"'A" attached hereto and incorporated herein by reference. RECITALS A. The City of Chula Vista("City"') and HomeFed Village 8, LLC, a Delaware limited liability company and Otay Land Company, LLC, a Delaware limited liability company, (collectively,the"Master Developer"),entered into that certain Balanced Communities Affordable Housing Agreement [Otay Ranch Village Eight West] ("Affordable Housing Agreement"). The Affordable Housing Agreement imposes the obligation to provide affordable housing units on the real property described in the Affordable Housing Agreement. The Property is a portion of the real property described in the Affordable Housing Agreement. Declarant has agreed to develop�, construct,, and operate a residential project on the Property as affordable housing for very low, and low income families, to partially fulfill the Master Developer's obligations under the Affordable Housing Agreement. B. Declarant shall construct 173 affordable units ("Affordable Units") and 2 managers' units on.the Property(collectively the "Project"). The purpose of this Declaration.is to regulate and restrict the rent and occupancy of the Affordable Units and to implement controls on the ownership, operation, and management of the Affordable Units. The covenants in. this Declaration shall run with the land and be binding on the Declarant and its successors and assigns in the Property. NOW, THEREFORE, Declarant hereby declares that the Property shall be subject to the covenants, conditions and restrictions set fo�rth below-. 2020-1.1-0,3 Agenda Packet Page 171 of 50�9 I. Restrictive Covenants. Declarant agrees and covenants on behalf of itself and its successors and assigns, and each successor in interest to the Property, that at all times during the term of this Declaration 173 residential units at the Property shall be set aside and reserved as "Affordable Units." As used herein the term "Affordab�le Units" shall refer to the 173 residential units at the Property which are owned or held available strictly in accordance with the terms and conditions set forth below. (a) Affordable Unit Restrictions. The following restrictions shall apply to the 173 Affordable Units. The restrictions set forth in the Table below shall establish the maximum rental rate, which shall be! adjusted for family size appropriate for the Affordable Unit, from which a utility allowance as approved by the City Manager shall be deducted. The family size appropriate for the Affordable Unit for purposes of establishing the maximum rental rate shall be 1.5 persons per bedroom. TABLE OF RENT AND INCOME RESTRICTION CRITERIA 4� NUMBER OF UNIT TYPE MAXIMUM MONTHLY MAXIMUM INCOME OF AFFORDABLE RENTS ELIGIBLE TENANTS UNITS 41 1-Bedroorn LIHTC Rents 50�% 50%of AMI 14 1-Bedroorn LIHTC Rents 60�% 6,0%of AMI 7 2-Bedroorn LIHTC Rents 50�% 50%of AMI 65 2-Bedroorn LIHTC Rents 60% 6,0%of AMI 5 3-Bedroorn LIHTC Rents 50�% 50%of AMI 41 3-Bedroorn LIHTC Rents 60 6,0%of AMI TOTAL AFFORDABLE UNITS 1,73 (b�) "Eligible Tenants"are those tenants.- (i)whose aggregate gross annual income does not exceed the respective percentages set forth in the Table of Rent and Income Restriction Criteria set forth in Section I(a), above, as adjusted for family size; and (ii) who own no interests in real property other than a timeshare which maybe used for a maximum of one month per year. For purposes of this Declaration, the current annual area median income shall, be the area median income defined by HUD as the then current area median income based on household size for the San Diego-Carlsbad Metropolitan Statistical Area, established periodically by HUD and published or adopted by the State of California Department of Housing and Community Development for the San. Diego Standard Metropolitan Statistical Area. The rents and the occupancy restrictions shall be deemed adjusted, from time to time, in accordance with any adjustments that are authorized by HUD or any successor agency. In the event HUD ceases to publish an established area median income as aforesaid, City may, in its sole discretion, use any other reasonably comparable method of computing adjustments in area median income. Notwithstanding anything contained herein to the contrary, to the extent any other restrictions applicable to the Property limit the rent and/or occupancy of the Property, the most restrictive shall apply. 2 2020-1.1-0,3 Agenda Packet Page 172 of 50�9 2. Affordable Marketing Plan Compliance; election of Residents. (a) Marketing Plan. Declarant shall utilize the City's standardized management and marketing plan for rental of all of the Affordable Units. The marketing plan, at a minimum, requires publicizing the availability of the Affordable Units within the City, such as notices in any City-sponsored newsletter, advertising in local newspapers and notice in City offices. Provided, however, all tenants of each Affordable Unit shall meet the income requirements set forth herein and tenancy and eligibility shall be in conformance with the terms and standards set forth in the management marketing plan and no preference may be used for the purpose or effect of delaying or otherwise denying admission to the Property or unit based on the race, color, ethnic origin, gender, religion, disability, or age of any member of an applicant household. (b�) Master List. Selection of residents shall be made either by a lottery or based upon the Master List, rather than on a first-come, first-serve basis. In the event the City implements a master waiting list for affordable housing in the City("Master List"),then Developer shall provide notices to persons on the Master List of the availability of the Affordable Units, prior to undertaking other forms of marketing. Developer shall give the persons on the Master List not fewer than fifteen(15) days after receipt of such notice to respond by submitting application forms for rental of the Affordable Units. (c) L . Absent a Master List described above, selection of tenants shall be made randomly by lottery within the following levels of priority, subject in all circumstances to applicable limitations imposed by law, including, without limitation, the Fair Housing Act under Federal law: (1) Priority. Households which are displaced from their primary residence as a result of an action of City or Agency,a condominium conversion involving the household's residence, expiration of affordable housing covenants applicable to such residence, or closure of a mobile home or trailer park community in which the household's residence was located, and the household resided in such housing as the household's primary place of residence for at least two years prior to such action or event. (2) Second Prio . Households which meet one of the following criteria: (i) households which are displaced from their primary residence as a result of an action of City or Agency, a condominium conversion involving the household's residence, exp�iration of affordable housing covenants applicable to such residence, or closure of a mobile home or trailer park community in which the household's res,idence was,located, and the household resided in such housing as the househo�ld's primary place of residence for at least one year but less than. two years prior to such action or event; (ii) households with at least one member who resides within the City, as that person's primary place of residence; (iii) households with at least one member who works or has been hired to work within the City, as that person's principal place of full-time employment; or (iv) households with at least one member who is expected to live within the City as a result of a bona fide offer of employment within the City. 3 2020-1.1-0,3 Agenda Packet Page 173 of 50�9 (3) Third Pri . Other Low Income Households who do not meet the criteria for first priority or second priority above. (d) Screening. Nothing herein shall restrict Declarant from screening tenants through the application of criteria which is lawful and customary in apartment management in San Diego County and otherwise consistent with federal, state and local regulations and restrictions related to the financing for the Project. 3. Determination; Annual Requalification. Declarant shall obtain from each person to whom Declarant leases an Affordable Unit a "Supplemental Rental Application" ("Application") in the form of Exhibit "B", attached hereto (or such other form as City may from time to time adopt). Declarant shall be entitled to rely on the Application and supporting documents thereto in deten-nining whether a household is an "Eligible Tenant." Declarant shall retain the Application and supporting documents for a period of not less than three (3) years after the household ceases to occupy an Affordable Unit. An Affordable Unit occupied by an Eligible Tenant, shall be treated as an Eligible Tenant until a recertification of such tenant's income demonstrates that such tenant no longer qualifies as an "Eligible Tenant." 4. Certification; Annual Recertification. Upon completion of construction of the Project(the occurrence of which shall be evidenced by the issuance of a temporary certificate of occupancy for all units within the Project) and annually each year during of the term of this Declaration, Declarant shall certify to the City under penalty of perjury,utilizing such forms and providing such backup documentation as requested by the City. Failure to timely complete the annual certification process described in this Section 4 shall constitute a material default under this Declaration. The City may resort to the remedies, set forth hereinbelow upon such material default, as well as any and all other remedies available at law or in equity. Notwithstanding anything herein to the contrary, any cure of any default made or tendered by the limited partner of the Declarant shall be deemed to be a cure by the Declarant and shall be accepted or re ected on the same basis as if made or tendered by the Declarant. 5. Relationship with Declarant. The term "Eligible Tenant" shall not include Declarant, or any individuals who are partners of Declarant, or in any entity having an interest in Declarant, or the Property, or any officer, employee, agent or consultant of the Declarant, or any relative (by blood or marriage) of any officer, employee, agent or consultant of the Declarant. 6. No Students. No Affordable Unit shall be occupied or leased to any person who is a full- time student, or a household comprised exclusively of persons who are full-time students, or any student dependent as defined in the U.S. Internal Revenue Code, unless the taxpayer(upon whom the student in question is dependent) resides in the same dwelling unit. 7. Income of Co-Tenants, Etc. The income of all co-tenants and/or non-dependent occupants shall be taken into account in determining whether a household is an Eligible Tenant hereunder. 4 2020-1.1-0,3 Agenda Packet Page 174 of 50�9 8. Eviction. (a) Any Reason Other Than Over Income. In the event that a tenant who was properly certified as an Eligible Tenant at the commencement of such tenant's occupancy ceases to be eligible, for any reason other than being over income, Declarant shall give sixty(60) days written notice to such tenant to vacate the Affordable Unit. The vacated Affordable Unit shall thereafter be rented to an Eligible Tenant. (b) Over Income Tenants. Notwithstanding Section 8(a), above, but except as otherwise provided in Sections 8(c), below, a tenant who occupies an Affordable Unit, who becomes over income at the time of recertification shall be given one hundred eighty (180) days notice to vacate the Affordable Unit, effective from and after the date of such failure to requalify (i.e., the recertification date, provided the tenant was properly certified originally). During the time the over-income tenant resides in the Affordable Unit,, the tenant shall continue to pay an amount that does not exceed the amount set forth in the Table in Section I(a). The tenant shall continue to be considered an"Eligible Tenant" until evicted. (c) Tax Credit Funds. Notwithstanding anything to the contrary set forth herein, when a tenant occupies a unit subject to a regulatory agreement ("T'CAC Regulatory Agreement") by and between the Declarant and the California Tax Credit Allocation Committee pursuant to Section 42 of the Internal Revenue Code, such tenant shall be evicted as a result of such tenant being over income only as and when allowed by such TCAC Regulatory Agreement or by Federal law, including 26 U.S.C. §42. In the event of conflict between the over income regulations, of this Declaration and the TCAC Regulatory Agreement, the TCAC Regulatory Agreement provisions shall apply. 9. Maintenance. (a) Physical Condition of Affordable Units. After completion of construction of the Project, Declarant shall continually maintain the Affordable Units in a decent, safe and sanitary condition, and in good repair as, described in 24 CFR §5.703, and in a manner which satisfies the Uniform Physical Conditions Standards promulgated by the Department of Housing and Urban Development (24, CFR §�5.70�5), as such standards are interpreted and enforced by the City under its normal policies and procedures. The City shall have the right to inspect the Affordable Units from time to time, on reasonable notice and at reasonable times, in order to verify compliance with the foregoing maintenance covenant. D�eclarant hereby consents to periodic inspection by the City's designated inspectors and/or designees, during regular business hours, including the Code Enforcement Agents of the City of Chula Vista, to ensure compliance with all applicable zoning, building codes, regulations, and property standards. Declarant agrees to comply with the provisions of 24 CFR 92.25 1, whether or not contained in this Section. Further, each Affordable Unit shall be requalified annually, as to the foregoing maintenance covenant, as part of the annual tenant requalification process described in, and to the extent applicable under, Section 4 above. Any deficiencies in the physical condition of an Affordable Unit shall be corrected by Declarant at Declarant's expense within thirty (30) days of the identification of such deficiencyby the City and delivery of written notice of the same to Declarant, provided if the deficiency is of a nature 5 2020-1.1-0,3 Agenda Packet Page 175 of 50�9 that it cannot be cured within such thirty(30�) day period, the Declarant shall have such additional time to cure as is reasonably determined by the City. (b�) Crime-Free P 0 At all times during the term of this Declaration, the D�eclarant shall participate in the City's Crime-Free Multifamily Housing Program, or any successor or similar program established by the City. 10. Monitoriqg. It is contemplated that, during the term of this Declaration, the City will perform the following monitoring functions: (a) preparing and making available to Declarant any general information that the City possesses regarding income limitations and restrictions which are applicable to the Affordable Units-, (b) reviewing the documentation submitted by Declarant in connection with the annual certification process for Eligible Tenants described in Section 3,above; (c)reviewing the documentation submitted by Declarant in connection with the annual certification process for Eli ible Tenants in accordance with Section 4, above; and(d)inspecting the Affordable 9 1 Units to verify that they are being maintained in accordance with Section 9, above. Notwithstanding the foregoing description of the City's functions, Declarant shall have no claim or right of action against the City based on any alleged failure to perform such function. In addition, the Declarant shall cooperate with and utilize such forms, software, websites and third- party vendors as may be required by the City. 11. Additional Lease Provisions,/Annual Income Verification. Declarant agrees that it will require each Eligible Tenant to execute an Authorization for Release of Information, in the form attached hereto as Exhibit"C." Declarant agrees that it will include the following provision in all of its leases: Lessee agrees, upon written request from the Landlord or the City of Chula Vista ("City"),to certify under penalty of perjury the accuracy of all information provided in connection with the examination or reexamination of annual income of the tenant's household. Further, tenant agrees that the annual income and other eligibility requirements are substantial and material obligations of the tenancy and that the tenant will comply promptly with all, requests for information with respect to the tenancy from the Landlord and/or City. Further, tenant acknowledges that tenant's failure to provide accurate information regarding such requirements (regardless of whether such inaccuracy is intentional or unintentional)or the refusal to comply with the request for information with respect thereto, shall be deemed a violation of this lease provision, and a material breach of the tenancy and shall constitute cause for immediate termination of the tenancy. 12. Compliance with Re,gglations. Declarant shall comply with all regulations, policies and procedures promulgated or otherwise adopted by the City. Declarant's failure to so comply shall constitute a material. default hereunder, entitling City to the remedies set forth herein.. 13. Successors Bound. Declarant covenants, for itself and its successors and assigns, not to sell,transfer,assign or otherwise dispose of ownership of the Property, without the express written consent of the City. Any prospective purchaser, transferee or assignee shall expressly promise in 2020-1.1-0,3 Agenda Packet Page 176 of 50�9 w v v * riting to be bound by all of the provisions hereof, including the covenant in this Section 13 to require successors to expressly assume the obligations herein. 1�4. Maximum Rent To Be Collected by D�eclarant. In no event, shall all of the rent, including the portion paid by the Eligible Tenant and any other person or entity, collected by Declarant (the "Total Rent") for any rent restricted unit exceed the amount of rent set forth in this Declaration. Total Rent includes all payments made by the Eligible Tenant and all subsidies received by Declarant. In the case of persons receiving Section 8 benefits,who are Eligible Tenants,Declarant acknowledges that it shall not accept any subsidy or payment that would cause the Total Rent received for any restricted unit to exceed the maximum rents allowed by this Declaration, for any Affordable Unit. Should Declarant receive Total Rent in excess of the allowable maximum rent set forth in this Declaration, Declarant agrees to immediately notify City and reimburse the City for any such overpayment. Acceptance by D�eclarant or its successors in interest, of Total Rent in excess of the maximum rent set forth in this Declaration shall constitute a material breach of this Declaration. 15. Term. This Declaration and the covenants and restrictions contained herein shall be effective commencing on the date this Declaration is recorded and shall remain in full force and effect until 12.-00 midnight on December 31, 2077. 16. Enforcement. Declarant expressly agrees and declares that the City or any successor public entity or agency is a proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such default may have actually been suffered by some other person or the public at large. Further, the City or any successor public entity or agency shall be the proper party to waive, relinquish, release or modify the rights, covenants, obligations or restrictions, contained in or arising under this Declaration. 17. Attomey,s,,,,,,"""""""""",F,,e,,es. In the event that any litigation for the enforcement or interpretation of this Declaration, whether an action at law or arbitration or any manner of non-judicial, dispute resolution to this Declaration by reason of the breach of any condition or covenant, representation or warranty in this Declaration, or otherwise arising out of this Declaration,the prevailing party in such action shall be entitled to recover from the other reasonable attorneys' fees and out of pocket expenses (including expert witness fees) to be fixed by the court which shall render a judgment, as well as the costs of suit. 18. Severabi . In the event that any provision or covenant of this Declaration is held by a court of competent jurisdiction to be invalid or unenforceable, then it shall be severed from the remaining portions of this Declaration which shall remain in full force and effect. 19�. Covenants to Run With the Land. The covenants contained herein shall constitute (.4covenants running with the land", and sball bind the Property and every person having an interest therein during the term of this Declaration. Declarant agrees for itself and its successors that, in the event that, for any reason. whatsoever, a court of competent jurisdiction determines that the 7 2020-11-03 Agenda Packet Page 177 of 50�9 foregoing covenants do not run with the land, such covenants shall be enforced as equitable servitudes against the Property. 20. Recordation; Waiver and Amendment-, Payment of Fees. This Declaration shall be recorded in the Office of County Recorder of San Diego, California. No provision of this Declaration,, or breach of any provision, can be waived except in writing. Waiver of any provision or breach shall not be deemed to be a waiver of any other provision, or of any subsequent breach of the same or other provision. Except as otherwise provided herein, this Declaration may be amended, modified or rescinded only in writing signed by Declarant and the City Manager of the City of Chula Vista. In the event the City consents to such an amendment, modification or rescission, the same shall be conditioned upon Declarant's payment of all fees and costs incurred by the City with respect to the same, including without limitation attorneys' fees. 21. Remedies. (a) Contract Governed bv Laws of State of California. This Declaration, its perfon-nance, and all suits and special proceedings under this Declaration, shall be constituted in accordance with the laws of the State of California and Federal law, to the extent applicable. In any action, special proceeding, or other proceeding that may be brought arising out of, under or because of this Declaration,, the laws of the State of California and the United States, to the extent applicable, shall govern to the exclusion of the law of any other forum, without regard to the jurisdiction in which the action or special proceeding maybe instituted. 'I (b) Standinjiz, Equitable Remedies-, Cumulative Remedies. D�eclarant expressly agrees and declares that City or any successor or public entity or agency shall, be the proper party and shall have standing to initiate and pursue any and all actions or proceedings, at law or in equity, to enforce the provisions hereof and/or to recover damages for any default hereunder, notwithstanding the fact that such damages or the detriment arising from such a default may have actually been suffered by some other person or by the public at large. Further,D�eclarant expressly agrees that receivership, injunctive relief and specific performance are proper pre-trial and/or post- trial remedies hereunder, and that, upon any default, and to assure compliance with this Declaration. Nothing in this subparagraph, and no recovery by the City, shall restrict or limit the rights or remedies of persons or entities other than the City, against Declarant in connection with the same or related acts by Declarant. The remedies set forth in this Section are cumulative and not mutually exclusive, except the extent that their award is, specifically determined to be duplicative by final order of a court of competent jurisdiction. (c) Remedies at Law for Breach of Tenant Restrictions. In the event of any material default under Sections I through 20 hereof regarding restrictions on the operation and the transfer of the Property,the City shall be entitled to recover compensatory damages, in addition to any and all. other remedies available at law or in equity. if the default in question involves the collection of rents in excess of the rents permitted hereunder, the amount of such compensatory damages shall be the product of multiplying: (a) the number of months that the default in question has continued until the time of trial by (b) the result of subtracting the rents properly chargeable hereunder for the Affordable Units in question from the amount actually charged for those Affordable Units. Declarant and the City agree that it would be extremely difficult or 8 2020-1.1-0,3 Agenda Packet Page 178 of 50�9 impracticable to ascertain the precise amount of actual damages accruing to the City as a result of such a default and that the foregoing formula is a fair and reasonable method of approximating such damages. The City shall be entitled to seek and to recover damages in separate actions for successive and separate breaches which may occur. Further,, interest shall accrue on the amount of such damages from the date of the breach in question at the rate of ten percent(10%)per annum or the maximum rate than allowed by law,whichever is less. Nothing in this section shall preclude the award of exemplary damages as allowed by law. Notwithstanding the foregoing, the Declarant's limited partner shall have the right, but not the obligation, to cure defaults hereunder in the same manner as the Declarant. (d) Expert Witness, Attorneys' Fees, and Costs. The parties agree that the prevailing party in litigation for the breach and/or interpretation and/or enforcement of this Declaration shall be entitled to their expert witness fees,if any,as,part of their costs of suit,and reasonable attorneys' fees as may be awarded by the court, pursuant to California Code of Civil Procedure ("CCP") §1033.5 and any other applicable provisions of California law, including, without limitation, the provisions of CCP §998. (e) Foreclosure. Upon default by the D�eclarant in the performance of any obligation under this Declaration, after the expiration of any and all applicable notice or cure periods, the City may declare all sums secured by the Deed of Trust immediately due and payable by delivering to the trustee thereof a written declaration of default and demand for sale and a written notice of default and election to sell the Property. The trustee shall cause the notice of default and election to sell to be recorded. After the required time period has lapsed following the recordation of the notice of default, and after notice of sale has been given as required by law, the trustee, without demand on the Declarant, shall sell the Property at the time and place specified in the notice of sale, either as a whole or in separate parcels, and in any order determined by trustee, at public auction to the highest bidder for cash in lawful money of the United States, payable at the time of sale. (f) Limited Partner. Declarant's limited partner shall have the right, but not the obligation, to cure defaults of Declarant hereunder, and the City hereby agrees to accept any cure of any default made or tendered by one or more of Declarant's limited partners on the same basis as if made or tendered by Declarant. Copies of all notices which are sent to Declarant hereunder shall also be sent to D�eclarant's limited partner, at such address as may be provided to the City by Declarant. 22. Properly Manager. At all times that this Declaration is in force and effect, and the City has served a thirty(3,0) day written notice of deficiencies in the property management for the Property which do not conform to the standards of property management of a professional property manager operating similar properties in San Diego County and which deficiencies have not been rectified by Declarant, within the thirty (30) day period (unless such deficiency is not reasonably capable of being cured within such thirty(30) day period,then such reasonable amount of time as is needed not to exceed 9�O days, provided Declarant commences cure within such thirty(30) day period and continues to diligently pursue cure)�,then, the City shall have the right, in its reasonable discretion, and upon. thirty (30) days written notice: (i) to require the retention of a professional property management firm to manage the Property; (ii) to approve, in advance and in writing, the retention 9 2020-11-03 Agenda Packet Page 179 of 50�9 of any such property management firm, including the terms of the contract governing such retention; and(iii)to require Declarant to terminate any such property management firm,provided 0 . that such termination shall comply with the termination provisions of the management contract in question. Declarant shall cooperate with the City to effectuate the rights set forth in this Section 22. 23. Declarant Required to Pay Monitoring Fees. Declarant shall pay City a set-up fee (the "Set-Up Fee") in the amount of$ which shall be paid by Declarant to City within thirty(30) days of written demand for the same. In each year during the term of this Declaration, Declarant shall pay to City an annual monitoring fee, in an amount equal to the set-up fee, increased by three percent(3%) cumulative each year. The annual monitoring fee shall be paid to City annually within thirty(30) days after City provides a written invoice for the same. Failure to timely pay such fees shall constitute a material default under this Declaration. Both the set-up fee and annual monitoring fee shall be paid City as a consideration for the lending of funds by City to Declarant. 24. Notices. All notices under this Declaration shall be in writing and sent by (a) certified or registered mail, return receipt requested, (b�) by a nationally recognized overnight courier such as UPS or FedEx, or (c) by personal delivery. All notices shall be effective upon receipt (or refusal to accept delivery)�. All notices shall be delivered to the following addresses or as changed by any party from time to time by written notice to the other parties hereto: City: City of Chula Vista 276 Fourth Avenue Chula Vista, California, 91910 Copy to.. City of Chula Vista 276 Fourth Avenue Chula Vista, California 919 10 Attention: City Attorney Declarant: Otay Affordable I V8, L.P. 11150 W. Olympic Blvd., Suite 620 Los Angeles, CA 90064 Copy to: 10 2020-1.1-0,3 Agenda Packet Page 180 of 50�9 25. Non-Discrimination. (a) Obligation to Refrain from Discrimination. D�eclarant covenants by and for itself and any successors in interest that there shall be no discrimination against or segregation of, any person or group of persons on account of race,color,creed,religion, sex, sexual orientation,marital status,, national origin, ancestry, familial status, source of income or disability in the sale, lease, sublease, transfer,use, occupancy, tenure or enjoyment of the Property, nor shall Declarant or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p), of Section 12955, and Section 12955.2 of the Government Code, with reference to the selection, location, number, use or occupancy of tenants,lessees,subtenants,s,ublessees,or vendees of the Property or the rental, lease sale of the Property and any dwelling unit thereon. The foregoing covenants shall run with the Property. (b�) Nondiscrimination Covenants. D�eclarant shall refrain from restricting the rental, lease and sale of the Property and any dwelling unit thereon on the basis of race, color, creed, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income or disability of any person. All such deeds, leases or contracts shall contain or be subject to substantially the following nondiscrimination or nons,egregation clauses: (1) Deeds. In deeds "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall,be no discrimination against or segregation of, any person or group of persons on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants,, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall-run with the land." (2) Leases. In leases "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of-persons, on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin. or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein. ]eased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use 2020-1.1-0,3 Agenda Packet Page 181 of 50�9 or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." (3) Contracts. In contracts "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, religion, sex, sexual orientation, disability, medical condition, familial status, source of income, marital status, national origin or ancestry in the sale, lease, sublease,, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land." 26. Noticim4 Requirements Prior to Termination. Prior to termination of this Declaration, Declarant shall comply with any and all noticing requirements required under any applicable laws or regulations, including without limitation, the requirements of California Government Code Sections 65 863.10 and 65 863.11� if applicable. 27. Signature Authority. All individuals signing this, Declaration for a party which is a corporation, limited liability company, partnership or other legal entity, or signing under a power of attorney, or as, a trustee, guardian, conservator, or in any other legal capacity, covenant to the City that they have the necessary capacity and authority to act for, sign and bind the respective entity or principal on whose behalf they are signing. a DECLARANT. Otay Affordable I V8, L.P., a California limited partnership By:FFAH V Otay Ranch 1, LLC, a California limited liability company Its: Managing General Partner By: Foundation for Affordable Housing V, Inc., a California non-profit corporation Its: Sole Member By: Deborrah A. Willard, President By:Otay Affordable I V8, LLC, a Califomia limited liability company Its: Adminsitrative General Partner By: George Russo, Chief Financial Officer 12 2020-1.1-0,3 Agenda Packet Page 182 of 50�9 ACKNOWLEDGMENT A notary pu�blic or other officer completing this certificate verifies only the identity of the, individual who signed the clocurnent to whiich, this,certificate is attached, and not the truthfulness, accuracy, or valiclity of thiait docurnent. State of California County of San Diego On 2020, before me, 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 p�erjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 13 2020-11-03 Agenda Packet Page 183 of 5019 ACKNOWLEDGMENT A notary pu�blic or other o�fficer completing this certificate verif'ies only the identity of the individual who signed the clocurnent to whiich, this,certificate is attached, and not the truthfulness, accuracy, or validity of that docurnent. State of California County of San Diego On 2020, before me, 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 p�erjury under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) 14 2020-11-03 Agenda Packet Page 184 of 5019 Exhibit "A" Property Description All that certain real property situated in the City of Chula Vista, County of San Diego, State of California, described as follows: LOT 3 AS SHOWN ON THE MAP ENTITLED, "CITY OF CHULA VISTA TRACT NO. 19- 03" FILED � 2020 IN BOOK OF MAPS, MAP NO. IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. ALSO EXCEPTING THEREFROM ALL OIL, OIL RIGHTS,, MINERALS,, MINERAL RIGHTS, NATURAL GAS RIGHTS, AND OTHER HYDROCARBONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PARCEL OF LAND HEREINABOVE DESCRIBED, TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING, AND OPERATING THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID LAND OR ANY OTHER LAND�, INCLUDING THE RIGHT TO WHIPSTOCK OR DIRECTIONALLY DRILL AND MINE FROM LANDS OTHER THAN THOSE HEREINABOVE DESCRIBED, OIL OR GAS WELLS, TUNNELS AND SHAFTS INTO, THROUGH OR ACROSS THE SUBSURFACE OF THE LAND HEREINABOVE DESCRIBED, AND TO BOTTOM SUCH WHIPSTOCKED OR DIRECTIONALLY DRILLED WELLS, TUNNELS AND SHAFTS UNDER AND BENEATH OR BEYOND THE EXTERIOR LIMITS THEREOF, AND TO RED�RILL, RETUNNEL, EQUIP� MAINTAIN, REPAIR, DEEPEN AND OPERATE ANY SUCH WELLS OR MINES WITHOUT,HOWEVER,THE RIGHT TO DRILL,MINE, STORE,EXPLORE AND OPERATE THROUGH THE SURFACE OR THE UPPER FIVE HUNDRED (500) FEET OF THE SUBSURFACE OF THE PROPERTY,AS RESERVED BY OTAY LAND COMPANY, LLC,A DELAWARE LIMITED LIABILITY COMPANY IN GRANT DEED RECORDED OCTOBER 29120181 AS INSTRUMENT NO. 2018-0450260 OF OFFICIAL RECORDS. APN: 640-070-16-001 644-070-19-00 & 644-070-24-00 15 2020-1.1-0,3 Agenda Packet Page 185 of 50�9 Exhibit "B" Supplemental Rental Application 16 2020-1.1-0,3 Agenda Packet Page 186 of 50�9 Exhibit "C" Authorization for Release of Information 17 2020-1.1-0,3 Agenda Packet Page 187 of 50�9 RESOLUTION NO. RESOLUTION OF THE CHULA VISTA HOUSING AUTHORITY AUTHORIZING THE EXECUTION AND DELIVERY OF ITS TAX- EXEMPT MULTIFAMILY HOUSING REVENUE NOTES IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $35,000,000 FOR THE PURPOSE OF FINANCING THE ACQUISITION AND CONSTRUCTION OF THE OTAY RANCH APARTMENTS MULTIFAMILY RENTAL HOUSING PROJECT; APPROVING AND AUTHORIZING THE EXECUTION AND DELIVERY OF ANY AND ALL DOCUMENTS NECESSARY TO EXECUTE AND DELIVER THE NOTES, COMPLETE, THE TRANSACTION AND IMPLEMENT THIS RESOLUTION, AND RATIFYING AND APPROVING ANY ACTION HERETOFORE TAKEN IN CONNECTION WITH THE NOTES WHEREAS, pursuant to the Housing Authorities Law, Chapter I of Part 2 of Division 24 of the California Health and Safety Code ("Housing Authorities Law"), the Chula Vista Housing Authority, a public body corporate and politic organized, existing and operating pursuant to the Housing Authorities Law, the Chula Vista Housing Authority (the "Authority") is empowered to execute and deliver obligations for the purpose of financing the acquisition, construction, refinancing, development, and operation of multifamily rental ho�using- and rehabilitation, I WHEREAS, Otay Affordable I V8, L.P., a California limited partnership (the "Borrower"),, intends to acquire and construct a 173-unit plus two manager's units multifamily rental housing project located east of La Media Parkway and bounded by Main East Street and Main West Street within the Otay Ranch Es,caya master planned community in Chula Vista, California known as the "O�tay Ranch Apartments" (the "Project"); and WHEREAS, the Borrower has requested Authority to execute and deliver tax-exempt multifamily housing revenue notes in one or more series (the "Notes"), and, to loan the proceeds of the Notes to the Borrower to finance the acquisition, construction and equipping of the Pro ect; and j WHEREAS, the aggregate principal amount of the Notes shall not exceed $35,000,000; and WHEREAS, Authority, by action of its Board of Commissioners (the "Board"), desires to assist the Borrower and to increase the supply of affordable housing by making the units in the Project available for low and very low income persons or families, and in order to accomplish such purposes it is desirable for Authority to provide for the execution and Delivery of the Notes and financing of the Project; and WHEREAS, the Notes will be executed and delivered pursuant to the Funding Loan Agreement (the "Funding Loan Agreement"'), by and among Citibank, N.A. ("Citibank"), the Authority and U.S. Bank National Association, as fiscal agent (the "Fiscal Agent"), and the proceeds of the Notes will be loaned to the Borrower pursuant to the Borrower Loan Agreement, between, the Authority and the Borrower(the "Borrower Loan Agreement")�; WHEREAS, Citibank will act as the Funding Lender under the Funding Loan, Agreement; and 2020-1.1-0,3 Agenda Packet Page 188 of 50�9 WHEREAS, the Authority will loan the proceeds of the Notes to the Borrower and the Borrower will use the proceeds of the Notes exclusively to finance the costs of acquisition, construction and equip ing of the Project and the costs of executing and delivering the Notes; and p WHEREAS, Government Code Section 8869.85 requires a local agency to file an application with the California Debt Limit Allocation Committee ("Committee")prior to the issuance of tax-exempt multifamily housing revenue bonds and the Authority has filed such an application; and WHEREAS, the Committee has allocated to the Project $35,000,000 of the State of California 2020 State ceiling for private activity bonds under Section 146 of the Internal Revenue Code of 1986; and WHEREAS, the public hearing and approval for the Projected pursuant to Section 147(f) of the Internal Revenue Code of 1986 (the "TEFRA Approval") has expired, and the City of Chula Vista(the "City") is in the process of conducting a new TEFRA Approval; and WHEREAS, it is the intent of the Authority to enter into bond documentation to govern the Notes being executed and delivered (collectively, the "Transaction Documents"), including: (1) the Funding Loan Agreement; (2) the Borrower Loan Agreement; and (3) a regulatory agreement and, declaration of restrictive covenants, by and between the Authority and the Borrower (the "Regulatory Agreement"); and WHEREAS, it appears that each of the documents and instruments described herein now before this meeting is in a substantially appropriate form and is an appropriate instrument to be executed and delivered for the purposes intended. NOW, THEREFORE, THE BOARD OF COMMISSIONERS, OF' THE CHULA VISTA HOUSING AUTHORITY DOES HEREBY RESOLVE, ORDER AND DETERMINE AS FOLLOWS: I. Authorization of Notes. In accordance with the Housing Authorities Law and pursuant to the Funding Loan Agreement, Authority authorizes the execution and delivery of notes in one or more series of tax-exempt notes designated as "Chula Vista Housing Authority Multifamily Housing Revenue Notes (Otay Ranch Apartments) 2020 Series A" (the "Notes"), with an interest rate or rates, a maturity date or dates and other terms as provided in the Funding Loan Agreement as finally executed for the Notes. The Notes shall be in substantially the form set forth in and otherwise in accordance with the Funding Loan Agreement, and shall be executed on behalf of Authority by the manual or facsimile signature of the Chair of the Board of Commissioners of the Authority (the "Chair") or the Executive Director of the Authority (the "Executive Director"), and the Notes shall be attested by the manual or facsimile signature of the Secretary of the Board of Commissioners of the Authority("Secretary"). 2. Approval of Transaction Documents. The form of each of the Transaction Documents, in substantially the form on file with the Secretary, is hereby approved. The Chair, the Executive Director, and their authorized designee(s) (each, an "Authorized Officer") are authorized to execute, and the Secretary is authorized to attest,, each, of the Transaction, Documents in substantially said form, with such additions thereto and changes therein as the Authorized Officer may approve or recommend in, accordance with Section, 5 hereof. The date, maturity date or dates, interest rate or rates, interest payment dates, denominations, form, registration privileges, manner of 2 2020-1.1-0,3 Agenda Packet Page 189 of 50�9 execution, place of payment, terms of redemption, and other terms of the Notes shall be as provided in the Funding Loan Agreement as finally executed. Any Authorized Officer is authorized to execute and deliver, and the Secretary is authorized to attest, any and all certificates, agreements and other documents ancillary to the Transaction Documents in the forms approved by the City Attorney, as general counsel to Authority ("General Counsel")�, and by special counsel and bond counsel to the Authority and City on these matters, Stradling Yocca Carlson&Rauth(together, "Special Counsel"). 3. Approval of Changes to Documents. Any Authorized Officer executing a document approved herein, in consultation with General Counsel and Special Counsel, is authorized to approve and make such modifications, changes or additions to Transaction Documents or other documents as may be necessary or advisable, and the approval of any modification, change or addition to any of the aforementioned agreements shall be evidenced conclusively by the execution and delivery thereof by such Authorized Officer and approval as to form by General Counsel and Special Counsel. Further, any Authorized Officer, acting alone, is authorized to execute any assignment agreement related to any mortgage note, mortgage, deed of trust or other document related to the loans made to the Borrower from the proceeds of the Notes. 4. Actions Ratified and Authorized. All actions heretofore taken by the officers, employees and. agents of Authority with respect to the execution and delivery of the Notes are approved,, confirmed and ratified, and the officers, employees and agents of Authority are authorized and directed, for and in the name and on behalf of Authority, to do any and all things and take any and all actions and execute and deliver any and all certificates, agreements and other documents, including, but not limited to�, those documents described in the Transaction Documents and the other documents herein approved, which they, or any of them, may deem necessary or advisable in order to consummate the lawful execution and delivery of the Notes and, to effectuate the purposes thereof and of the documents herein approved in accordance with this resolution and resolutions heretofore adopted by the Board. In the event that the Secretary is unavailable to sign any document related to the Notes, any Deputy Secretary of the Authority may sign on behalf of the Secretary. 5. Further Consents, Approvals and Other Actions. All consents, approvals, notices, orders, requests and other actions permitted or required by any of the documents authorized by this Resolution or otherwise appropriate in the administration of the Notes and the lending program financed thereby, including without limitation any of the foregoing that may be necessary or desirable in connection with any amendment of such documents.) any transfer of the Project, any substitution of security for the Notes, or any prepayment of the Notes may be taken or given by the Chair or the Executive Director, and the Chair or the Executive Director are hereby authorized and directed to give any such consent, approval, notice, order or request and to take any such action which such officer may deem necessary or desirable to further the purposes of this Resolution. 6. Conflicting Resolutions Repealed. As to the Notes, all prior resolutions or parts thereof, if any, in conflict herewith are, to the extent of such conflict,repealed. 7. Severab . If any section, paragraph or provision of this Resolution shall be held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such. section, paragraph. or provision. shall not affect any remaining sections, paragraphs or provisions of this Resolution.. 3 2020-11-03 Agenda Packet Page 190 of 50�9 8. Effectiveness of Resolution and Date Thereof. This Resolution shall take effect upon its, adoption. 9. New TEFRA Approval. Notwithstanding anything else herein to the contrary, all authorizations in this resolution are contingent upon the City completing the new TEFRA Approval fo�r the Pro ect. j 10. Certification. The Secretary shall certify to the passage and adoption of this Resolution. 4 2020-11-03 Agenda Packet Page 191 of 50�9 The foregoing Resolution was passed and adopted by the Board of Commissioners of the Chula Vista Housing Authority, California, this 3rd day of November, 2020, by the following vote, to wit: AYES: NOES: ABSENT: Mayor ATTEST: Secretary 5 2020-1.1-0,3 Agenda Packet Page 192 of 50�9 STATE OF CALIFORNIA ) ss. COUNTY OF SAN DIEGO L , Secretary of the Chula Vista Housing Authority, California, hereby certify that the above and foregoing Resolution was duly and regularly adopted by the Board of Commissioners at a regular meeting thereof held on the 3rd day of November, 2020. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 3rd day of November, 2020. Secretary of the Housing Authority of the City of Chula Vista, California 6 2020-1.1-0,3 Agenda Packet Page 193 of 50�9 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A DECLARATION OF COVENANTS, CONDITIONS, AND RESTRICTIONS AND DEED OF TRUST BY AND BETWEEN THE CITY OF CHULA VISTA AND O�TAY RANCH AFFORDABLE I V8� LP TO PROVIDE 175 RESIDENTIAL UNITS IN O�TAY RANCH VILLAGE 8 WEST TO BE OPERATED AS AFFORDABLE RENTAL HOUSING FOR VERY-LOW AND LOW-INCOME HOUSEHOLDS IN SATISFACTION OFTHE CITY9S BALANCED COMMUNITIES POLICY WHEREAS, the City of Chula Vista Housing Element established the City's "Balanced Communities Affordable Housing Policy"'(Balanced Communities Policy)which requires 10%of each housing development of 50 or more units to be affordable to low- and moderate-income households, with at least one half of those units (5 percent of project total units) being designated for low-income households (the "Affordab,le Housing Obligation"); and WHEREAS, on August 8, 2020, the City approved the Otay Ranch Village 8 West Affordable Housing Agreement for Otay Village 8 West by and between the City of Chula Vista and HomeFed Village 8, LLC and Otay Ranch Land Company, LLC in satisfaction of the City's Balanced Communities Policy; and WHEREAS, Meta Housing Corporation or its affiliate (META) intends to construct and operate an affordable hous,ing project within Village 8 West consisting of 175 total affordable units,with 53 and 120 units for very low- and low-income households,respectively, and 2-exempt, units for on-site maintenance/property management staff, in partial satisfaction of the Village 8 West Affordable Housing Obligation; and WHEREAS, consistent with the Balanced Communities Policy, upon applying the allowable incentive credit to those 53 very low-income units proposed by META,available credits generated are 6 low-income credits and 82 moderate-income credits, thereby, satisfying the 181 low-income units of the Village 8 West Affordable Housing Obligation with 68 moderate-income units remaining; and WHEREAS,, it is the Property Owner's intent to enter into and record Deed of Trust and a Declaration of Covenants, Conditions, and Restrictions to provide 175 affordable residential units (2-exempt units) within the Project to be operated as affordable housing for very-low and low-income households (The "Affordable Units"') to partially satisfy Village 8 West's low and moderate income housing requirement as set forth in that Affordable Housing Agreement recorded at the County of San Diego's Recorder's Office and filed as Document Number 2020- WHEREAS, the Director of Development Services has reviewed the proposed activity for comphance with the California Environmental Quality Act (CEQA) and has determined that the activity was adequately covered in previously adopted/certified Final Environmental Impact r1% Report for the Otay Ranch SPA Plan-Village 8 West(FEIR 10-03, as amended (IS 19-0002). 2020-1.1-0,3 Agenda Packet Page 194 of 50�9 Resolution No. Page 2 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it hereby approves the execution and recordation of a Deed of Trust and Declaration of Covenants, Conditions, and Restrictions to provide 175 residential units within the Project to be operated as affordable rental housing for very-lo�w and low-income households (with 2 units exempt for on-site maintenance/property management staffi in satisfaction of the balance of Otay Ranch Village 8 West's Owner's low and moderate-income housing requirement, in substantially the form presented to the City, and make such modification, changes, or additions, to the Declaration,, as may be required or approved by the Office! of the City Attorney, a copy of which shall be kept on file in the Office of the City Clerk and authorizes and directs the City Manager to execute same. Presented by: Approved as, to form by.- TIFFANY ALLEN GLEN R. GOOGINS Director of Development Services City Attorney 2020-1.1-0,3 Agenda Packet Page 195 of 50�9 Resolution No. Page 3 EXHIBIT A-SITE LOCATION MAP 2020-1.1-0,3 Agenda Packet Page 196 of 50�9 Locatior Ma�p A`� ...... V K, it e An Q A it 00 i-ig '11, it 1141 7'1 41 t, 'et 4 it rill t Or), 'it t It t 4(11, til if, ti, Ol v, 4, It 0 Y0 J1�rf IN w Y, W Of 100 7j"4l It A It' F "I Will,"'AC, 0 111 'If ff"ll, it, If, 7 )pj, '0, H, 05 d" k "ol,w"1 11/1 00, 0, t Oft 7, % 0, fir, F, ­­...... 1'0, pow to 41 wi, Ol Al/,� jo Al 1 01, 011, I % r FRIO Odill 'i AR PWI,�W, 01, It KIA 0""AM&I wo 44,wr "WiwoomImm, J/ q npq A "'Mi MIN 77,77,-77 ....................... lip .................­/,�"­,Ivi, "WW"Im Mit ,- .......... '01i .......... . ....... 70� 41 00 11,,,1vwiwI,,­-�71`401 "W,MW"I)IMA, g ,�t 01 7i "an, I V 7 W I! fi 0./.' "ON', Ot, Jy sm it 41 IV,, //(............. itt, Id "OR)JIf , "'1111,611 f got ym Ol ti, % q`O M it I'm 0 it "A" % Oy" '1",44 j 40 Ot Ail lit 4w Al fj W tl % Ot" IF IF "0 Off 0`/ wp 411 Jr, Ot 4/1 A, Of 11% J tt qg"ii� P "A" "Il, I., OOf PY) A 4 St 4)tv ti, Al IL ®r Ov 11, f It t M, 01 % It i'41lil',p, r g,tvqt, % A ......... rq 4 "7% '%ommittox"m "W471", Olt, i4mili", w O6� -.41 ............. dimir.,, -�l., f"" , "I'll,-­I t, Y/ I 0, 0, *iA I i m Milo /77 ii;... lip, ............ 0/ OAT" 'if k, 0"T j .......... e, , t? 1, 1 5 "Ai VIM, OJI), 11 1 'it #�ffff i,Nil 0/ 4/1�� obt,"MI111 -itmat",*Jimm" AN Al ijr-14 lel, to ri ............... -2!f I," F,0, y MR) "I'll I f, /I 11"W",�7`W/ v/1 .......... e) 'ei # # MM wiff 0 V r/h/#/F/,/1 1, WNW= 1 M�;'.Tz =Wool mo W111 11"IV,"'IN ............., l0O'1114,1 "a" Jy 7 1%,wf%Nk it Of U IV"1,Y,"I, , ff-�,i`ii�i,W,6v T, id CI), j Of" Of, ",W 01" 0 Irk It 0 IN (p, I .), Id, 0, Of '40", "of, Fit' Or Of /p 0 I.......... 'dmam�%, ow Her, ii, e '�ppq� 'I al Or w JAP ti wo o0f,""",:0100,00, I'm "o-z" AN Y)iltti,yj V" 'j, 'r Ow W61, li;r p 'A"M,"7, f L14 5 111/11, or I" N-61 0 I,.'YO ei I jjjll, W y 411 Ii A' W, milli ........... Tf f, _001 ""NON). )1W "Olivif M :` '0/ . ........... I'll,F"10111"I'l; )if '40,0 M O�, 'A. Ow, 4, Ap 11'a *,111mviii 3p -61 1111(f 11 -.0 Mum" 2020-1.1-0,3 Agenda Packet Page 197 of 5019 O"Itay �Ranch Apartments SOURCES OF FUNDS CONSTRUCTION Construction Loan 1st TD-Tax Exempt $ 351000A0 Construction Loan-Taxable $ 18,1500,000 Seller Carryback $ 310000000 Federal Tax Credit Equity $ 6,9371967 State Tax Credit Equity $ 9741702 Deferred Operating Reserve $ 1,3171368 Def. Dev. Fee $ 71782�944 TOTAL SOURCES $ 73,,512?980 PERMANENT Perm Loan 1st TD-Taxable $ 3,3191000 Perm Loan 1st TD-Tax exempt $ 35,000,000 Seller Carryback $ 31000,000 Federal Tax Credit Equity $ 23,353,740 State Tax Credit Equity $ 31280,922 CDLAC Deposit Refund $ 100,000 Def. Dev. Fee $ 51459,319 TOTAL SOURCES $ 73,512,980 2020-1.1-0,3 Agenda Packet Page 198 of 5019 Otay Ranch Apartments INCOME Total Units 175 Unit Breakdown Type Unit/Sq.Ft. #of Units AMI Restrictions Actual AMI's Rent/Un,it sq.ft�.price UtilityAllow. Rent Received Total Rent 1 Bed 654 41 50% $ 11083 $ 1.66 $ 37 $ 11046 $ 421886 1 Bed 654 14 60% $ 1,299 $ 1.99 $ 37 $ 1,26,2 $ 17,668 2 Bed 823 7 50% $ 1,300 $ 1.58 $ 47 $ 1,,253 $ 8,77'1 2 Bed 823 65 60% $ 1,56,0 $ 1.90 $ 47 $ 1,513 $ 98,345 3 Bed 1116 5 50% $ 1,501 $ 1.34 $ 58 $ 1,443 $ 7,215 3 Bed 1116 41 60% $ 1,801 $ 1.61 $ 58 $ 1,,743 $ 71,47'1 Mngr Units(2bd) 823 2 mkt $ - $ - $ - $ - lAvg/Total 847 175 56.29% $ 11454 $ 1.73 $ 46 $ 1140�8 $ 24 35 Monthly Rent<60%AMI $ 246,356 Tota I Sq.Ft 146,562 Monthly Rent from Moderate&Market $ - Low Inc Sq.Ft 146,562 Total Monthly $ 246,356 Ratio for credits 100.00% Total Annual Rent 2,,956,?274 Annual Rent<60%AMI $ 2,956,274 Avg.Aff.Rent $ 1,424 Vacany 5.0% $ (147,814) Avg.Mrkt Rent $ - Annual Rent from Moderate&Market $ Vacancy 5.0% $ - Other Income $ 47.74 $ 100,257 Vacancy 0.0% $ - Effective Gross Income $ 2,908,718_ 2020-11-0�3 Agenda Packet Page 199 of 509 Otay Ranch Apartments SOURCES AND USES BUDGET TOTAL PROJECT RESIDENTIAL COMMERCIAL 70%PVC FOR NEW USES COST COST COST CONST/REHAB LAND COSTIACQUISIT10,N, Total Land Cost Acquisition Cost NEWCONSTRUCTION, Site Work 3,000,000 21855,345 1441655 21855,345 Structures 36,043,821 34,305,846 11737,976 34,305,846 General Requirements 1,774,593 1,689,025 85,568 1,689,025 Contractor Overhead 581,683 553,635 28,048 553,635 Contractor Profit 581,683 553,635 28,048 553,635 General Liability Insurance 448,290 426,675 21,616 426,675 Total New Construction Costs 42,430,071 40,384,160 2,045,911 40,384,160 ARCHITECTURAL FEES,, Design 1,183,500 1,126,434 57,066 1,126,434 Supervision 2881300 2741399 131901 2741399 Total Architectural Costs 1,4,71,800 1,400,832 70,968 1,400,832 Total Survey&Engineering 1,199,982 1,142,121 57,861 1,142,121 CONSTRUCTION INTEREST&FEES, Construction Loan Interest 2,607,492 2,481,763 125,729 2,481,763 Origination Fee 401,250 381,902 19,348 381,902 Credit Enhancement/Application Fee 50,000 47,589 2,411 47,589 Bond Premium 276,500 26,3,168 13,332 - Taxes 65,000 61,866 3,134 - Insurance 9741500 9271511 461989 927511 Title&Recording 80,000 76,143 3,857 76,143 Other:(Construction Loan Interest Post CofO) 1,260,460 1,199,683. 60,777 Total Construction Interest&Fees 5,715,202 5,439,624 275,578 3,914,908_ PtRMANENT FINANCING Loan Origination Fee - - - Credit Enhancement/Application Fee 17,500 16,656 844 Title&Recording 20,000 19,036 964 Total Permanent Financing Costs 37,500 350692 11808 Subtotals Forward 50,854,555 48,402p429 2�4521126 46,842,021 LEGAL FEES Lender Legal Paid by Applicant 1051000 991937 51063 80;901 Other:(Bond Counsel&Partnership Legal) 2051000 1951115 9;885 1461336 Total Attorney Costs 310,000 295,052 14,948 227,238 .RESERVES 3-Month Operating Reserve 1,317,368 1,317,368 - Other:Tenant Improvements 283,800 - 283,800 Total Reserve Costs 1,601,168 1,317,368 283,800 APPRAISAL Total Appraisal Costs 6,500 6,187 313 6,187 Total Contingency Cost 2,070,079 1,9700263 99,816 1p970,,263 OTHER PROJECT,COSTS TCAC/CDLAC App/Allocation/Monitoring Fees 1241539 2131712 101827 Environmental Audit 41900 41664 236 41664 Local Development Impact Fees 6,543,658 6,228,133 315,525 6,228,133 Permit Processing Fees 1,177,047 1,16,2,584 14,464 1,162,584 Marketi�ng 134,500 128,015 6,485 Furnishings 407,980 388,308 19,672 388,308_ Market Study 111125 10,589 536 10,589 Accounting/Reimbursables 80,000 76,143 3,857 38,071 Soft Cost Contingency 684,998 651,969 33,030 554,173 Other:(Predevelopment Loan) 185,000 176,080 8,920 176,080 Other:(CDLAC Deposits) 2131200 2021920 101280 Other:(Misc.) 751200 711574 31626 161180 Other:(Utilities) 6281530 5981223 30;307 5981223 Total Other Costs 10,270,678 9,912,912 457,766 9,177,00�5 SUBTOTAL PROJECT COST 65,112,980 61,90,4,211 3,308,769 58,222,713 DEVELOPER COSTS, Developer Overhead/Profit 8,400,000 7,903,685 496,315 7,903,685 Consultant/Processing Agent - - - - Project Administration - - - - Broker Fees Paid to a Related Party - - - - Const.Oversight by Developer - - - - Other:(Specify) - I - I - - Total Developer Costs 81400,000 7,9030685 496,315 7,903,685 TOTAL PROJ EC'T COSTS, 73,512,980 69,8070896 3,805,084 66,126,398 2020-11-03 Agenda Packet Page 200 of 50,9 O�tay Ranch Apartments OPERATING EXPENSES Expenses Budget Salaries& Benefits Manager $ 55,418 Asst., Managers $ 361750 Emp�loyee Burden $ 31,988 Total Salaries&Benefits $ 124,156 Administrative $ 321000 Business License Tax $ 11000 Advertisinig/Ma�rketing $ 21500 Repairs& Maint. Maintenance Manager $ 481208 Asst. Maintenance $ 50,304 Apartment Allowance $ - Emp�loyee Burden $ 341190 Painting&Cleaning $ 31500 Repairs& Maint. $ 161300 Total Repairs&Maintenan�ce $ 188,002 Contract Services Elevator Service Contract $ 10,000 Fire Sprinkler/Alarm Service $ 61640 Trash $ 29,026 Pest Control $ 41F660 Landscape/Grounds Maintenance $ 241000 Total Contract Services $ 74,326 Utilities Electric $ 30,228 Water&Sewer $ 93,432 Gas $ 25,572 Total Utilities $ 149,232 Management Fees $ 111,986 Legal/Audit $ 12,500 Real Estate Taxes(CFID) $ 51132 Real Estate Taxes(Market Rate) $ 31500 Insurance $ 521115 Replacement Reserves $ 431750 Wifi $ 61500 Annual Issuer Fee $ 171000 Services Fee $ 201000 Total Other $ 272,483 Total Expenses $ 808,199 2020-1.1-0,3 Agenda Packet Page 201 of 5019 15 YR-CASH FLOW Calendar Year 2023 2024 2025 2026 2027 2028 2029 2030 2031 2032 2033 2034 2035 2036 2037 Stabilized Year 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Revenues: Gross Potential Rent $ 2,956,274 $ 3,015,400 $ 3,075,708 $ 3,137,222 $ 3,199,966 $ 3,263,966 $ 3,329,245 $ 3,395,830 $ 3,463,747 $ 3,533,022 $ 3,603,682 $ 3,675,756 $ 3,749,271 $ 3,824,256 $ 3,900,741 Other Income $ 100,257 $ 102,262 $ 104,307 $ 106,394 $ 108,521 $ 110,692 $ 112,906 $ 115,164 $ 117,467 $ 119,816 $ 122,213 $ 124,657 $ 127,150 $ 129,693 $ 132,287 Vacancy Loss $ (147,814)$ (150,770) (153,785) (156,861) (159,998) (163,198) (166,462) (169,792) (173,187) (176,651) (180,184) (183,788) (187,464) (191,213) (195,037) Total Net Revenues 2,908,718 2,966,892 3,026,230 3,086,754 3,148,490 3,211,459 3,275,689 3,341,202 3,408,026 3,476,187 3,545,711 3,616,625 3,688,957 3,762,736 3,837,991 Employee Burden 31,988 32,948 33,936 34,954 36,003 37,083 38,195 39,341 40,521 41,737 42,989 44,279 45,607 46,975 48,385 Total Salaries&Benefits 124,156 127,881 131,717 135,669 139,739 143,931 148,249 152,696 157,277 161,995 166,855 171,861 177,017 182,327 187,797 Total Expenses: 808,199 829,416 851,246 873,706 896,814 920,591 945,054 970,225 996,124 1,022,772 1,050,191 1,078,404 1,107,434 1,137,304 1,168,041 Net Operating Income: 2,100,519 2,137,476 2,174,984 2,213,049 2,251,675 2,290,869 2,330,634 2,370,977 2,411,903 2,453,415 2,495,520 2,538,221 2,581,524 2,625,432 2,669,950 Debt Service: 1st TD 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1,826,538 1st TD-Tax Exempt 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 167,186 1st TD-Taxable 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1,659,352 1.15 1.17 1.19 1.21 1.23 1.25 1.28 1.30 1.32 1.34 1.37 1.39 1.41 1.44 1.46 Cash Flow After Debt Service 273,981 310,938 348,446 386,511 425,137 464,330 504,096 544,439 585,364 626,877 668,982 711,683 754,986 798,894 843,412 2020-11-03 Agenda Packet Page 202 of 509 Ross FINANCIAL 1736 Stockton Street',Suite One* San Francisco,CA 94133 (415)912-5612 FAX(415)912-5611 October 28, 2020 Mr. Jose Dorado Senior Management Analyst City of Chula Vista Housing Division 276 Fourtb Street Chula Vista, CA 1910 Re: Otay Ranch Apartments Dear Mr. Diorado�: The Chula Vista Housing Authority (tbe "Housing Authority") has retained Ross Financial. as its municipal. advisor to analyze the feasibility of issuing taxable and tax- exempt obligations (the "Obligations" or the "Note") for the Otay Ranch Apartments (the '.'Development"). This feasibility analysis reviews the following items: • Overview of the Development • Proposed financing approach. • Benefits and risks to Housing Authority • Public purpose • Recommendations Ross Financial. has based its analysis of the Development's financial. feasibility on materials provided by the Housing Authority and Meta Housing Corporation ("Meta"), which. has created the development and borrower entity for the Development. The materials include: (1) the joint application. to the California Debt Limit Allocation Committee ("CDLAC") and the California Tax Credit Allocation Committee CICTCAC"), (2) the financing commitment from Citibank, N.A., as construction and permanent lender (the "Lender"), (3) the market study performed by Novogradac Consulting LLP in, support of the joint application to CDLAC, and (4) Meta's pro forma financial schedules for the Development. Ross Financial has not visited the site of the proposed Development, has had no role in the selection of the Lender and has had no role in the creating the overall financing structure. 2020-1.1-0,3 Agenda Packet Page 203 of 5019 1,1�,C­ C)tiily Rcallch Al,,)at C)Ct()bc,,1 1 61! 28, "" 020 P(,Age 0,t,8" OVERVIEW OF DEVELOPMENT Development Summary. The Development is proposed as the new construction, of a multifamily housing rental development located at the northwest corner of La Media Parkway South and Main Street East in Chula Vista. The Development consists of 175 apartments (173 affordable units and 2 manager's units), approximately 10,000 square feet of ground floor commercial space and approximately 51,054 square feet of common area/public space, all located in three four-story buildings. The Development will contain 359 parking stalls of which 286 will be dedicated to residential./guest parking and 73 will be dedicated to commercial.. The construction type is Type V-A fully sprinklered construction. The Development will include significant sustainable green energy-efficient features.- it will be built to reach the minimum requirements of the GreenPoint Rated Program and to exceed the standards of Title 26 of the California Building Code by 7%. The unit mix and affordability restrictions for the Development will be as follows: Otay Ranch Apartments Unit Mix 50% AMI** 60% AMI** - I Bedroom/], Bath 55 41, 1,4 2 Bedroom/], Bath 74* 7 65 3 Bedroom/2 Bath 46 5 41 Total Units 175 53 120 *Includes two manager"s units ** AMI=Area median income;Manager's unit is not subject to affordability restrictions According the CDLAC application, residential. units will feature fully equipped kitchens and bathrooms, dishwashers, bard flooring and solid surface countertops. Energy efficient and water saving features include: EnergyStar appliances, high-efficiency lighting, solar thermal water preheating, low flow faucets, water conserving toilets and programmable tbermostats. The Development will meet the code and ADA requirements for mobility and sensory access, with 18 units for mobility impairment (equipped with larger door clearances, turning spaces, grab bars, accessible kitchen appliances, removable cabinets, bathtub seats and hand-held shower heads) and 7 units for sensory impairment (equipped with visual. fire alarrn and doorbell.warning systems). The common area/p,ublic spaces will consist of a property management office, game room, computer lab, fitness room, laundry rooms on each floor, community rooms, dog park, tot lot, pool and deck area, and outdoor courtyards. The commercial uses will. consist of a restaurant and retail. No proceeds of the Obligations will be used to fund commercial, use and no residential income from the Development will pay for commercial uses in any way. 2020-1.1-0,3 Agenda Packet Page 204 of 5019 mr. .Jose [')�(,)[-Cado ftin"wints R�,C­ C)tcaly Rcallch Al,,)at C)Ct()bc,,1 1 61! 2 8, "" 0 2 0 P(age 3 of 8 Description of Project Site. The Development will be constructed on a 5.4 acre site (the "'Site"') that currently consists of vacant, undeveloped land. At present, the Site has no frontage and is not accessible by roadways. Upon completion of construction, the Site will have frontage along Main Street East, Main Street West and La Media Road. The Site is located in a Planned Community or Sectional Planning Area identified as Village 8 West. The immediate neighborhood consists of undeveloped land that, in the future, will become part of Chula Vista Villages. Land use to the north, south, east and west aII consists of vacant, undeveloped land. Land use further east consists of Olympian High School, land use further north. consists of La Media Road and Santa Luna Street, land use further west consists of single family homes and land use further south consists of vacant undeveloped land and the Otay River. Project OwnershiplBorrower. The ownership entity for the Development will be Otay Affordable I V81 L.P. (the (. Borrowc,%,r"), a single asset California limited partnership consisting of: (1) Otay Affordable I V8. LLC, an entity created by Meta, which will act as the administrative general partner ("AGP"), (2) FFAH V Otay Ranch 1, LLC, a limited liability corporation created by Foundation for Affordable Housing, a 50 1,(c)(3) nonprofit public benefit corporation, which will act as the managing general partner ("MGP"); (3) a single purpose entity to be admitted as a non-managing member of the AGP, to be formed by HomeFed Corporation, a California for-profit corporation and current owner of the Site and (4) an. investor limited partner that will be an entity formed by Boston Financial. Investment Management, L.P. According to its website, Meta has more than, 27 years of experience in financing, developing and/or rehabilitating multifamily rental housing. According to Meta, this experience encompasses 7,000 residential units across more than 80 communities in California, including more than 5,500 units in, Southern California. Meta's most recent development activity in Southern California includes: Mission Gateway Apartments — a 356-unit new construction family project located at 8811 Sepulveda Avenue, Los Angeles, which began, construction in the 3 rd quarter of 2020; Metro at Buckingham — a 103-unit new construction senior project located at 4018 S. Buckingham Road, Los Angeles, which will open in the 4 th quarter of 2020. Arminta Square Apartments — a 10 1-unit new construction family project located at 1 ]05 0 Arminta. Street, Sun Valley, which will open in the I It quarter of 2020. CD LA CIC TCA C. On November 15, 2019, the Housing Authority filed a joint application to CDLAC and CTCAC requesting a private activity bond allocation of $35,,000,000 for the Development and new 4% Federal tax credits. In addition, the Borrower also applied to CTCAC for a reservation, of State tax credits. CDLAC. awarded the aflocation in the requested amount at its meeting of February 18, 2020. As a result of three-month extension granted by CDLAC on April 13, 2020 due to the impacts of 2020-1.1-0,3 Agenda Packet Page 205 of 50�9 mr. .Jose [')�ol-i'ldo 1,1�,C­ C)tiily RC,1111ch Al,,)at C)ct�()bc,,,1 61! 2 8, "" 0 2 0 PC,Age 4 of 8 COVID-19, the allocation will expire on November 18, 2020. CTCAC reserved State tax credits and 4% Federal tax credits at its meeting on, January 15, 20�2O�. In connection, with the CDLAC application process, on October 1, 2019, the Housing Authority adopted a resolution of intent to issue tax-exempt obligations for the Development and authorized the submission of an application to CDLAC. On. the same date, a TEFRA hearing, duly noticed, was beld before the City Council. at which time the Development was approved for purposes of Section 147 of the Internal Revenue Code. Because one year has elapsed since the TEFRA hearing and approval, a new TEFRA bearing and approval.wil.1 be required before the Obligations can be issued. PROPOSED FINANCING Project Costs and Funding. According to most recent projections provided by Meta, the total cost of the Development, including construction and all. soft costs, is estimated at $73,,407,980. The estimated sources of funds will differ during the construction period and following construction and lease-up ("at permanent"). The following table allocates these sources and uses during construction and at permanent based on the most recent projections, which remain subject to cbange based on final, costs and loan underwriting: Siources of Funds Construction* Permanent* Tax-Exempt Senior Note Proceeds $35001000 $35�0009000 Taxable Subordinate Note Proceeds 18�500100o 3�31900 Seller Cagybac 300100o 3MW000 Low Income Ho�using Tax Credit Equi!Y(Federal) 6�9371967 213�353�740 State Tax Cred uity 974170�2 3�28OX2 Deferred Operating Reserve 1�3171368 0 Deferred Developer Fee 7�7821944 5�459�319 CDLACpeposit Refund o 100001 Total $73�512�980 $73�51,29980 Uses of Funds Construction including site work) $,42�4301071 $42�43OM7 1, Contingency Costs 2M701079 2MMM79 Impact and Permit Fees 7�72017015 7�720�705 Architectural &Engineering 2fi7l,1782 2fi7l,�782 Financing Fees and Interest 5�75217012 5�752�702 Legal and Miscellaneous Soft Costs 2�8661473 2�866�473 Reserves 101,11,68 IOIJ68 Developer F I ee** 8A0100o 8�400001 Total" $73�512�980 $73�51129980 Numbers may not add due to rounding **Cash developer fee is$2,940,68,1 The Financing Approach. The Obligations requested by the Borrower to be issued by the Housing Authority will consist of senior Obligations in the form of a tax-exempt note (the '. Note") evidencing a loan to be made by Citibank, N.A. ("Lender"). In. addition, the 2020-1.1-0,3 Agenda Packet Page 206 of 5019 Mf-. .I(,)Se [')�(,)[-Cado ftin"wints R�,C­ C)Itcaly Rcalllch Al,,)at C)Ct()bc,,I 1 61! 2 8, "" 0 2 0 p(age �5 Of 8 Lender will be making a taxable loan (the "Taxable Loan") directly to the Borrower that will be subordinate to the Note. The Note Housing Authority will issue the Note in the anticipated amount of $35,000,000 to finance a portion of the costs of constructing the Development. The Note will have the following features: • The Note will be purchased and funded by the Lender on, a draw down basis; • The Note will be issued in, a single series; • The Note will be senior to the Taxable Loan • The Taxable Loan will be in the estimated amount of$18,500,000 during construction and will be paid down. at Conversion from tax credit proceeds to $3,319,000; • The Taxable Loan will bear a variable rate during construction (currently estimated at 3.80%) and a fixed rate at permanent (currently estimated at 4.03%) • The Note will bear a variable rate during construction (currently estimated at 3.50%) and a fixed rate at permanent (currently estimated at 3.58%). • The Note is anticipated to mature in 33 years and will amortize on a 40-year basis. • The Note is subject to mandatory prepayment at the end of 19 years. • The Note is expected to close on, or before November 1,8, 2020, unless extended by CDLAC. The Lender will execute an investor letter in which it will represent that it has sufficient knowledge and experience to evaluate the risks and merits associated with making the loans evidenced by the Note and has indicated its intention to hold the Note for its account. The Lender may transfer all or a portion of the Note only to transferees that execute a document with similar representations. Housing Authority Financial Involvement. The Housing Authority does not have any financial involvement with. the Development. However, it will execute an Inclusionary Housing Agreement with the Borrower that will contain affordability restrictions that will mirror those contained in the tax-exempt Note Regulatory Agreement. Affordability Restrictions. The Development will be subject to the following regulatory restrictions (collectively, the "Regulatory Agreements") and terms: • Tax-Exempt Note Regulatory Agreement requirements (including voluntary elections made to CDLAQ for a 55-year term.; • Tax Credit Regulatory Agreement requirements under which all units must be affordable at 60% AMI for a 55-year term to remain eligible for tax credits; and 2020-1.1-0,3 Agenda Packet Page 207 of 50�9 1,1�,C­ C)Itiily RC,1111ch Al,,)at C)Ct�(1),be,,,1 61! 2 8, "" 0 2 0 PC,Age 6 of 8 Inclusion.ary Housing Agreement requirements wbi,cb contain similar restrictions as contained in the Tax-Exempt Note Regulatory Agreement. Development Cash Flow. The Borrower provided pro fon-na cash flows for the Development. The following table summarizes key elements of the most recent pro forma: ........................................ AssuTpdons Vacancy 5% Revenue Escalation 2% Expense Escalation 3% Cash Flow and Coverage Stabilized Net Income—First Full Year' $2�9561274 Expenses (747,449) Replacement Reserve (431750) Housing Authori ond Monitoring Fee (1,71000) Net Operating Income Available for Debt Service $2�1001519 Tax-Exempt Note Debt Service 2 91352) Taxable Loan Debt Service 3 (1671186) Debt Service Coveryge' 1.15x Cash Flow after Debt Service 2741213 LP Fe%.., (1,01000) AGM Fee (20�1000) MGP Fee (1,21000) Estimated Net Prqj�ect Casb Flow $2311980 Deferred Developer Fee (Priority P4yrnent) 23 1 19�80) Ink Available Cash Flow after Deferred Developer Fe%.11 $0 Repayment of Seller Loan $0-1 Repament of Deferred Developer Fee (Remaipjpg Portion $ 1 Conversion is projected to occur on November 2023 1 Assumes an initial permanent tax-exempt note par of$35,000,000 C&3.58%interest and 40 year amortization 3 Assumes initial permanent taxable loan par of$3,319,000 C&4.03%interest and 40 year amortization 4 Net operating income divided by total tax-exempt and taxable debt service The following table shows the Borrower's most recent projected cash flow for the Development during first full five years following stabilized occupancy: 2020-1.1-0,3 Agenda Packet Page 208 of 5019 mr. .Jose [')�(,)[-(ado ftin"wints 1,1�,C­ C)tcaly Rcallch Al,,)at C)Ct()bc,,1 1 61! 2 8, "" 0 2 0 P(age 7 of 8 Year Escalation Revenues ll 2 3 4 5 2.00% lGross Scheduled Rent 2,,9�56,274 3,015,399 3,075,707 3,137,222 3,199,966 2.00�% Other�lincome 100,257 102,,262 104,3,07 106,393 108,521 less 5%vacancy (147,814) (150,770) (153,785) (156,861) (159,998) Total Net Income 2,908,717 2,966,892 3,026,229 3,086,754 3,148,489 Expenses 3.00% Operating Expenses* (747,449) (768,666) (790,496) (812,95,6) (836,064) Replacement Reserve (43,750) (43,750) (43,7501) (43,750) (43,750) Issuer Bond Monitoring Fee (17,000) (17,000) (17,000) (17,000) (17,000)1 Total Expenses+Reserves (808,199) (829,416) (851,246) (873,706) (896,814) Net Operating Income 2,,100,518 2,137,,476 2,174,983 2,213,048 2,251,675 Tax-exempt Note (1,6591,352) (1,659,352) (1,659,352) (1,,659,35�2) (1,659,352) Taxable Note (167,186) (167,186) (167,186) (167,186) (167,186) Total Debt Service (1,826,538) (1,826,538) (1,826,538) (1,826,538) (1,826,538) Debt Service Coverage 1.15x 1.17x 1.19X 1.21 x 1.23x Available Cash Flow after Bond Debt Service 273,9180 310,938 348,445 386,510 425,137 3.00% LP Fee (10,000) (10,300) (10,609) (10,927) (11,255) 3.001% AGP Fee (20,000) (20,600) (21,218) (21,85,5) (22,510) 100% MGP Fee (12,000) (12,360) (12,731) (13,113) (13,506) Project Cash Flow after GP and LP Fees 231,9180 267,678 30�3,888 340,615 3,77,866 Deferred Developer Fee(Priority Payment) �231,980) (267,678) (303,888) (340,615) (377,866) Project Cash Flow after Priority Deferred Developer Fee 0 0 0 0 01 Repayment of Seller Loan, 0 0 01 0 0 Peferred DeveloLer Fee 0 0 01 0 0 1*Most expenses escalate at 3%;other expense compoinents may vary PUBLIC PURPOSE The Note is expected to result in the long-term affordability of 173 one, two and three- bedroom units in the City of Chula Vista: 53 units will be restricted and affordable to households earning 50% AMI; 120 units will be restricted and affordable to households earning 60% AMI; 2 units will, be occupied by resident managers. The Regulatory Agreements will require that these affordability levels be maintained for a period of 55 years. BENEFITS AND RISKS TO THE HOUSING AUTHORITY The Note provides a vehicle for financing a portion, of the construction costs of the Development. As proposed, the Note will, result in the long-term. affordability of 173 one, two and tbree-bedroom units in the City of Chula Vista with units restricted to income levels described in. "Public Purpose" above. The Note does not pose undue financial risk to the Housing Authority. The Note is not a direct obligation of the Housing Authority or the City of Chula Vista. The Note will evidence a loan to be funded by the Lender, wbich has indicated its intention to hold the Note for its own account. Approximately 85% of the subordinate Taxable Loan is expected to be repaid after the Development's construction and lease-up. If the Housing Authority issues the Note, it will, receive an issuer fee at closing of $70,,000 equal to 0.20% times the initial aggregate par amount of the Note ($35,000,000) based on current projections). The Housing Authority also would receive an annual Obligation monitoring fee of$17,000. 2020-1.1-0,3 Agenda Packet Page 209 of 50�9 Mf-. .I(,)Se [')�(')[-(ado ftin"wints 1'1�,C­ C)tcaly Rcallch Al,,)at C)Ct()bc,,'1 61! 2 8, "" 0 2 0 p(age 8 Of 8 Costs of issuance will. be funded by the Borrower from low income housing tax credit contributions and/or other funds of the Borrower. RECOMMENDATIONS Ross Financial recommends that the Housing Authority proceed with the issuance of the Note based on the following findings: • The Note will achieve a public purpose by providing 173 affordable units, with all units restricted to income levels at 50% and 60% of AMI. • The Note will evidence a tax-exempt loan funded by a well-establi shed, highly capitalized bank that is active in affordable housing lending. The Note will be subject to restrictive transfer limitations at all times. • The Borrower will pay issuance costs from sources other than Note proceeds. • Based on estimates provided by the Borrower, there should be sufficient funds to complete the Development and the Development provides adequate cash flow to cover debt service on the Note and the subordinate Taxable Loan made by the Lender. If there is any additional information,you require concerning the Development, Ross Financial.wil.1 be pleased to provide a supplemental analysis. Very truly yours, �4c Peter J. Ross Principal 2020-1.1-0,3 Agenda Packet Page 2 1,0 of 5 O�9 C', 3 f tradling Yocca Carlson &Rauth Drqft dated October 7, 2020 FUNDING LOAN AGREEMENT among CITIBANK, N.A., as Funding Lender and CHULA VISTA HOUSING AUTHORITY, as Governmental Lender and U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent dated as of November 1,2020 relating to: Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A 2020-1.1-0,3 Agenda Packet Page 2 1,1 of 50�9 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION Section1.1 Definitions .................................................................................................................2 Section 1.2 Effect of Headings and Table of Contents............................................................... I I Section 1.3 Date of Funding Loan Agreement........................................................................... I I Section 1.4 Designation of Time for Performance ..................................................................... I I Section1.5 Interpretation............................................................................................................ 11 ARTICLE 11 TERMS; GOVERNMENTAL LENDER NOTE Section2.1 Terms........................................................................................................................ I I Section 2.2 Form of Governmental Lender Note ....................................................................... 13 Section 2.3 Execution and Delivery of Governmental Lender Note.......................................... 13 Section 2.4 Required Transferee Representations; Participations; Sale and Assignment.......... 14 ARTICLE III PREPAYMENT Section 3.1 Prepayment of the Governmental Lender Note from Prepayment under the Corresponding Borrower Note................................................................................. 15 Section 3,.2 Notice of Prepayment.............................................................................................. 15 ARTICLE TV SECURITY Section 4.1 Security for the Funding Loan................................................................................. 15 Section 4.2 Delivery of Security................................................................................................. 16 ARTICLE V LIMITED LIABILITY Section 5.1 Source of Payment of Funding Loan and Other Obligations................................... 17 Section 5.2 Exempt from Individual Liability............................................................................ 17 ARTICLE VI CLOSING CONDITIONS; APPLICATION OF FUNDS Section 6.1 Conditions Precedent to Closing.............................................................................. 18 ARTICLE VII FUNDS AND ACCOUNTS Section 7.1 Authorization.to Create Funds and Accounts.......................................................... 19 Section 7.2 Investment of Funds................................................................................................. 19 Section 7.3 Establishment of Funds............................................................................................ 19 Section 7.4 Funding Loan Payment Fund...................................................................................20 Section7.5 Expense Fund...........................................................................................................20 Section 7.6 Closing Costs Fund........................................................................................00000000.21 Section7.7 Project Fund.............................................................................................................21 Section. 7.8 Rebate Fund.............................................................................................................24 i 2020-1.1-0,3 Agenda Packet Page 21.2 of 50�9 TABLE OF CONTENTS (continued) Page Section7.9 Investments..............................................................................................................25 ARTICLE VIII REPRESENTATIONS AND COVENANTS Section 8.1 General Representations..........................................................................................26 Section 8.2 No Encumbrance on Security..................................................................................27 Section 8.3 Repayment of Funding Loan...................................................................................27 Section8.4 Servicer....................................................................................................................27 Section 8.5 Borrower Loan Agreement Performance.................................................................27 Section 8.6 Maintenance of Records; Inspection of Records.....................................................27 Section8.7 Tax Covenants .........................................................................................................28 Section 8.8 Performance by the Borrower..................................................................................29 ARTICLE IX DEFAULT; REMEDIES Section 9.1 Events of Default.....................................................................................................29 Section 9.2 Acceleration of Maturity; Rescission and Annulment.............................................30 Section 9.3 Additional Remedies; Funding Lender Enforcement..............................................30 Section 9.4 Application of Money Collected..............................................................................32 Section 9.5 Remedies Vested in Funding Lender.......................................................................32 Section 9.6 Restoration of Positions...........................................................................................33 Section 9.7 Rights and Remedies Cumulative............................................................................33 Section 9.8 Delay or Omission Not Waiver ...............................................................................33 Section 9.9 Waiver of Past Defaults...........................................................................................33 Section 9.10 Remedies Under Borrower Loan Agreement or Borrower Note.............................33 Section 9.11 Waiver of Appralsement and Other Laws. ...............................................................33 Section 9.12 Suits to Protect the Security.....................................................................................34 Section 9.13 Remedies Subject to Applicable Law......................................................................34 Section 9.14 Assumption of Obligations......................................................................................34 ARTICLE X AMENDMENT; AMENDMENT OF BORROWER LOAN AGREEMENT AND OTHER DOCUMENTS Section 10.1 Amendment of Funding Loan Agreement...............................................................34 Section 10.2 Amendments Require Funding Lender Consent...................................................35 Section 10.3 Consents, and Opinions ............................................................................................35 ARTICLE XI THE FISCAL AGENT Section I LI Appointment of Fiscal Agent; Acceptance..............................................................35 Section 11.2 Certain.Duties and Responsibilities of Fiscal Agent...............................................35 Section 11.3 Notice of Defaults....................................................................................................36 Section 11.4 Certain.Rights of Fiscal Agent.................................................................................36 Section 11.5 Not Responsible for Recitals ...................................................................................38 Section 11.6 May Hold Funding Loan..........................................................................................38 2020-1.1-0,3 Agenda Packet Page 21.3 of 50�9 TABLE OF CONTENTS (continued) Page Section 11.7 Moneys Held Hereunder..........................................................................................38 Section 11.8 Compensation and Reimbursement.........................................................................38 Section 11.9 Fiscal Agent Required; Eligibility...........................................................................39 Section 11.10 Resignation and Removal; Appointment of Successor............................................39 Section 11.11 Acceptance of Appointment by Successor..............................................................40 Section 11.12 Merger, Conversion, Consolidation or Succession to Business ..............................40 Section 11.13 Appointment of Co-Fiscal Agent.............................................................................40 Section 11.14 Loan Servicing.........................................................................................................41 Section 11.15 No Recourse Against Officers or Employees of Fiscal Agent.................................41 ARTICLE XII MISCELLANEOUS Section12.1 Notices.....................................................................................................................41 Section 12.2 Term of Funding Loan Agreement..........................................................................44 Section 12.3, Successors and Assigns ...........................................................................................44 Section12.4 Legal Holidays.........................................................................................................44 Section12.5 Governing Law........................................................................................................44 Section12.6 Severability..............................................................................................................44 Section 12.7 Execution in Several Counterparts...........................................................................44 Section 12.8 Nonrecourse Obligation of the Borrower................................................................44 Section 12.9 Waiver of Trial by Jury............................................................................................45 Section 12.10 Electronic Transactions............................................................................................45 Section 12.11 Reference Date.........................................................................................................45 EXHIBIT A FORM OF GOVERNMENTAL LENDER NOTE ............ EXHIBIT B, FORM OF REQUIRED TRANSFEREE REPRESENTATIONS............................B-1 EXHIBIT C FORM OF WRITTEN REQUISITION OF THE BORROWER-PROJECT FUND........................................................................................................................C-1 EXHIBIT D FORM OF WRITTEN REQUISITION OF THE BORROWER-CLOSING COSTSFUND..........................................................................................................D-1 EXHIBIT E FISCAL AGENT WIRING INSTRUCTIONS.........................................................E-1 2020-1.1-0,3 Agenda Packet Page 21.4 of 50�9 FUNDING LOAN AGREEMENT This, Funding Loan Agreement, dated as of November 1, 2020 (this "Funding Loan Agreement"), is, entered into by CITIBANK, N.A., (together with any successor hereunder, the "Funding Lender"), the CHULA VISTA HOUSING AUTHORITY, a public body corporate and politic, organized and existing under the laws of the State of California (together with its successors and assigns, the "Governmental Lender") and U.S. BANK NATIONAL ASSOCIATION, a national banking association duly organized and existing under the laws of the United States of America, as fiscal agent (together with its successors and assigns, the "Fiscal Agent"). R E C IT A L S : WHEREAS, the Governmental Lender is a public body, corporate and politic, duly organized and validly existing under the laws of the State of California; and WHEREAS, the Governmental Lender is empowered pursuant to Chapter I of Part 2 of Division 24 of the California Health and Safety Code (the "Act") to: (a)make loans to any person to provide financing for residential rental developments located within the jurisdiction of the Governmental Lender and, intended to be occupied in part by persons of low and, moderate income; (b) incur indebtedness for the purpose of obtaining moneys to make such loans and provide such financing, to establish any required, reserve funds and to pay administrative costs and other costs incurred in connection with the incurrence of such indebtedness of the Governmental Lender; and (c) pledge all or any part of the revenues, receipts or resources of the Governmental Lender, including the revenues and receipts to be received by the Governmental Lender from or in connection with such loans, and to mortgage, pledge or grant security interests in such loans or other property of the Governmental Lender in order to secure the payment of the principal of, prepayment premium, if any, on and interest on such indebtedness of the Governmental Lender; and WHEREAS, Otay Affordable I V8, L.P., a California limited partnership (the "Borrower"), has requested that the Governmental Lender enter into this Funding Loan Agreement under which the Funding Lender will (1) advance funds (the "Funding Loan") to or for the account of the Governmental Lender, and (ii) apply the proceeds of the Funding Loan to make a loan (the "Borrower Loan") to the Borrower to finance the acquisition, construction and equipping of a 173 unit plus 2 manager's units multifamily rental housing project located at in the City of Chula Vista, County of San Diego, California, known as Otay Ranch Apartments; and WHEREAS simultaneously with the delivery of this Funding Loan Agreement,, the Governmental Lender and the Borrower will enter into a Borrower Loan Agreement of even date herewith. (as it may be supplemented or amended, the "Borrower Loan Agreement"), whereby the Borrower agrees to make loan payments to the Governmental Lender in an amount that, when added to other funds available under this Funding Loan Agreement, will be sufficient to enable the Governmental Lender to repay the Funding Loan and to pay all costs and expenses related thereto when due; and WHEREAS, to evidence its payment obligations under the Borrower Loan Agreement, the Borrower will execute and deliver to the Governmental Lender its Borrower Note (as defined herein) and the obligations of the Borrower under the Borrower Note will be secured by a lien on and security interest in the Project (as defined herein) pursuant to a Multifamily Deed of Trust, 2020-1.1-0,3 Agenda Packet Page 21.5 of 50�9 Assignment of Rents, Security Agreement and Fixture Filing (California), of even date herewith (the "Securl"'ty Instrument"), made by the Borrower in favor of the Governmental Lender, as assigned to the Funding Lender to secure the performance by the Governmental Lender of its obligations under the Funding Loan; and WHEREAS, the Governmental Lender has executed and delivered to the Funding Lender its Multifamily Housing Revenue Note (Otay Ranch Apartments), 2020 Series A (the "Governmental Lender Note"), dated as of the Closing Date, evidencing its obligation to make the payments due to the Funding Lender under the Funding Loan as provided in this Funding Loan Agreement, all things necessary to make the Funding Loan Agreement the valid, binding and legal limited obligation of the Governmental Lender, have been done and performed and the execution and delivery of this Funding Loan Agreement and the execution and delivery of the Governmental Lender Note, subject to the terms hereof, have in all respects,been duly authorized. AGREEMENT : NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants and agreements herein contained,the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS- PRINCIPLES OF CONSTRUCTION Section 1.1 Definitions. For all purposes of this Funding Loan Agreement, except as otherwise expressly provided or unless the context otherwise clearly requires: (a) Unless specifically defined herein, all capitalized terms shall have the meanings ascribed thereto in the Borrower Loan Agreement. (b) The terms "herein, "hereof' and "hereunder" and other words of similar import refer to this Funding Loan Agreement as a whole and not to any particular Article, Section or other subdivision. The terms "agree" and "agreements" contained herein are intended to include and mean 44covenant" and"covenants." (c) All references made (1) in the neuter, masculine or feminine gender shall be deemed to have been made in all such genders, and (ii) in the singular or plural number shall be deemed to have been made, respectively, in the plural or singular number as well. Singular terms shall include the plural as well as the singular, and vice versa. (d) All accounting terms not otherwise defined herein shall have the meanings assigned to them, and al.1 computations herein provided for shall be made, in accordance with. the Approved Accounting Method. All references herein to "Approved Accounting Method" refer to such.principles as they exist at the date of application.thereof. (e) All references in this instrument to designated "Articles," "Sections" and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed. 2 2020-1.1-0,3 Agenda Packet Page 21.6 of 50�9 (f) All references in this instrument to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof (g) References to the Governmental Lender Note as "tax-exempt" or to the "tax- exempt status" of the Governmental Lender Note are to the exclusion of interest on the Governmental Lender Note (other than any portion of the Governmental Lender Note held by a (.4substantial user" of the Project or a"related person"within the meaning of Section 147 of the Co�de) from gross income for federal income tax purposes pursuant to Section 103(a) of the Code. (h) The following terms have the meanings set forth below: "Act"means Chapter I of Part 2 of Division 24 of the California Health and Safety Code. "Additional Borrower Payments" shall have the meaning given such term in the Borrower Loan Agreement. "Affiliate" means,, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled.by or is under common Control with such Person. "Approved Transferee" means (a) a "qualified institutional buyer" ("QIB") as defined in Rule 144A promulgated under the Securities Act that is a financial institution or commercial bank having capital and surplus of$5,,000,,000,,000 or more, (b) an affiliate of the Funding Lender, (c) a trust or custodial arrangement established by the Funding Lender or one of its affiliates or any state or local government or any agency or entity which is a political subdivision of a federal, state or local government (a "Governmental Entity"), in each case (i) the beneficial interests in which will be owned only by QlBs or (ii) the beneficial interests in which will be rated in the "BBB" category or higher without regard to modifier (or the equivalent investment grade category) by at least one nationally recognized rating agency, or(4) a Governmental Entity. "Authorized Amount" means $ the maximum principal amount of the Funding Loan under this Funding Loan Agreement. "Authorized Governmental Lender Representative" means the Chairperson, Vice Chairperson, Executive Director, or Treasurer of the Governmental Lender, or any person or persons designated to act on behalf of the Governmental Lender by a certificate filed with the Borrower, Funding Lender and Servicer, if any, containing the specimen signatures of such person or persons and signed on behalf of the Governmental Lender by its Chairperson, Vice Chairperson, Executive Director, or Treasurer of the Governmental Lender. "Borrower"means Otay Affordable I V8, L.P., a California limited partnership. "Borrower Loan" shall mean the mortgage loan made by the Governmental Lender to the Borrower pursuant to the Borrower Loan Agreement in the aggregate principal amount of the Borrower Loan Amount, as evidenced by the Borrower Note. "Borrower Loan Agreement" shall mean the Borrower Loan Agreement, of even date herewith, between the Governmental Lender and the Borrower, as supplemented, amended or replaced from time to time in accordance with its terms. 3 2020-1.1-0,3 Agenda Packet Page 21.7 of 50�9 "Borrower Loan Agreement Default" shall mean any event of default set forth in Section 8.1 of the Borrower Loan Agreement. A Borrower Loan Agreement Default shall "exist" if a Borrower Loan Agreement Default shall have occurred and be continuing beyond any applicable cure period. "Borrower Loan Amount" shall mean $ the maximum principal amount of the Borrower Loan under the Borrower Loan Agreement. "Borrower Loan Documents" shall have the meaning given such term in the Borrower Loan Agreement. "Borrower Note" shall mean that certain Multifamily Note, dated the Closing Date, in the original maximum principal amount of $ , made by the Borrower and payable to the Governmental Lender, evidencing the loan of the proceeds of the Governmental Lender Note, as endorsed and assigned by the Governmental Lender without recourse to the Funding Lender, as executed by the Borrower, and as it may thereafter be amended or supplemented from time to time. "Business Day" shall mean any day other than (i) a Saturday or a Sunday, or (ii) a day on which federally insured depository institutions in New York, New York or California are authorized or obligated by law, regulation, governmental decree or executive order to be closed. "Closing Costs" has the meaning given to the term Costs of Funding in the Borrower Loan Agreement. "Closing Date" shall mean November 2020, the date that initial Funding Loan proceeds are disbursed hereunder. "Code" means the Internal Revenue Code of 1986 as in effect on the date of execution and delivery of the Governmental Lender Note 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 Code. "Construction Funding Agreement" means that certain Construction Funding Agreement of even date herewith, between the Funding Lender, as agent for the Governmental Lender, and Borrower, pursuant to which the Borrower Loan will be advanced by the Funding Lender (or the Servicer on its behalf), as agent of the Governmental Lender, to the Fiscal Agent for disbursement to the Borrower and setting forth certain provisions relating to disbursement of the Borrower Loan during construction, insurance and other 'matters, as such agreement may be amended, 'Modified, supplemented and replaced from time to time. "Contingency Draw-Down Agreement" means the Contingency Draw-Down Agreement of even date herewith among the Fiscal Agent, the Funding Lender, and the Borrower relating to possible conversion of the portion of the Funding Loan evidenced by the Governmental Lender Note from a draw down loan to a fully funded loan. "Control" shall mean, with respect to any Person, either (a) ownership directly or through other entities of more than 50% of all beneficial equity interest in such Person, or (b) the possession, 4 2020-1.1-0,3 Agenda Packet Page 21.8 of 50�9 directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, through the ownership of voting securities,by contract or otherwise. "Conversion"has the meaning given to such term in the Borrower Loan Agreement. "Conversion Date" shall have the meaning given such term in the Construction Funding Agreement. '"Default" shall mean the occurrence of an event, which, under any Funding Loan Document, would, but for the giving of notice or passage of time, or both, be an event of default under the applicable Funding Loan Document or a Borrower Loan Agreement Default. "Draw-Down Notice" shall mean a notice described in Section 1.01 of the Contingency D�raw-Down Agreement regarding the conversion of the Funding Loan from a draw down loan to a fully funded loan. "Equity Investor" shall mean [Boston Financial Investment Management, L.P.], and its permitted successors and assigns. "Event of Default" shall have the meaning ascribed thereto in Section 9.1 hereof "Fair Market Value" shall mean the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, an'n's length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established. securities market (within the meaning of section 1273 of the Code) and, otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm's length transaction (as referenced above) if(a) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (b) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (c) the investment is a United States Treasury Security--State and Local Government Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (d) any commingled investment fund in which the City and related parties do not own more than a ten percent (10%) beneficial interest therein if the return paid by the fund is without regard to the source of the investment. To the extent required by the Regulations, the term "investment"will include a hedge. "Fiscal Agent" shall mean U.S. Bank National Association, which entity is appointed pursuant to Section H.I to serve as Fiscal Agent under this Funding Loan Agreement, and any successor thereto pursuant to Section 11.1 O�. "Fiscal Agent's Fees" shall mean the annual administration fee for the Fiscal Agent's ordinary fees and expenses in rendering its services under this Funding Loan Agreement during each 12-month period, payable on the Closing Date and annually in advance, which fee is equal to [$2,000.00]. "Funding Lender" shall mean Citibank N.A., a national banking association, and any successor under this,Funding Loan Agreement and the Borrower Loan Documents. 5 2020-1.1-0,3 Agenda Packet Page 21.9 of 50�9 "Funding Loan Agreement" shall mean this Funding Loan Agreement, by and among the Funding Lender, the Governmental Lender and the Fiscal Agent, as it may from time to time be supplemented, modified or amended by one or more agreements or other instruments, supplemental hereto entered into pursuant to the applicable provisions hereof "Funding Loan Documents" shall mean (a) this Funding Loan Agreement, (b) the Borrower Loan Agreement, (c) the Regulatory Agreement, (d) the Tax Certificate, (e) the Borrower Loan Documents, (0 all other documents evidencing, securing, governing or otherwise pertaininiz to the I-W Funding Loan, and (g) all amendments, mo�difications, renewals and substitutions of any of the foregoing. "Governmental Lender" shall mean the Chula Vista Housing Authority. "Governmental Lender Note" shall mean that certain Chula Vista Housimz Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A, dated the Closing Date, in the original maximum principal amount of$ , made by the Governmental Lender and payable to the Funding Lender, as executed by the Governmental Lender and, as it may thereafter be amended or supplemented,fro�m time to time. "Highest Rating Category" shall mean, with respect to a Permitted Investment, that the Permitted Investment is rated by S&P or Moody's in the highest rating category given by that rating agency for that general category of security. By way of example, the Highest Rating Category for tax-exempt municipal debt established by S&P is "A I+" for debt with a term of one year or less and "AAA" fo�r a term greater than one year, with corresponding ratings by Moody's of "MIGI" (for fixed rate) or "VMIGI" (for variable rate) for three months or less and "Aaa" for greater than three months. If at any time (a) both S&P and Moody's rate a Permitted Investment and (b) one of those ratings is below the Highest Rating Category, then such Permitted Investment will, nevertheless, be deemed to be rated in the Highest Rating Category if the lower rating is no more than one rating category below the highest rating category of that rating agency. For example, a Permitted Investment rated "AAA"by S&P and "AaY by Moody's is rated in the Highest Rating Category. If, however, the lower rating is more than one full rating category below the Highest Rating Category of that rating agency, then the Permitted Investment will be deemed to be rated below the Highest Rating Category. For example, a Permitted Investment rated "AAA" by S&P and "A I" by Moody's is not rated in the Highest Rating Category. "Maturity Date" shall mean � 20 "Maximum Rate" shall mean the lesser of(a) 12%per annum, and(b) the maximum interest rate that may be paid on the Funding Loan under State law. "Minimum Beneficial Ownership Amount" shall mean an amount no less than fifteen percent (15%) of the outstanding principal amount of the Funding Loan, or the full outstanding principal amount of the Funding Lo�an, if such principal amount is less than $100,000. "Moody's" shall mean Moody's Investors Service, Inc., or its successor. "Negative Arbitrage Account" means the Negative Arbitrage Account of the Project Fund established under Section 7.3. as otherwise described in the Contingency D�raw-Down Agreement. 6 2020-1.1-0,3 Agenda Packet Page 220 of 50�9 "Negative Arbitrage Deposit" has the meaning set forth in the Contingency D�raw-Down Agreement. "Noteowner" or "owner of the Governmental Lender Note" means the owner of the Governmental Lender Note as shown on the registration books maintained by the Funding Lender pursuant to Section 2.4(e). "Ongoing Governmental Lender Fee" shall mean the ongoing portion of the Annual Administration Fee (as that term is defined in the Regulatory Agreement) that is payable after the Closing Date. "Opinion of Counsel" shall mean a written opinion from an attorney or firm of attorneys, acceptable to the Funding Lender and the Governmental Lender with experience in the matters to be covered in the opinion; provided that whenever an Opinion of Counsel is required to address the exclusion of interest on the Governmental Lender Note from gross income for purposes of federal income taxation, such opinion shall be provided by Tax Counsel. "Permitted Investments" shall mean,, to the extent authorized by law for investment of any moneys held under this Funding Loan Agreement, but only to the extent that the same are acquired.at Fair Market Value: (a) Direct 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("Government Obligations"). (b) Direct obligations of, and obligations on which the full and timely payment of principal, and interest is unconditionally guaranteed by, any agency or instrumentality of the United States of America or direct obligations of the World Bank, which obligations are rated in the Highest Rating Category. (c) Demand deposits or time deposits with certificates of deposit issued by the Fiscal Agent or its affiliates or any bank organized under the laws of the United States of America or any state or the District of Columbia which has combined capital, surplus and undivided profits of not less than $50,000,000 and maturing in less than 365 days; provided that the Fiscal Agent or such other institution has been rated at least "VMIG-l"/"A-l+" by Moody's/S&P which deposits or certificates are fully insured by the Federal Deposit Insurance Corporation or collateralized pursuant to the requirements of the Office of the Comptroller of the Currency. (d) Bonds (including tax-exempt bonds), bills, notes or other obligations of or secured by Fannie Mae, Freddie Mac, the Federal Home Loan Bank or the Federal Farm Credit Bank. (e) Money market funds rated AAA by S&P which are registered with the Securities and Exchange! Commission and which meet the requirements of Rule 2(a)(7) of the Investment Company Act of 194,0, as amended, which may be administered by the Fiscal Agent or its affiliates. (f) Collateralized Investment Agreements or Repurchase Agreements with financial institutions rated in the "A" category or higher without regard to qualifiers, by at least one 7 2020-1.1-0,3 Agenda Packet Page 221 of 50�9 Rating Agency. The agreement must be continually collateralized with obligations specified in paragraphs, (a), (b) and/or (d) above, eligible for wire through the Federal Reserve Bank System or the DTC/PTC, as applicable, and at a level of at least 103% of the amount on deposit and valued no less than daily. The collateral must be held by a third party custodian and be free and clear of all liens and claims of third parties. Securities must be valued daily, marked-to-market at current market price plus accrued interest. If the market value of the securities is found to be below the required level, the provider must restore the market value of the securities to the required level within one (1) business day. Permitted collateral must be delivered to and held in a segregated account by the Fiscal Agent or a custodian (the "Collateral Agent"), and the Collateral Agent cannot be the provider. The collateral must be delivered to the Collateral Agent before/simultaneous with payment (perfection by possession of certificated securities). Acceptable collateral must be free and clear of all liens and claims of third parties and shall be registered in the name of the Collateral Agent for the benefit of the Governmental Lender and Fiscal Agent. The agreement shall state that the Collateral Agent has a valid, and perfected first priority security interest in the securities, any substituted securities and.all proceeds thereof (g) Any other investment authorized by the laws of the State, if such investment is approved in advance in writing by the Funding Lender in its sole discretion. Permitted Investments shall not include any of the following: (1) Except for any investment described in the next sentence, any investment or any agreement with a maturity profile greater than the date(s) on which funds representing the corpus of the investment may be needed under the Funding Loan Documents. This exception (1) shall not apply to Permitted Investments listed in paragraph (g). (2) Any obligation bearing interest at an inverse floating rate. (3) Any investment which may be prepaid or called at a price less than its purchase price prior to stated,maturity. (4) Any investment the interest rate on which is variable and is established other than by reference to a single index plus a fixed, spread, if any, and which interest rate moves proportionately with that index. "Person" shall mean any individual, corporation, limited liability company,partnership,joint venture, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing. "Pledged Revenues" shall mean the amounts pledged under this Funding Loan Agreement to the payment of the principal of, prepayment premium, if any, and interest on the Funding Loan and the Governmental Lender Note, consisting of the following: (i) all income, revenues, proceeds and other amounts to which the Governmental Lender is entitled (other than amounts received by the Governmental Lender with respect to the! Unassigned Rights) derived from or in connection with the Project and the Funding Loan Documents, including all Borrower Loan Payments due under the Borrower Loan Agreement and the Borrower Note, payments with respect to the Borrower Loan Payments and all amounts obtained through, the exercise of the remedies provided in the Funding 8 2020-1.1-0,3 Agenda Packet Page 222 of 50�9 Loan Documents and all receipts credited under the provisions of this Funding Loan Agreement against said amounts payable, and (ii) moneys held in the funds and accounts established under this Funding Loan Agreement, together with investment earnings thereon. "Prepayment Premium" shall mean (i) any premium payable by the Borrower pursuant to the Borrower Loan Documents in connection with a prepayment of the Borrower Note (including any prepayment premium as set forth in the Borrower Note) and (ii) any premium payable on the Governmental Lender Note pursuant to this Funding Loan Agreement. '.'Project" shall have the meaning given to that term in the Borrower Loan Agreement. "Regulations" shall mean with respect to the Code, the relevant U.S. Treasury regulations and proposed regulations thereunder or any relevant successor provision to such regulations and proposed regulations. "Regulatory Agreement" shall mean that certain Regulatory Agreement and Declaration of Restrictive Covenants, dated as of the date hereof, between the Governmental Lender and the Borrower, as hereafter amended or modified. "Remaining Funding Loan Proceeds Account" means the Remaining Funding Loan Proceeds Account of the Pro.ect Fund established under Section 7.3 as otherwise described in the 9 i Contingency Draw-D�own Agreement. "Required Transferee Representations" shall mean the representations in substantially the forrn attached to this Funding Loan Agreement as Exhibit B. "Resolution" shall mean the resolution of the Governmental, Lender authorizing the Funding Loan and the execution and delivery of the Funding Loan Documents to which the Governmental Lender is a party. "Responsible Offlicer" means, when used with respect to the Fiscal Agent, the president, any vice president, any assistant vice president, the secretary, any assistant secretary, the treasurer, any assistant treasurer, any senior associate, any associate or any other officer of the Fiscal Agent within the corporate trust office designated for the Fiscal Agent in Section 12.1 hereof (or any successor corporate trust office, the "Corporate Trust Office") customarily performing functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred at the Corporate Trust Office because of such person's knowledge of and familiarity with the particular subject and having direct responsibility for the administration of this Funding Loan Agreement. "Securities Act" shall mean the Securities Act of 1933, as amended. "Security" shall have the meaning assigned to it in Section 4.1. "Security Instrument" shall mean the Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (California) (as amended, restated and/or supplemented from time to time) of even date herewith, made by the Borrower in favor of the Governmental Lender, as assigned to the Funding Lender to secure the performance by the Governmental Lender of its obligations under the Funding Loan. 9 2020-11-03 Agenda Packet Page 223 of 50�9 "Servicer" shall mean any Servicer appointed by the Funding Lender to perform certain servicing functions with respect to the Funding Loan and on the Borrower Loan pursuant to a separate servicing agreement to be entered into between the Funding Lender and the Servicer. Initially the Servicer shall be the Funding Lender pursuant to this Funding Loan Agreement. "Servicing Agreement" shall mean any servicing agreement entered into between the Funding Lender and a Servicer with respect to the servicing of the Funding Loan and/or the Borrower Loan. "S&P" shall mean S&P Global Ratings, a business unit of Standard & Poor's Ratings Services, and its successors "State" shall mean the State of California. "Tax Certificate" shall mean the Tax Certificate and Agreement, dated the Closing Date, executed and delivered by the Governmental Lender and the Borrower, as it may be amended from time to time. "Tax Counsel" shall mean (a) Stradling Yocca.Carlson & Rauth, a Professional Corporation, or (b) any other attorney or firm of attorneys designated by the Governmental Lender and approved. by the Funding Lender having a national reputation for skill in connection with the authorization and issuance of municipal obligations under Sections 103 and 141 through 150 (or any successor provisions) of the Code. "Tax Counsel Approving Opinion" shall mean an opinion of Tax Counsel substantially to the effect that the Governmental Lender Note constitutes a valid and binding obligation of the Governmental Lender and that, under existing statutes.) regulations published rulings and judicial decisionsl the interest on the Governmental Lender Note is excludable from gross income for federal income tax purposes (subject to the inclusion of such customary exceptions as are acceptable to the recipient thereof). "Tax Counsel No Adverse Effect Opinion" shall mean an opinion of Tax Counsel substantially to the effect that the taking of the action specified therein will not in and of itself, adversely affect any exclusion of interest on the Governmental Lender Note from gross income for purposes of federal income taxation (subject to the inclusion of such customary exceptions as are acceptable to the recipient thereof). "UCC" shall mean the Uniform Commercial, Code as in effect in the State. "Unassigned Rights" shall mean the Governmental Lender's rights to (a) reimbursement and payment of its fees, costs and expenses and the Rebate Amount under Section 2.5 of the Borrower Loan Agreement and Section 5 of the Regulatory Agreement, (b) access to the Project under Section 5.17 of the Borrower Loan Agreement, (c) indemnification under Section 5.15 of the Borrower Loan Agreement and Section 9 of the Regulatory Agreement, (d) attorneys' fees under Sections 5.11� 5.14 and 10.05 of the Borrower Loan Agreement and Section 20 of the Regulatory Agreement, (e) receive notices, reports and other statements and its rights to consent to certain matters, including but not limited to its right to consent to amendments to this Funding Loan Agreement, the Borrower Loan Agreement and the Regulatory Agreement, and otherwise as provided in. this Funding Loan Agreement and the Borrower Loan. Agreement, (f) seek performance 10 2020-11-03 Agenda Packet Page 224 of 50�9 by the Borrower of its obligations under the Regulatory Agreement, and(g) seek performance of, and enforce, various tax covenants as described in Section 2.2(b)(i) of the Borrower Loan Agreement, including but not limited to those in Sections 5.34 and 5.35 of the Borrower Loan Agreement. "Written Certificate," "Written Certification," "Written Consent," "Written Direction," "Written Notice," "Written Order," "Written Registration," "Written Request," and "Written Requisition" shall mean a written certificate, direction, notice, order or requisition signed by an Authorized Borrower Representative, an Authorized Governmental Lender Representative or an authorized representative of the Funding Lender and delivered to the Funding Lender, the Servicer or such other Person as required under the Funding Loan Documents. "Yield" shall mean yield as defined in Section 14,8(h) of the Code and any regulations promulgated thereunder. Section 1.2 Effect of Headings and Table of Contents,. The Article and Section headings herein and in the Table of Contents are for convenience only and shall not affect the construction hereof. Section 1.3 Date of Funding, Loan Agreement. The date of this Funding Loan Agreement is intended as and for a date for the convenient identification of this Funding Loan Agreement and. is not intended to indicate that this Funding Loan Agreement was executed and delivered on said date. Section 1.4 Designation of Time for Performance. Except as otherwise expressly provided herein, any reference in this Funding Loan Agreement to the time of day shall mean the time of day in the city where the Funding Lender maintains its place of business for the performance of its obligations under this Funding Loan Agreement. Section 1.5 Interpretation. The parties hereto acknowledge that each of them and their respective counsel have participated in the drafting and revision of this Funding Loan Agreement. Accordingly, the parties agree that any rule of construction that disfavors the drafting party shall not apply in the interpretation of this Funding Loan Agreement or any amendment or supplement or exhibit hereto. ARTICLE 11 TERMS; GOVERNMENTAL LENDER NOTE Section 2.1 Terms. (a) Pri.,n,c,,i. al Amount. The total principal amount of the Funding Loan is hereby expressly limited to the Authorized Amount. (b) D�raw-Down Funding. The Funding Loan is originated on a draw-down.basis. The proceeds of the Funding Loan shall be advanced by the Funding Lender to the Fiscal Agent (pursuant to the wiring instructions, on Exhibit E attached hereto) for deposit by the Fiscal Agent to the Project Fund for the account of the Governmental Lender as and when needed to make each advance in accordance with the disbursement provisions of the Borrower Loan Agreement and the Construction Funding Agreement. Subject to the terms and conditions of the Borrower Loan 2020-1.1-0,3 Agenda Packet Page 225 of 50�9 Agreement, the Funding Lender agrees to advance, on behalf of the Governmental Lender, to the Fiscal Agent for deposit by the Fiscal Agent to the ProjectI .Fund $ on the Closing Date. Notwithstanding anything in this Funding Loan Agreement to the contrary, no additional amounts of the Funding Loan may be drawn down and funded hereunder after the third anniversary of the Closing Date; provided, however, that upon the delivery of a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Funding Lender such date may be changed to a later date as specified in such Tax Counsel No Adverse Effect Opinion. The Governmental Lender consents to the terms of the Contingency Draw-Down Agreement and agrees to take all actions requested in writing by the Funding Lender or the Borrower that are reasonably required of the Governmental Lender, in connection with the conversion of the Funding Loan to a fully drawn loan pursuant to the provisions of the Contingency Draw-Down Agreement in the event a Draw-Down Notice is, filed by the Funding Lender or the Borrower, all at the expense of the Borrower. The Funding Lender authorizes and directs the Fiscal Agent to enter into the Contingency Draw-Down Agreement. (c) Origination Date; Maturity. The Funding Loan shall be originated on the Closing Date and shall mature on the Maturity Date at which time the entire principal amount of the portion of the Funding Loan evidenced.by the Governmental Note, to the extent not previously paid, and all accrued.and.unpaid.interest, shall be due and.payable. (d) Principal. The outstanding principal amount of the Governmental Lender Note and of the Funding Loan as of any given date shall be the total amount advanced to the Fiscal Agent by the Funding Lender to or for the account of the Governmental Lender to fund advances with respect to the Borrower Note under the Borrower Loan Agreement and the Construction Funding Agreement as proceeds of the Borrower Loan, less any payments of principal of the Governmental Lender Note previously received upon payment of principal amounts under the Borrower Note, including regularly scheduled principal payments and voluntary and mandatory prepayments. The principal amount of the Governmental Lender Note and interest thereon shall be payable on the basis specified in this paragraph(d) and in paragraphs (e) and(f) of this Section 2.1. The Fiscal Agent shall keep a record of all principal advances and principal repayments made under the Governmental Lender Note and shall upon written request provide the Governmental Lender with a statement of the outstanding principal balance of the Governmental Lender Note and the Funding Loan. (e) Interest. Interest shall be paid on the outstanding principal amount of the Governmental Lender Note at the rate or rates set forth in the Borrower Note and otherwise as set forth in the Borrower Loan Agreement. (f) Corresponding Payments. The payment or prepayment of al, interest princip and premium, if any, due on the Funding Loan and the Governmental Lender Note shall be identical with and shall be made on the same dates, terms and conditions, as the principal, interest, premiums, late payment fees, and other amounts due on the Borrower Note. Any payment or prepayment made by the Borrower of principal, interest, Premium, if any, due on the Borrower Note shall be deemed to be like payments or prepayments of principal, interest and Premium, if any, due on the Funding Loan and the Governmental Lender Note. 12 2020-1.1-0,3 Agenda Packet Page 226 of 50�9 (g) . The Governmental Lender intends to conform strictly to the usury laws applicable to this, Funding Loan Agreement and the Governmental Lender Note and all agreements made in the Governmental Lender Note, this Funding Loan Agreement and the Funding Loan Documents are expressly limited so that in no event whatsoever shall the amount paid or agreed to be paid as interest or the amounts paid for the use of money advanced or to be advanced hereunder exceed the highest lawful rate prescribed under any law which a court of competent jurisdiction may deem applicable hereto. If, from any circumstances whatsoever, the fulfillment of any provision of the Governmental Lender Note, this Funding Loan Agreement or the other Funding Loan Documents shall involve the payment of interest in excess of the limit prescribed by any law which a court of competent jurisdiction may deem applicable hereto, then the obligation to pay interest hereunder shall be reduced to the maximum limit prescribed by law. If from any circumstances whatsoever, the Funding Lender shall ever receive anything of value deemed interest, the amount of which would exceed the highest lawful rate, such amount as would be excessive interest shall be deemed to have been applied, as of the date of receipt by the Funding Lender, to the reduction of the principal remaining unpaid. hereunder and not to the payment of interest, or if such excessive interest exceeds the unpaid principal balance, such excess shall be refunded to the Borrower. This paragraph shall control every other provision of the Governmental Lender Note, this Funding Loan Agreement and, all other Funding Loan Documents. In determining whether the amount of interest charged and paid might otherwise exceed the limit prescribed by law, the Governmental Lender intends and agrees that (i) interest shall be computed upon the assumption that payments under the Borrower Loan Agreement and other Funding Loan Documents will be paid according to the agreed terms, and (ii) any sums of money that are taken into account in the calculation of interestl even though paid at one time, shall be spread over the actual term of the Funding Loan. Section 2.2 Form of Governmental Lender Note. As evidence of its obligation to repay the Funding Loan, simultaneously with the delivery of this Funding Loan Agreement to the Funding Lender, the Governmental Lender hereby agrees to execute and deliver the Governmental Lender Note. The Governmental Lender Note shall be substantially in the form set forth in Exhibit A attached hereto, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Funding Loan Agreement. In connection with Conversion, the Funding Lender shall have the right to exchange the then existing Governmental Lender Note on or after the Conversion Date for a new Governmental Lender Note with a dated date of the Conversion Date and in a stated principal amount equal to the then outstanding principal amount of the Governmental Lender Note, which amount will equal the Permanent Period Amount (as defined in the Borrower Loan Agreement) of the Borrower Loan, but shall not otherwise change any material terms of the Governmental Lender Note. Section 2.3 Execution and Delivery of Governmental Lender Note. The Governmental Lender Note shall be executed on behalf of the Governmental Lender by the manual or facsimile signature of the Authorized Governmental Lender Representative and attested by the 'manual or facsimile signature of its Secretary or Deputy Secretary of Chula Vista Housing Authority. The manual or facsimile signatures of individuals who were the proper officers of the Governmental Lender at the time of execution shall bind the Governmental Lender, notwith standing that such. individuals or any of them shall have ceased to hold such o�ffices prior to the execution and delivery of the Governmental Lender Note or shall not have held such offices at the! date of the Governmental Lender Note. 13 2020-11-03 Agenda Packet Page 227 of 50�9 Section 2.4 Required Transferee Representations; Participations; Sale and Assignment. (a) The Funding Lender shall deliver to the Governmental Lender and the Fiscal Agent the Required Transferee Representations in substantially the form attached hereto as Exhibit B on the Closing Date. (b) The Funding Lender shall have the right to sell (i) the Governmental Lender Note and the Funding Loan or (ii) any portion of or a participation interest in the Governmental Lender Note and the Funding Loan, to the extent permitted by clause (c) below, provided that such sale shall be only to Approved Transferees that execute and deliver to the Funding Lender, with a copy to the Governmental Lender and the Fiscal Agent, the Required Transferee Re resentations; p provided, however, that no Required Transferee Representations shall be required to be delivered by transferees or beneficial interest holders described in clauses (3) or(4) of the definition of"Approved Transferee." (c) Notwithstanding the other provisions of this Section 2.4, no beneficial ownership interest in the Governmental Lender Note and Funding Loan shall be sold in an amount that is less than the Minimum Beneficial Ownership Amount; provided, however, that beneficial ownership interests in the Governmental Lender Note and, Funding Loan described in clause (3) of the definition of"Approved Transferee" may be sold in any amount without regard to the Minimum Beneficial Ownership Amount. (d) No service charge shall be made for any sale or assignment of any portion of the Governmental Lender Note, but the Governmental Lender may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any such sale or assignment. Such sums shall be paid in every instance by the purchaser or assignee of the Funding Loan or portion thereof. (e) The Governmental Lender Note, or any interest therein, shall be in fully registered form transferable to subsequent owners only on the registration books which shall be maintained by the Funding Lender for such purpose and which shall be open to inspection by the Governmental Lender. The Governmental Lender Note shall not be transferred through the services of the Depository Trust Company or any other third party registrar. The Fiscal Agent acknowledges that the Funding Lender is the initial registered owner of the Governmental Lender Note and shall remain the sole registered owner of the Governmental Lender Note except as provided herein. The Funding Lender shall provide written notice to the Fiscal Agent of any transfer by the Funding Lender of the Governmental Lender Note or any interest of the Funding Lender in the Governmental Lender Note. (f) The parties agree that no rating shall be sought from a rating agency with respect to the Funding Loan or the Governmental Lender Note. 14 2020-11-03 Agenda Packet Page 228 of 50�9 ARTICLE III PREPAYMENT Section 3.1 Prepayment of the Governmental Lender Note from Prepayment under the Corresponding Borrower Note. The Governmental Lender Note are subject to voluntary and mandatory prepayment as follows: (a) The Governmental Lender Note shall be subject to voluntary prepayment in full or in part by the Governmental Lender, from funds received by the Fiscal Agent from the Borrower under the Borrower Loan Agreement to the extent and in the manner and on any date that the Borrower Note is subject to voluntary prepayment as set forth therein, at a prepayment price equal to the principal balance of the Borrower Note to be prepaid, plus interest thereon to the date of prepayment and the amount of any Prepayment Premium payable under the Borrower Note, plus any Additional Borrower Payments due and payable under the Borrower Loan Agreement through the date of prepayment. Except as specifically permitted, in the Borrower Note, the Borrower shall not have the right to voluntarily prepay all or any portion of the Borrower Note, thereby causing the Governmental Lender Note to be prepaid, without the prior written consent of Funding Lender, which may be withheld in Funding Lender's sole and absolute discretion. (b) The Governmental Lender Note shall be subject to mandatory prepayment in whole or in part upon prepayment of the Borrower Note at the direction of the Funding Lender in accordance with the terms of the Borrower Note at a prepayment price equal to the outstanding principal balance of the Borrower Note prepaid, plus accrued interest plus any other amounts payable under the Borrower Note or the Borrower Loan Agreement. Section 3.2 Notice of Prepayment. Notice of prepayment of the Governmental Lender Note shall be deemed given to the extent that notice of prepayment of the Borrower Note is timely and properly given to the Funding Lender (with a copy to the Govemmental Lender) in accordance with the terms of the Borrower Note and the Borrower Loan Agreement, and no separate notice of prepayment of the Governmental Lender Note is required to be given. ARTICLE IV SECURITY Section 4.1 Security for the Funding Loan. To secure the payment of the Funding Loan and the Governmental Lender Note. he terms and conditions on which the Funding Loan I to declare t and the Governmental Lender Note are secured, and in consideration of the premises and of the funding of the Funding Loan by the Funding Lender, the Governmental Lender by these presents does grant, bargain, sell, remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm to the Funding Lender (except as, limited herein), a lien on and security interest in the following described property (excepting, however, in each case, the Unassigned Ri�zhts) (said property, rights and privileges being herein collectively called, the "Security"): (a) All right, title and interest of the Governmental Lender in, to and under the Borrower Loan Agreement and the Borrower Note, including, without limitation, all rents, revenues 15 2020-11-03 Agenda Packet Page 229 of 50�9 and receipts derived by the Governmental Lender from the Borrower relating to the Project and including, without limitation, all Pledged Revenues, Borrower Loan Payments and Additional Borrower Payments derived by the Governmental Lender under and pursuant to, and subject to the provisions of, the Borrower Loan Agreement; provided that the pledge and assignment made under this Funding Loan Agreement shall not impair or diminish the obligations of the Governmental Lender under the provisions of the Borrower Loan Agreement; (b) All right, title and interest of the Governmental Lender in, to and under, together with all rights, remedies, privileges and options pertaining to, the Funding Loan Documents, and all other payments, revenues and receipts, derived by the Governmental Lender under and pursuant to, and subject to the provisions of, the Funding Loan Documents; (c) Any and all moneys and investments fro�m time to time on deposit in, or fon-ning a part of, all funds and accounts created and held under this Funding Loan Agreement and any amounts held at any time in the Remaining Funding Loan Proceeds Account, any Negative Arbitrage Deposit and any other amounts held, under the Contingency Draw-Down Agreement, subject to the provisions of this Funding Loan Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein; and (d) Any and all other real or personal property of every kind and nature or description, which may fro�m time to time hereafter, by delivery or by writing of any kind, be subjected to the lien of this Funding Loan Agreement as additional security by the Governmental Lender or anyone on its part or with its consent, or which pursuant to any of the provisions hereof or of the Borrower Loan Agreement may come into the possession or control of the Fiscal Agent, the Funding Lender or a receiver appointed pursuant to this Funding Loan Agreement; and the Funaing Lender and the Fiscal Agent are hereby authorized to receive any and all such property as and for additional security for the Funding Loan and the Governmental Lender Note and to hold and apply all such property subject to the terms hereof The pledge and assignment of and the security interest granted in the Security pursuant to this Section 4.1 for the payment of the principal of, premium, if any, and interest on the Governmental Lender Note in accordance with its terms and provisions and for the payment of all other amounts due hereunder, shall attach and be valid and binding from and after the time of the delivery of the Governmental Lender Note by the Governmental Lender. The Security so pledged and then or thereafter received by the Governmental Lender, Fiscal Agent or the Funding Lender shall immediately be subject to the lien of such pledge and security interest without any physical delivery or recording thereof or further act, and the lien of such pledge and security interest shall be valid and binding and prior to the claims of any and all parties having claims of any kind in tort,, contract or otherwise against the Governmental Lender irrespective of whether such parties have notice thereof. Section 4.2 Delivery of Security. To provide security for the payment of the Funding Loan and the Governmental Lender Note, the Governmental Lender has pledged and assigned to secure payment of the Funding Loan and the Governmental Lender Note its right, title and interest in the Security to the Funding Lender. In connection with such pledge, assignment.) transfer and conveyance, there shall be delivered to the Funding Lender, by or at the expense of the Borrower, the following documents or instruments promptly following their execution and, to the extent applicable, their recording or filing: 16 2020-1.1-0,3 Agenda Packet Page 230 of 50�9 (a) Each Borrower Note endorsed without recourse to the Funding Lender by the Governmental Lender; (b) The originally executed Borrower Loan Agreement and Regulatory Agreement; (c) The originally executed Security Instrument and all other Borrower Loan Documents existing at the time of delivery of the Borrower Note and an assignment for security of the Security Instrument from the Governmental Lender to the Funding Lender, in recordable form; (d) Uniform Commercial Code financing statements or other chattel security documents giving notice of the Funding Lender's status as an assignee of the Governmental Lender's security interest in any ersonal property forming part of the Project, in form suitable for filing; and p (e) Uniform Commercial Code financing statements giving notice of the pledge by the Governmental Lender of the Security pledged under this Funding Loan Agreement. There shall be delivered and deposited with the Funding Lender such additional documents, financing statements, and instruments as the Funding Lender may reasonably require from time to time for the better perfecting and. assuring to the Funding Lender of its lien and security interest in and to the Security including, at the request of the Funding Lender, any amounts held under the Contingency Draw-D�own Agreement, in each case at the expense of the Borrower. ARTICLE V LIMITED LIABILITY Section 5.1 Source of Payment of Fundint! Loan and Other Obligations. The Funding Loan is a limited obligation of the Governmental Lender, payable solely from the Pledged Revenues and other funds and moneys and Security pledged and assigned hereunder. NONE OF THE GOVERNMENTAL LENDER (EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF THIS SECTION 5.1), THE CITY OF CHULA VISTA, THE STATE, OR ANY POLITICAL SUBDIVISION THEREOF (EXCEPT THE GOVERNMENTAL LENDER, TO THE LIMITED EXTENT SET FORTH HEREIN), SHALL IN ANY EVENT BE LIABLE FOR THE PAYMENT OF THE PRINCIPAL OF, PREMIUM (IF ANY) OR INTEREST ON THE FUNDING LOAN OR FOR THE PERFORMANCE OF ANY PLEDGE, OBLIGATION OR AGREEMENT OF ANY KIND WHATSOEVER WITH RESPECT THERETO EXCEPT AS SET FORTH HEREIN, AND NONE OF THE FUNDING LOAN, OR THE GOVERNMENTAL LENDER NOTE OR ANY OF THE GOVERNMENTAL LENDER'S AGREEMENTS OR OBLIGATIONS WITH RESPECT TO THE FUNDING LOAN, THE GOVERNMENTAL LENDER NOTE., OR HEREUNDER OR UNDER ANY OF THE OTHER FUNDING LOAN DOCUMENTS, SHALL BE CONSTRUED TO CONSTITUTE AN INDEBTEDNESS OF OR A PLEDGE OF THE FAITH AND CREDIT OF OR A LOAN OF THE CREDIT OF OR A MORAL OBLIGATION OF ANY OF THE FOREGOING WITHIN THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY PROVISION WHATSOEVER. THE GOVERNMENTAL LENDER HAS NO TAXING POWER. Section 5.2 Exempt from Individual Liability. No covenant, condition or agreement contained herein shall be deemed to be a covenant, agreement or obligation of any present or future member of the Board of Commissioners, officer, director, employee or agent of the Governmental 17 2020-1.1-0,3 Agenda Packet Page 231 of 50�9 Lender in his individual capacity, and none of the members of the Board of Commissioners, the officers, directors, employees or agents of the Governmental Lender executing the Governmental Lender Note or this Funding Loan Agreement shall be liable personally on the Governmental Lender Note or under this Funding Loan Agreement or be subject to any personal liability or accountability by reason of the issuance of the Governmental Lender Note or the execution of this Funding Loan Agreement or any of the Funding Loan Documents. ARTICLE VI CLOSING CONDITIONS; APPLICATION OF FUNDS Sectl'on 6.1 Condiffions Precedent to Closl*ng. Closing of the Funding Loan on the Closing Date shall be conditioned upon satisfaction or waiver by the Funding Lender in its sole discretion of each of the conditions precedent to closing set fo�rth in this Funding Loan Agreement, including but not limited to the following: (a) Receipt by the Funding Lender of the original Governmental Lender Note; (b) Receipt by the Funding Lender of the original executed Borrower Note, endorsed without recourse to the Funding Lender by the Governmental Lender; (c) Receipt by the Funding Lender of executed counterpart copies of this Funding Loan Agreement, the Borrower Loan Agreement, the Construction Funding Agreement, the Regulatory Agreement, the Tax Certificate and the Security Instrument; (d) Receipt by the Funding Lender of a certified copy of the Resolution; (e) Executed Required Transferee Representations from the Funding Lender; (f) Delivery into escrow of all amounts required to be paid in connection with the origination of the Borrower Loan and the Funding Loan and any underlying real estate transfers or transactions, including the Costs of Funding Deposit, in accordance with Section 2.3(c)(ii) of the Borrower Loan Agreement; (g) Receipt by the Funding Lender of a Tax Counsel Approving Opinion; (h) Receipt by the Funding Lender of an Opinion of Counsel from Tax Counsel to the effect that the Governmental Lender Note is exempt from registration under the Securities Act of 1933, as amended, and this Funding Loan Agreement is exempt from qualification under the Trust Indenture Act of 1939, as amended, (i) Delivery of an opinion of counsel to the Borrower addressed to the Govemmental Lender to the effect that the Borrower Loan Documents and the Regulatory Agreement are valid and binding obligations of the Borrower that are enforceable against the Borrower in accordance with their terms, subject to such exceptions and qualifications as are acceptable to the Governmental Lender; and 0) Receipt by the Funding Lender of any other documents or opinions that the Funding Lender or Tax Counsel may require. 18 2020-11-03 Agenda Packet Page 232 of 50�9 ARTICLE VII FUNDS AND ACCOUNTS Section 7.1 Authorization to Create Funds and Accounts. Except as provided in Section 7.3 hereof, no funds or accounts shall be established in connection with the Funding Loan at the time of closing and origination of the Funding Loan. The Funding Lender, the Fiscal Agent and the Servicer, if any, and any designee of the Funding Lender or the Servicer, are authorized to establish and create from time to time such other funds and accounts or subaccounts as may be necessary for the deposit of moneys (including, without limitation, insurance proceeds and/or condemnation awards), if any, received by the Governmental Lender, the Fiscal Agent, the Funding Lender or the Servicer pursuant to the terms hereof or any of the other Funding Loan Documents and not immediately transferred or disbursed pursuant to the terms, of the Funding Loan Documents and/or the Borrower Loan Documents. Section 7.2 Investment of Funds. Amounts held in any funds or accounts created under this Funding Loan Agreement shall be invested by the Fiscal Agent, the Funding Lender, the Servicer or the designee of the Funding Lender or Servicer, as applicable, in Permitted Investments at the written direction of the Borrower, subject in all cases to the restrictions of Section 8.7 hereof and. of the Tax Certificate. The Borrower's instruction shall be sufficient evidence that the investment constitutes a Permitted Investment (including as to the legality thereof). In the absence of any such instruction, monies shall be held uninvested. Permitted Investments purchased as an investment of moneys in any fund shall be deemed to be part of such fund or account. All interest or gain derived from the investment of amounts in any of the funds or accounts established hereunder shall be deposited in such fund or account. For purposes of acquiring any investments hereunder, the Fiscal Agent may commingle funds held by it hereunder, except as provided in Section 7.8(h) hereof with respect to the Rebate Fund. The Fiscal Agent shall incur no liability for losses arising from any investments made pursuant to this Section. The Fiscal Agent shall furnish the Borrower and Funding Lender periodic cash transaction statements that include detail for all investment transactions effected by the Fiscal Agent or brokers selected by the Borrower. Upon the Borrower's or Funding Lender's election, such statements will be delivered via the Fiscal Agent's online service, and upon electing such service, paper statements will, be provided only upon request. The Borrower waives the right to receive brokerage confirmations of security transactions effected by the Fiscal Agent as they occur, to the extent permitted by law. The Borrower further understands that trade confirmations for securities transactions effected by the Fiscal Agent will be available upon request and at no additional cost, and other trade confirmations may be obtained from the applicable broker. Section 7.3 Establishment of Funds. There are established with the Fiscal Agent the following funds and accounts: (a) The Funding Loan Payment Fund; (b) The Project Fund (consisting solely of a Note Proceeds Account, an Equity Account, a Remaining Funding Loan Proceeds Account and a Negative Arbitrage Account); (c) The Expense Fund; 19 2020-11-03 Agenda Packet Page 233 of 50�9 (d) The Closing Costs Fund; and (e) The Rebate Fund (to be established by the Fiscal Agent once the Fiscal Agent is required to deposit or transfer, as applicable, amounts to the Rebate Fund in accordance with Section 7.8(a)). All money required to be deposited with or paid to the Fiscal Agent for the account of any of the funds or accounts created by this Funding Loan Agreement shall be held by the Fiscal Agent for the benefit of the Funding Lender, and except for money held in the Expense Fund or the Rebate Fund, shall, while held by the Fiscal Agent, constitute part of the Pledged Revenues and be subject to the lien hereof. All money to be deposited with or paid to the Fiscal Agent shall be wired to the Fiscal Agent pursuant to the wiring instructions contained in Exhibit E attached hereto�. The Fiscal Agent shall provide Written Notice of any change to such wiring instructions to the Funding Lender and the Borrower no less than five (5) Business Days prior to the next payment date for which such revised instructions will be applicable. Section 7.4 Funding Loan Payment Fund. The Governmental Lender and the Borrower shall have no interest in the Funding Loan Payment Fund or the moneys therein, which shall always be maintained. by the Fiscal Agent completely separate and segregated from all other moneys held, hereunder and from any other moneys of the Governmental Lender and the Borrower. 1. The Fiscal Agent shall deposit into the Functing Loan Payment Fund any amounts received fro�m or on behalf of the Borrower as payments of principal of or premium and interest on the Borrower Loan and any other amounts received by the Fiscal Agent that are subject to the lien and pledge of this Funding Loan Agreement, including any Pledged Revenues not required to be deposited to the Expense Fund or not otherwise specifically directed in writing to be deposited into other funds created by this Funding Loan Agreement. The Fiscal Agent shall apply all amounts on deposit in the Funding Loan Payment Fund in the following order of priority: First, to pay or provide for the payment of the interest then due on the Funding Loan to the Funding Lender or any transferee of the Funding Lender with respect to the Funding Loan; Second, to pay or provide for the payment or the prepayment (together with any Prepayment Premiumpayable in connection with such prepayment) of principal on the Funding Loan to the Funding Lender or any transferee of the Funding Lender with respect to the Funding Loan, provided 'moneys have been transferred or deposited into the Funding Loan Payment Fund for such purpose; and Third, to pay or provide for the payment of the Funding Loan on the Maturity Date to the Funding Lender or any transferee of the Funding Lender with respect to the Funding Loan. Section 7.5 Expense Fund. The Fiscal Agent shall deposit into the Expense Fund the amounts, required by the Regulatory Agreement or the Borrower Loan Agreement to be! paid by the Borrower to the Governmental Lender or the Fiscal Agent on behalf of the Borrower. Amounts, on deposit in the Expense Fund shall be used to pay the fees and expenses of the Governmental. Lender 20 2020-11-03 Agenda Packet Page 234 of 50�9 and the Fiscal Agent, as and when the same become due. In that regard, moneys in the Expense Fund shall be withdrawn or maintained, as appropriate, by the Fiscal Agent to pay (i) the Ongoing Governmental Lender Fee to the Governmental Lender as and when due, (ii) the Fiscal Agent's Fees to the Fiscal Agent when due, (iii) upon receipt, to the Fiscal Agent, any amounts due to the Fiscal Agent which have not been paid, other than amounts paid in accordance with clause (ii) hereof, and (iv)upon receipt, to, or at the direction of, the Governmental Lender, any amounts owing the Governmental Lender by the Borrower and then due and unpaid, other than amounts paid in accordance with clause (i)hereof. In the event that the amounts on deposit in the Expense Fund are not equal to the amounts payable from the Expense Fund as provided in the preceding paragraph on any date on which such amounts, are due and payable, the Fiscal Agent shall give notice to the Borrower of such deficiency and of the amount of such deficiency and request payment within two Business Days to the Fiscal Agent of the amount of such deficiency. Written notice of any insufficiency, which would result in the Governmental Lender not receiving the Ongoing Governmental Lender Fee on the applicable due date, shall be provided by the Fiscal Agent to the Governmental Lender (with a copy to the Borrower and the Funding Lender) within 10 days of the respective due date. Upon payment by the Borrower to the Fiscal Agent of such deficiency, the amounts for which such deficiency was requested shall be paid by the Fiscal Agent. Notwithstanding anything herein to the contrary, the Governmental Lender, shall prepare and submit a written invoice to the Borrower for payment of the Ongoing Governmental Lender Fee not later than 30 days prior to the due date for payment of such Ongoing Governmental Lender Fee, the Fiscal Agent shall remit moneys received by the Borrower to the Governmental Lender for payment of such fee. Section 7.6 Closing Costs Fund. Amounts in the Closing Costs Fund shall be disbursed by the Fiscal Agent to pay Closing Costs on the Closing Date or as soon as practicable thereafter as follows: moneys on deposit in the Closing Costs Fund shall be applied to pay Closing Costs at the written direction of the Authorized Borrower Representative, consented to by the Funding Lender and the Governmental Lender, in the form attached hereto as Exhibit D. Any interest earnings on amounts on deposit in the Closing Costs Fund shall remain in the Closing Costs Fund. Any moneys remaining in the Closing Costs Fund (including investment proceeds) after the earlier of (i) the payment of all costs of issuance as certified in writing to the Fiscal Agent by the Borrower or (ii) a period of six (6) months after the Closing Date, shall be paid to or at the direction of the Borrower and the Closing Costs Fund shall be closed. Section 7.7 Project Fund. (a) All proceeds of the Funding Loan provided by the Funding Lender shall be deposited to the Note Proceeds Account of the Project Fund and disbursed as herein provided.; provided, however, that (i) the initial disbursement of the Funding Loan on the Closing Date! shall be sent by the Funding Lender to Fiscal Agent, which shall then transfer such funds to the Title Company, and (ii) any proceeds of the Funding Loan. funded pursuant to the Contingency Draw- Down Agreement shall be deposited to the Remaining Funding Loan Proceeds Account of the Project Fund and disbursed as herein provided. The Fiscal. Agent shall disburse moneys in the 21 2020-11-03 Agenda Packet Page 235 of 50�9 Project Fund for the acquisition, construction, improvement and equipping of the Project, to pay other Qualified Project Costs and to ay other costs related to the Pro ect as provided herein. p j Not less than 97% of the moneys deposited in and credited to the Note Proceeds Account and Remaining Funding Loan Proceeds Account of the Project Fund representing the proceeds of the Funding Loan, including Investment Income thereon, will be expended fo�r Qualified Project Costs (the "97%, Requirement"). The amounts on deposit in the Note Proceeds Account and Remaining Funding Loan Proceeds Account of the Project Fund shall not be applied to the payment of Closing Costs. Before any payment shall be made from the Note Proceeds Account of the Pro ect j Fund, the Regulatory Agreement shall have been executed and submitted to a title company for recordation in the official records of San D�iego County and there shall be filed with the Fiscal Agent a Written Requisition of the Borrower substantially in the form attached hereto as Exhibit C and ap roved bv the Funding Lender pursuant to the terms, conditions and provisions of the Construction P V Funding Agreement. In addition to the above, in connection with a Written Requisition: G) Only the signature of an authorized officer of the Funding Lender shall be required on a Written Requisition during any period in which a default by the Borrower has occurred and is then continuing under the Borrower Loan (Written Notice of which default has been given in writing by an authorized officer of the Funding Lender to the Fiscal Agent and the Governmental Lender, and the Fiscal Agent shall be entitled to conclusively rely on any such Written Notice as to the occurrence and continuation of such a default). (ii) The Fiscal Agent shall disburse amounts in the Note Proceeds Account of the Project Fund for the payment of interest due on the Governmental Lender Note upon receipt from the Funding Lender of a statement detailing the amount due (and without any need for a Written Requisition signed by the Funding Lender or any approval by an Authorized Representative of the Borrower) so long as the amounts to be disbursed do not exceed in the aggregate. (iii) The Fiscal Agent may conclusively rely on all Written Requisitions, the execution of the Written Requisitions by the Authorized Borrower Representative and the approval, of all Written Requisitions by the Funding Lender, as required by this Section, as conditions of payment from the Project Fund, which Written Requisitions constitute, as to the Fiscal Agent, irrevocable determinations that all conditions to payment of the specified amounts from the Project Fund have been satisfied. These documents shall be retained by the Fiscal Agent, subject at all reasonable times to examination by the Borrower, the Governmental Lender, the Funding Lender and the agents and representatives thereof upon reasonable notice to the Fiscal Agent. The Fiscal Agent is not required to inspect the Project or the rehabilitation or construction work or to make any independent investigation with respect to the matters set forth in any Written Requisition or other statements, orders, certifications and approvals,received by the Fiscal Agent. The Fiscal Agent is not required to obtain completion bonds, lien releases or otherwise supervise the acquisition, rehabilitation, construction, equipping, improvement and installation,of the Project. (b) Upon receipt of each Written Requisition submitted by the Borrower and approved in. writing by the Funding Lender, the Fiscal Agent shall promptly, but in any case within 22 2020-11-03 Agenda Packet Page 236 of 50�9 three Business Days, make payment from the appropriate Account within the Project Fund in accordance with such Written Requisition. The Fiscal Agent shall have no duty to determine whether any requested disbursement fro�m the Project Fund complies with the terms, conditions, and provisions of the Funding Loan Documents, constitutes payment of Qualified Project Costs or complies with the 9�7%, Requirement. The approval in writing of a Written Requisition by the Funding Lender shall be deemed a certification and, insofar as the Fiscal Agent and the Governmental Lender are concerned, shall constitute conclusive evidence that all of the terms, conditions and requirements of the Funding Loan Documents applicable to such disbursement have been fully satisfied or waived and the Written Requisition fro�m the Borrower shall, insofar as the Fiscal Agent and the Governmental Lender, as applicable, are concerned, constitute conclusive evidence that the costs described in the Written Requisition constitute Qualified Project Costs or other permitted Project costs. The Fiscal Agent shall provide Written Notice to the Borrower.) the Functing Lender and the Governmental Lender if there are not sufficient funds available to or on deposit with the Fiscal Agent to make the disbursements as and when required by this Section 7.7(b). Except as provided in the next sentence, all such payments shall be made by check or draft payable, or by wire transfer,, either: (i) directly to the person, firm or corporation to be paid; (ii) to the Borrower and such person, firm or corpo�ration; or (iii)upon receipt by the Funding Lender of evidence that the Borrower has previously paid such amount and Written Direction to the Fiscal Agent as to such as evidenced by the Funding Lender's approval of the Written Requisition, to the Borrower. Upon the occurrence of an Event of Default of the Borrower of which the Fiscal Agent has knowledge as provided herein, which is continuing under the Funding Loan Documents, with the Written Consent of the Funding Lender, the Fiscal Agent may apply amounts on deposit in the Project Fund to the payment of principal of and interest on the Funding Loan. If a Written Requisition signed by the Authorized Borrower Representative and countersigned by an authorized officer of the Funding Lender is received by the Fiscal Agent., the requested disbursement shall be paid by the Fiscal Agent as soon as practicable, but in no event later than three Business Days following receipt thereof by the Fiscal Agent. Upon final disbursement of all amounts on deposit in the Project Fund, the Fiscal Agent shall close the Project Fund. (c) Moneys deposited to the Negative Arbitrage Account of the Project Fund pursuant to the Contingency Draw-Down Agreement,, together with investment earnings thereon, which shall be retained therein, shall be transferred to the Funding Loan Payment Fund and applied pursuant to Section 7.4 on each Borrower Loan Payment Date to the extent necessary to enable the Fiscal Agent to pay interest due on the Funding Loan on such date. The transfer of moneys from the Negative Arbitrage Account of the Project Fund, to the Funding Loan Payment Fund shall occur automatically without the need for a Written Requisition of the Borrower, or consent of the Funding Lender. (d) Amounts on deposit in the Borrower Equity Account of the Project Fund shall be disbursed from time to time by the Fiscal Agent to pay designated amounts as set forth in and upon receipt of a Written Requisition of the Borrower signed by an Authorized Borrower Representative and the Funding Lender. (e) Prior to any mandatory prepayment of the Funding Loan pursuant to the terms hereof, any amounts then remaining 'in the Project Fund shall., at the written. direction of the Funding Lender, be transferred to the Funding Loan Payment Fund to be applied to the prepayment of the Funding Loan pursuant hereto. 23 2020-1.1-0,3 Agenda Packet Page 237 of 50�9 Seefion 7.8 Rebate Fund. (a) The Fiscal Agent shall deposit or transfer to the credit of the Rebate Fund each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto. (b) Within 15 days after each receipt or transfer of funds to the Rebate Fund, the Fiscal Agent shall withdraw from the Rebate Fund and pay to the United States of America the entire balance of the Rebate Fund. (c) All payments to the United States of America pursuant to this Section shall be made by the Fiscal Agent for the account and in the name of the Governmental Lender and shall be paid through the United States Mail (return receipt requested or overnight delivery), addressed to the appropriate Internal Revenue Service Center and accompanied by the appropriate internal Revenue Service forms (such completed and signed forms to be provided to the Fiscal Agent by the Borrower or the Rebate Analyst). (d) The Fiscal Agent shall preserve all statements, forms and explanations received from the Borrower and delivered. to the Fiscal Agent and all records of transactions in the Rebate Fund until six years after the retirement of the Governmental Lender Note. (e) The Fiscal Agent may conclusively rely on the instructions of the Borrower (based upon the report of the Rebate Analyst) with regard to any actions to be taken by it pursuant to this Section and shall have no liability for any consequences of any failure of the Borrower or the Rebate Analyst to perform its duties or obligations or to supply accurate or sufficient instructions. Except as specifically provided in subsection (b) above, the Fiscal Agent shall have no duty or responsibility with respect to the Rebate Fund or the Borrower's duties and responsibilities with respect thereto except to follow the Borrower's specific written instruction related thereto. (f) If at any time during the term of this Funding Loan Agreement the Governmental Lender or the Borrower desires to take any action that would otherwise be prohibited by the terms of this Section, such person shall be permitted to take such action if it shall first obtain and provide to the other persons named herein, a Tax Counsel No Adverse Effect Opinion and an opinion of Tax Counsel that such action shall be in compliance with the laws of the State and the terms of this Funding Loan Agreement. (g) Moneys and securities held by the Fiscal Agent in the Rebate Fund shall not be deemed funds of the Governmental Lender and are not pledged or otherwise subject to any security interest in favor of the Owners to secure the Governmental Lender Note or any other obligations. (h) Moneys in the Rebate Fund may be separately invested and reinvested by the Fiscal Agent, at the request of and as directed in writing by the Borrower, in Permitted Investments, subject to the Code. The Fiscal Agent shall sell and reduce to cash a sufficient amount of such Permitted Investments, as directed in writing by the Borrower, whenever the cash balance in the Rebate Fund is,insufficient for its,purposes. (i) Notwith standing anything to the contrary in this Funding Loan.Agreement, no payment shall be made by the Fiscal Agent to the United States if the Borrower shall furnish to the 24 2020-11-03 Agenda Packet Page 238 of 50�9 Governmental Lender and the Fiscal Agent an opinion of Tax Counsel to the effect that such payment is not required under Section 148(d) and (f) of the Code in order to maintain the exclusion from gross income for federal income tax purposes of interest on the Governmental Lender Note. In such event the Borrower shall be entitled to withdraw funds from the Rebate Fund to the extent the Borrower shall provide a Tax Counsel No Adverse Effect Opinion to the Governmental Lender and the Fiscal Agent with respect to such withdrawal. 0) The Fiscal Agent shall keep and make available to the Governmental Lender and the Borrower records concerning the investments of all funds held by the Fiscal Agent pursuant to the Funding Loan Agreement including date bought and sold, price and commission paid, and bids taken, if any, and shall keep all such records until six years after the date on which neither of the Governmental Lender Note is Outstanding in order to enable the Borrower to make the computations required under Section 148(f) of the Code. (k) Notwithstanding the foregoing, the computations and payments of rebate amounts referred.to in this Section 7.8 need.not be made to the extent that neither the Governmental Lender nor the Borrower will thereby fall to comply with any requirements of Section 148(f) of the Code based on a Tax Counsel No Adverse Effect Opinion, a copy of which shall be provided to the Fiscal Agent and the Governmental Lender. In the event of any conflict between the requirements of this Section 7.8 and.those of the Tax Certificate, the Tax Certificate shall control. Section 7.9 Investments. (a) Amounts on deposit in the Project Fund shall be invested in Permitted Investments directed in writing by the Borrower. Investment Income earned on amounts on deposit in each account of the Project Fund shall be retained in and credited to and become a part of the amounts on deposit in that account of the Project Fund. (b) Amounts on deposit in the Funding Loan Payment Fund, Expense Fund, Rebate Fund and Closing Costs Fund shall be invested in Permitted Investments directed in writing by the Borrower. Investment Income earned on amounts on depos,it in each account of the Funding Loan Payment Fund,, Expense Fund, Rebate Fund and Closing Costs Fund shall be retained in and credited to and become a part of the amounts on deposit in that account of the Funding Loan Payment Fund, Expense Fund, Rebate Fund and Closing Costs Fund. The Fiscal Agent may make any and all investments permitted under this Funding Loan Agreement through its own trust or banking department or any affiliate and may pay said department reasonable, customary fees for placing such investments. The Fiscal Agent and its affiliates may act as principal, agent, sponsor, advisor or depository with respect to Permitted Investments under this Funding Loan Agreement. The Fiscal Agent shall not be liable for any losses from investments made by the Fiscal Agent in accordance with this Funding Loan Agreement. The Governmental Lender, the! Funding Lender and the Borrower (by its execution of the Borrower Loan Agreement) acknowledge that to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the Governmental Lender or the Funding Lender the right to receive brokerage confirmations of security transactions as they occur, the Governmental Lender and the Funding Lender will not receive such. confirmations to the extent permitted by law. The Fiscal Agent shall furnish the Borrower, the Funding Lender and the Governmental Lender (to 25 2020-11-03 Agenda Packet Page 239 of 50�9 the extent requested by such parties) periodic cash transaction statements which shall include detail for all investment transactions, if any, made by the Fiscal Agent hereunder. ARTICLE VIII REPRESENTATIONS AND COVENANTS Section 8.1 General Representations. The Governmental Lender makes the following representations as the basis for the undertakings on its part herein contained: (a) The Governmental Lender is a public body corporate and politic, organized and existing under the laws of the State, has the power and authority to (i) enter into the Funding Loan Documents to which it is a party and the transactions contemplated thereby, (ii) incur the limited obligation represented by the Governmental Lender Note and the Funding Loan,, and apply the proceeds of such obligation or loan to finance the Project, and (iii) carry out its other obligations under this Funding Loan Agreement and the Governmental Lender Note, and by proper action has duly authorized the Governmental Lender's execution and delivery of, and its performance under, the Funding Loan Documents to which it is a party. (b) The Governmental Lender is not in default under or in violation of, and the execution and delivery of the Funding Loan Documents to which it is a party and its compliance with the terms and conditions thereof will not conflict or constitute a default under or a violation of, (i) the Act, (ii) to its knowledge, any other existing laws, rules, regulations,judgments, decrees and. orders ap,p,licable to it, or (iii) to its knowledge, the provisions of any agreements and instruments to which the Governmental Lender is a party, a default under or violation of which would prevent it from entering into the Funding Loan Agreement, executing and delivering the Governmental Lender Note, financing the Project, executing and delivering the other Funding Loan Documents to which it is a party or consummating the transactions on its part contemplated thereby, and, to its knowledge, no event has occurred and is continuing under the provisions, of any such agreement or instrument or otherwise that with the lapse of time or the giving of notice, or both, would constitute such a default or violation (it being understood, however, that the Governmental Lender is making no representations as to the necessity of registering the Governmental Lender Note or the Borrower Note pursuant to any securities laws or complying with any other requirements of securities laws). (c) To the best knowledge of the Governmental Lender, no litigation, inquiry or investigation of any kind in or by any judicial or administrative court or agency is pending with respect to which the Governmental Lender has been served with process or, to the knowledge of the Governmental Lender, is threatened against the Governmental Lender with respect to (i) the organization and existence of the Governmental Lender, (ii) its authority to execute or deliver the Funding Loan Documents to which it is a party, (iii) the validity or enforceability of any such Funding Loan Documents or the transactions contemplated thereby, (iv) the title of any officer of the Governmental Lender who executed such Funding Loan Documents, or (v) any authority or proceedings,relating to the execution and delivery of such Funding Loan Documents on behalf of the Governmental Lender, and no such authority or proceedings have been repealed, revoked, rescinded or amended but are in full force and effect. (d) The revenues and receipts to be derived from the Borrower Loan Agreement, the Borrower Note and this Funding Loan Agreement have not been, pledged previously by the 26 2020-11-03 Agenda Packet Page 240 of 50�9 Governmental Lender to secure any of its notes or bonds other than the Funding Loan Agreement as evidenced by the Governmental Lender Note. THE GOVERNMENTAL LENDER MAKES NO REPRESENTATION, COVENANT OR AGREEMENT AS TO THE FINANCIAL POSITION OR BUSINESS CONDITION OF THE BORROWER OR THE PROJECT AND DOES NOT REPRESENT OR WARRANT AS TO ANY STATEMENTS, MATERIALS, REPRESENTATIONS OR CERTIFICATIONS FURNISHED BY THE BORROWER IN CONNECTION WITH THE FUNDING LOAN OR THE BORROWER LOAN, OR AS TO THE CORRECTNESS,, COMPLETENESS OR ACCURACY THEREOF. Section 8.2 No Encumbrance on Security. The Governmental Lender will not knowingly create or knowingly permit the creation of any mortgage, pledge, lien, charge or encumbrance of any kind on the Security or any part thereof prior to or on a parity with the lien of this Funding Loan Agreement, except as expressly permitted or contemplated by the Funding Loan Documents. Section 8.3 Repayment of Funding Loan. Subject to the provisions of Articles III and V hereof, the Governmental Lender will duly and. punctually repay, or cause to be repaid, the Funding Loan, as evidenced,by the Governmental Lender Note, as and when the same shall become due, all in accordance with the terms of the Governmental Lender Note and. this Funding Loan Agreement. Section 8.4 Servicer. The Funding Lender may appoint a Servicer to service and administer the Funding Loan and/or the Borrower Loan on behalf of the Funding Lender, including without limitation the fulfillment of rights and responsibilities granted by Governmental Lender to Funding Lender pursuant to Section 2.1 of the Borrower Loan Agreement. Section 8.5 Borrower Loan Agreement Performance. (a) The Funding Lender and, the Servicer, if any, on behalf of the Governmental Lender, may (but shall not be required or obligated to) perform and observe any agreement or covenant of the Governmental Lender under the Borrower Loan Agreement subject to the terms and provisions contained therein, all to the end that the Governmental Lender's rights under the Borrower Loan Agreement may be unimpaired and free from default. (b) The Governmental Lender will promptly 'notify the Borrower, the Servicer and the Funding Lender in writing of the occurrence of any Borrower Loan Agreement Default, provided that the Governmental Lender has received written notice or otherwise has knowledge of such event. Section 8.6 Maintenance of Records; Inspection of Records. (a) The Fiscal Agent shall keep and maintain adequate records pertaining to any funds and accounts established hereunder, including all deposits to and disbursements from said funds and accounts and shall keep and maintain the registration books, for the Governmental Lender Note and interests therein. The Fiscal Agent shall retain in its possession all certifications and other documents presented to it, all such records and all records of principal, interest and premium paid on the Funding Loan, subject to the inspection of the Funding Lender and the Governmental Lender and their representatives at all reasonable times and upon reasonable prior notice. 27 2020-1.1-0,3 Agenda Packet Page 241 of 50�9 (b) The Governmental Lender and the Funding Lender will at any and all times, upon the reasonable request of the Servicer, if any, the Borrower, the Fiscal Agent,the Governmental Lender or the Funding Lender, afford and procure a reasonable opportunity by their respective representatives to inspect the books, records, reports and other papers of the Governmental Lender or the Funding Lender, as appropriate, relating to the Project and the Funding Loan, if any, and (at their own expense)to make copies thereof. 0 Section 8.7 Tax Covenants. The Governmental Lender covenants to and for the benefit of the Funding Lender that, notwithstanding any other provisions of this Funding Loan Agreement or of any other instrument, it will: (a) Require the Borrower to execute the Regulatory Agreement as a condition of funding the Borrower Loan- (b) Not take or cause to be taken any action or actions, or fail to take any action or actions, which would cause the interest payable on the Governmental Lender Note to be includable in gross income for federal income tax purposes; (c) Whenever and so often as requested in writing by Funding Lender, the Governmental Lender (at the sole cost and expense of the Borrower), shall do and. perform all acts and things permitted. by law and necessary or desirable in order to assure that interest paid by the Governmental Lender on the Governmental Lender Note will be excluded from the gross income of the Noteowner,, for federal income tax purposes, pursuant to Section 103 of the Code, except in the event where any owner of the Governmental Lender Note or a portion thereof is a "substantial user" of the facilities financed with the Funding Loan or a "related person'!' within the meaning of Section 147(a) of the Code; (d) Not take any action nor, solely in reliance upon the covenants and representations of the Borrower in the Borrower Loan Agreement, in the Regulatory Agreement and in the Tax Certificate, knowingly permit or suffer any action to be taken if the result of the same would be to cause the Governmental Lender Note to be "federally guaranteed" within the meaning of Section 149(b) of the Code and the Regulations- (e) Require the Borrower to agree, solely by causing the Borrower to execute and deliver the Borrower Loan Agreement.) not to commit any act and not to make any use of the proceeds of the Funding Loan, or any other moneys which may be deemed to be proceeds of the Funding Loan pursuant to the Code, which would cause the Governmental Lender Note to be '4arbitrage bonds" within the meaning of Sections 103(b) and 148 the Code, and to comply with the requirements of the Code throughout the term of the Funding Loan; and (f) Require the Borrower, solely by causing the Borrower to execute and deliver the Borrower Loan Agreement, to take all steps necessary to compute and pay any reb�atable arbitrage in accordance with Section 148(f) of the Code. In furtherance of the covenants in this Section 8.7, the Governmental Lender and the Borrower shall execute, deliver and comply with the provisions of the Tax Certificate (it being understood that the obligations of the Fiscal Agent with. respect to the Tax Certificate are to follow the written directions of the Governmental Lender or Borrower, and that the Fiscal Agent shall not be responsible for monitoring the compliance of the Governmental Lender or Borrower therewith), 28 2020-11-03 Agenda Packet Page 242 of 50�9 which are by this reference incorporated into this Funding Loan Agreement and made a part of this Funding Loan Agreement as if set forth in this Funding Loan Agreement in full. In the event of any conflict between this Funding Loan Agreement and the Tax Certificate, the requirements of the Tax Certificate shall control. For purposes of this Section 8.7 the Governmental Lender's compliance shall be based solely on matters within the Governmental Lender's knowledge and control and no acts, omissions or directions of the Borrower, the Funding Lender or any other Persons shall be attributed to the Governmental Lender. In complying with the foregoing covenants, the Governmental Lender may rely from time to time on a Tax Counsel No Adverse Effect Opinion or other appropriate opinion of Tax Counsel. Section 8.8 Performance by the Borrower. Without relieving the Governmental Lender fro�m the responsibility for performance and observance of the agreements and covenants required to be performed and observed by it hereunder, the Borrower, on behalf of the Governmental Lender, may (but is under no obligation to) perform any such agreement or covenant if no Borrower Loan Agreement Default or Potential Default under (and as such term is defined in) the Borrower Loan Agreement exists. ARTICLE IX DEFAULT; REMEDIES Section 9.1 Events of Default. Any one or more of the following shall constitute an event of default (an "Event of Default") under this Funding Loan Agreement (whatever the reason for such event and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or Governmental Authority): (a) A default in the payment of any interest upon the Governmental Lender Note when such interest becomes due and payable; (b) A default in the payment of principal of, or premium on, the Governmental Lender Note when such principal or premium becomes due and payable, whether at its stated maturity, by declaration of acceleration or call for mandatory prepayment or otherwise,, (c) Subject to Section 8.8 hereof, default in the performance or breach of any material covenant or warranty of the Governmental Lender in this Funding Loan Agreement (other than. a covenant or warranty or default in the performance or breach of which is elsewhere in this Section specifically dealt with.), and continuance of such default or breach for a period of 30 days after there has been given. written notice, as provided in Section 12.1 hereof, to the Governmental Lender and the Borrower by the Funding Lender or the Servicer, sp�ecifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" under this Funding Loan Agreement; provided that, so long as the Governmental Lender has commenced to cure such failure to observe or perform within the thirty (30�) day cure period, the subject matter of the default is not capable of cure within said thirty (30) day period and the Governmental Lender is, diligently pursuing such cure to the Funding Lender's satisfaction, with the Funding Lender's Written Direction or Written. Consent, then the Governmental Lender shall. have an additional. period 29 2020-11-03 Agenda Packet Page 243 of 50�9 of time as reasonably necessary (not to exceed 30 days unless extended in writing by the Funding Lender) within which to cure such default; (d) A default in the payment of any Additional Borrower Payments; or (e) Any other "Default" or "Event of Default" under any of the other Funding Loan Documents (taking into account any applicable grace periods therein). 0 0 Section 9.2 Acceleration of Maturity; Rescission and Annulment. (a) Subject to the provisions of Section 9.9 hereof, upon the occurrence of an Event of Default under Section 9.1 hereo�f, then and in every such case, the Funding Lender may declare the principal of the Funding Loan and the Governmental Lender Note and the interest accrued to be immediately due and payable, by notice to the Governmental Lender, Borrower and the Equity Investor, and upon any such declaration, all principal of and Prepayment Premium, if any, and interest on the Funding Loan and the Governmental Lender Note shall become immediately due and payable. (b) At any time after a declaration of acceleration has been made pursuant to subsection(a) of this Section, the Funding Lender may by Written Notice to the Governmental Lender rescind and annul such declaration and its consequences if: G) there has been deposited with the Funding Lender a sum sufficient to pay(1) all overdue installments of interest on the Funding Loan, (2) the principal of and.Prepayment Premium on the Funding Loan that has become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in the Funding Loan, (3) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates prescribed therefor in the Funding Loan, and (4) all sums paid or advanced by the Funding Lender and the reasonable compensation, expenses, disbursements and advances of the Funding Lender, its agents and counsel (but only to the extent not duplicative with subclauses (1) and (3) above); and (ii) all Events of Default, other than the non-payment of the principal of the Funding Loan that has become due solely by such declaration of acceleration, have been cured or have been waived in writing as provided in Section 9.9 hereof No such rescission and annulment shall affect any subsequent default or impair any right consequent thereon. (c) Notwith standing the occurrence and continuation of an Event of Default, it is understood that the Funding Lender shall pursue no remedies against the Borrower, any of the Borrower's partners or the Project if no Borrower Loan. Agreement Default has occurred and is continuing. An Event of Default hereunder shall not in and of itself constitute a Borrower Loan Agreement Default. Section 9.3 Additional Remedies; Funding Lender Enforcement. (a) Upon the occurrence of an Event of Default, the Funding Lender may, subject to the provisions of this Section 9.3 and Section 9.9 hereof, proceed to protect and enforce its rights by mandamus or other suit, action or proceeding at law or in, equity. No remedy conferred by this 30 2020-1.1-0,3 Agenda Packet Page 244 of 50�9 Funding Loan Agreement upon or remedy reserved to the Funding Lender is intended to be exclusive of any other remedy, but each such remedy shall be cumulative and shall be in addition to any other remedy given to the Funding Lender hereunder or now or hereafter existing at law or in equity or by statute. (b) Upon the occurrence and continuation of any Event of Default, the Funding Lender may proceed forthwith to protect and enforce its rights and this Funding Loan Agreement by such suits, actions or proceedings as the Funding Lender, in its sole discretion, shall deem expedient. Funding Lender shall have upon the occurrence and continuation of any Event of Default all rights, powers, and remedies with respect to the Security as are available under the Uniform Commercial Code applicable thereto or as are available under any other applicable law at the time in effect and, without limiting the generality of the foregoing, the Funding Lender may proceed at law or in equity or otherwise, to the extent permitted by applicable law: 0) to take possession of the Security or any part thereof, with or without legal process, and to hold, service, administer and enforce any rights thereunder or thereto, and. otherwise exercise all rights of ownership thereof, including (but not limited to) the sale of all or part of the Security, (ii) to become mortgagee of record for the Borrower Loan including, without limitation, completing the assignment of the Security Instrument by the Governmental Lender to the Funding Lender as anticipated by this Funding Loan Agreement, and recording the same in the real estate records of the jurisdiction in which the Project is located, without further act or consent of the Governmental Lender!) and to service and administer the same for its own account; (iii) to service and administer the Funding Loan as agent and on behalf of the Governmental Lender or otherwise, and, if applicable, to take such actions necessary to enforce the Borrower Loan Documents and the Funding Loan Documents on its own behalf, and to take such alternative courses of action, as it may deem appropriate; or (iv) to take such steps to protect and enforce its rights whether by action,, suit or proceeding in equity or at law for the specific performance of any covenant, condition or agreement in the Governmental Lender Note, this Funding Loan Agreement or the other Funding Loan Documents, or the Borrower Loan Documents, or in and of the execution of any power herein granted, or for foreclosure hereunder, or for enforcement of any other appropriate legal or equitable remedy or otherwise as the Funding Lender may elect. (c) Whether or not an Event of Default has occurred, the Funding Lender, in its sole discretion, shall have the sole right to waive or forbear from enforcing any term, condition, covenant or agreement of the Security Instrument,the Borrower Loan Agreement,the Borrower Note or any other Borrower Loan Documents or Funding Loan Documents applicable to the B,o�rrower, or any breach thereof, other than a covenant that would adversely impact the! tax-exempt status of the interest on the Governmental Lender Note, and provided that the Governmental Lender may seek specific performance by the Borrower to enforce the Unassigned Rights; provided, however, that any such. forbearance by the Funding Lender in the exercise of its remedies under the Funding Loan Documents shall not be construed as a waiver by the Funding Lender of any Conditions to Conversion.(as such term is definedin the Borrower Loan Agreement). 31 2020-1.1-0,3 Agenda Packet Page 245 of 50�9 (d) If the Borrower defaults in the performance or observance of any covenant, agreement or obligation of the Borrower set forth in the Regulatory Agreement, and if such default remains uncured for a period of 60 days after the Borrower, the Equity Investor and the Funding Lender receive Written Notice stating that a default under the Regulatory Agreement has occurred and specifying the nature of the default, the Funding Lender shall have the right to seek specific performance of the provisions of the Regulatory Agreement or to exercise its other rights or remedies thereunder. (e) If the Borrower defaults in the performance of its obligations under the Borrower Loan Agreement (subject to applicable notice and cure periods) to make rebate payments, to comply with any applicable continuing disclosure requirements, or to make payments owed pursuant to Sections 2.5, 5.14 or 5.15 of the Borrower Loan Agreement for fees, expenses or indemnification, the Funding Lender shall have the right to exercise all its rights and remedies thereunder(subject to the last paragraph of Section 9.1�4 hereof). Section 9.4 Application of Money Collected. Any money collected. by the Funding Lender pursuant to this Article and any other sums then held by the Funding Lender as part of the Security, shall be applied in the following order, at the date or dates fixed by the Funding Lender: (a) First: To the payment of any and all amounts due under the Funding Loan Documents other than with respect to principal and interest accrued on the Funding Loan, including, without limitation, any amounts due to the Governmental Lender, the Funding Lender, the Servicer, the Fiscal Agent and the Rebate Analyst,- (b) Second: To the payment of the whole amount of the Funding Loan, as evidenced by the Go�vemmental Lender Note, then due and unpaid in respect of which or for the benefit of which such money has been collected, with interest (to the extent that such interest has been collected or a sum sufficient therefor has been so collected and payment thereof is legally enforceable at the respective rate or rates prescribed therefor in the Funding Loan) on overdue principal of, and Prepayment Premium and overdue installments of interest on the Funding Loan; provided, however, that partial interests in any portion of the Funding Loan shall be paid in such order of priority as may be prescribed by Written Direction of the Funding Lender in its sole and absolute discretion; and (c) Third: The payment of the remainder, if any, to the Borrower or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. If and to the extent this Section 9.4 conflicts with the provisions of the Servicing Agreement, the provisions of the Servicing Agreement shall control. Capitalized terms used in this Section 9.4 but not otherwise defined in this Funding Loan Agreement shall have! the meanings given such terms in the Servicing Agreement. Section 9.5 Remedies Vested in Funding Lender. All rights of action and claims under this, Funding Loan Agreement or the Governmental Lender Note may be prosecuted and enforced by the Funding Lender without the possession of the Governmental Lender Note or the production thereof in.any proceeding relating thereto. 32 2020-11-03 Agenda Packet Page 246 of 50�9 Section 9.6 Restoration of Positions. If Funding Lender shall have instituted any proceeding to enforce any right or remedy under this Funding Loan Agreement and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Funding Lender, then and in every such case the Governmental Lender and the Funding Lender shall, subject to any determination in such proceeding, be restored to their former positions hereunder, and thereafter all rights and remedies of the Governmental Lender and the Funding Lender shall continue as though no such proceeding had been instituted. 0 Section 9.7 Rights and Remedies Cumulative. No right or remedy herein conferred upon or reserved to the Funding Lender is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or em �loyment of any right or remedy hereunder, or otherwise, shall not prevent the p , concurrent assertion or employment of any other appropriate right or remedy. Section 9.8 Delay or Omission Not Waiver. No delay or omission of the Funding Lender to exercise any right or remedy accruing upon an Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Funding Lender may be exercised from time to time, and as often as may be deemed expedient, by Funding Lender. No waiver of any default or Event of Default pursuant to Section 9.9 hereof shall extend to or shall affect any subsequent default or Event of Default hereunder or shall impair any rights or remedies consequent thereon. Section 9.9 Waiver of Past Defaults. Before any judgment or decree for payment of money due has been obtained by the Funaing Lender, the Funding Lender may.) subject to Section 9.6 hereof, by Written Notice to the Governmental Lender and the Borrower, waive any past default hereunder or under the Borrower Loan Agreement and its consequences except for default in obligations due the Governmental Lender pursuant to or under the Unassigned Rights. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Funding Loan Agreement and the Borrower Loan Agreement; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 9.10 Remedies Under Borrower Loan Agreement or Borrower Note. As set forth in this Section 9.10 but subject to Section 9.9 hereof, the Funding Lender shall have the right, in its own name or on behalf of the Governmental Lender, to declare any default and exercise any remedies under the Borrower Loan Agreement or the Borrower Note, whether or not the Governmental Lender Note has been accelerated or declared due and payable by reason of an Event of Default. Section 9.11 Waiver of Appraisement and Other Laws. (a) To the extent permitted by law, the Governmental Lender will not at any time insist upon, plead, claim or take the benefit or advantage of, any appraisement, valuation, stay, extension or redemption law now or hereafter in force, in order to prevent or hinder the enforcement of this Funding Loan Agreement; and the Governmental Lender, for itself and all who may claim under it, so far as it or they now or hereafter may lawfully do so, hereby waives the benefit of all such. laws. The Governmental Lender, for itself and all who may claim.under it, waives, to the extent 33 2020-11-03 Agenda Packet Page 247 of 50�9 that it may lawfully do so, all right to have the property in the Security marshaled upon any enforcement hereof (b) If any law now in effect prohibiting the waiver referred to in clause (a) shall hereafter be repealed or cease to be in force, such law shall not thereafter be deemed to constitute any part of the contract herein contained or to preclude the application of this Section 9.11. 0 Section 9.12 Suits to Protect the Security. The Funding Lender shall have power to institute and to maintain such proceedings as it may deem expedient to prevent any impairment of the Security by any acts that may be unlawful or in violation of this Funding Loan Agreement and to protect its interests in the Security and in the rents, issues, profits, revenues and other income arising therefrom, including power to institute and maintain proceedings to restrain the enforcement of or compliance with any Governmental Authority enactment, rule or order that may be unconstitutional or otherwise invalid, if the enforcement of or compliance with such enactment, rule or order would impair the security hereunder or be prejudicial to the interests of the Funding Lender. Section 9.13 Remedies Subject to Applicable Law. All rights, remedies and powers provided by this Article may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law in the premises, and all the provisions of this Article are intended to be subject to all applicable mandatory provisions of law which may be controlling in the premises and to be limited to the extent necessary so that they will not render this Funding Loan Agreement invalid,, unenforceable or not entitled to be recorded!) registered or filed under the provisions of any applicable law. Section 9.14 Assumption of Obligations. In the event that the Funding Lender or its assignee or designee shall become the legal or beneficial owner of the Project by foreclosure or deed in lieu of foreclosure, such party shall succeed to the rights and the obligations of the Borrower under the Borrower Loan Agreement, the Borrower Note,the Regulatory Agreement and any other Funding Loan Documents to which the Borrower is a party. Such assumption shall be effective from and after the effective date of such acquisition and shall be made with the benefit of the limitations of liability set forth therein and without any liability for the prior acts of the Borrower. It is the intention of the parties hereto that upon the occurrence and, continuance of an Event of Default hereunder, rights and remedies may be pursued pursuant to the terms of the Funding Loan Documents. ARTICLE X AMENDMENT; AMENDMENT OF BORROWER LOAN AGREEMENT AND OTHER DOCUMENTS Section 10.1. Amendment of Funding Loan Agreement. Any of the terms of this Funding Loan Agreement and the Governmental Lender Note may be! amended or waived only by an instrument signed by the Funding Lender and the Governmental Lender, provided, however, no such amendment which materially affects the rights, duties, obligations or other interests of the! Borrower or Fiscal Agent shall be made without the consent of the Borrower or Fiscal Agent, as applicable, and, provided further, that if the Borrower is in default under any Funding Loan Document, no Borrower consent shall be required unless such amendment has a material adverse effect on. the rights, duties, obligations or other interests of the Borrower. All of the terms of this Funding Loan 34 2020-11-03 Agenda Packet Page 248 of 50�9 Agreement shall be binding upon the successors and assigns of and all persons claiming under or through the Governmental Lender or any such successor or assign, and shall inure to the benefit of and be enforceable by the successors and assigns of the Funding Lender. 0 Section 10.2 Amendments Require Funding Lender Consent. The Governmental Lender shall not consent to any amendment, change or modification of the Borrower Loan Agreement or any other Borrower Loan Document or Funding Loan Document without the prior Written Consent of the Funding Lender. 0 Section 10.3 Consents and Opinions. No amendment to this Funding Loan Agreement or any other Funding Loan Document entered into under this, Article X or any amendment, change or modification otherwise permitted under this Article X shall become effective unless, and until (i) the Funding Lender shall have approved the same in writing in its sole discretion and (ii) the Funding Lender shall have receivedl at the expense of the Borrower, a Tax Counsel No Adverse Effect Opinion and an Opinion of Counsel substantially to the effect that any such proposed amendment is authorized and. complies with the provisions of this Funding Loan Agreement and, is a valid and, binding obligation of the parties thereto, subject to normal exceptions relating to bankruptcy, insolvency and equitable principles limitations. ARTICLE XI THE FISCAL AGENT Section 11.1 Appointment of Fiscal Agent; Acceptance. The Governmental Lender hereby appoints Fiscal Agent as fiscal agent hereunder. The Fiscal Agent shall signify its acceptance 1. of the duties and obligations imposed upon it by this Funaing Loan Aueement by executing this Funding Loan Agreement. Section 11.2 Certain Duties and ResponSiDillties of Fiscal Agent. (a) The Fiscal Agent undertakes to perform such duties and only such duties as are specifically set forth in this Funding Loan Agreement, and no implied covenants or obligations shall be read into this Funding Loan Agreement against the Fiscal Agent. (b) If an event of default exists hereunder or under any Borrower Loan Document, the Fiscal Agent shall exercise such of the rights and powers vested in it by this Funding Loan Agreement, and exercise any rights or duties or remedies solely at the written direction of the Funding Lender. (c) No provision. of this Funding Loan Agreement shall be construed to relieve the Fiscal Agent from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, in each case, as finally adjudicated by a court of law, except that: (i) This subsection shall not be construed to limit the effect of subsection(a) of this Section; (ii) The Fiscal Agent shall not be liable for any error of judgment made! in good faith, unless it shall be proved that the Fiscal Agent was, negligent in ascertaining the pertinent facts; 35 2020-1.1-0,3 Agenda Packet Page 249 of 50�9 (iii) The Fiscal Agent shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the direction of the Funding Lender relating to the time, method and place of conducting any proceeding for any remedy available to the Fiscal Agent, or exercising any power conferred upon the Fiscal Agent under this Funding Loan Agreement; and (iv) No provision of this Funding Loan Agreement shall require the Fiscal Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not assured to it in its sole discretion. (v) Subject to its rights to indemnification pursuant to Section 11.4 hereof, the Fiscal Agent is directed to enter into the Borrower Loan Documents to which it is a party and other related documents (including the Regulatory Agreement), solely in its capacity as Fiscal Agent. (d) Whether or not therein expressly so provided, every provision of this Funding Loan Agreement and the other Funding Loan Documents relating to the conduct or affecting the liability of or affording protection to the Fiscal Agent shall be subject to the provisions of this Section. (e) The Fiscal Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Fiscal Agent and conforming to the requirements of this Funding Loan Agreement; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Fiscal Agent, the Fiscal Agent shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Funding Loan Agreement. (f) The permissive rights of the Fiscal Agent to do things enumerated in this Funding Loan Agreement shall not be construed as a duty. 0 Section 11.3 Notice of Defaults. Upon the occurrence of any default hereunder or under any Borrower Loan Document and provided that a Responsible Officer of the Fiscal Agent has actual knowledge or has received Written Notice of the existence of such default, promptly, and in any event within 15 days, the Fiscal Agent shall transmit to the Governmental Lender, the Borrower, the Equity Investor, the Servicer, if any, and the Funding Lender, in the manner and at the addresses for notices set forth in Section 12.1 hereof, notice of such default hereunder known to the Fiscal Agent pursuant to Section I 1.4(g)hereof,unless such default shall have been cured or waived. Section 14.4 Certain Rights of Fiscal Agent. Except as otherwise provided in. Section 11.1 hereof: (a) The Fiscal Agent may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, note, debenture, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.; 36 2020-11-03 Agenda Packet Page 250 of 50�9 (b) Any request or direction of the Governmental Lender mentioned herein shall be sufficiently evidenced by a certificate or order executed by an Authorized Governmental Lender Representative; (c) Whenever in the administration of this Funding Loan Agreement, the Regulatory Agreement or any Borrower Loan Document the Fiscal Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Fiscal Agent (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon a Written Certificate of the Governmental Lender, the Funding Lender, the Servicer or the Borrower, as appropriate; (d) The Fiscal Agent shall be under no obligation to exercise any of the rights or powers vested in it by this Funding Loan Agreement or any Borrower Loan Document at the request or direction of the Funding Lender, pursuant to this Funding Loan Agreement, unless the Funding Lender shall have offered to the Fiscal Agent in writing security or indemnity reasonably satisfactory to the Fiscal Agent against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction, except costs, expenses and liabilities which are adjudicated to have resulted from its own negligence or willful misconduct, provided, that nothing contained in this subparagraph (d) shall be construed to require such security or indemnity for the performance by the Fiscal Agent of its obligations under Article VII hereof; (e) The Fiscal Agent shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,, instrument, opinion, report,,, notice,, request, direction, consent, order, bond, notel debenture, coupon or other paper or document but the Fiscal Agent, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Fiscal Agent shall determine to make such further inquiry or investigation, it shall be entitled to examine the books and records of the Governmental Lender, if any, and of the Borrower, in either case personally or by agent or attorney after reasonable notice and during normal business hours; (f) The Fiscal Agent may execute any of its powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and pay reasonable compensation thereto and the Fiscal Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder. The Fiscal Agent may act upon the advice of counsel of its choice concerning all matters hereof and the Fiscal Agent shall not be responsible for any loss or damage resulting from any action or inaction taken in good faith reliance upon said advice; and (g) The Fiscal Agent shall not be required to take notice or be deemed to have notice of any default hereunder or under any Borrower Loan Document except for failure by the Borrower to make payments of principal, interest, premium, if any, or Ongoing Governmental Lender Fee when due, unless a Responsible Officer of the Fiscal Agent shall be specifically notified by a Written Direction of such default by the Governmental Lender, the Servicer or the Funding Lender, and all notices or other instruments required by this Funding Loan Agreement or under any Borrower Loan. Document to be delivered to the Fiscal Agent, must, in order to be effective, be delivered in writing to a Responsible Officer of the Fiscal Agent at the Office of the Fiscal Agent, and in. the absence of such. Written Notice so delivered the Fiscal Agent may conclusively assume there is no default as aforesaid. 37 2020-11-03 Agenda Packet Page 251 of 50�9 Section 11.5 Not Responsible for Recitals. The recitals contained herein and in the Governmental Lender Note shall be taken as the statements of the Governmental Lender, and the Fiscal Agent assumes no responsibility for their correctness. The Fiscal Agent makes no representations as to the value or condition of the Pledged Revenues, the Security or any part thereof, or as to the title of the Governmental Lender thereto or as to the security afforded thereby or hereby, or as to the validity or sufficiency of this Funding Loan Agreement or of the Funding Loan. The Fiscal Agent shall have no responsibility or liability with respect to any information, statement or recital in any offering memorandum or other disclosure material prepared or distributed with respect to the funding of the Funding Loan. The Fiscal Agent shall not be required to monitor the financial condition of the Borrower or the physical condition of the Project. The Fiscal Agent shall be under no obligation to analyze, review or make any credit decisions with respect to any financial statements.) reports, notices, certificates or documents received hereunder but shall hold such financial statements reports, no�tices.) certificates and documents solely for the benefit of, and review by, the Funding Lender and such other parties to whom the Fiscal Agent may provide such information pursuant to this Funding Loan Agreement. The Fiscal Agent makes no representations as to and shall have no responsibility for the sufficiency of the insurance required under any of the Borrower Loan Documents. Section 11.6 May Hold Funding Loan. The Fiscal Agent in its individual or any other capacity may become the owner or pledgee of the Funding Loan and may otherwise deal with the Governmental Lender, the Funding Lender and the Borrower with the same rights it would have if it were not Fiscal Agent. Section 11.7 Moneys Held Hereunder. Moneys held by the Fiscal Agent hereunder need not be segregated from other funds, except to the extent required by law. The Fiscal Agent shall be under no liability for interest on any moneys received by it hereunder except as otherwise provided herein. Section 11.8 Compensation and Reimbursement. Under the Borrower Loan Agreement, the Borrower has agreed to, except as otherwise expressly provided herein, pay the Fiscal Agent its fees and reimburse the Fiscal Agent as provided in this Funding Loan Agreement or the Borrower Loan Agreement, upon its request for all reasonable expenses, disbursements and advances incurred or made by the Fiscal Agent in accordance with any provision of this Funding Loan Agreement (including the reasonable fees, expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to the Fiscal Agent's negligence or willful misconduct,both as finally adjudicated by a court of law. When the Fiscal Agent incurs expenses or renders service in connection with any bankruptcy or insolvency proceeding, such expenses (including the fees and expenses of its counsel) and the compensation for such services, are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally. (a) The Governmental Lender has no obligation to pay the Fiscal Agent for services rendered. 38 2020-1.1-0,3 Agenda Packet Page 252 of 50�9 (b) As security for the performance of the obligations of the Borrower under this Section and for the payment of such compensation, exp�ens,es, reimbursements and indemnity, the Fiscal Agent shall have the right to use and apply any moneys held by it as Pledged Revenues. (c) The Fiscal Agent's rights to compensation and reimbursement shall survive its resignation or removal, the payment of the Funding Loan or the Borrower Loan or the release of this Funding Loan Agreement. 0 Section 11.9 Fiscal Agent Required; Eligibility. Any successor Fiscal Agent shall at all times be a trust company, a state banking corporation or a national banking association with the authority to accept trusts in the State approved in writing by the Governmental Lender and either (a) have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition, (b)be a wholly owned subsidiary of a bank holding company, or a wholly owned subsidiary of a company that is a wholly owned subsidiary of a bank holding company, having a combined capital and surplus of at least$50,000,000 as set forth in its most recent published annual report of condition, have at least $500,000,000 of trust assets under management and have a combined capital and surplus of at least $2,,000,,000 as set forth in its most recent published annual report of condition, or (c) be otherwise acceptable to the Funding Lender in its sole and absolute discretion. Section 11.10 Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Fiscal Agent hereunder and no appointment of a successor Fiscal Agent pursuant to this Article shall become effective until the written acceptance by the successor Fiscal Agent of such appointment. (b) The Fiscal Agent may resign at any time by giving 60 days' Written Notice thereof to the Governmental Lender, the Borrower, the Servicer,, if any, and the Funding Lender. (c) The Fiscal Agent may be removed at any time with 30 days' notice by(1) the Governmental Lender, (ii) the Borrower (unless the Borrower is in default under any of the Borrower Loan Documents), subject to applicable notice and cure periods, with the Written Consent of the Funding Lender and the Governmental Lender, or (iii) the Funding Lender with the Written Consent of the Governmental Lender and Written Notice delivered to the Fiscal Agent and the Borrower. (d) If the Fiscal Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the Office of the Fiscal Agent for any cause, the Governmental Lender shall promptly appoint a successor Fiscal Agent, with the consent of the Funding Lender, which consent shall not be unreasonably withheld. In case all or substantially all of the Pledged Revenues and Security shall be in the possession of a receiver or trustee lawfully appointed, such receiver or trustee may similarly appoint a successor to fill such vacancy until a new Fiscal Agent shall be so appointed by the Governmental Lender. If, within 60 days after such resignation, removal or incapability or the occurrence of such vacancy, the Governmental Lender has failed to so appoint a successor Fiscal Agent, then a successor Fiscal Agent shall be! appointed by the Funding Lender (from any of the institutions approved by the Governmental Lender to serve as a fiscal agent or trustee) with Written Notice thereof delivered to the Governmental Lender, the Borrower, the Servicer, if any, and the retiring Fiscal Agent, and the successor Fiscal Agent so appointed shall, forthwith upon.its acceptance of such appointment, become the successor Fiscal Agent and supersede the successor Fiscal Agent appointed by such receiver or Fiscal. Agent. If no successor Fiscal Agent 39 2020-11-03 Agenda Packet Page 253 of 50�9 shall have been appointed by the Governmental Lender or the Funding Lender and accepted appointment within 60 days after such resignation, removal or incapability or the occurrence of such vacancy, the Fiscal Agent may petition any court of competent jurisdiction for the appointment of a successor Fiscal Agent. (e) The retiring Fiscal Agent shall cause Written Notice of each resignation and each removal of the Fiscal Agent and each appointment of a successor Fiscal Agent to be provided to the Funding Lender. Each notice shall include the name of the successor Fiscal Agent and the address of the office of the successor Fiscal Agent. Section 11.11 Acceptance of Appointment by Successor. (a) Every successor Fiscal Agent appointed hereunder shall execute, acknowledge and deliver to the Governmental Lender and to the retiring Fiscal Agent an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Fiscal Agent shall become effective and such successor Fiscal Agent, without any further act, deed or conveyance, shall become vested with all the estates, properties, rights, powers and duties of the retiring Fiscal Agent; notwithstanding the foregoing, on request of the Governmental Lender or the successor Fiscal Agent, such retiring Fiscal Agent shall, upon payment of its charges, execute and deliver an instrument conveying and transferring to such successor Fiscal Agent all the estates, properties, rights, powers and trusts of the retiring Fiscal Agent, and, shall duly assign, transfer and deliver to such successor Fiscal Agent all property and money held by such retiring Fiscal Agent hereunder. Upon request of any such successor Fiscal Agent, the Governmental Lender shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Fiscal Agent all such estates, properties, rights and powers. (b) No successor Fiscal Agent shall accept its appointment unless at the time of such acceptance such successor Fiscal Agent shall be qualified and eligible under this Article, to the extent operative. Section 11.12 Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Fiscal Agent may be merged or with which it may be consolidated, or any corporation resultiniz fro�m any merger, conversion or consolidation to which the Fiscal A ent shall 4-11 9 be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Fiscal Agent, shall be the successor of the Fiscal Agent hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, to the extent operative, without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notwithstanding the foregoing, any such successor Fiscal Agent shall cause Written Notice of such succession to be delivered to the Funding Lender within 30 days of such succession. Section 11.13 Appointment of Co-Fiscal Agent. It is recognized that in case of litigation under this Funding Loan Agreement, the Borrower Loan Agreement, any other Borrower Loan D�o�cument or the Regulatory Agreement, and in particular in case! of the enforcement of any of them on default, or in case the Fiscal Agent deems that by reason of any present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies herein. granted to the Fiscal Agent or hold title to the properties, as herein provided, or take any other action which may be desirable ornecessary in connection therewith, it may be necessary that the Fiscal Agent appoint an additional individual or institution as a separate or co-fiscal agent. The following provisions of this Section.are adopted to these ends. 40 2020-11-03 Agenda Packet Page 254 of 50�9 The Fiscal Agent is hereby authorized to appoint an additional individual or institution as a separate or co-fiscal agent hereunder, upon Written Notice to the Governmental Lender, the Funding Lender and the Borrower, and with the consent of the Governmental Lender and the Funding Lender, but without the necessity of further authorization or consent, in which event each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Funding Loan Agreement, any Borrower Loan Document, the Regulatory Agreement or the Borrower Loan Agreement to be exercised by or vested in or conveyed to the Fiscal Agent with respect thereto shall be exercisable by and vest in such separate or co-fiscal agent but only to the extent necessary to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-fiscal agent shall run to and be enforceable by either of them. Should any instrument in writing from the Governmental Lender be required by the separate fiscal agent or co-fiscal agent appointed by the Fiscal Agent for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, duties and obligations, any and all such instruments in writing shall, on request of the Fiscal Agent,be executed, acknowledged and delivered by the Governmental Lender. In case any separate fiscal agent or co-fiscal agent, or a successor to either,, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, duties and obligations of such separate fiscal agent or co-fiscal agent, so far as permitted by law, shall vest in and be exercised by the Fiscal Agent until the appointment of a successor to such separate fiscal agent or co fiscal agent. Section 11.14 Loan Servicing. The Governmental Lender and the Fiscal Agent acknowledge that the Funding Lender shall have the right to appoint a Servicer to service and administer the Functing Loan and the Borrower Loan as set forth in a Servicing Agreement. The Governmental Lender and the Fiscal Agent shall not be responsible for monitoring the performance of any Servicer or for any acts or omissions of such Servicer. The Funding Lender may, in its sole discretion,terminate or replace the Servicer. Section 11.15 No Recourse Agal*nst Offlcers or Employees of FI*scal Agent. No recourse with respect to any claim related to any obligation, duty or agreement contained in this Funding Loan Agreement or any other Funding Loan Document shall be had against any officer or employee, as such, of the Fiscal Agent, it being expressly understood that the obligations, duties and agreements of the Fiscal Agent contained in this Funding Loan Agreement and the other Funding Loan Documents are solely corporate in nature. ARTICLE XII MISCELLANEOUS I demands requests and other communications required Sect*on 12.1 Not ces. All notices, or permitted to be given by any provision of this Funding Loan Agreement shall be in writing and sent by first class, regular, registered or certified mail, commercial delivery service, overnight courier, telegraph, telex, telecopier or facsimile transmission, air or other courier, hand delivery, to the party to be notified addressed as follows: 41 2020-11-03 Agenda Packet Page 255 of 50�9 If to the Fiscal Agent: U.S. Bank National Association Global Corporate Trust 633 West 5th Street, 24th Floor Los Angeles, California 90071 Attention.* Ismael Diaz Ref: CV MF (Otay Ranch Apartments) 2020 Telephone.- (213) 6,15-6,063 Facsimile: (213) 615-6,197 If to the Governmental Lender: Chula Vista Housing Authority 276 Fourth Avenue Chula Vista, California 919 10 Attention: Executive Director Telephone: (619) 691-5263 If to the Borrower: Otay Affordable I V8, L.P. c/o Otay Affordable I V8, LLC 11150 W. Olympic Blvd. Suite 620 Los Angeles, CA 90064 Telephone.- (310) 575-3543 x126 Facsimile: (310) 575-3563 Attn: Senior Project Manager with a copy to: Bocarsly, Emden, Cowan, Esmail &Arndt, LLP 633 West Fifth Street, 64th Floor Los Angeles, California 90071 Attention: Nicole Deddens Telephone.- (213)239-8029 If to the Equity Investor: Boston Financial Investment Management, LP 8721 Sunset Boulevard, PHI Los Angeles, CA 90069 Attention: Roy Faer I ber, Senior Vice President with a copy to: Holland& Knight 10 St. James Avenuel I I th Floor Boston, MA 02116 Attention: Kristin Kassetta, Esq. Telephone.- (617) 573-5875 If to the Funding Lender: Citibank,N.A. 388 Greenwich Street, Trading 6 1h Floor New York,New York 100 13 Attention: Transaction Management Group Re: Otay Ranch Apartments Deal ID # Facsimile: (212) 723-8209 42 2020-1.1-0,3 Agenda Packet Page 256 of 50�9 and to: Citibank, N.A. 325 East Hillcrest Drive, Suite 160 Thousand Oaks, California 91360 Attention.* Operations Manager/Asset Manager Re: Otay Ranch Apartments Deal ID# Facsimile: (805) 557-0924 prior to the Conversion Date, with a copy to: Citibank, N.A. 388 Greenwich Street, Trading 6 Ih Floor New York,New York 100 13 Attentiow Account Specialist Re: Otay Ranch Apartments Deal ID# Facsimile: (212) 723-8209 following the Conversion Date with a copy to: c/o Berkadia Commercial Servicing Department 323 Norristown Road, Suite 300 Ambler, Pennsylvania 19002 Attentiow Client Relations Manager Re: Otay Ranch Apartments Deal IDff" Facsimile: (215) 328-0305 and a copy of any notices of default sent to: Citibank,N.A. 388 Greenwich Street,, 17th Floor New York,New York 100 13 Attention: General Counsel's Office Re: Otay Ranch Apartments Deal ID# Facsimile: (646) 291-5754 Any suchnotice, demand, request or communication shall be deemed to have been given and received for all purposes under this Funding Loan Agreement: (i) three Business Days after the same is deposited in any official depository or receptacle of the United States Postal Service first class, or, if applicable, certified mail, return receipt requested, postage! prepaid.; (ii) on the date of transmission when delivered by telecopier or facsimile transmission, telex, telegraph or other telecommunication device, provided any te!lecopy or other electronic transmission received by any party after 4:00 p.m., local time, as evidenced by the time shown on such transmission, shall be deemed to have been received the following Business Day; (iii) on, the next Business Day after the same is deposited with, a nationally recognized overnight delivery service that guarantees overnight delivery; and (iv) on the date of actual delivery to such party by any other means; provided, however, if the day such, notice, demand, request or communication shall be deemed to have been given and received as aforesaid is 43 2020-1.1-0,3 Agenda Packet Page 257 of 50�9 not a Business Day, such notice, demand, request or communication shall be deemed to have been given and received on the next Business Day. Any facsimile signature by a Person on a document, notice, demand, request or communication required or permitted by this Funding Loan Agreement shall constitute a legal, valid and binding execution thereof by such Person. Any party to this Funding Loan Agreement may change such party's address for the purpose of notice, demands, requests and communications required or permitted under this Funding Loan Agreement by providing written notice of such change of address to all of the parties by written notice as provided herein. Section 12.2 Term of Funding Loan Agreement. This Funding Loan Agreement shall be in full force and effect until all payment obligations, of the Governmental Lender hereunder have been paid in full and the Funding Loan has been retired or the payment thereof has been provided for; except that on and after payment in full of the Governmental Lender Note, this Funding Loan Agreement shall be terminated, without further action by the parties hereto. Section 12.3 Successors and Assigns. All covenants and agreements in this Funding Loan Agreement by the Governmental Lender shall bind. its successors and assigns, whether so expressed or not. Section 12.4 Legal Holidays. In any case in which the date of payment of any amount due hereunder or the date on which any other act is to be performed pursuant to this Funding Loan Agreement shall be a day that is not a Business Day, then payment of such amount or such act need not be made on such date but may be made on the next succeeding Business Day, and such later payment or such act shall have the same force and effect as if made on the date of payment or the date fixed for prepayment or the date fixed for such act, and no additional interest shall accrue for the period from and after such date and prior to the date of payment. Section 12.5 Governing Law. This Funding Loan Agreement shall be governed by and shall be enforceable in accordance with the laws of the State applicable to contracts made and performed in the State. Section 12.6 Severability. If any provision of this Funding Loan Agreement shall be invalid illegal or unenforceable, the validity, legality and enforceability of the remaining portions shall not in any way be affected or impaired. In case any covenant, stipulation, obligation or agreement contained in the Governmental Lender Note or in this Funding Loan Agreement shall for any reason be held to be usurious or in violation of law, then such covenant, stipulation, obligation or agreement shall be deemed to be the covenant, stipulation, obligation or agreement of the Governmental Lender or the Funding Lender only to the full extent permitted by law. Section 12.7 Execution in Several Counterparts. This Funding Loan Agreement may be contemporaneously executed in several counterparts, all of which shall constitute one and the same instrument and each of which shall be, and shall be deemed to be, an original. Section 12.8 No,nrecourse Obligation of the Borrower'. Except as otherwise provided in the Borrower Loan Agreement, any obligations of the Borrower under this, Funding Loan Agreement are without recourse to the Borrower or to the Borrower's partners or members, as the case may be, and the provisions of Section 11.1 of the Borrower Loan Agreement are by this reference incorporated herein. 44 2020-11-03 Agenda Packet Page 258 of 50�9 Section 12.9 Waiver of Trial by Jury. IF AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF THE GOVERNMENTAL LENDER AND THE FUNDING LENDER (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS FUNDING LOAN AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B,) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL. IF FOR ANY REASON THIS WAIVER IS DETERMINED TO BE UNENFORCEABLE, ALL, DISPUTES WILL BE RESOLVED BY JUDICIAL REFERENCE PURSUANT TO THE PROCEDURES SET FORTH IN THE SECURITY INSTRUMENT. Section 12.10 Electronic Transactions. The transactions described in this Funding Loan Agreement may be conducted and.the related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law. Section 12.11 Reference D�ate. This Funding Loan Agreement is dated for reference purposes only as of the first day of November, 2020. [Remainder of Page Intentionally Left Blank] 45 2020-1.1-0,3 Agenda Packet Page 259 of 50�9 IN WITNESS WHEREOF, the Funding Lender, the Fiscal Agent and the Governmental Lender have caused this Funding Loan Agreement to be duly executed as of the date first written above. FUNDING LENDER: CITIBANK,N.A. By: Name: Title: Authorized Signatory GOVERNMENTAL LENDER: CHULA VISTA HOUSING AUTHORITY By: Executive Director FISCAL AGENT: U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent By: Authorized Signatory [Signature Page to Funding Loan Agreement—Otay Ranch Apartments] S-1 2020-1.1-0,3 Agenda Packet Page 260 of 50�9 EXHIBIT A FORM OF GOVERNMENTAL LENDER NOTE THIS NOTE MAY BE OWNED ONLY BY A PERMITTED TRANSFEREE IN ACCORDANCE WITH THE TERMS OFTHE FUNDING LOAN AGREEMENT, AND THE HOLDER HEREOF, BY THE ACCEPTANCE OF THIS FUNDING LOAN AGREEMENT (A) REPRESENTS THAT IT IS A PERMITTED TRANSFEREE AND (B)ACKNOWLEDGES THAT IT CAN ONLY TRANSFER THIS GOVERNMENTAL LENDER NOTE TO ANOTHER PERMITTED TRANSFEREE IN ACCORDANCE WITH THE TERMS OF THE FUNDING LOAN AGREEMENT. CHULA VISTA HOUSING AUTHORITY MULTIFAMILY HOUSING REVENUE NOTE (OTAY RANCH APARTMENTS)�, 2020 SERIES A $ November 2020 FOR VALUE RECEIVED, the undersigned CHULA VISTA HOUSING AUTHORITY ("Obligor") promises to pay to the order of CITIBANK, N.A. ("Holder") the maximum principal sum of [ DOLLARS ($ ), on L 20_], or earlier as provided herein, together with interest thereon at the rates, at the times and in the amounts provided below. Obligor shall pay to the Holder on or before each date on which payment is due under that certain Funding Loan Agreement, dated as of November 1, 2020 (the "Funding Loan Agreement")�, among Obligor, Holder and U.S. Bank National Association, as fiscal agent ("Fiscal Agent")�, an amount in immediately available funds sufficient to pay the principal amount of and Prepayment Premium, if any, on this Governmental Lender Note then due and payable, whether by maturity,, acceleration, prepayment or otherwise. In the event that amounts held derived from proceeds of this Governmental Lender Note, condemnation awards or insurance proceeds or investment earnings thereon are applied to the payment of principal due on this Governmental Lender Note in accordance with the Funding Loan Agreement, the principal amount due hereunder shall be reduced to the extent of the principal amount of this Governmental Lender Note so paid. Capitalized terms not otherwise defined herein shall have the meaning assigned in the Funding Loan Agreement. Obligor shall pay to the Holder on or before each date on which interest on the Funding Loan is payable interest on the unpaid balance hereof in an amount in immediately available funds sufficient to pay the interest on this Governmental Lender Note then due and payable in the amounts and at the rate or rates set forth in the Funding Loan Agreement. This, Governmental Lender Note is a pass-thro�ugh obligation relating to a construction and permanent loan (the "Borrower Loan") made by Obligor from proceeds of the Funding Loan to ST. REGIS PARK CIC, LP, a California limited partnership, as borrower (the "Borrower"), under that certain Borrower Loan Agreement, dated as of November 1, 2020, (as the same may be modified, amended or supplemented from time to time, the "Borro�wer Loan Agreement"), between the Obligor and the Borrower, evidenced by the Borrower Note (as defined in the Borrower Loan Agreement). Reference is made to the Borrower Loan,Agreement and to the Borrower Note for complete payment A-] 2020-1.1-0,3 Agenda Packet Page 261 of 50�9 and prepayment terms of the Borrower Note, payments, on which are passed-through under this Governmental Lender Note. This, Governmental Lender Note is a limited obligation of the Obligor, payable solely from the Pledged Revenues and other funds and moneys and Security pledged and assigned under the Funding Loan Agreement. None of the Governmental Lender, the State, or any political subdivision thereof(except the Governmental Lender, to the limited extent set forth herein) or any public agency shall in any event be liable for the payment of the principal of, premium (if any) or interest on this Governmental Lender Note or the Funding Loan or for the performance of any pledge, obligation or agreement of any kind whatsoever with respect thereto except as set forth herein and in the Funding Loan Agreement, and none of the Funding Loan or this Governmental Lender Note or any of the Governmental Lender's agreements or obligations with respect to the Funding Loan or this Governmental Lender Note shall be construed to constitute an indebtedness of or a pledge of the faith and credit of or a loan of the credit of or a moral obligation of any of the foregoing within the meaning of any constitutional or statutory provision whatsoever. The Governmental Lender has no taxing power. All capitalized terms used but not defined herein shall have the meanings ascribed to them in the Funding Loan Agreement or in the Borrower Loan Agreement. This Governmental Lender Note is subject to the express condition that at no time shall interest be payable on this Governmental Lender Note or the Funding Loan at a rate in excess of the Maximum Rate provided in the Funding Loan Agreement; and Obligor shall not be obligated or required to pay, nor shall the Holder be permitted to charge or collect, interest at a rate in excess of such Maximum Rate. If by the ten'ns of this Governmental Lender Note or of the Funding Loan Agreement, Obligor is required to pay interest at a rate in excess of such Maximum Rate, the rate of interest hereunder or thereunder shall be deemed to be reduced immediately and automatically to such Maximum Rate, and any such excess payment previously made shall be immediately and automatically applied to the unpaid balance of the principal sum hereof and not to the payment of interest. Amounts payable hereunder representing late payments, penalty payments or the like shall be payable to the extent allowed by law. This Governmental Lender Note is sub ect to all of the terms conditions and provisions of j I I the Funding Loan Agreement, including those respecting prepayment and the acceleration of maturity and those respecting limitations of liability in Article V of the Funding Loan Agreement. If there is an Event of Default under the Funding Loan Documents, then in any such event and subject to the requirements set forth in the Funding Loan Agreement, the Holder may declare the entire unpaid principal balance of this Governmental Lender Note and accrued interest, if any, due! and payable at once. All of the covenants, conditions and agreements contained in the Funding Loan Documents are hereby made part of this Governmental Lender Note. No delay or omission on the part of the Holder in exercising any remedy, right or option under this Governmental Lender Note or the Funding Loan Documents shall operate as a waiver of such. remedy, right or option. In any event a waiver on any one occasion shall not be construed as a waiver or bar to any such, remedy, right or option on a future occasion. The rights, remedies and options of the Holder under this Governmental Lender Note and the Funding Loan, Documents are A-2 2020-1.1-0,3 Agenda Packet Page 262 of 50�9 and shall be cumulative and are in addition to all of the rights, remedies and options of the Holder at law or in equity or under any other agreement. Obligor shall pay all costs of collection on demand by the Holder, including without limitation, reasonable attorneys' fees and disbursements, which costs may be added to the indebtedness hereunder, together with interest thereon, to the extent allowed by law, as set forth in the Funding Loan Agreement. This Governmental Lender Note may not be changed orally. Presentment for payment, notice of dishonor, protest and notice of protest are hereby waived. The acceptance by the Holder of any amount after the same is due shall not constitute a waiver of the right to require prompt payment, when due, of all other amounts due hereunder. The acceptance by the Holder of any sum in an amount less than the amount then due shall be deemed an acceptance on account only and upon condition that such acceptance shall not constitute a waiver of the obligation of Obligor to pay the entire sum then due, and Obligor's failure to pay such amount then due shall be and continue to be a default notwithstanding such acceptance of such amount on account, as aforesaid. Consent by the Holder to any action of Obligor which is subject to consent or approval of the Holder hereunder shall not be deemed. a waiver of the right to require such consent or approval to future or successive actions. This Governmental Lender Note (and the Funding Loan that it represents), and any interests herein or therein, are transferable by the registered owner hereof, but only in the manner, subject to 1. the limitations and upon ayment of the charges provided in the Functing Loan Af4reement. Upon p such transfer a new fully registered Governmental Lender Note will be issued to the transferee in exchange herefor. The Obligor, the Funding Lender and the Fiscal Agent may treat the registered owner hereof as the absolute owner hereof for all purposes, and the Obligor and the Funding Lender shall not be affected by any notice to the contrary. The Obligor hereby certifies that all of the conditions, things and acts required to exist, to have happened and to have been performed, precedent to and in the issuance of this Governmental Lender Note do exist, have happened and have been performed in due time, form and manner as required by the Constitution and laws of the State (including the Act) and that the amount of this Governmental Lender Note, together with all other indebtedness of the Obligor, does not exceed any limit prescribed by the Constitution or laws of the State. A-3 2020-1.1-0,3 Agenda Packet Page 263 of 50�9 IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Governmental Lender Note by its authorized representative as, of the date first set forth above. The undersigned intends that this instrument shall be deemed to be signed and delivered as a sealed instrument. OBLIGOR: CHULA VISTA HOUSING AUTHORITY By: Executive Director [SEAL] ATTEST: By: Secretary [Signature Page to Governmental Lender Note—Otay Ranch Apartments] A-4 2020-1.1-0,3 Agenda Packet Page 264 of 50�9 CERTIFICA'TE, OF AUTHENTICATION This, Governmental Lender Note is the Governmental Lender Note described in the within mentioned Funding Loan Agreement. D�ate of Authentication: U.S. BANK NATIONAL ASSOCIATION, as Fiscal Agent B Authorized, Signatory [Signature Page to Governmental Lender Note—Otay Ranch Apartments] A-5 2020-11-03 Agenda Packet Page 265 of 50�9 EXHIBIT B FORM OF REQUIRED TRANSFEREE REPRESENTATIONS 1 �20 ] The undersigned, as holder (the "Holder") of a loan (the "Funding Loan") in the maximum principal amount of$ from CITIBANK, N.A. ("Funding Lender") to CHULA VISTA HOUSING AUTHORITY ("Governmental Lender")pursuant to a Funding Loan Agreement dated as of November 1, 2020 (the "Funding Loan Agreement") among the Funding Lender, the Governmental Lender and U.S. Bank National Association, as fiscal agent (the "Funding Loan")�, evidenced by the Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A (the "Governmental Lender Note"), or an interest therein, hereby represents that: I. The Holder has sufficient knowledge and experience in financial and business matters with respect to the evaluation of residential real estate developments such as the Project to be able to evaluate the risk and merits of the investment represented by the Funding Loan. We are able to bear the economic risks of such investment. 2. The Holder acknowledges that it has either been supplied with or been given access to information, including financial statements and other financial information, to which a reasonable investor would attach significance in making investment decisions, and the Holder has had, the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Governmental Lender, the Project, the use of proceeds of the Funding Loan and the Funding Loan and the security therefor so that, as a reasonable investor, the Holder has been able to make its decision to [extend/purchase] the Funding Loan [or an interest therein]. In entering into this transaction, the Holder acknowledges that it has not relied upon any representations or opinions of the Governmental Lender relating to the legal consequences to the Funding Lender or other aspects of its making the Funding Loan and acquiring the Governmental Lender Note, nor has it looked to or expected, the Governmental Lender to undertake or require any credit investigation or due diligence reviews relating to the Borrower, its financial condition or business operations, the Project (including the financing or management thereof), or any other matter pertaining to the merits or risks of the transactions contemplated by the Funding Loan Agreement and the Borrower Loan Agreement, or the adequacy of the funds pledged to the Funding Lender to secure repayment of the Governmental Lender Note. 3. The Holder is an Approved Transferee. 4. The Holder acknowledges that it is purchasing [an. interest in] the Funding Loan for investment for its own account and not with a present view toward resale or the distribution thereof, in that it does not now intend to resell or otherwise dispose of all or any part of its interests in the Funding Loan; provided, however, that the Holder may sell or transfer the Governmental Lender Note and the Funding Loan as provided in Section 2.4, of the Funding Loan Agreement. 5. In the event any placement memorandum to be provided to any subsequent buyer or beneficial owner of such portion of the Funding Loan will disclose information with respect to the Governmental Lender other than its name, location. and type of political subdivision and general B-1 2020-1.1-0,3 Agenda Packet Page 266 of 50�9 information with respect to the Funding Loan and Borrower Loan and related do�cuments,, the Holder will provide the Governmental Lender with a draft of such placement memorandum and the Governmental Lender shall have the right to approve any description of the Governmental Lender therein (which approval shall not be unreasonably withheld). 6. The Holder understands that the Funding Loan is a limited obligation of the Governmental Lender; payable solely from funds and moneys pledged and assigned under the Funding Loan Agreement, and that the liabilities and obligations of the Governmental Lender with respect to the Funding Loan are expressly limited as set forth in the Funding Loan Agreement and related documents. 7. Capitalized terms used herein and not otherwise defined have the meanings given such terms in the Funding Loan Agreement. as Holder B Name Its B-2 2020-1.1-0,3 Agenda Packet Page 267 of 50�9 EXHIBIT C FORM OF WRITTEN REQUISITION OF THE BORROWER—PROJECT FUND Draw# To.- U.S. Bank National Association, as Fiscal Agent (the "Fiscal Agent") under that certain Funding Loan Agreement, dated as of November 1, 2020, among Citibank, N.A., as Funding Lender, the Chula Vista Housing Authority, as Governmental Lender, and the Fiscal Agent (the "Funding Loan Agreement"), pursuant to which the Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A (the "Goverrimental Lender Note")was issued. I. Yo�u are requested to disburse funds from the Project Fund pursuant to Section 7.7 of the Funding Loan Agreement in the amount(s) and to the perso�n(s) as follows: [Insert grid (see below) summarizing all funds, including amount, source and payee, which are being requisitioned,from the Fiscal Agent pursuant to this requisition] Amount Funding Source Payable To 2. The undersigned certifies that: G) the obligation stated on the requisition has been incurred in or about the rehabilitation or equippim4 of the Project, each item is a pro-per charge against the Project Fund, and the obligation has not been the basis for a prior requisition that has been paid; (1i) such requisition contains no items representing any Costs of Issuance or any other amount constituting an issuance cost under Section 147(g) of the Code, unless such item is being paid solely from the Equity Account of the Project r I und; (iii) not less than 97% of the sum of.- (A) the amounts requisitioned by this Requisition to be funded with. the proceeds of the Governmental Lender Note plus (B) all amounts allocated to the Governmental Lender Note previously disbursed from the Note Proceeds Account of the Project Fund, have been or will be applied by the Borrower to pay Qualified Project Costs; (iv) to the undersigned's current.) actual knowledge, as of the date hereof no event or condition has happened or is happening or exists that constitutes, or that with notice or lapse! of time or both, would constitute, an Event of Default under the Funding Loan Agreement; and (v) attached as Schedule I to this Requisition is an exhibit that allocates the amount requested hereby from each account of the Project Fund among the sources for payment. C-1 2020-1.1-0,3 Agenda Packet Page 268 of 50�9 3. You hereby authorize Funding Lender to use the wire instructions contained in Exhibit E of the Funding Loan Agreement to wire the funds, to, and Funding Lender may continue to rely on these instructions until it shall have received any written notice of modification or revocation from you. Dated: OTAY AFFORDABLE I V8� L.P.1 a California limited partnership By: FOUNDATION FOR AFFORDABLE HOUSING V, INC.i a California nonprofit corporation its Sole Member By: D�eborrah A. Willard. President By: Otay Affordable I V8, LLC, a California limited liability company, its administrative general partner By: George Russo Chief Financial Officer OR By: Kasey Burke Vice President Approved by: CITIBANK,N.A., as Funding Lender By: Authorized Signer C-2 2020-1.1-0,3 Agenda Packet Page 269 of 50�9 EXHIBIT D FORM OF WRITTEN REQUISITION OF THE BORROWER—CLOSING COSTS FUND To.- U.S. Bank National Association, as Fiscal Agent (the "Fiscal Agent") under that certain Funding Loan Agreement, dated as of November 1, 2020, among Citibank, N.A., as Funding Lender, Chula Vista Housing Authority, as Governmental Lender, and the Fiscal Agent (the "Funding Loan Agreement"). I. You are requested to disburse funds fro�m the Closing Costs Fund pursuant to Section 7.6 of the Funding Loan Agreement in the amount(s), to the perso�n(s) and for the purpose(s) set forth on Schedule I attached hereto and incorporated herein by reference. An invoice or other appropriate evidence of the obligations described on Schedule I is attached hereto. All payments will be made by check or wire transfer in accordance with the payment instructions set forth on Schedule I (or on the attached invoice) and the Fiscal Agent shall have no obligation to authenticate such payment instructions or the authority under which they were given. 2. The undersigned certifies that as of the date hereof no event or condition has happened or is happening or exists that constitutes, or that with notice or lapse of time or both, would constitute, an Event of Default under the Funding Loan Agreement. Dated: BORROWER: O�TAY AFFORDABLE I V811 L.P.1 a California limited partnership, By: FOUNDATION FOR AFFORDABLE HOUSING V. INC, a California nonprofit corporation its Sole Member By: Deborrah.A. Willard President By: O�tay Affordable I V8, LLC, a California limited liability company, 'its administrative general partner By: George Russo Chief Financial Officer OR By: Kasey Burke Vice President D-1 2020-1.1-0,3 Agenda Packet Page 270 of 50�9 The foregoing Requisition is hereby consented to: FUNDING LENDER. CITIBANK,N.A. By: Authorized Representative GOVERNMENTAL LENDER: CHULA VISTA HOUSING AUTHORITY By: Executive Director D-2 2020-1.1-0,3 Agenda Packet Page 271 of 50�9 Schedule I Payment Instructions Payee Purpose Amount ofPayment D-3 2020-1.1-0,3 Agenda Packet Page 272 of 50�9 EXHIBIT E FISCAL AGENT WIRING INSTRUCTIONS [Bank Name: U.S. Bank,N.A. Bank City and State: Minneapolis, MN ABA Number: 091000022 Account Name: U.S. Bank Trust N.A. Account Number: 180121167365 Reference: CV MF (Otay Ranch Apartments) 2020][CONFIRM] E-1 2020-1.1-0,3 Agenda Packet Page 273 of 50�9 C, 3 f tradling Yocca Carh�on &Rauth Drqft dated October23, 2020 BORROWER LOAN AGREEMENT between the CHULA VISTA HOUSING AUTHORITY, as Governmental Lender and OTAY AFFORDABLE I V81 L*Pe� a California limited partnership as Borrower dated as of November 1.2020 relating to: Funding Loan originated by CITIBANK,N.A., as Funding Lender from the proceeds of the Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A The interest of the Governmental Lender in this Borrower Loan Agreement (except for certain rights described herein) has been pledged and assigned to Citibank, N.A., as funding lender (the "Funding Lender")�, under that certain. Funding Loan Agreement, of even date herewith, by and among Chula Vista Housing Authority (the "Governmental Lender"), U.S. Bank National Association, as fiscal agent, and the Funding Lender, under which the Funding Lender is originating a loan to the Governmental Lender the proceeds of which are to be used to fund the Borrower Loan made under this Borrower Loan Agreement. 2020-1.1-0,3 Agenda Packet Page 274 of 50�9 TABLE OF CONTENTS Page ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION Section 1.1 Specific Definitions ...................................................................................................2 Section1.2 Definitions .................................................................................................................2 ARTICLE 11 GENERAL Section 2.1 Origination of Borrower Loan................................................................................. 16 Section 2.2 Security for the Funding Loan................................................................................. 17 Section 2.3 Loan; Borrower Note; Conditions to Closing.......................................................... 18 Section 2.4 Borrower Loan Payments ........................................................................................ 19 Section 2.5 Additional Borrower Payments ...............................................................................20 Section 2.6 Overdue Payments; Payments in Default................................................................21 Section 2.7 Calculation of Interest Payments and Deposits to Real Estate Related ReserveFunds..........................................................................................................21 Section 2.8 Grant of Security Interest; Application of Funds.....................................................21 Section 2.9 Marshalling; Payments Set Aside............................................................................21 Section 2.10 Borrower Loan Disbursements................................................................................22 ARTICLE III CONVERSION Section 3.1 Conversion Date and Extension of Outside Conversion Date.................................22 Section 3.2 Notice From Funding Lender; Funding Lender's Calculation Final .......................22 Section 3.3 Mandatory Prepayment of the Borrower Loan........................................................23 Section 3.4 Release of Remaining Loan Proceeds......................................................................23 Section3.5 No Amendment........................................................................................................23 Section 3.6 Detenninations by Funding Lender.........................................................................23 ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1 Borrower Representations........................................................................................24 ARTICLE V AFFIRMATIVE COVENANTS Section5.1 Existence..................................................................................................................35 Section 5.2 Taxes and Other Charges.........................................................................................35 Section 5.3 Repairs; Maintenance and Compliance; Physical Condition...................................35 Section5.4 Litigation..................................................................................................................35 Section 5.5 Performance of Other Agreements..........................................................................35 Section5.6 Notices.....................................................................................................................36 Section 5.7 Cooperate in Legal Proceedings ..............................................................................36 Section 5.8 Further Assurances ..................................................................................................36 Section 5.9 Delivery of Financial Information...........................................................................37 Section 5.10 Environmental Matters ............................................................................................37 Section. 5.11 Governmental. Lender's and Funding Lender's Fees...............................................37 Section. 5.12 Estoppel Statement ..................................................................................................37 i 2020-11-03 Agenda Packet Page 275 of 50�9 TABLE OF CONTENTS (continued) Page Section 5.13 Defense of Actions...................................................................................................37 Section5.14 Expenses..................................................................................................................38 Section5.15 Indemnity.................................................................................................................39 Section 5.16 No Warranty of Condition or Suitability by the Governmental Lender or FundingLender........................................................................................................41 Section 5.17 Right of Access to the Project..................................................................................41 Section 5.18 Notice of Default .....................................................................................................41 Section 5.19 Covenant with Governmental Lender and Funding Lender ....................................41 Section 5.20 Obligation of the Borrower to Construct or Rehabilitate the Project......................41 Section 5.21 Maintenance of Insurance........................................................................................42 Section 5.22 Information; Statements and Reports.......................................................................42 Section 5.23, Additional Notices...................................................................................................43 Section 5.24 Compliance with Other Agreements; Legal Requirements.....................................44 Section 5.25 Completion and Maintenance of Project..................................................................44 Section5.26 Fixtures....................................................................................................................45 Section 5.27 Income from Project................................................................................................45 Section 5.28 Leases and Occupancy Agreements.........................................................................45 Section 5.29 Project Agreements and Licenses............................................................................46 Section 5.30 Payment of Debt Payments......................................................................................46 Section5.31 ERISA......................................................................................................................46 Section 5.3,2 Patriot Act Compliance............................................................................................46 Section 5.3,3, Funds from Equity Investor.....................................................................................47 Section5.3,4 Tax Covenants .........................................................................................................47 Section 5.3,5 Payment of Rebate...................................................................................................52 Section 5.36 Covenants under Funding Loan Agreement.....................................................*******53 Section 5.37 Continuing Disclosure Agreement...........................................................................53 ARTICLE VI NEGATIVE COVENANTS Section 6.1 Management Agreement..........................................................................................53 Section6.2 Dissolution...............................................................................................................54 Section 6.3 Change in Business or Operation of Property..........................................................54 Section 6.4 Debt Cancellation....................................................................................................54 Section6.5 Assets.......................................................................................................................54 Section6.6 Transfers ..................................................................................................................54 Section 6.7 Debt........... 54 Section 6.8 Assignment of Rights...............................................................................................54 Section 6.9 Principal Place of Business......................................................................................54 Section 6.10 Partnership Agreement ............................................................................................54 Section6.11 ERISA......................................................................................................................55 Section 6.12 No Hedging Arrangements......................................................................................55 Section 6.13 Loans and Investments; Distributions; Related Party Payments .............................55 Section 6.14 Amendment of Related Documents or CC&R's.......................................................55 Section6.15 Personal Property.....................................................................................................55 Section6.16 Fiscal Year...............................................................................................................56 Section6.17 Publicity...................................................................................................................56 Section. 6.18 Subordinate Loan Documents..................................................................................56 i,i 2020-11-03 Agenda Packet Page 276 of 50�9 TABLE OF CONTENTS (continued) Page ARTICLE VII RESERVED ARTICLE VIII DEFAULTS Section8.1 Events of Default.....................................................................................................56 Section8.2 Remedies..................................................................................................................61 ARTICLE IX SPECIAL PROVISIONS Section 9.1 Sale of Note and Secondary Market Transaction ....................................................65 ARTICLE X MISCELLANEOUS Section10.1 Notices.....................................................................................................................68 Section 10.2 Brokers and Financial Advisors...............................................................................70 Section10.3, Survival....................................................................................................................70 Section10.4 Preferences...............................................................................................................70 Section 10.5 Waiver of Notice......................................................................................................70 Section 10.6 Offsets, Counterclaims and Defenses......................................................................71 Section10.7 Publicity...................................................................................................................71 Section 10.8 Construction of Documents.....................................................................................71 Section 10.9 No Third Party Beneficiaries...................................................................................71 Section10.10 Assignment..............................................................................................................71 Section10.11 [Reserved]................................................................................................................72 Section 10.12 Governmental Lender, Funding Lender and Servicer Not in Control; No Partnership.............................................................................................................72 Section10.13 Release.....................................................................................................................73 Section 10.14 Term of Borrower Loan Agreement........................................................................73 Section 10.15 Reimbursement of Expenses....................................................................................73 Section 10.16 Permitted Contests...................................................................................................73 Section 10.17 Funding Lender Approval of Instruments and Parties.............................................74 Section 10.18 Funding Lender Determination of Facts..................................................................74 Section 10.19 Calendar Months......................................................................................................74 Section 10.20 Determinations by Lender .....................................................................................74 Section10.21 Governing Law........................................................................................................74 Section 10.22 Consent to Jurisdiction and Venue ..........................................................................74 Section 10.23 Successors and Assigns ...........................................................................................75 Section10.24 Severability..............................................................................................................75 Section 10.25 Entire Agreement; Amendment and Waiver............................................................75 Section10.26 Counterparts.............................................................................................................75 Section10.27 Captions...................................................................................................................75 Section10.28 Servicer....................................................................................................................75 Section 10.29 Beneficiary Parties as Third Party Beneficiary........................................................75 Section 10.30 Waiver of Trial by Jury............................................................................................75 Section 10.31 Time of the Essence.................................................................................................76 2020-1.1-0,3 Agenda Packet Page 277 of 50�9 TABLE OF CONTENTS (continued) Page Section10.32 [Reserved]................................................................................................................76 Section 10.33 Reference Date.........................................................................................................76 ARTICLE XI LIMITATIONS ON LIABILITY Section 11.1 Limitation on Liability.............................................................................................76 Section 11.2 Limitation on Liability of Govemmental Lender....................................................76 Section 11.3 Waiver of Personal Liability....................................................................................77 Section 11.4 Limitation on Liability of Govemmental Lender's or Funding Lender's Commissioners, Officers, Employees, Etc ..............................................................77 Section 11.5 Delivery of Reports, Etc ..........................................................................................78 iv 2020-1.1-0,3 Agenda Packet Page 278 of 50�9 BORROWER LOAN AGREEMENT This, Borrower Loan Agreement, dated as of November 1, 2020 (this "Borrower Loan Agreement") is entered into by the CHULA VISTA HOUSING AUTHORITY, a public body corporate and politic, organized and existing under the laws of the State of California (together with its successors and assigns, the "Governmental Lender"), and OTAY AFFORDABLE I V81 L.P., a California limited partnership (together with its successors and assigns, the "Borrower"). R E C I'T A L S : WHEREAS, the Governmental Lender is a public body, corporate and politic, duly organized and validly existing under the laws of the State of California; and WHEREAS, the Governmental Lender is empowered pursuant to Chapter I of Part 2 of Division 24 of the California Health and Safety Code (the "Act") to�: (a) make loans to any person to provide financing for residential rental developments located within the City of Chula Vista, California, and intended to be occupied in part or in whole by persons of low and moderate income; (b)borrow funds for the purpose of obtaining moneys to make such loans and provide such financing, to establish necessary reserve funds and to pay administrative costs and other costs incurred in connection with any such borrowing by the Governmental Lender; and (c) pledge all or any part of the revenues, receipts or resources of the Governmental Lender, including the revenues and receipts to be received by the Governmental Lender from or in connection with such loans, and. to mortgage, pledge or grant security interests in such loans or other property of the Governmental Lender in order to secure the repayment of any such borrowing by the Governmental Lender; and WHEREAS, the Borrower has applied to the Governmental Lender for a loan (the "Borrower Loan"'), for the acquisition, rehabilitation, development and equipping of a 118 unit plus I manager's unit multifamily rental housing project located at 1025 Broadway in the City of Chula Vista, County of San Diego, California, known as "Otay Ranch Apartments"; and WHEREAS, the Borrower's repayment obligations under this Borrower Loan Agreement are evidenced by the Borrower Note, as defined herein; and WHEREAS, the Borrower has requested that the Governmental Lender enter into that certain Funding Loan Agreement, of even date herewith (the "Funding Loan Agreement"), among the Governmental Lender, U.S. Bank National Association, as fiscal agent (the "Fiscal Agent"), and Citibank, N.A. (the "Fundint! Lender"), under which the Funding Lender will make a loan (the "Fundint! Loan") to the Governmental Lender (and the Governmental Lender will issue its Governmental Lender Note (as defined herein) in connection therewith), the proceeds of which will be loaned under this Borrower Loan Agreement to the Borrower to finance the acquisition and construction of the Pro ect(as defined herein)�; and j WHEREAS, the Borrower Loan is secured by, among other things, that certain Multifamily Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing (California) (as amended, restated and/or supplemented from time to time, the "Security Instrument"), of even date herewith and assigned to the Funding Lender to secure the Funding Loan, encumbering the Pro.ect, and will be advanced to the Borrower pursuant to this Borrower Loan Agreement, the Funding Loan Agreement and the Construction Funding Agreement(as defined herein); and 2020-1.1-0,3 Agenda Packet Page 279 of 50�9 AGREEMENT : NOW, THEREFORE, in consideration of the premises and the mutual representations, covenants and agreements herein contained, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION Section 1.1 Specific Definitions. For all purposes of this Borrower Loan Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) Unless, specifically defined herein, all capitalized terms shall have the meanings ascribed thereto in the Security Instrument or, if not defined in the Security Instrument, in the Funding Loan Agreement. (b) All accounting terms not otherwise defined herein shall have the meanings assigned to them, and all computations herein provided for shall be made, in accordance with GAAP. (c) All references in this instrument to designated "Articles... ..Sections" and other subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally executed. (d) All references in this instrument to a separate instrument are to such separate instrument as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof (e) Unless otherwise specified, (i) all references to sections and schedules are to those in this Borrower Loan Agreement, (ii) the words "hereof.. ..herein" and"hereunder" and words of similar import refer to this Borrower Loan Agreement as a whole and not to any particular provision, (iii) all definitions are equally applicable to the singular and plural forms of the terms defined and(iv)the word"including"means "including but not limited to." Section 1.2 Definitions. The following terms, when used in this Borrower Loan Agreement(including when used in the above recitals)�, shall have the following meanings: "Act" shall have the meaning given to it in the recitals to this Borrower Loan Agreement. "Act of Bankruptcy" shall mean the filing of a petition in bankruptcy (or any other commencement of a bankruptcy or similar proceeding) under any applicable bankruptcy, insolvency, reorganization, or similar law, now or hereafter in. effect; provided that, in the case of an involuntary proceedim4, such proceeding is not dismissed within ninety (90) days after the commencement thereof. "ADA" shall have the meaning set forth.in Section 4.1.38 hereof. "Additional Borrower Payments" shall mean the payments payable pursuant to Section 2.5 (Additional Borrower Payments), Section 2.6 (Overdue Payments; Payments in Default), Section 3.3.3 of the Construction Funding Agreement (Borrower Loan in Balance), Section 5.14 (Exp�enses,), and Section 10 of the Borrower Note (Voluntary and Involuntary Prepayments). 2 2020-1.1-0,3 Agenda Packet Page 280 of 50�9 "Administrative General Partner" shall mean Otay Affordable I V8, L.P., a California limited liability company. "Agreement of Environmental Indemnification" shall mean the Agreement of Environmental Indemnification, of even date herewith, executed by the Borrower and Guarantor for the benefit of the Beneficiary Parties (as defined therein) and any lawful holder, owner or pledgee of the Borrower Note from time to time. "Appraisal" shall mean an appraisal of the Project and Improvements, which appraisal shall be (i)performed by a qualified appraiser licensed in the State selected by Funding Lender, and (ii) satisfactory to Funding Lender (including, without limitation, as adjusted pursuant to any internal review thereof by Funding Lender) in all respects. "Approved Developer Fee Schedule" shall have the meaning set fo�rth in the Construction Funding Agreement. "Architect" shall mean any licensed architect, space planner or design professional that Borrower may engage from time to time, with the approval of Funding Lender, to design any portion of the Improvements, including the preparation of the Plans and Specifications. "Architect's Agreement" means any agreement that Borrower and any Architect from time to time may execute pursuant to which Borrower engages such Architect to design any portion of the Improvements, including the preparation of the Plans and Specifications, as approved by Funding Lender. "Authorized Borrower Representative" shall mean a person at the time designated and authorized to act on behalf of the Borrower by a written certificate furnished to the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer and containing the specimen signature of such person and signed on behalf of the Borrower by its Borrower Controlling Entity which certificate may designate one or more alternates. "Bankruptcy Code" shall mean the United States Bankruptcy Reform Act of 1978, as amended from time to time, or any substitute or replacement legislation. "Bankruptcy Event" shall have the meaning given to that term in the Security Instrument. "Bankruptcy Proceeding" shall have the meaning set forth in Section 4.1.8 hereof. a "Beneficiary Parties" shall, mean, collectively, the Funding Lender and the Governmental Lender. "Borrower" shall have the meaning set forth in the recitals to this Borrower Loan, Agreement. "Borrower Affiliate" means, as to the Borrower, its general partner or the Guarantor, (i) any entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of Borrower, its general partner or the Guarantor, (ii) any corporation 20 percent or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the Borrower, its general partner or the Guarantor, (iii) any partner of Borrower, its general partner or the Guarantor, or (iv) any other person that is 3 2020-11-03 Agenda Packet Page 281 of 50�9 related (to the third degree of consanguinity) by blood or marriage to the Borrower, its general partner or the Guarantor (to the extent any of the Borrower, its general partner or the Guarantor is a natural person). "Borrower Controlling,Entity" shall mean the general partner of the Borrower. "Borrower Deferred Equity" shall have the meaning set forth in the Construction Funding Agreement. "Borrower Initial Equity" shall have the meaning set forth in the Construction Funding Agreement. "Borrower Loan" shall mean the mortgage loan made by the Governmental Lender to the Borrower pursuant to this Borrower Loan Agreement, in the maximum principal amount of the Borrower Loan Amount, as evidenced by the Borrower Note. "Borrower Loan Agreement" shall mean this Borrower Loan Agreement. "Borrower Loan Amount" shall mean $ the original maximum principal amount of the Borrower Note. "Borrower Loan Documents" shall mean this Borrower Loan Agreement, the Construction Funding Agreement, the Borrower Note, the Security Instrument, the Agreement of Environmental Indemnification, the Replacement Reserve Agreement, the Guaranty, the Contingency Draw Down Agreement, and all other documents or agreements evidencing or relating to the Borrower Loan. "Borrower Loan Payment Date" shall, mean (i) the date upon which regularly scheduled Borrower Loan Payments are due pursuant to the Borrower Note, or (ii) any other date on which the Borrower Note is prepaid or paid, whether at the scheduled maturity or upon the acceleration of the maturity thereof. "Borrower Loan Payments" shall mean the monthly loan payments payable pursuant to the Borrower Note. "Borrower Loan Proceeds" shall mean proceeds of the Borrower Loan, to be disbursed in accordance with Section 2.10 of this Borrower Loan Agreement, Section 7.7 of the Funding Loan Agreement and the Construction Funding Agreement. "Borrower Note" shall mean that certain Multifamily Note, dated the Closing Date, in the original maximum principal amount of$ , made by the Borrower and payable to the Governmental Lender, evidencing the loan of the proceeds of the Governmental Lender Note, as endorsed and assigned by the Governmental Lender without recourse to the Funding Lender, as executed by the Borrower, and as it may thereafter be amended or supplemented from time to time. "Borrower Payment Obligations" shall mean all payment obligations of the Borrower under the Borrower Loan Documents, including, but not limited to�, the Borrower Loan Payments and the Additional Borrower Payments. "Business Day" shall mean any day other than (i) a Saturday or Sunday, or (ii) a day on which the Fiscal Agent or federally insured depository institutions in New York, New York or 4 2020-11-03 Agenda Packet Page 282 of 50�9 California are authorized or obligated by law, regulation, governmental decree or executive order to be closed. "Calculation Period" shall mean three (3) consecutive full Calendar Months occurring prior to the Conversion Date, as the same may be extended in accordance with Section 3.1 hereof "Calendar Month" shall mean each of the twelve (12) calendar months of the year. "*CC&R's" shall mean any covenants, conditions, restrictions, maintenance agreements or reciprocal easement agreements affecting the Project or the Mortgaged Property. "Closing Date" means November—, 20�2O�, the date that the initial Borrower Loan Proceeds are disbursed hereunder. "Code" shall mean 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 Code. "Collateral" shall mean all collateral described in (i) this Borrower Loan Agreement (including, without limitation, all property in which the Funding Lender is granted a security interest pursuant to any provision of this Borrower Loan Agreement), (ii) the Security Instrument, or(iii) any other Security Document,which Collateral shall include the Project, all of which collateral is pledged and assigned to Funding Lender under the Funding Loan Agreement to secure the Funding Loan. "Completion" shall have the meaning set forth in Section 5.25. "Completion Date" shall have the meaning set forth in the Construction Funding Agreement. "Computation Date" shall, have the meaning ascribed thereto in Section 1.148 3(e) of the Regulations. "Condemnation" shall mean any action or proceeding or notice relating to any proposed or actual condemnation or other taking, or conveyance in lieu thereof, of all or any part of the Project, whether direct or indirect. "Conditions to Conversion" shall have the meaning set forth in the Construction Funding Agreement. "Construction Consultant" shall mean a third-party architect or engineer selected and retained by Funding Lender, at the cost and expense of Borrower, to monitor the progress of construction and/or rehabilitation of the Project and to inspect the Improvements to confirm compliance with this Borrower Loan Agreement. "Construction Contract" shall mean any agreement that Borrower and any Contractor from. time to time may execute pursuant to which Borrower engages the Contractor to construct any portion of the Improvements, as approved by Funding Lender. 5 2020-11-03 Agenda Packet Page 283 of 50�9 "Construction Funding Agreement" means that certain Construction Funding Agreement of even date herewith, between the Funding Lender, as agent for the Governmental Lender, and Borrower, pursuant to which the Borrower Loan will be advanced by the Funding Lender (or the Servicer on its behalf), as agent of the Governmental Lender, to the Fiscal Agent for disbursement to the Borrower and setting forth certain provisions relating to disbursement of the Borrower Loan during construction, insurance and other matters, as such agreement may be amended, modified, supplemented and replaced from time to time. "Construction Schedule" shall mean a schedule of construction or rehabilitation progress with the anticipated commencement and completion dates of each phase of construction or rehabilitation, as the case may be, and the anticipated date and amounts of each Disbursement for the same, as approved by Funding Lender, as assignee of the Governmental Lender. "Contingency Draw-Down Agreement" means the Contingency Draw-Down Agreement of even date herewith, among the Fiscal Agent, the Funding Lender and the Borrower relating to possible conversion of the portion of the Funding Loan evidenced by the Governmental Lender Note from a draw down loan to a fully funded loan. "Continuing Disclosure Agreement" shall mean that certain Continuing Disclosure Agreement of even date herewith, between the Borrower and the Funding Lender, pursuant to which the Borrower agrees to provide certain information with respect to the Project, the Borrower and.the Funding Loan subsequent to the Closing Date, as amended, supplemented or restated from time to time. "Contractor" shall mean any licensed general contractor or subcontractor that Borrower may directly engage from time to time, with the approval of Funding Lender,, to construct and/or rehabilitate any portion of the Improvements. "Contractual Obligation" shall mean, for any Person, any debt or equity security issued by that Person, and any indenture, mortgage, deed of trust, contract, undertaking, instrument or agreement (written or oral) to which such Person is a party or by which it is bound, or to which it or any of its assets is subject. "Conversion" shall mean Funding Lender's determination that the Conditions to Conversion have been satisfied in accordance with the provisions of this Borrower Loan Agreement and the Construction Funding Agreement. 'Conversion Date" shall mean the date to be designated by Funding Lender once the Conditions to Conversion have been satisfied, the determination of the Permanent Period Amount has been. made and any loan balancing payments in accordance with Section 3.3 hereof and the Construction Funding Agreement have been made. The Conversion Date must occur no later than the Outside Conversion Date. "Cost Breakdown" shall mean the schedule of costs for the Improvements, as, set forth in the Construction Funding Agreement, as the same! may be amended from time to time with Funding Lender's consent. "Cost of Improvements" shall mean the costs for the Improvements, as set forth, on.the Cost Breakdown. 6 2020-1.1-0,3 Agenda Packet Page 284 of 50�9 "Costs of Funding" shall mean the Governmental Lender's Closing Fee and the fees, costs,, expenses, and other charges incurred in connection with the funding of the Borrower Loan and the Funding Loan, the negotiation and preparation of this Borrower Loan Agreement and each of the other Borrower Loan Documents and Funding Loan Documents and shall include, but shall not be limited to, the following: (i) counsel fees (including but not limited to Tax Counsel, counsel to the Governmental Lender, Borrower's counsel, and Funding Lender's counsel); (ii) financial advisor fees incurred in connection with the closing of the Borrower Loan and the Funding Loan; (iii) certifying and authenticating agent fees and expenses related to funding of the Funding Loan; (iv) recording fees; (v) any additional fees charged by the Governmental Lender or the Fiscal Agent; and (vi) costs incurred in connection with the required public notices generally and costs of the public hearing. "Costs of Funding Deposit" shall mean the amount required to be deposited by the Borrower with the Stewart Title of California, Inc. to pay Costs of Funding in connection with the closing of the Borrower Loan and the Funding Loan on the Closing Date. "Date of Disbursement" shall mean the date of a Disbursement. "Day" or"Days" shall mean calendar days unless expressly stated to be Business Days. "Debt" shall mean, as to any Person, any of such Person's liabilities, including all indebtedness (whether recourse or nonrecourse, short term or long ten'n, direct or contingent), all committed and. unfunded, liabilities, and, all unfunded liabilities, that would appear upon a balance sheet of such Person prepared in accordance with GAAP. "Default Rate" shall have the meaning given to that term in the Borrower Note. "Determination of Taxability" shall mean (i) a determination by the Commissioner or any District Director of the Internal Revenue Service, (ii) a private ruling or Technical Advice Memorandum concerning the Governmental Lender Note issued by the National Office of the Internal Revenue Service in which Governmental Lender and Borrower were afforded the opportunity to participate, (iii) a determination by any court of competent jurisdiction, (iv) the enactment of legislation or (v)� receipt by the Funding Lender, at the request of the Governmental Lender, the Borrower or the Funding Lender, of an opinion of Tax Counsel, in each case to the effect that the interest on the Governmental Lender Note is includable in gross income for federal income tax purposes of any holder or any former holder of all or a portion of the Governmental, Lender Note, other than a holder who is a "substantial user" of the Project or a "related person" (as such terms are defined in Section 147(a) of the Code); provided, however, that no such Determination of Taxability under clause (i) or (iii) shall be deemed to have occurred if the Governmental, Lender (at the sole expense of the Borrower), the Funding Lender(at the sole expense of the Borrower) or the Borrower is contesting such determination, has elected to contest such determination in good faith and is proceeding with all applicable dispatch to prosecute such contest until the earliest of (a) a final determination from which no appeal may be taken with respect to such determination, (b) abandonment of such appeal by the Governmental Lender or the Borrower, as,the case may be, or (c) one year from the date of initial deten-ninatio�n. "Developer Fee" shall have the meaning set forth in the Construction Funding Agreement. "Disbursement" means a disbursement of Borrower Loan Proceeds and Other Borrower Moneys pursuant to this Borrower Loan Agreement. 7 2020-11-03 Agenda Packet Page 285 of 50�9 "Engineer" shall mean any licensed civil, structural, mechanical, electrical, soils, environmental or other engineer that Borrower may engage from time to time, with the approval of Funding Lender, to perform any engineering services with respect to any portion of the Improvements. "Engineer's Contract" shall mean any agreement that Borrower and any Engineer from time to time may execute pursuant to which Borrower engages such Engineer to perform any engineering services with respect to any portion of the Improvements, as approved by Funding Lender. "Equipment" shall have the meaning given to the term "Personalty" in the Security Instrument. "Equity Contributions" shall mean the equity to be contributed by the Equity Investor to Borrower, in accordance with and subject to the terms of the Partnership Agreement. "Equity Investor" shall mean [Boston Financial Investment Management L.P.]�, a , and its permitted successors and assigns. "ERISA" shall mean the Employment Retirement Income Security Act of 1974, as amended from time to time, and,the rules and regulations promulgated thereunder. "ERISA Affiliate" shall mean all members of a controlled. group of corporations and all trades and business (whether or not incorporated) under common control and.all other entities which, together with the Borrower, are treated as a single employer under any or all of Section 414(b)�, (c), (m) or(o) of the Code. "Event of Default" shall, mean any Event of Default set forth in Section 8.1 of this Borrower Loan Agreement. An Event of Default shall "exist" if a Potential Default shall have occurred and be continuing beyond any applicable cure period. "Excess Revenues" shall have the meaning ascribed thereto in Section 2.2(e)hereof. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. "Expenses of the Project" shall mean, for any period, the current expenses, paid or accrued, for the operation, maintenance and current repair of the Project, as calculated in accordance with GAAP, and shall include, without limiting the generality of the foregoing, salaries, wages, employee benefits, cost of materials and supplies, costs of routine repairs, renewals, replacements and alterations occurring in the usual course of business, costs and expenses properly designated as capital expenditures (e.g. repairs which, would not be payable fro�m amounts on deposit in. a repair and replacement fund held pursuant to the Borrower Loan Documents), a management fee (however characterized) not to exceed the Underwritten Management Fee, costs of billings and collections, costs of insurance, and costs of audits. Expenses of the Project shall not include any payments, however characterized, on account of any subordinate financing in respect of the Project or other indebtedness, allowance for depreciation, amortization or other non-cash items, gains and losses or prepaid expenses not customarily prepaid. "Extended Outside Conversion Date" shall have the meaning set forth in the Construction Funding Agreement. 8 2020-1.1-0,3 Agenda Packet Page 286 of 50�9 "Fair Market Value" shall mean the price at which a willing buyer would purchase the investment from a willing seller in a bona fide, arm's length transaction (determined as of the date the contract to purchase or sell the investment becomes binding) if the investment is traded on an established securities market (within the meaning of Section 1273 of the Code) and, otherwise, the term "Fair Market Value" means the acquisition price in a bona fide arm's length transaction (as referenced above) if(i) the investment is a certificate of deposit that is acquired in accordance with applicable regulations under the Code, (ii) the investment is an agreement with specifically negotiated withdrawal or reinvestment provisions and a specifically negotiated interest rate (for example, a guaranteed investment contract, a forward supply contract or other investment agreement) that is acquired in accordance with applicable regulations under the Code, (iii) the investment is a United States Treasury Security State and Local Government Series that is acquired in accordance with applicable regulations of the United States Bureau of Public Debt, or (iv) the investment is an interest in any commingled investment fund in which the Governmental Lender and related parties do not own more than a ten percent (10%) beneficial interest therein if the return paid by the fund is without regard to the source of investment. "Fiscal Agent" shall mean the Fiscal Agent from time to time under and pursuant to the Funding Loan Agreement. Initially, the Fiscal Agent is U.S. Bank National Association. "Funding Lender" shall mean Citibank, N.A., a national banking association, in its capacity as lender under the Funding Loan. "Funding Loan" means the Funding Loan in the original maximum principal amount of $ made by Funding Lender to Governmental Lender under the Funding Loan Agreement, the proceeds of which are used by the Governmental Lender to make the Borrower Loan. "Fundint! Loan Agreement" means the Funding Loan Agreement, of even date herewith, among the Governmental Lender, the Fiscal Agent and the Funding Lender, as it may from time to time be supplemented, modified or amended by one or more amendments or other instruments supplemental thereto entered into pursuant to the applicable provisions thereof "Funding Loan Documents" shall have the meaning given to that term in the Funding Loan Agreement. "GAAP" shall mean generally accepted accounting principles as in effect on the date of the application thereof and consistently applied throughout the periods covered by the applicable financial statements. "General Partner" shall mean, collectively, (i) the Administrative General Partner, (ii) the Managing General Partner, and/or (iii) any other Person that the partners of the Borrower, with the prior written approval of the Funding Lender (or as otherwise permitted with the Funding Lender's approval pursuant to the Borrower Loan Documents), selected to be a general partner of the Borrower. "Governmental Authority" shall mean (i) any governmental municipality or political subdivision thereof, (ii) any governmental or quasi-governmental agency, authority, board, bureau, commission, department, instrumentality or public body, or (iii) any court, administrative tribunal or public utility, agency, commission, office or authority of any nature whatsoever for any 9 2020-11-03 Agenda Packet Page 287 of 50�9 governmental unit (federal, state, county, district, municipal, city or otherwise), now or hereafter in existence. "Governmental Lender" shall have the meaning set forth in the recitals to this Borrower Loan Agreement. "Governmental Lender Note" shall mean that certain Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A, dated the Closing Date, in the original maximum principal amount of$ , made by the Governmental Lender and payable to the Funding Lender, as executed by the Governmental Lender and as it may thereafter be amended or supplemented from time to time. "Governmental Lender's Closing Fee" shall mean the administrative fees of the Governmental Lender payable on the Closing Date, as specified in the definition of"Governmental Lender Fee" in the Regulatory Agreement. The Governmental Lender's Closing Fee is payable to the Governmental Lender on the Closing Date pursuant to Section 2.3(c)(iii) hereof "Gross Income" shall mean all receipts, revenues, income and other moneys received or collected by or on behalf of Borrower and derived fro�m the ownership or operation of the Pro.ect, if 9 any, and all rights to receive the same, whether in the form of accounts, accounts receivable, contract rights or other rights, and the proceeds of such rights, and whether now owned or held or hereafter coming into existence and proceeds received upon the foreclosure sale of the Project. Gross Income shall not include loan proceeds, equity or capital contributions, or tenant security deposits being held by Borrower in accordance with applicable law. "Gross Proceeds" shall mean, without duplication, the aggregate of: (a) the net amount (after payment of all expenses of originating the Funding Loan) of Funding Loan proceeds received by the Governmental Lender as a result of the origination of the Funding Loan; (b) all amounts received by the Governmental Lender as a result of the investment of the Funding Loan proceeds; (c) any amounts held in any fund or account to the extent that the Governmental Lender reasonably expects to use the amounts in such fund to pay any portion of the Funding Loan; and (d) any securities or obligations pledged by the Governmental Lender or by the Borrower as security for the payment of any portion of the Funding Loan. "Guarantor" shall mean, as applicable (i) a (ii) —, a (with respect to its Completion Guaranty only), and (iii) any other person or entity which may hereafter become a guarantor of any of the Borrower's obligations under the Borrower Loan. "Guaranty" shall mean, collectively, [(i) the! Completion and Repayment Guaranty, by for the benefit of the Beneficiary Parties (as defined therein), (ii) the Exceptions to Non-Recourse Guaranty, by for the benefit of the! Beneficiary Parties (as defined 10 2020-1.1-0,3 Agenda Packet Page 288 of 50�9 therein), and (iii) the Completion Guaranty of for the benefit of the Beneficiary Parties (as defined therein) each of which is of even date herewith.] "Improvements" shall mean the 118-unit plus I manager's, unit multifamily rental housing project to be rehabilitated upon the Land and known as "Otay Ranch Apartments", and all other buildings, structures, fixtures, wiring, systems, equipment and other improvements and personal property to be constructed, rehabilitated and/or installed at or on the Land in accordance with the Cost Breakdown and the Plans and Specifications. "Indemnifled Party" shall have the meaning set forth in Section 5.15 hereof "Installment Computation Date" shall mean any Computation Date other than the first Computation Date or the final Computation Date. "Interest Rate" shall mean the rate of interest accruing on the Borrower Loan pursuant to the Borrower Note. "Interim Phase Amount" shall mean $ "Land"means the real property described on Exhibit A to the Security Instrument. "Late Charge" shall mean the amount due and payable as a late charge on overdue payments under the Borrower Note, as provided in Section 7 of the Borrower Note and Section 2.5 hereof. "Legal Action" shall mean an action, suit, investigation, inquiry, proceeding or arbitration at law or in equity or before or by any foreign or domestic court, arbitrator or other Governmental Authority. "Legal Requirements" shall mean statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting all or part of the Project or any property (including the Project) or the construction, rehabilitation, use, alteration or operation thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instrument, either of record or known to the Borrower, at any time in force affecting all or part of the Project, including any that may (1) require repairs, modifications or alterations in or to all or part of the Project, or(ii) in any way limit the use and enjoyment thereof. "Liabilities" shall have the meaning set forth in Section 5.15 hereof "Licenses" shall have the meaning set forth in Section 4.1.22 hereof "Lien" shall mean any interest, or claim thereof, in the Pro ect securing an obligation. owed j to, or a claim by, any Person other than the owner of the Project, whether such interest is based on. common. law, statute or contract, including the lien or security 'interest arising from a deed of trust, 'mortgage, deed to secure debt, assignment, encumbrance, pledge, security agreement, conditional sale or trust receipt or a lease, consignment or bailment for security purposes. The term "Lien" shall include reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other title exceptions and encumbrances affecting the Project. 2020-11-03 Agenda Packet Page 289 of 50�9 "Management Agreement" shall mean the Management Agreement between the Borrower and the Manager, pursuant to which the Manager is to manage the Pro ect, as, same may be amended, j restated, replaced, supplemented or otherwise modified from time to time. "Manager" shall mean the management company to 'be employed by the Borrower and approved by the Funding Lender in accordance with the terms of the Security Instrument, this Borrower Loan Agreement or any of the other Borrower Loan Documents. "Managing General Partner" shall mean Foundation For Affordable Housing V, Inc., a California nonprofit public benefit corporation, as managing general partner of the Borrower. "Material Adverse Change" means any set of circumstances or events which (a) has or could reasonably be expected to have any material adverse effect whatsoever upon the validity or enforceability of this Borrower Loan Agreement or any other Borrower Loan Document; (b) is or could reasonably be expected to be material and adverse to the business, properties, assets, financial condition, results of operations of the Borrower, General Partner, Guarantor or the Mortgaged Property; (c) could reasonably be expected to impair materially the ability of the Borrower, General Partner or Guarantor to duly and punctually pay or perform any of their respective obligations under any of the Borrower Loan Documents to which they are a party; or (d) impairs materially or could, reasonably be expected to impair materially any rights of or benefits available to the Governmental Lender under this Borrower Loan Agreement or any other Borrower Loan Document, including, without limitation, the ability of Governmental Lender or, upon the assignment of the Borrower Loan to it, of the Funding Lender, to the extent permitted, to enforce its legal remedies pursuant to this Borrower Loan Agreement or any other Borrower Loan Document. "Moody's," shall mean Moody's Investors Service, Inc., or its successor. "Mortgaged Property" shall have the meaning given to that term in the Security Instrument. "Net Operating Income" shall mean: (i)the Gross Income, less (ii) the Expenses of the Proj ect. "Nonpurpose Investment" shall mean any investment property(as defined in Section 148(b) of the Code) that is acquired with the Gross Proceeds of the Funding Loan and which is not acquired to carry out the governmental purpose of the Funding Loan. "Ongoing Governmental Lender Fee" shall mean the ongoing portion of the Annual Administration Fee (as that term is defined in the Regulatory Agreement) that is payable after the Closing Date. "Other Borrower Moneys" shall mean monies of Borrower other than Borrower Loan Proceeds and includes, but is not limited to, the Net Operating Income, the Borrower's Equity Contributions and any other funds contributed by or loaned to the Borrower for application to the Costs of the Improvements or other costs associated with the Pro ect. j "Other Charges" shall mean all maintenance charges, impositions other than Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Pro ect, now or hereafter levied or assessed or imposed against the Project or any part j thereof 12 2020-1.1-0,3 Agenda Packet Page 290 of 50�9 "Outside Conversion Date" shall have the meaning set forth in the Construction Funding Agreement. "Partnership Agreement" shall mean that certain [Amended and Restated Agreement of Limited Partnership] of the Borrower dated as of November 1, 2020, as the same may be amended, restated or modified from time to time in accordance with its terms. "Patriot Act" shall mean the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT ACT) of 200 1, as the same may be amended from time to time, and corresponding provisions of future laws. "Patriot Act Offense" shall have the meaning set forth in Section 4.1.48 hereof. "Permanent Period" shall mean the period of time from the Conversion Date to the Maturity 1. Date (as defined in the Functing Loan Agreement). "Permanent Period Amount" shall mean the principal amount of the Borrower Loan as of the first day of the Permanent Period following the applicable calculation provided for in the Construction Funding Agreement. "Permitted Encumbrances" shall have the meaning given to that term in the Security Instrument. "Permitted Lease" shall mean a lease and occupancy agreement pursuant to the form approved by Funding Lender, to a residential tenant in compliance with the Legal Requirements,, providing for an initial term of not less than six(6) months nor more than two (2) years. "Person" shall mean a natural person, a partnership, a joint venture, an unincorporated association,, a limited liability company, a corporation, a trust, any other legal entity, or any Governmental Authority. "Plan" shall mean (i) an employee benefit or other plan established or maintained by the Borrower or any ERISA Affiliate or to which the Borrower or any ERISA Affiliate makes or is obligated to make contributions and (ii) which is covered by Title IV of ERISA or Section 302 of ERISA or Section 412 of the Code. "Plans and Specifications" shall mean the plans and specifications, and all approved changes thereto pursuant to the approval process set forth in the Construction Funding Agreement, for the construction and/or rehabilitation, as the case may be, of the Project approved by Funding Lender. "Potential Default" shall mean the occurrence of an event which, under this Borrower Loan. Agreement or any other Borrower Loan. Document, would, but for the giving of notice or passage of time, or both5 be an Event of Default. "Prepayment Premium" shall mean any premium payable by the Borrower pursuant to the Borrower Loan Documents in connection with a prepayment of the Borrower Note (including any prepayment premium as set forth in the Borrower Note). 13 2020-11-03 Agenda Packet Page 291 of 50�9 "Project" shall mean the Mortgaged Property (as defined in the Security Instrument) and Improvements thereon owned by the Borrower and encumbered by the Security Instrument, together with all rights pertaining to such real property and Improvements, as more particularly described in the Granting Clauses of the Security Instrument and referred to therein as the "Mortgaged Property." '.'Project Agreements and Licenses" shall mean any and all Construction Contracts, Engineer's Contracts and Management Agreements, and all other rights, licenses, permits, franchises, authorizations, approvals and agreements relating to use, occupancy, operation or leasing of the Project or the Mortgaged Property. "Provided Information" shall have the meaning set forth in Section 9.1.1 (a)hereo�f. "Qualified Project Costs" shall have the meaning given to it in the Regulatory Agreement. "Rebate Amount" shall mean, for any given period, the amount determined by the Rebate Analyst as required to be rebated or paid as a yield reduction payment to the United States of America with respect to the Funding Loan evidenced by the Governmental Lender Note. "Rebate Analyst" shall mean the rebate analyst selected by the Borrower and acceptable to the Governmental Lender and the Funding Lender. "Rebate Analyst's Fee" shall mean the annual fee of the Rebate Analyst payable by the Borrower to the Rebate Analyst. "Rebate Fund" shall mean the Rebate Fund created pursuant to Section 5.35 hereof "Regulatory Agreement" means the Regulatory Agreement and Declaration of Restrictive Covenantsl dated as of November 1. 2020, between the Governmental, Lender and the Borrower. "Related Documents" shall mean, collectively, any agreement or other document (other than the Borrower Loan Documents) granting a security interest (including each agreement that is the subject of any Borrower Loan Document)�, and any other agreement.) instrument or other document (not constituting a Borrower Loan Document) relating to or executed in connection with the transactions contemplated by this Borrower Loan Agreement, but excluding the Partnership Agreement. "Replacement Reserve Agreement" shall mean the Replacement Reserve Agreement, of even date herewith, between the Borrower and the Funding Lender, as the same may be amended, restated or supplemented from time to time. "Replacement Reserve Fund Requirement" means Borrower's funding obligations from. time to time under the Replacement Reserve Agreement. "Retainage" shall have the meaning set forth.in the Construction Funding Agreement. "Review Fee" shall mean the three thousand dollar ($3,000) fee payable to Funding Lender in connection with the review of requests from the Borrower in connection with events requiring the consent and/or approval of the Funding Lender, including, but not limited to, subordinate financings and easements. 14 2020-11-03 Agenda Packet Page 292 of 50�9 "Secondary Market Disclosure Document" shall have the meaning set forth in Section 9.1.2 hereof "Secondary Market Transaction" shall have the meaning set forth in Section 9.1.1 hereof "Securities" shall have the meaning set forth in Section 9.1.1 hereof. "Securities Act" shall mean the Securities Act of 1933, as amended. "Security Documents" shall mean the Security Instrument, the Replacement Reserve Agreement, the Collateral Agreements, the Collateral Assignments, this Borrower Loan Agreement, the Agreement of Environmental Indemnification, and such other security instruments that Funding Lender may reasonably request. "Security Instrument" shall have the meaning set forth in the recitals to this Borrower Loan Agreement. "Servicer" shall mean the Servicer contracting with or appointed by the Funding Lender to service the Borrower Loan. The initial Servicer shall be Citibank, N.A. "Servicing Agreement" shall mean any servicing agreement or master servicing agreement, between the Servicer and the Funding Lender relating to the servicing of the Borrower Loan and any amendments thereto or any replacement thereof "Standard & Poor's" or 44S&V shall mean S&P Global Ratings, a business unit of Standard. &Poor's Rating Services, or its successors. "State" shall mean the State in which the Project is located. "Subordinate Debt" shall mean the subordinate, taxable construction and permanent loan to Borrower in the amount of$ being made by the Funding Lender as of the Closing Date and the seller take-b�ack loan in the amount of$ being made by "Subordinate Lender" shall mean the Funding Lender and as applicable. "Subordinate Loan Documents" shall mean all instruments, agreements and other documents evidencing, securing or otherwise relating to the Subordinate Debt or executed and delivered by Borrower and/or Subordinate Lender in connection with the Subordinate Debt. "Substantial Completion Date" shall have the meaning set forth in the Construction Funding Agreement. "Substantially Complete" or "Substantially Completed" shall have the meaning set forth in the Construction Funding Agreement. "Tax Counsel" shall have the meaning set forth.in the Funding Loan Agreement. "Taxes" shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against al.l. or part of the Project. 15 2020-11-03 Agenda Packet Page 293 of 50�9 "Term" shall mean the term of this Borrower Loan Agreement pursuant to Section 10.14. "Title Company" means "Title Insurance Policy" shall mean the mortgagee title insurance policy, in form acceptable to the Funding Lender, issued with respect to the Mortgaged Property and insuring the lien of the Security Instrument. "Transfer" shall have the meaning given to that term in the Security Instrument. "'*UCC" shall mean the Uniform Commercial Code as in effect in the State. "Unassigned Rights" shall have the meaning set forth in the Funding Loan Agreement. "Underwritten Management Fee" shall have the meaning set forth in the Construction Funding Agreement. "Unit" shall mean a residential apartment unit within the Improvements. "Written Consent" and "Written Notice" shall mean a written consent or notice signed by an Authorized Borrower Representative or an authorized representative of the Governmental Lender or the Funding Lender, as appropriate. ARTICLE 11 GENERAL Section 2.1 Origination of Borrower Loan. In order to provide funds for the purposes provided herein, the Governmental Lender agrees that it will, in accordance with the Act, enter into the Funding Loan Agreement and accept the Funding Loan from the Funding Lender. The proceeds of the Funding Loan shall be advanced by the Funding Lender and disbursed by the Fiscal Agent to the Borrower in accordance with the terms of the Construction Funding Agreement and this Borrower Loan Agreement; provided that the first such disbursement on the Closing Date shall be made by the Funding Lender to the Fiscal Agent, which shall transfer such funds to the Title Company as specified in Section 7.7(a) of the Funding Loan Agreement. The Governmental Lender hereby appoints the Funding Lender as its agent with full authority and power to act on its behalf to disburse the Borrower Loan for the account of the Governmental Lender, to take certain actions and exercise certain remedies with respect to the Borrower Loan., and for the other purposes set forth in this Borrower Loan Agreement and to do all other acts necessary or incidental to the performance and execution. thereof. This appointment is coup�led with an interest and is irrevocable except as expressly set forth herein. Accordingly, references to the rights of the Funding Lender to take actions under this Borrower Loan Agreement shall refer to Funding Lender in its ro�le as agent of the Governmental Lender. The Funding Lender may designate Servicer to fulfill the rights and responsibilities granted by Governmental Lender to Funding Lender pursuant to this, Section 2.1. Notwithstanding the fo�rego�ing, disbursements of the Borrower Loan shall be made from the Project Fund held by the Fiscal Agent pursuant to the Funding Loan Agreement. 16 2020-11-03 Agenda Packet Page 294 of 50�9 Section 2.2 Security for the Funding Loan. (a) As security for the Funding Loan, the Governmental Lender has pledged and assigned to the Funding Lender under and pursuant to the Funding Loan Agreement (a) the Borrower Note and all of its right, title and interest in and to this Borrower Loan Agreement and the Borrower Loan Documents (except for the Unassigned Rights) and all revenues and receipts therefrom and the security therefor (including the Security Instrument) and (b) the amounts on deposit from time to time in any and all funds established under the Funding Loan Agreement. All revenues and assets pledged and assigned thereby shall immediately be subject to the lien of such pledge without any physical delivery thereof or any further act, except in the case of the Borrower Note, which shall be delivered to the Funding Lender. The Borrower hereby acknowledges, and consents to such assignment to the Funding Lender. (b) With respect to the Unassigned Rights, subject to the limitations set forth in this Section 2.21 the Governmental Lender may: G) Tax Covenants. Seek specific performance of, and enforce, the tax covenants in Section 8.7 of the Funding Loan Agreement, the provisions of the Regulatory Agreement, the Tax Certificate and the covenants of the Borrower in Section 5.34 of this Borrower Loan Agreement, and. seek injunctive relief against acts which may be in violation of any of the foregoing covenants, and enforce the Borrower's obligation under Section 5.35 to pay amounts for credit to the Rebate Fund; (ii) Re�wlatory Aaareement. Seek specific performance of the obligations of the Borrower or any other owner of the Project under the Regulatory Agreement and injunctive relief against acts which may be in violation of the Regulatory Agreement or otherwise in accordance with the provisions of the Regulatory Agreement; provided, however.) that the Governmental Lender may enforce any right it may have under the Regulatory Agreement for monetary damages only against Excess Revenues (defined below), if any, of the Borrower, unless Funding Lender otherwise specifically consents in writing to the use of other funds; and (Iii) Reserved . Take whatever action at law or in equity which appears necessary or desirable to enforce the other Unassigned Rights, provided, however, that the Governmental Lender or any person under its control may only enforce any right it may have for monetary damages against Excess Revenues, if any, of the Borrower, unless Funding Lender otherwise specifically consents in writing to the enforcement against other funds of the Borrower. (c) In no event shall the Governmental, Lender, except at the express written direction of the Funding Lender: (i) prosecute its action to a lien on the Project; or (ii) except in connection with actions under Section 2.2(b) above, take any action which may have the effect, directly or indirectly, of impairing the ability of the Borrower to timely pay the principal of, interest on, or other amounts due under, the Borrower Loan or of causing the Borrower to file a petition seeking reorganization, arrangement, adjustment or composition of or in, respect of the Borrower under any applicable liquidation, insolvency, bankruptcy, rehabilitation, composition, reorganization, conservation or other similar law in effect now or in,the future; or 17 2020-11-03 Agenda Packet Page 295 of 50�9 (iii) interfere with the exercise by Funding Lender or Servicer of any of their rights under the Borrower Loan Documents upon the occurrence of an event of default by the Borrower under the Borrower Loan Documents or the Funding Loan Documents; or (iv) take any action to accelerate or otherwise enforce payment or seek other remedies with respect to the Borrower Loan or the Funding Loan. (d) The Governmental Lender shall provide Written Notice to the Funding Lender and the Servicer immediately upon taking any action at law or in equity to exercise any remedy or direct any proceeding under the Borrower Loan Documents or the Funding Loan Documents. (e) As used in this Section 2.2, the term "Excess Revenues" means, for any period, the net cash flow of the Borrower available for distribution to shareholders, members or partners (as the case may be) for such period, after the payment of all interest expense.) the amortization of all principal of all indebtedness coming due during such period (whether by maturity, mandatory sinking fund payment, acceleration or otherwise), the payment of all fees, costs and expenses on an occasional or recurring basis in connection with the Borrower Loan or the Funding Loan, the payment of all operating, overhead, ownership and other expenditures of the Borrower directly or indirectly in connection with the Project (whether any such expenditures are current,, capital or extraordinary expenditures)�, and the setting aside of all reserves for taxes, insurance, water and sewer charges or other similar impositions, capital expenditures, repairs and replacements and all other amounts which the Borrower is required to set aside pursuant to agreement, but excluding depreciation and amortization of intangibles. Section 2.3 Loan; Borrower Note- Conditions to Closing. (a) The Funding Loan shall be funded directly to the Fiscal Agent by the Funding Lender for disbursement to the Borrower pursuant to the Construction Funding Agreement in one or more installments not to exceed the Borrower Loan Amount in accordance with the disbursement procedures set forth in the Construction Funding Agreement and the Funding Loan Agreement, except for the initial disbursement of the Funding Loan as provided in Section 7.7(a) of the Funding Loan Agreement. Upon funding of each installment of the Funding Loan, the Governmental Lender shall be deemed to havemade the Borrower Loan to the Borrower in a like principal amount. The Borrower Loan shall mature and be payable at the times and in the amounts required under the terms hereof and of the Borrower Note. The proceeds of the Borrower Loan shall be used by the Borrower to pay costs of the acquisition, construction, rehabilitation, development, equipping and/or operation of the Project. The Borrower hereby accepts the Borrower Loan and acknowledges that the Governmental Lender shall cause the Funding Lender to fund the Borrower Loan in the manner set forth herein and in the Funding Loan Agreement. The Governmental Lender acknowledges, that the! Borrower Loan shall be funded by the Funding Lender to the Fiscal Agent for the account of the Governmental Lender, except as otherwise provided in Section 7.7 of the Funding Loan Agreement with respect to the funding thereof on the Closing Date. (b) The Borrower hereby accepts the Borrower Loan. As evidence of 'its obligation to repay the Borrower Loan, simultaneously with its execution and delivery of this Borrower Loan Agreement, the Borrower hereby agrees to execute and deliver the Borrower Note. The Borrower Loan shall mature and be payable at the times and in, the amounts required under the ten-ns hereof and of the Borrower Note. 18 2020-11-03 Agenda Packet Page 296 of 50�9 (c) Closing of the Borrower Loan on the Closing Date shall be conditioned upon satisfaction or waiver by the Governmental Lender and the Funding Lender, in their sole discretion, of each of the conditions, precedent to closing set forth in the Funding Loan Agreement and this Borrower Loan Agreement, including but not limited to the following: (i) evidence of proper recordation of the Security Instrument, an assignment of the Security Instrument from the Governmental Lender to the Funding Lender, the Regulatory Agreement, and each of the other documents specified for recording in instructions delivered to the Title Company by counsel to the Funding Lender(or that such documents have been delivered to an authorized agent of the Title Company for recordation under binding recording instructions from Funding Lender's counsel or such other counsel as may be acceptable to the Funding Lender)- (ii) delivery to the Fiscal Agent or into escrow with the Title Company (or separate escrow company, if applicable) of all amounts required to be paid in connection with the origination of the Borrower Loan and the Funding Loan and any underlying real estate transfers or transactions, including the Costs of Funding Deposit and the Borrower Initial Equity, all as specified in written instructions delivered to the Title Company by counsel to the Funding Lender (or such other counsel as may be acceptable to the Funding Lender) and/or as specified in a closing memorandum of the Funding Lender; and (iii) payment of all fees payable in connection with the closing of the Borrower Loan including the Governmental Lender's Closing Fee and the initial fees and expenses "I of the Fiscai Agent and the Funding Lender. in addition, closing of the Borrower Loan shall be subject to the delivery of an opinion of counsel, to the Borrower addressed to the Governmental Lender and the Funding Lender, dated the Closing Date, in form and substance acceptable to Tax Counsel, regarding the due execution by the Borrower of, and the enforceability against the Borrower of, the Borrower Loan Documents. Section 2.4 Borrower Loan Payments. (a) The Borrower shall make Borrower Loan Payments in accordance with the Borrower Note. Each Borrower Loan Payment made by the Borrower shall be made in funds immediately available through and including the Conversion Date on the Borrower Loan Payment Date, to the Fiscal Agent by 2:00 p.m.,New York City time, or, if to the Servicer by 11:00 a.m.,New York City time, and after the Conversion Date on the date that is two (2) Business Days prior to the Borrower Loan Payment Date to the Servicer, by 11:00 a.m., New York City time. Each such payment shall be made to the Fiscal Agent or the Servicer, as applicable, by deposit to such account as the Fiscal Agent or Servicer, as applicable, may designate by Written Notice to the Borrower. Whenever any Borrower Loan Payment shall be stated to be due on a day that is not a Business Day, such payment shall be due on the first Business, Day immediately thereafter. In addition, the Borrower shall make Borrower Loan Payments in accordance with the Borrower Note in the amounts and at the times necessary to make all payments due and payable on the Funding Loan. All payments 'made by the Borrower hereunder or by the Borrower under the other Borrower Loan Documents, shall be made irrespective of, and without any deduction for, any set-offs or counterclaims, but such payment shall not constitute a waiver of any such set offs or counterclaims. 19 2020-1.1-0,3 Agenda Packet Page 297 of 50�9 (b) Unless, there is no Servicer, payments of principal and interest on the Borrower Note shall be paid to the Servicer and the Servicer shall then remit such funds to the Fiscal Agent. If there is no Servicer, payments of principal and interest on the Borrower Note shall be paid directly to the Fiscal Agent. 0 Section 2.5 Additional Borrower Payments. (a) The Borrower shall pay the following amounts: (i) to the Fiscal Agent, the Rebate Amount then due, if any, to be deposited in the Rebate Fund as specified in Section 5.35 hereof and the Rebate Analyst's Fee and any other costs incurred to calculate such Rebate Amount(to the extent such costs are not included in the Borrower Loan Payment); (ii) to the Governmental Lender, any and, on demand, all fees, charges, costs, advances, indemnities and expenses, including agent and counsel fees, of the Governmental Lender incurred by the Governmental Lender at any time in connection with the Borrower Loan the Funding Loan Documents or the Pro ect, including, without limitation, the Ongoing Documents,, j Governmental Lender Fee, counsel fees and. expenses incurred in connection with the interpretation, performance,, or amendment and all counsel fees and expenses relating to the enforcement of the Borrower Loan Documents or the Funding Loan Documents or any other documents relating to the Project or the Borrower Loan or in connection with questions or other matters arising under such documents or in connection with any federal or state tax audit; (iii) [Reserved]- (iv) all Costs of Funding and fees, charges and expenses, including agent and counsel fees incurred in connection with the origination of the Borrower Loan and the Funding Loan, as and when the same become due; (v) to the Funding Lender, on demand, all charges, costs, advances, indemnities and expenses, including agent and counsel fees, of the Funding Lender incurred by the Funding Lender at any time in connection with the Borrower Loan, the Funding Loan or the Project, including, without limitation any Review Fee, reasonable counsel fees and expenses incurred in connection with the interpretation, performance, or amendment and all counsel fees and expenses relating to the enforcement of the Borrower Loan Documents or the Funding Loan Documents or any other documents relating to the Project or the Borrower Loan or in connection with questions or other matters arising under such documents or in connection with any federal or state tax audit; (vi.) all Late Charges due and payable under the terms of the Borrower Note and Section 2.6 hereof; provided, however, that al.l. payments made pursuant to this subsection (vi) shall be made to the Servicer, and if there is no Servicer, such payments shall be made to the Funding Lender; and (vii) to the Fiscal Agent, all fees, charges, costs, advances,, indemnities and expenses,, including agent and counsel fees, of Fiscal Agent incurred under the Borrower Loan Documents or the Funding Loan Documents as and when the same become due. 20 2020-11-03 Agenda Packet Page 298 of 50�9 (b) The Borrower shall pay to the party entitled thereto as expressly set forth in this,Borrower Loan Agreement or the other Borrower Loan Documents or Funding Loan Documents: (i) all expenses incurred in connection with the enforcement of any rights under this Borrower Loan Agreement or any other Borrower Loan Document, the Regulatory Agreement, or any Funding Loan Document by the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer; (ii) all other payments of whatever nature that the Borrower has agreed to pay or assume under the provisions of this Borrower Loan Agreement or any other Borrower Loan Document or Funding Loan Document; and (iii) all expenses, costs and fees relating to inspections of the Project required by the Governmental Lender, the Funding Lender, the Fiscal Agent, the Servicer or the 'I. Construction Consultant, in accordance with the Borrower Loan Documents or the Functing Loan Documents or to reimburse such parties for such expenses, costs and fees. Section 2.6 Overdue Payments- Payments in Default. If any Borrower Payment Obligation is not paid by or on behalf of the Borrower when due, the Borrower shall pay to the Servicer a Late Charge in the amount and to the extent set forth in the Borrower Note, if any. 0 Section 2.7 Calculation of Interest Payments and Deposits to Real Estate Related Reserve Funds. The Borrower acknowledges as follows: (a) calculation of all interest payments shall be made by the Funding Lender; (b�) deposits with respect to the Taxes and Other Charges shall be calculated by the Servicer or if there is no Servicer, the Funding Lender in accordance with the Security Instrument; and (c) deposits with respect to any replacement reserve funds required by the Funding Lender shall be calculated by the Servicer in accordance with the Replacement Reserve Agreement. In the event and to the extent that the Servicer or the Funding Lender, pursuant to the terms hereof, shall determine at any time that there exists a deficiency in amounts previously owed but not paid with respect to deposits to such replacement reserve fund, such deficiency shall be immediately due and payable hereunder following Written Notice to the Borrower. Section 2.8 Grant of Security Intereste, Application of Funds. To the extent not inconsistent with the Security Instrument and as security for payment of the Borrower Payment Obligations and the performance by the Borrower of all other terms, conditions and provisions of the Borrower Loan Documents, the Borrower hereby pledges and assigns to the Fiscal Agent and the Funding Lender, and grants to the Fiscal Agent and the Funding Lender, a security interest in, all the Borrower's right, title and interest in and to all payments to or moneys held in the funds and accounts created and held by the Fiscal Agent, the Funding Lender or the Servicer for the Project. This Borrower Loan Agreement is, among other things, intended by the parties to be a security agreement for purposes of the UCC. Upon the occurrence! and during the continuance of an Event of Default hereunder, the Fiscal Agent, the Funding Lender and the Servicer shall apply or cause to be applied any sums,held by the Fiscal Agent, the Funding Lender and the Servicer with respect to the Project in accordance with the provisions of Article IX of the Funding Loan Agreement to the extent applicable and otherwise in any manner and in. any order determined by Funding Lender, in, Funding Lender's sole and absolute discretion. Section 2.9 Marshalling; Payments Set Aside. The Governmental Lender, the Fiscal Agent and the Funding Lender shall be under no obligation to marshal any assets in favor of the 21 2020-11-03 Agenda Packet Page 299 of 50�9 Borrower or any other Person or against or in payment of any or all of the proceeds. To the extent that the Borrower makes a payment or payments or transfers any assets to the Governmental Lender, the Fiscal Agent or the Funding Lender, or the Governmental Lender, the Fiscal Agent or the Funding Lender enforces its liens, and such payment or payments or transfers, or the proceeds of such enforcement or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party in connection with any insolvency proceeding, or otherwise, then: (i) any and all obligations owed to the Governmental Lender, the Fiscal Agent or the Funding Lender and any and all remedies available to the Governmental Lender, the Fiscal Agent or the Funding Lender under the terms of the Borrower Loan Documents and the Funding Loan Documents or in law or equity against the Borrower, Guarantor or General Partner and/or any of their properties shall be automatically revived and reinstated to the extent(and only to the extent) of any recovery permitted under clause (ii)below; and (ii)the Governmental Lender, the Fiscal Agent and the Funding Lender shall be entitled to recover (and shall be entitled to file a proof of claim to obtain such recovery in any applicable bankruptcy, insolvency, receivership or fraudulent conveyance or fraudulent transfer proceeding) either: (x) the amount of payments or the value of the transfer or (y) if the transfer has been undone and the assets returned in whole or in part, the value of the consideration paid to or received, by the Borrower for the initial asset transfer, plus in each case any deferred interest from the date of the disgorgement to the date of distribution to the Governmental Lender, the Fiscal Agent or the Funding Lender in any bankruptcy, insolvency, receivership or fraudulent conveyance or fraudulent transfer proceeding, and any costs and expenses due and owing, including, without limitation, any reasonab�le attorneys" fees incurred by the Governmental Lender, the Fiscal Agent or the Funaing Lender in connection with the exercise by the Governmental Lender, the Fiscal Agent or the Funding Lender of its rights under this Section 2.9. Section 2.10 Borrower Loan Disbursements. Proceeds of the Borrower Loan shall be disbursed by the Fiscal Agent upon approval by the Funding Lender, as agent for the Governmental Lender, pursuant to the Construction Funding Agreement, to or for the benefit of the Borrower as provided in Section 7.7 of the Funding Loan Agreement. ARTICLE III CONVERSION Section 3.1 Conversion Date and Extension of Outside Conversion Date. Borrower shall satisfy each of the Conditions to Conversion and cause the Conversion Date to occur on or before the Outside Conversion Date (including the Extended Outside Conversion Date, if any)�, as further provided in the Construction Funding Agreement. The failure to satisfy each of the Conditions to Conversion on or before! the Outside Conversion Date shall constitute an Event of Default under the Borrower Loan Documents. Section 3.2 Notice From Funding Lender; Funding Lender's Calculation Final. Following satisfaction. of all of the Conditions to Conversion, Funding Lender shall deliver Written Notice to Borrower (with a copy to the Governmental Lender and the Fiscal Agent) of: (i) the Conversion. Date, (ii) the amount of the Pen-nanent Period Amount, (iii) any required prepayment of the Borrower Note (as described below in Section 3.3) and (iv) any amendments to the amortization schedule, as applicable. 22 2020-11-03 Agenda Packet Page 300 of 50�9 Funding Lender's calculation of the Permanent Period Amount and any amendments to the amortization of the Borrower Loan shall be, in the absence of manifest error, conclusive and binding on all parties. 0 Section 3.3 Mandatory Prepayment of the Borrower Loan. As further provided in the Construction Funding Agreement, if and to the extent the Permanent Period Amount is less than the Interim Phase Amount, Funding Lender may in its sole discretion require Borrower to make a partial prepayment of the Borrower Loan in an amount equal to the difference between the Interim Phase Amount and the Permanent Period Amount,provided, however, that if the Permanent Period Amount is less than the Minimum Permanent Period Amount (as defined in the Construction Funding Agreement), then Funding Lender may in its sole discretion require Borrower to prepay the Borrower Loan in full. Any prepayment in full or in part of the Borrower Loan required pursuant to the preceding paragraph shall be subject to a prepayment premium under certain circumstances as more particularly set forth in the Borrower Note. Section 3.4 Release of Remaining Loan Proceeds. If and to the extent that the Pen,nanent Period Amount is greater than the principal amount of the Borrower Loan which has previously been disbursed, to Borrower, Funding Lender shall deliver Written Notice thereof to Borrower (with a copy to the Governmental Lender) on or before the Conversion Date. Within ten (10)business days after delivery of such notice, but in no event later than the Outside Conversion Date, Funding Lender shall advance to the Fiscal Agent, for deposit by the Fiscal Agent to the Note Proceeds Account of the Project Fund under the Funding Loan Agreement, Funding Loan proceeds so that the aggregate principal amount of the Funding Loan and of the Borrower Loan disbursed equals the Permanent Period Amount. Any Borrower Loan proceeds -previously disbursed to the Borrower in excess of the Permanent Period Amount shall be paid by Borrower to Fiscal Agent. Section 3.5 No Amendment. Nothing contained, in this Article III shall be construed to amend, modify, alter, change or supersede the terms and provisions of the Borrower Note, Security Instrument, the Construction Funding Agreement or any other Borrower Loan Document and, if there shall exist a conflict between the terms and, provisions of this Article III and those of the Borrower Note, Security Instrument, the Construction Funding Agreement or other Borrower Loan Documents, then the terms and provisions of the Borrower Note, Security Instrument, the Construction Funding Agreement and other Borrower Loan Documents shall control; provided, however, that in the event of a conflict between the terms and provisions of this Article III and those of the Borrower's loan application with the Funding Lender, the terms and provisions of this Article III shall control. Section 3.6 Determinations by Funding Lender. In any instance where the consent or approval of Funding Lender may be given or is required, or where any determination, judgment or decision is to be rendered by Funding Lender under this, Article 111, including in connection with the! Construction Funding Agreement, the granting, withholding or denial of such consent or approval and the rendering of such determination, judgment or decision shall be made or exercised by the Funding Lender (or its designated representative), at its sole and exclusive option and in its sole and absolute discretion. 23 2020-1.1-0,3 Agenda Packet Page 301 of 50�9 ARTICLE IV REPRESENTATIONS AND WARRANTIES Section 4.1 Borrower Rep res entat ions. To induce the Governmental Lender to execute this Borrower Loan Agreement and to induce the Funding Lender to make Disbursements, the Borrower represents and warrants for the benefit of the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer, that the representations and warranties set forth in this Section 4.1 are complete and accurate in all material respects as of the Closing Date and, subject to Section 4.2, shall survive the making of the Borrower Loan and will be complete and accurate in all material respects, and deemed remade, except as otherwise noted through notice to Funding Lender and approved by Funding Lender, as of the date of each Disbursement, as of the original Outside Conversion Date, as of the date of any extension thereof and as of the Conversion Date in accordance with the terms and conditions of the Borrower Note: Section 4.1.1 Organization; Special Purpose. The Borrower is a limited partnership in good standing under the laws of the State (and under the laws of the state in which the Borrower was formed if the Borrower was not formed, under the laws of the State), has full legal right, power and authority to enter into the Borrower Loan Documents to which it is a party, and to carry out and consummate all transactions contemplated by the Borrower Loan Documents to which it is a party, and by proper limited partnership action has duly authorized the execution, delivery and performance of the Borrower Loan Documents to which it is a party. The Person(s) of the Borrower executing the Borrower Loan Documents and the Funding Loan Documents to which the Borrower is a party are fully authorized to execute the same. The Borrower Loan Documents and the Funding Loan Documents to which the Borrower is a party have been duly authorized, executed and delivered by the Borrower. The sole business of the Borrower is the ownership, management and operation of the Project. rl Section 4.1.2 Proceedings; Enforceability. Assuming due execution anu delivery by the other parties thereto, the Borrower Loan Documents, and the Funding Loan Documents to which the Borrower is a party will constitute the legal, valid and binding agreements of the Borrower enforceable against the Borrower in accordance with their terms; except in each case as enforcement may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors' rights generally, by the application of equitable principles regardless of whether enforcement is sought in a proceeding at law or in equity and by public policy. Section 4.1.3 No Conflicts. The execution and delivery of the Borrower Loan Documents and the Funding Loan Documents to which the Borrower is a party, the consummation of the transactions herein and therein contemplated and the fulfillment of or compliance with the ten'ns and conditions hereof and thereof, will not conflict with or constitute a violation or breach of or default (with due notice or the passage of time or both) under the Partnership Agreement of the Borrower or to the best knowledge of the Borrower and with respect to the Borrower, any applicable law or administrative rule or regulation, or any applicable court or administrative decree or order, or any mortgage, deed of trust, loan agreement, lease, contract or other agreement or instrument to which the Borrower is a party or by which it or its properties are otherwise subject or bound, or result in the creation or imposition of any lien, charge or encumbrance of any nature whatsoever(other than. the lien of the Security Instrument) upon any of the property or assets of the Borrower, which conflict, violation, breach, default, lien, charge or encumbrance! might have consequences that would materially and adversely affect the consummation of the transactions contemplated by the Borrower 24 2020-11-03 Agenda Packet Page 302 of 50�9 Loan Documents and the Funding Loan Documents, or the financial condition, assets, properties or operations of the Borrower. Section 4.1.4 Litigation; Adverse Facts. There is no Legal Action, nor is there a basis known to Borrower for any Legal Action, before or by any court or federal, state, municipal or other governmental authority, pending, or to the knowledge of the Borrower, after reasonable investigation, threatened, against or affecting the Borrower, the General Partner or the Guarantor, or their respective assets, properties or operations which, if determined adversely to the Borrower or its interests, would have a material adverse effect upon the consummation of the transactions contemplated by, or the validity of, the Borrower Loan Documents or the Funding Loan Documents, upon the ability of each of Borrower, General Partner and Guarantor to perform their respective obligations under the Borrower Loan Documents, the Funding Loan Documents and the Related Documents to which it is a party, or upon the financial condition, assets (including the Project), properties or operations of the Borrower, the General Partner or the Guarantor. None of the Borrower, General Partner or Guarantor is in default (and, no event has occurred and is continuing which with the giving of notice or the passage of time or both could constitute a default) 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 Borrower Loan Documents and the Funding Loan Documents, the ability of each of Borrower, General Partner and Guarantor to perfon-n their respective obligations under the Borrower Loan Documents,, the Funding Loan Documents and the Related Documents to which it is a party, or the financial condition, assets, properties or operations of the Borrower, General Partner or Guarantor. None of Borrower, General Partner or Guarantor are (a) in violation of any applicable law, which violation materially and adversely affects or may materially and adversely affect the business, operations, assets (including the Project), financial condition of Borrower, General Partner or Guarantor, as applicable; (b) subject to, or in default with respect to, any other Legal Requirement that would have a material adverse effect on the business, operations, assets (including the Project), financial condition of Borrower, General Partner or Guarantor, as applicable; or (c) in default with respect to any agreement to which Borrower, General, Partner or Guarantor, as applicable, are a party or by which they are bound, which default would have a material adverse effect on the business, operations.) assets (including the Project), financial condition of Borrower, General Partner or Guarantor, as applicable; and (d) there is no Legal Action pending or, to the knowledge of Borrower, threatened against or affecting Borrower, General, Partner or Guarantor questioning the validity or the enforceability of this Borrower Loan Agreement or any of the other Borrower Loan Documents or the Funding Loan Documents or of any of the Related Documents. All tax returns (federal, state and local) required to be filed by or on behalf of the Borrower have been filed, and all taxes shown thereon to be due, including interest and penalties except such i I if any, as are being actively contested by the Borrower in good faith, have been paid or adequate reserves have been made for the payment thereof which reserves, if any, are reflected in the audited financial statements described therein. The Borrower enjoys the peaceful and undisturbed possession. of all of the premises upon which it is operating its facilities. Section 4.1.5 Agreements; Consents; Approvals. Except as contemplated by the Borrower Loan Documents and the Funding Loan Documents, the Borrower is not a party to any agreement or instrument or subject to any restriction that would materially adversely affect the Borrower, the Project, or the Borrower's business, properties, operations or financial condition, except the Permitted Encumbrances. The Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained 25 2020-11-03 Agenda Packet Page 303 of 50�9 in any Permitted Encumbrance or any other agreement or instrument to which it is a art-V or by p which it or the Project is bound. No consent or approval of any trustee or holder of any indebtedness of the Borrower, and to the best knowledge of the Borrower and only with respect to the Borrower, no consent, permission, authorization, order or license of, or filing or registration with, any governmental authority (except no representation is made with respect to any state securities or "blue sky" laws) is necessary in connection with the execution and delivery of the Borrower Loan Documents or the Funding Loan Documents, or the consummation of any transaction herein or therein contemplated, or the fulfillment of or compliance with the terms and conditions,hereof or thereof, except as have been obtained or made and as are in full force and effect. Section 4.1.6 Title. The Borrower shall have marketable title to the Project free and clear of all Liens except the Permitted Encumbrances. The Security Instrument, when properly recorded in the appropriate records, together with any UCC financing statements required to be filed in connection therewith, will create (i) a valid, perfected first priority lien on the fee interest in the Project and (ii)perfected security interests in and to�, and perfected collateral assignments of, all personalty included, in the Project (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. To the Borrower's knowledge, there are no delinquent real property taxes or assessments, including water and sewer charges, with respect to the Project, nor are there any claims for payment for work, labor or materials affecting the Project which are or may become a Lien prior to, or of equal priority with, the Liens created by the Borrower Loan Documents and the Funding Loan Documents. Section 4.1.7 Survey. To the best knowledge of the Borrower, the survey for the Project delivered to the Governmental Lender and the Funding Lender does not fail to reflect any material matter affecting the Project or the title thereto. Section 4.1.8 No Bankruptcy Filing. The Borrower is not contemplating either the filing of a petition by it under any state or federal bankruptcy or insolvency law or the liquidation of all or a major portion of its property (a "Bankruptcy Proceeding"), and the Borrower has no knowledge of any Person contemplating the filing of any such petition against it. As of the Closing Date, the Borrower has the ability to pay its debts as they become due. Section 4.1.9 Full and Accurate Disclosure. No statement of fact made by the Borrower in any Borrower Loan Document or any Funding Loan Document contains any untrue statement of a material fact or omits to state any material fact necessary to make statements contained therein in light of the circumstances in which they were made, not misleading. There is no material fact or circumstance presently known to the Borrower that has not been disclosed to the Governmental Lender and the Funding Lender which materially and adversely affects the! Project or the business, operations or financial condition of the Borrower or the Borrower's ability to meet its obligations under this Borrower Loan Agreement and the other Borrower Loan Documents, and Funding Loan Documents to which it is a party in a timely manner. Section 4.1.1.0 No Plan Assets. The Borrower is not an "employee benefit plan," as defined in Section, 3(3) of ERISA, subject to Title I of ERISA, and none of the assets of the Borrower constitutes or will constitute "plan assets" of one or more such plans within the meaning of 29 C.F.R. Section 2510.3 10 1. 26 2020-11-03 Agenda Packet Page 304 of 50�9 Section 4.1.11 Compliance. The Borrower, the Project and the use thereof will comply, to the extent required, in all material respects with all applicable Legal Requirements. The Borrower is not in default or violation of any order, writ, injunction, decree or demand of any Governmental Authority, the violation of which would materially adversely affect the financial condition of the Borrower. There has not been committed by the Borrower or any Borrower Affiliate involved with the operation or use of the Project any act or omission affording any Governmental Authority the right of forfeiture as against the Project or any part thereof or any moneys paid in performance of the Borrower's obligations under any Borrower Loan Document or any Funding Loan Documents. Section 4.1.12 Contracts. All service, maintenance or repair contracts affecting the Project have been entered into at arm's, length (except for such contracts between the Borrower and its affiliates or the affiliates of the Borrower Controlling Entity of the Borrower) in the ordinary course of the Borrower's business and provide for the payment of fees in amounts and upon terms comparable to existing market rates. 0 Section 4.1.13 Financial Information. All financial data, including any statements of cash flow and income and operating expense, that have been delivered to the Governmental Lender or the Funding Lender in respect of the Project by or on behalf of the Borrower, to the best knowledge of the Borrower, (i) are accurate and complete in all material respects,, as of their respective dates, (ii) accurately represent the financial condition of the Project as of the date of such reports, and (iii) to the extent prepared by an independent certified public accounting firm, have been prepared in accordance with GAAP consistently applied throughout the periods covered, except as disclosed therein. Other than pursuant to or pen-nitted by the Borrower Loan Documents or the Functing Loan Documents or the Borrower organizational documents, the Borrower has no contingent liabilities, unusual forward or long-term commitments or unrealized or itments Since the date of such financial statements anticipated losses from any unfavorable comm' there has been no materially adverse change in the financial condition, operations or business of tne Borrower from that set forth in said financial statements. Section 4.1.14 Condemnation. No Condemnation or other proceeding has been commenced or,, to the Borrower's knowledge,, is contemplated, threatened or pending with respect to all or part of the Project or for the relocation of roadways providing access to the Project. Section 4.1.15 Federal Reserve Regulations. No part of the proceeds of the Borrower Loan will be used for the purpose of purchasing or acquiring any"margin stock"within the meaning of Regulation U of the Board of Governors of the Federal Reserve System or for any other purpose that would be inconsistent with such Regulation U or any other regulation of such Board of Governors, or for any purpose prohibited by Legal Requirements or any Borrower Loan Document or Funding Loan Document. Section 4.1.16 Utilities and Public Access. To the best of the Borrower's knowledge, the Project is or will be served by water, sewer, sanitary sewer and storm drain facilities, adequate to service it for its intended uses. A1.1 public utilities necessary or convenient to the full use and enjoyment of the Project are or will be located in the public right-of-way abutting the Project, and all such utilities are or will be connected so as to serve the Project without passing over other property absent a valid easement. All roads necessary for the use of the Project for its current purpose have been or will be completed and dedicated to public use and accepted by all Governmental Authorities. Except for Permitted Encumbrances, the Pro ect does not share ingress j 27 2020-11-03 Agenda Packet Page 305 of 50�9 and egress through an easement or private road or share on-site or off-site recreational facilities and amenities that are not located on the Project and under the exclusive control of the Borrower, or where there is shared ingress and egress or amenities, there exists an easement or joint use and maintenance agreement under which (i) access to and use and enjoyment of the easement or private road and/or recreational facilities and amenities is perpetual, (ii) the number of parties sharing such easement and/or recreational facilities and amenities must be specified, (iii) the Borrower's responsibilities and share of expenses are specified, and (iv) the failure to pay any maintenance fee with respect to an easement will not result in a loss of usage of the easement. Section 4.1.17 Not a Foreign Person. The Borrower is not a "foreign person" within the meaning of§1445(f)(3) of the Code. Section 4.1.18 Separate Lots. Each parcel comprising the Land is a separate tax lot and is not a portion of any other tax lot that is not a part of the Land. Section 4.1.19 Assessments. Except as disclosed in the Title Insurance Policy, there are no pending or, to the Borrower's best knowledge, proposed special or other assessments for public improvements or otherwise affecting the Project, or any contemplated improvements to the Project that may result in such special or other assessments. Section 4.1.20 Enforceability. The Borrower Loan Documents and the Funding Loan Documents are not subject to, and, the Borrower has not asserted, any right of rescission, set-, off, counterclaim or defense, including the defense of usury. Section 4.1.21 Insurance. The Borrower has obtained the insurance required by this Borrower Loan Agreement, if applicable, and the Security Instrument and has delivered to the Servicer copies of insurance policies or certificates of insurance reflecting the insurance coverages, amounts and other requirements set forth in this Borrower Loan Agreement, if applicable, and the Security Instrument. Section 4.1.22 Use of Property; Licenses. The Project will be used exclusively as a multifamily rental housing project and other appurtenant and related uses, which use is consistent with the zoning classification for the Project. All certifications, permits, licenses and approvals, including certificates of completion and occupancy permits required for the legal use or legal, nonconforming use, as applicable, occupancy and operation of the Project (collectively, the "Licenses") required at this time for the construction or rehabilitation, as appropriate, and equipping of the Project have been obtained. To the Borrower's knowledge, all Licenses obtained by the Borrower have been validly issued and are in full, force and effect. The Borrower has no reason to believe that any of the Licenses required for the future use and occupancy of the Project and not heretofore obtained by the Borrower will not be obtained by the Borrower in the ordinary course following the Completion Date. No Licenses will terminate, or become void or voidable or terminable, upon any sale, transfer or other disposition of the Project, including any transfer pursuant to foreclosure sale under the Security Instrument or deed in lieu of foreclosure thereunder. The Project does not violate any density or building setback requirements of the applicable! zoning law except to the extent, if any, shown on the survey. No proceedings are, to the best of the Borrower's knowledge,pending or threatened that would result in a change of the zoning of the Project. Section 4.1.23 Flood Zone. As of the Closing Date, no structure within the Mortgaged Property lies or is located in an. identifiable or designated Special Flood Hazard Area. 28 2020-1.1-0,3 Agenda Packet Page 306 of 50�9 Subsequent to the Closing Date, if the Mortgaged Property is determined to be in a Special Flood Hazard Area, Borrower will obtain appropriate flood insurance as required under the National Flood Insurance Act of 1968, Flood Disaster Protection Act of 1973, or the National Flood Insurance Reform Act of 1994 as amended or as required by the Servicer pursuant to its underwriting guidelines. Section 4.1.24 Physical Condition. The Project, including all Improvements, parking facilities, systems, fixtures, Equipment and landscaping, are or, after completion of the construction, rehabilitation and/or repairs, as appropriate, will be in good and habitable condition in all material respects and in good order and repair in all material respects (reasonable wear and tear excepted). The Borrower has not received notice from any insurance company or bonding company of any defect or inadequacy in the Project, or any part thereof, which would adversely affect its insurability or cause the imposition of extraordinary premiums or charges thereon or any termination of any policy of insurance or bond. The physical configuration of the Project is not in material violation of the ADA, if required under applicable law. Section 4.1.25 Encroachments. All of the Improvements included in determining the appraised value of the Project will lie wholly within the boundaries and building restriction lines of the Project, and no improvement on an adjoining property encroaches upon the Project, and no easement or other encumbrance upon the Project encroaches upon any of the Improvements, so as to affect the value or marketability of the Project, except those insured against by the Title Insurance Policy or disclosed in the survey of the Project as approved by the S,ervicer. Is Section 4.1.26 State Law Requirements. The Borrower hereby represents, covenants and agrees to comply with the provisions of all applicable state laws relating to the Borrower Loan, the Funding Loan and the Project. Section 4.1.27 Filing and Recording Taxes. All transfer taxes, deed stamps, intangible taxes or other amounts in the nature of transfer taxes required to be paid by any Person under applicable Legal Requirements in connection with the transfer of the Project to the Borrower have been paid. All mortgage, mortgage recording, stamp, intangible or other similar taxes required to be paid by any Person under applicable Legal Requirements in connection with the execution,, delivery, recordation, filing, registration, perfection or enforcement of any of the Borrower Loan Documents and the Funding Loan Documents have been or will be paid. Section 4.1.28 Investment Company Act. The Borrower is not (i) an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended; or (ii) a "holding company" or a "subsidiary company" of a "holding company" or an "affiliate" of either a 44holding company" or a "subsidiary company" within the meaning of the Public Utility Holding Company Act of 1935, as amended. Section 4.1.29 Fraudulent Transfer. The Borrower has not accepted the Borrower Loan or entered into any Borrower Loan Document or Funding Loan Document with the actual intent to hinder, delay or defraud any creditor, and the Borrower has received reasonably equivalent value 'in exchange for its obligations under the Borrower Loan Documents and the Funding Loan Documents. Giving effect to the transactions contemplated by the Borrower Loan Documents and the Funding Loan Documents, the fair saleable value of the Borrower's assets exceeds and will, immediately following the execution and delivery of the Borrower Loan Documents and the Funding Loan, Documents, exceed the Borrower's total liabilities, including 29 2020-1.1-0,3 Agenda Packet Page 307 of 50�9 subordinated, unliquidated, disputed or contingent liabilities. The fair saleable value of the Borrower's assets is and will, immediately following the execution and delivery of the Borrower Loan Documents and the Funding Loan Documents, be greater than the Borrower's probable liabilities, including the maximum amount of its contingent liabilities or its debts as such debts become absolute and matured. The Borrower's assets do not and, immediately following the execution and delivery of the Borrower Loan Documents and the Funding Loan Documents will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to 'be conducted. The Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts, as they mature (taking into account the timing and amounts to be payable on or in respect of obligations of the Borrower). Section 4.1.30 Ownership of the Borrower. Except as set forth in the Partnership Agreement of the Borrower and the exhibits thereto�, the Borrower has no obligation to any Person to purchase,repurchase or issue any ownership interest in the Borrower. Section 4.1.31 Environmental Matters. To the best of Borrower's knowledge, the Project is not in violation of any Legal Requirement pertaining to or imposing liability or standards of conduct concerning environmental regulation, contamination or cleanup, and will comply with covenants and requirements relating to environmental hazards as set forth in the Security Instrument. The Borrower will execute and deliver the Agreement of Environmental Indemnification on the Closing Date. Section 4.1.32 Name; Principal Place of Business. Unless prior Written Notice is given to the Funding Lender, the Borrower does not use and will not use any trade name, and has not done and will not do business under any name other than its actual name set forth herein. The principal place of business of the Borrower is its primary address for notices as set forth in Section 10.1 hereof, and the Borrower has no other place of business, other than the Project and such principal place of business. Section 4.1.33 Subordinated Debt. There is no secured or unsecured indebtedness with respect to the Project or any residual interest therein, other than Permitted Encumbrances and the permitted secured indebtedness described in Section 6.7 hereof, except an unsecured deferred developer fee not to exceed the amount permitted by Funding Lender as determined on the Closing Date, and unsecured, subordinate partner loans to Borrower permitted or required under the terms of the Partnership Agreement. Section 4.1.34 Filing of Taxes. The Borrower has filed (or has obtained effective extensions for filing) all federal, state and local tax returns required to be filed and has paid, or made adequate provision for the payment of all federal, state and local taxes, charges and assessments, if any, payable by the Borrower. Section 4.1.35 General Tax. All representations, warranties, and certifications of the Borrower set forth in the Regulatory Agreement and the Tax Certificate are incorporated by reference herein and the Borrower will comply with such as if set forth herein.. Section 4.1.36 Approval of the Borrower Loan Documents and Funding Loan Documents. By its execution, and delivery of this Borrower Loan Agreement, the Borrower approves the form and substance of the Borrower Loan Documents and the Funding Loan 30 2020-11-03 Agenda Packet Page 308 of 50�9 Documents, and agrees to carry out the responsibilities and duties specified in the Borrower Loan Documents and the Funding Loan Documents to be carried out by the Borrower. The Borrower acknowledges, that (a) it understands the nature and structure of the transactions relating to the financing of the Project, (b) it is familiar with the provisions of all of the Borrower Loan Documents and the Funding Loan Documents and other documents and instruments relating to the financing, (c) it understands the risks inherent in such transactions, including without limitation the risk of loss of the Project, and (d) it has not relied on the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by the Borrower Loan Documents and the Funding Loan Documents or otherwise relied on the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer in any manner. Section 4.1.37 Funding Loan Agreement. The Borrower has read and accepts and agrees that it is bound by the Funding Loan Agreement and the Funding Loan Documents. Section 4.1.38 Americans with Disabilities Act. The Project, as designed, will conform in all material respects with all applicable zoning, planning, building and environmental laws, ordinances and regulations of governmental authorities having jurisdiction over the Project, including, but not limited to, the Americans with Disabilities Act of 1990 ("ADA"), to the extent required (as evidenced by an architect's certificate to such effect). Section 4.1.39 Requirements of Act, Code and Regulations. The Proj ect satisfies all requirements of the Act, the Code and the Regulations applicable to the Project. Section 4.1.40 Regulatory Agreement. The Project is, as of the date of origination of the Functing Loan, in compliance with all requirements of the Regulatory Agreement to the extent such requirements are applicable; and the Borrower intends to cause the residential units in the Project to be rented or available for rental on a basis which satisfies the requirements of the Regulatory Agreement, including all applicable requirements of the Act and the Code and the Regulations, and pursuant to leases which comply with all applicable laws. Section 4.1.41 Intention to Hold Project. The Borrower intends to hold the Project for its own account and has no current plans, and except as set forth in the Partnership Agreement has not entered into any agreement,, to sell the Project or any part of it; and the Borrower intends to occupy the Project or cause the Project to be occupied and to operate it or cause it to be operated at all times during the term of this Borrower Loan Agreement in compliance with the terms of this Borrower Loan Agreement and the Regulatory Agreement and does not know of any reason why the Project will not be so used by it in the absence of circumstances not now anticipated by it or totally beyond its control. Section 4.1.42 Concerning General Partner. (a) The managing general partner of Borrower is Foundation For Affordable Housing V, Inc., a California nonprofit public benefit corporation, and the co-general partner of Borrower is the Otay Affordable I V8, LLC, a California limited liability company, and each of the Managing General Partner and Administrative General Partner is duly organized and validly existing under the laws of the State of California. The General Partner has all requisite power and authority, rights and franchises to enter into and perform. its obligations under the Borrower Loan Documents and the Funding Loan Documents to be executed by it for its own account and on behalf of 31 2020-1.1-0,3 Agenda Packet Page 309 of 50�9 Borrower, as general partner of Borrower, under this Borrower Loan Agreement and the other Borrower Loan Documents and the Funding Loan Documents. (b) The General Partner has made all filings (including, without limitation, all required filings related to the use of fictitious business names) and is in good standing in the State and in each other jurisdiction in which the character of the property it owns or the nature of the business it transacts makes such filings necessary or where the failure to make such filings could have a material adverse effect on the business, operations, assets, or financial condition of General Partner. (c) The General Partner is duly authorized to do business, in the State. (d) The execution, delivery and performance by Borrower of the Borrower Loan Documents and the Funding Loan Documents have been duly authorized by all necessary action of General Partner on behalf of Borrower, and by all necessary action on behalf of General Partner. (e) The execution, delivery and performance by General Partner, on behalf of Borrower, of the Borrower Loan Documents and the Funding Loan Documents will not violate (i) General Partner's organizational documents; (ii) any other Legal Requirement affecting General Partner or any of its properties; or (iii) any agreement to which General Partner is bound or to which it is a party; and will not result in or require the creation (except as provided in or contemplated, by this Borrower Loan Agreement) of any Lien upon any of such properties, any of the Collateral or any of the property or funds pledged or delivered to Functing Lender pursuant to the Security Documents. Section 4.1.43 Government and Private Approvals. All governmental or regulatory orders, consents.) permits, authorizations and approvals required for the constructio�n.) rehabilitation, use, occupancy and operation of the Improvements, that may be granted or denied in the discretion of any Governmental Authority, have been obtained and are in full force and effect (or, in the case of any of the foregoing that Borrower is, not required to have as of the Closing Date, will be obtained), and will be maintained in full force and effect at all times during the construction or rehabilitation of the Improvements. All such orders, consents, permits, authorizations and approvals that may not be denied in the discretion of any Governmental Authority shall be obtained prior to the commencement of any work for which such orders, consents,permits, authorizations or approvals are required, and, once obtained, such orders, consents, permits, authorizations and approvals will be maintained in full force and effect at all times during the construction or rehabilitation of the Improvements. Except as set forth in the preceding two sentences, no additional governmental or regulatory actions, filings or registrations with respect to the Improvements, and no approvals, authorizations or consents of any trustee or holder of any indebtedness or obligation of Borrower, are required for the due execution, delivery and performance by Borrower or General Partner of any of the Borrower Loan Documents or the Funding Loan Documents or the Related Documents executed by Borrower or General Partner, as applicable, All required zoning approvals have been obtained, and the zoning of the Land for the Project is not conditional upon the happening of any further event. Section 4.1.44 Concerning Guarantor. The! Borrower Loan Documents and the Funding Loan Documents to which the Guarantor is a party or a signatory executed simultaneously with this Borrower Loan Agreement have been. duly executed and delivered by Guarantor and are legally valid and binding obligations of Guarantor, enforceable against Guarantor in accordance with, their terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general principles of equity. 32 2020-11-03 Agenda Packet Page 3 1,0 of 5 O�9 Section 4.1.45 No Material Defaults. Except as previously disclosed to Funding Lender and the Governmental Lender in writing, there exists no material violation of or material default by Borrower under, and, to the best knowledge of Borrower, no event has occurred which, upon the giving of notice or the passage of time, orboth, would constitute a material default with respect to: (i) the terms of any instrument evidencing, securing or guaranteeing any indebtedness secured by the Project or any portion or interest thereof or therein; (ii) any lease or other agreement affecting the Pro ect or to which Borrower is a party; (iii) any license, permit, statute, ordinance, law, j judgment, order, writ, injunction, decree, rule or regulation of any Governmental Authority, or any determination or award of any arbitrator to which Borrower or the Project may be bound; or (iv) any mortgage, instrument, agreement or document by which Borrower or any of its respective properties is bound; in the case of any of the foregoing: (1) which involves, any Borrower Loan Document or Funding Loan Document; (2) which involves the Project and is not adequately covered by insurance; (3)that might materially and adversely affect the ability of Borrower, General Partner or Guarantor or to perform any of its respective obligations under any of the Borrower Loan Documents or the Funding Loan Documents or any other material instrument, agreement or document to which it is a party; or (4)which might adversely affect the priority of the Liens created by this Borrower Loan Agreement or any of the Borrower Loan Documents or the Funding Loan Documents. Section 4.1.46 Payment of Taxes. Except as previously disclosed to Funding Lender in writing: (i) all tax returns and reports of Borrower, General Partner and Guarantor required to be filed have been timely filed, and all taxes, assessments, fees and other governmental charges upon Borrower, General Partner and Guarantor, and upon their respective properties, assets, income and franchises, which are due and payable have been paid when due and payable; and (ii) Borrower knows of no proposed tax assessment against it or against General Partner or Guarantor that would be material to the condition (financial or otherwise) of Borrower, General Partner or Guarantor, and neither Borrower nor General Partner have contracted with any Governmental Authority in connection with such taxes. Section 4.1.47 Rights to Project Agreements and Licenses. Borrower is the legal and beneficial owner of all rights in and to the Plans and Specifications and all existing Project Agreements and Licenses, and will be the legal, and beneficial owner of all rights in and to all future Project Agreements and Licenses. Borrower's interest in the Plans and Specifications and all Project Agreements and Licenses is not subject to any present claim (other than under the Borrower Loan Documents and the Funding Loan Documents, or as otherwise approved by Funding Lender in its sole discretion), set-off or deduction other than in the ordinary course of business. Section 4.1.48 Patriot Act Compliance. Borrower is not now, nor has ever been (i) listed on any Government Lists (as defined below)�, (11) a person who has been determined by a Governmental Authority to be subject to the prohibitions contained in Presidential Executive Order No�. 13224, (September 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC or in any enabling legislation or other Presidential Executive Orders in respect thereof, (iii) indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense, or (iv) under investigation by any Governmental Authority for alleged criminal. activity. For purposes hereof, the term "Patriot Act Offense" shall mean any violation of the criminal laws of the United States of America or of any of the several states, or that would be a criminal violation if committed within the jurisdiction, of the United States of America or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under (A)the criminal laws against terrorism; (B) the criminal laws against money laundering, (C) Bank Representative Secrecy Act, as amended, (D�) the Money Laundering Control Act of 1986, 33 2020-1.1-0,3 Agenda Packet Page 3 1,1 of 5 O�9 as amended, or (E) the Patriot Act. "Patriot Act Offense" also includes the crimes, of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense. For purposes hereof, the term "Government Lists" shall mean (1) the Specially Designated Nationals and Blocked Persons Lists maintained by the Office of Foreign Assets Control ("OFAC")�, (2) any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC that Funding Lender notified Borrower in writing is now included in "Government Lists", or (3) any similar lists maintained by the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order of the President of the United States of America that Funding Lender notified Borrower in writing is now included in"Go�vernment Lists". Section 4.1.49 Rent Schedule. Borrower has prepared a prospective Unit absorption and rent collection schedule with respect to the Project substantially in the form attached as an exhibit to the Construction Funding Agreement, which schedule takes into account.) among other relevant factors (i) a schedule of minimum monthly rentals for the Units, and (ii) any and all concessions including free rent periods, and, on the basis of such schedule, Borrower believes it will collect rents with respect to the Project in amounts greater than or equal to debt service on the Borrower Loan. Section 4.1.50 Other Documents. Each of the representations and, warranties of Borrower or General Partner contained in any of the other Borrower Loan Documents or the Funding Loan Documents or Related Documents is true and correct in all material respects (or, in the case of representations or warranties contained in any of the other Borrower Loan Documents or Funding Loan Documents or Related Documents that speak as of a particular date.) were true and correct in all material respects as of such date). All of such representations and warranties are incorporated herein for the benefit of Funding Lender. Section 4.1.51 Subordinate Loan Documents. The Subordinate Loan Documents are in full force and effect and the Borrower has paid all commitment fees and other amounts due and payable to the Subordinate Lender(s) thereunder. There exists no material violation of or material default by the Borrower under, and no event has occurred which, upon the giving of notice or the passage of time, or both, would constitute a material default under the Subordinate Loan Documents. Section 4.1.52 [Reserved]. Section 4.1.53 Survival of Representations and Covenants. All of the representations and warranties in Section 4.1 hereof and elsewhere in the Borrower Loan Documents (i) shall survive for so long as any portion of the Borrower Payment Obligations remains due and owing and (ii) shall be deemed to have been relied upon by the Governmental Lender and the Servicer notwithstanding any investigation heretofore or hereafter made by the Governmental Lender or the Servicer or on its or their behalf, p�rovided, however, that the representations, warranties and covenants set forth in Section 4.1.31 hereof shall survive in perpetuity and shall not be subject to the exculpation provisions of Section 11.1 hereof. 34 2020-11-03 Agenda Packet Page 31.2 of 50�9 ARTICLE V AFFIRMATIVE COVENANTS During the term of this Borrower Loan Agreement, the Borrower hereby covenants and agrees with the Governmental Lender, the Funding Lender,the Fiscal Agent and the Servicer that: 0 Section 5.1 Existence. The Borrower shall (i) do or cause to be done all things necessary to preserve, renew and keep in full force and effect its existence and its material rights, and franchises, (ii) continue to engage in the business presently conducted by it, (iii) obtain and maintain all material Licenses, and (iv) qualify to do business and remain in good standing under the laws of the State. Section 5.2 Taxes and Other Charges. The Borrower shall pay all Taxes and Other Charges as the same become due and payable and prior to their becoming delinquent in accordance with the Security Instrument, except to, the extent that the arnount,, validity or application thereof is being contested in good faith as permitted by the Security Instrument. The Borrower covenants to pay all taxes and Other Charges of any type or character charged to the Funding Lender affecting the amount available to the Funding Lender from payments to be received hereunder or in any way arising due to the transactions contemplated, hereby (including taxes and Other Charges assessed or levied by any public agency or governmental authority of whatsoever character having power to levy taxes or assessments) but excluding franchise taxes based upon the capital and/o�r income of the Funding Lender and taxes based upon or measured by the net income of the Funding Lender; provided, however, that the Borrower shall have the right to protest any such taxes or Other Charges and to require the Funaing Lender, at the Borrower's expense, to protest and contest any such taxes or Other Charges levied upon them and that the Borrower shall have the right to withhold payment of any such taxes or Other Charges pending disposition of any such protest or contest unless such withholding, protest or contest would adversely affect the rights or interests of the Funding Lender. This obligation shall remain valid and in effect notwithstanding repayment of the Borrower Loan hereunder or termination of this Borrower Loan Agreement. 0 Section 5.3 Repairs; Maintenance and Compliance; Physical Condition. The Borrower shall cause the Project to be maintained in a good, habitable and safe (so as to not threaten the health or safety of the Pro ect's tenants or their invited guests) condition and repair (reasonable j wear and tear excepted) as set forth in the Security Instrument and shall not remove, demolish or materially alter the Improvements or Equipment (except for removal, of aging or obsolete equipment or furnishings in the normal course of business), except as provided in the Security Instrument. Section 5.4 Litigation. The Borrower shall give prompt Written Notice to the Governmental Lender, the Funding Lender and the Servicer of any litigation, governmental proceedings, or claims or investigations regarding an alleged actual violation of a Legal Requirement pending or, to the Borrower's knowledge, threatened against the Borrower which might materially adversely affect the Borrower's condition(financial or otherwise) or business or the Project. Section 5.5 Performance of Other Agreements. The Borrower shall observe and perform in.all material respects each,and every term to be observed or performed by it pursuant to the terms of any agreement or instrument affecting or pertaining to the Project. 35 2020-11-03 Agenda Packet Page 31.3 of 50�9 Section 5.6 Notices. The Borrower shall promptly advise the Governmental Lender, the Funding Lender and the Servicer of (i) any Material Adverse Change in the Borrower's financial condition, assets, properties or operations other than general changes in the real estate market, (ii) any fact or circumstance affecting the Borrower or the Project that materially and adversely affects the Borrower's ability to meet its obligations hereunder or under any of the other Borrower Loan Document to which it is a party in a timely manner, or (iii) the occurrence of any Potential Default or Event of Default of which the Borrower has knowledge. If the Borrower becomes subject to federal or state securities law filing requirements, the Borrower shall cause to be delivered to the Governmental Lender, the Funding Lender and the Servicer any Securities and Exchange Commission or other public filings, if any, of the Borrower within two (2) Business Days of such filing Z7�* Section 5.7 Cooperate 'in Legal Proceedings. The Borrower shall cooperate fully with the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer with respect to,, and permit the Governmental Lender, the Funding Lender, the Fiscal Agent and. the Servicer at their option, to participate in, any proceedings before any Governmental Authority that may in any way affect the rights of the Governmental Lender, the Funding Lender, the Fiscal Agent and/or the Servicer under any Borrower Loan Document or Funding Loan Document. Section 5.8 Further Assurances. The Borrower shall, at the Borrower's sole cost and expense (except as provided in Section 9.1 hereof), (i) furnish to the Servicer and the Funding Lender all instruments!) documents, boundary surveys, footing or foundation surveys (to the extent that Borrower's construction or renovation of the Project alters any existing building foundations or footprints), certificates, plans and specifications, appraisals, title and other insurance reports and agreements relating to the Project, reasonably requested by the Servicer or the Funding Lender for the better and more efficient carrying out of the intents and purposes of the Borrower Loan Documents and the Funding Loan Documents; (ii) execute and deliver to the Servicer and the Funding Lender such documents, instruments, certificates, assignments and other writings, and do such other acts necessary or desirable, to evidence, preserve and/or protect the collateral at any time securing or intended to secure the Borrower Loan, as the Servicer, the Fiscal Agent (at the direction of the Funding Lender) and the Funding Lender may reasonably require from time to time; (iii) do and execute all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of the Borrower Loan Documents and the Funding Loan Documents, as the S,ervicer, the Fiscal Agent (at the direction of the Funding Lender) or the Funding Lender shall reasonably require from time to time-, provided, however, with respect to clauses (i)-(iii) above, the Borrower shall not be required,to do anything that has the effect of (A) changing the essential economic terms of the Borrower Loan or (B) imposing upon the Borrower greater personal liability under the Borrower Loan Documents and the Funding Loan Documents; and (iv) upon the Servicer's, the Fiscal Agent's (at the direction of the Funding Lender) or the Funding Lender's request therefor given from time to time after the occurrence of any Potential Default or Event of Default for so long as such Potential Default or Event of Default, as applicable, is continuing pay for (a) reports of UCC, federal tax lien, state tax lien, judgment and pending litigation searches with respect to the Borrower and (b) searches of title to the Project, each such. search to be conducted by search firms reasonably designated by the Servicer, the Fiscal Agent (at the direction of the Funding Lender) or the Funding Lender in each, of the locations reasonably designated by the Servicer, the Fiscal Agent or the Funding Lender. 36 2020-1.1-0,3 Agenda Packet Page 31.4 of 50�9 Section 5.9 Delivery of Financial Information. After notice to the Borrower of a Secondary Market Disclosure Document, the Borrower shall, concurrently with any delivery to the Funding Lender or the Servicer, deliver copies of all financial information required under Article IX. 0 Section 5.10 Environmental Matters. So long as the Borrower owns or is in possession of the Project, the Borrower shall (a) keep the Project in compliance with all Hazardous Materials Laws (as defined in the Security Instrument), (b) promptly notify the Funding Lender and the Servicer if the Borrower shall become aware that any Hazardous Materials (as defined in the Security Instrument) are on or near the Pro ect in violation of Hazardous Materials Laws, and (c) commence j and thereafter diligently prosecute to completion all remedial work necessary with respect to the Project required under any Hazardous, Material Laws, in each case as set forth in the Security Instrument or the Agreement of Environmental Indemnification. Section 5.11 Governmental Lender's and Funding Lender's Fees. The Borrower covenants to pay the reasonable fees and expenses of the Governmental Lender (including the Ongoing Governmental Lender Fee), the Fiscal Agent and the Funding Lender or any agents, attorneys, accountants, consultants selected by the Governmental Lender, the Fiscal Agent or the Funding Lender to act on its behalf in connection with this Borrower Loan Agreement and the other Borrower Loan Documents, the Regulatory Agreement and the Funding Loan Documents, including, without limitatio�n, any and all reasonable expenses incurred in connection with the making of the Borrower Loan or in connection with any litigation which may at any time be instituted involving the Borrower Loan, this Borrower Loan Agreement, the other Borrower Loan Documents, the Regulatory Agreement and the Funding Loan Documents or any of the other documents contemplated thereby, or in connection with the reasonable supervision or inspection of the Borrower, its properties, assets or operations or otherwise in connection with the administration of the foregoing. This obligation shall remain valid and. in effect notwithstanding repayment of the Borrower Loan hereunder or termination of this Borrower Loan Agreement. Section 5.12 Estoppel Statement. The Borrower shall furnish to the Funding Lender, the Fiscal Agent or the Servicer for the benefit of the Funding Lender or the Servicer within ten (10) days after request by the Funding Lender and the Servicer, with a statement, duly acknowledged and certified, setting forth (i) the unpaid principal of the Borrower Note, (ii) the applicable Interest Rate, (iii) the date installments of interest and/or principal were last paid, (iv) any offsets or defenses to the payment of the Borrower Payment Obligations, and (v) that the Borrower Loan Documents and the Funding Loan Documents to which the Borrower is a party are valid, legal and binding obligations of the Borrower and have not been modified or, if modified, giving particulars of such modification, and no Event of Default exists thereunder or specify any Event of Default that does exist thereunder. The Borrower shall use commercially reasonable efforts to furnish to the Funding Lender or the Servicer, within 30 days of a request by the Funding Lender or Servicer, tenant estoppel certificates from each commercial tenant at the Project in form and substance reasonably satisfactory to the Funding Lender and the Servicer; provided that the Funding Lender and the Servicer shall -not make such requests more frequently than twice in.any year. Section 5.1.3 Defense of Actions. The Borrower shall appear in and defend any action or proceeding purporting to affect the security for this Borrower Loan Agreement hereunder or under the Borrower Loan Documents and the Funding Loan. Documents, and shall pay, in the manner required by Section 2.4 hereof, all costs and expenses, including the cost of evidence of title and attorneys' fees, in any such action or proceeding in which Funding Lender may appear. If the! Borrower falls to perform any of the covenants or agreements contained in this Borrower Loan 37 2020-1.1-0,3 Agenda Packet Page 31.5 of 50�9 Agreement or any other Borrower Loan Document, or if any action or proceeding is commenced that is not diligently defended by the Borrower which affects the Funding Lender's interest in the Project or any part thereof, including eminent domain, code enforcement or proceedino of any nature whatsoever under any Federal or state law, whether now existing or hereafter enacted or amended, then the Funding Lender may make such appearances, disburse such sums and take such action as the Funding Lender deems necessary or appropriate to protect its interests. Such actions include disbursement of attorneys' fees, entry upon the Project to make repairs or take other action to protect the security of the Project, and payment, purchase, contest or compromise of any encumbrance, charge or lien which in the judgment of Funding Lender appears to be prior or superior to the Borrower Loan Documents or the Funding Loan Documents. The Funding Lender shall have no obligation to do any of the above. The Funding Lender may take any such action without notice to or demand upon the Borrower. No such action shall release the Borrower from any obligation under this, Borrower Loan Agreement or any of the other Borrower Loan Documents or Funding Loan Documents. In the event (i)that the Security Instrument is foreclosed in whole or in part or that any Borrower Loan Document is put into the hands of an attorney for collection, suit, action or foreclosure, or(ii) of the foreclosure of any mortgage, deed of trust or deed to secure debt prior to or subsequent to the Security Instrument or any Borrower Loan Document in which proceeding the Funding Lender is made a party or (iii) of the bankruptcy of the Borrower or an assignment by the Borrower for the benefit of its creditors, the Borrower shall be chargeable with and agrees to pay all costs of collection and defense, including actual attorneys' fees in connection therewith and in connection with any appellate proceeding or post-judgment action involved therein, which shall be due and payable together with all required service or use taxes. Section 5.14 Expenses. The Borrower shall pay all reasonable expenses incurred by the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer (except as provided in Section 9.1 hereof) in connection with the Borrower Loan and the Funding Loan, including reasonable fees and expenses of the Governmental Lender's, the Fiscal Agent's, the Funding Lender's and the Servicer's attorneys, environmental, engineering and other consultants, and fees, charges or taxes for the recording or filing of the Borrower Loan Documents and the Funding Loan Documents. The Borrower shall pay or cause to be paid all reasonable expenses of the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer (except as provided in Section 9.1 hereof) in connection with the issuance or administration of the Borrower Loan and the Funding Loan, including audit costs.) inspection fees, settlement of condemnation and casualty awards, and premiums for title insurance and endorsements thereto. The Borrower shall, upon request, promptly reimburse the Governmental Lender,, the Funding Lender, the Fiscal Agent and the Servicer for all reasonable amounts expended, advanced or incurred, by the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer to collect the Borrower Note, or to enforce the rights of the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer under this Borrower Loan Agreement or any other Borrower Loan Document, or to defend or assert the rights and claims of the Governmental Lender, the Funding Lender, the Fiscal. Agent and the Servicer under the Borrower Loan Documents and the Funding Loan Documents arising out of an Event of Default or with respect to the Project (by litigation or other proceedings) arising out of an, Event of Default, which amounts will include all court costs, attorneys' fees and expenses, fees of auditors and accountants, and investigation expenses as may be reasonably incurred by the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer in connection with any such matters (whether or not litigation is instituted), together with interest at the Default Rate on each such amount from the Date of Disbursement until the date of reimbursement to the Governmental Lender, the Funding Lender,the Fiscal Agent and the Servicer, all of which shall constitute part of the Borrower Loan and the Funding Loan and shall be secured by the Borrower Loan Documents and the Funding Loan 38 2020-11-03 Agenda Packet Page 31.6 of 50�9 Documents. The obligations and liabilities of the Borrower under this Section 5.14 shall survive the Term of this Borrower Loan Agreement and the exercise by the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer, as the case may be, of any of its rights or remedies under the Borrower Loan Documents and the Funding Loan Documents, including the acquisition of the Project by foreclosure or a conveyance in lieu of foreclosure. Notwithstanding the foregoing, the Borrower shall not be obligated to pay amounts incurred as a result of the gross negligence or willful misconduct of any other party, and any obligations of the Borrower to pay for environmental inspections or audits will be governed by Section 18(i) and 43(i) of the Security Instrument. Seefion 5.15 Indemnifty. In addition to its other obligations hereunder, and in addition to any and all rights of reimbursement, indemnification, subrogation and other rights of Governmental Lender, the Fiscal Agent or Funding Lender pursuant hereto, pursuant to the Regulatory Agreement and under law or equity, to the fullest extent permitted by law, the Borrower agrees, to indemnify, hold harmless and defend the Governmental Lender,, the Funding Lender, the Fiscal Agent.) the Servicer, the Beneficiary Parties, Citigro�up, Inc., and each of their respective commissioners, officers, directors, employees, attorneys and. agents (each an "Indemnified Party"), against any and all losses, damages, claims, actions, liabilities, reasonable costs and expenses of any nature, kind or character (including, without limitation, reasonable attorneys' fees, litigation and court costs, amounts paid in settlement (to the extent that the Borrower has consented to such settlement) and amounts paid to discharge judgments) (hereinafter, the "Liabilities") to which the Indemnified Parties, or any of them, may become subject under federal or state securities laws or any other statutory law or at common law or otherwise, to the extent arising out of or based upon or in any way relating to: (a) The Borrower Loan Documents and the Funding Loan Documents or the execution or amendment thereof or in connection with transactions contemplated thereby, including the sale, transfer or resale of the Borrower Loan or the Funding Loan, except with respect to any Secondary Market Disclosure Document(other than any Borrower's obligations under Article IX); (b) Any act or omission of the Borrower or any of its agents, contractors, servants, employees or licensees in connection with the Borrower Loan, the Funding Loan or the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy.) use.) possession, conduct or management of work done in or about, or from the planning, design, acquisition, construction, installation or rehabilitation of, the Project or any part thereof; (c) Any fien (other than a Permitted Lien) or charge upon payments by the Borrower to the Governmental Lender, the Fiscal Agent or the Funding Lender hereunder, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments impositions and Other Charges imposed on the Governmental Lender, the Fiscal Agent or the Funding Lender in respect of any portion of the Project; (d) Any violation of any environmental law, rule or regulation with respect to, or the release of any toxic substance from, the Project or any part thereof during the period in which the Borrower is in possession or control of the Project; provided however, Borrower's liability under this Section 5.15(d) shall not extend to cover a violation. that first arose, commenced or occurred as a result of actions of the Indemnified Party, their successors, assigns or designees, after the satisfactio, . n', discharge, release, assignment, termination or cancellation of the Security Instrument following the payment in full. of the Borrower Note and all. other sums payable under the Borrower Loan Documents; 39 2020-11-03 Agenda Packet Page 31.7 of 50�9 (e) The enforcement of, or any action taken by the Governmental Lender, the Fiscal Agent or the Funding Lender related to remedies under, this Borrower Loan Agreement and the other Borrower Loan Documents and the Funding Loan Documents; (f) Any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact 'by the Borrower made in the course of Borrower applying for the Borrower Loan or the Funding Loan or contained in any of the Borrower Loan Documents or Funding Loan Documents to which the Borrower is a party; (g) Any Determination of Taxability; (h) Any breach (or alleged breach) by Borrower of any representation, warranty or covenant made in or pursuant to this Borrower Loan Agreement or in connection with any written or oral representation.) presentation, report, appraisal or other information given or delivered by Borrower, General Partner, Guarantor or their Affiliates to Governmental Lender, the Fiscal Agent the Funding Lender, Servicer or any other Person in connection with the Borrower's application for the Borrower Loan and the Funding Loan (including, without limitation, any breach or alleged breach by Borrower of any agreement with respect to the provision of any substitute credit enhancement); G) any failure (or alleged failure) by Borrower, the Funding Lender or Governmental Lender to comply with applicable federal and state laws and regulations pertaining to the making of the Borrower Loan and the Funding Loan, 0) the Project, or the condition, occupancy, use, possession, conduct or management of, or work done in or about, or from the planning, design, acquisitio�n, installation, construction or rehabilitation of, the Project or any part thereof; or (k) the use of the proceeds of the Borrower Loan and the Funding Loan, except in the case of the foregoing indemnification of the Governmental Lender or any related Indemnified Party, to the extent such damages are caused by the willful misconduct of such Indemnified Party, and except in the case of the foregoing indemnification of the Funding Lender or the Servicer or any related Indemnified Party, to the extent such damages are caused by the gross negligence or willful misconduct of such Indemnified Party. Notwithstanding anything herein to the contrary, the Borrower's indemnification obligations to the parties specified in Section 9.1.4 hereof with respect to any securitization or Secondary Market Transaction described in Article IX hereof shall be limited to the indemnity set forth in Section 9.1.4 hereof. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party (which notice shall be timely given so as not to materially impair the Borrower's right to defend), shall assume the investigation and defense thereof, including the employment of counsel reasonably approved by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion-, provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement, which ap�p�roval. shall not be unreasonably withheld. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and to participate in the investigation and defense thereof The Borrower shall pay the reasonable fees and expenses of such, separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of 40 2020-1.1-0,3 Agenda Packet Page 31.8 of 50�9 the Borrower if and only if in such Indemnified Party's good faith judgment (based on the advice of counsel) a conflict of interest exists or could arise by reason of common representation. Notwithstanding any transfer of the Project to another owner in accordance with the provisions of this Borrower Loan Agreement or the Regulatory Agreement, the Borrower shall remain obligated to indemnify each Indemnified Party pursuant to this Section 5.15 if such subsequent owner fails to indemnify any party entitled to be indemnified hereunder, unless the Governmental Lender and the Funding Lender have consented to such transfer and to the assignment of the rights and obligations of the Borrower hereunder. The rights of any persons to indemnity hereunder shall survive the final payment or defeas,ance of the Borrower Loan and the Funding Loan and in the case of the Servicer, any resignation or removal. The provisions of this, Section 5.15 shall survive the tennination of this Borrower Loan Agreement. The foregoing provisions of this Section 5.15 are not intended to and shall not negate, modify, limit or change the provisions of Section 9 of the Borrower Note. Section 5.16 No Warranty of Condition or Suitability by the Governmental Lender or Funding Lender. Neither the Governmental Lender nor the Funding Lender makes any warranty, either express or implied, as to the condition of the Project or that it will be suitable for the Borrower's purposes or needs. Section 5.17 RiLyht of Access to the Project. The Borrower agrees that the Governmental Lenderl the Funding Lender, the Servicer and the Construction Consultant, and their duly authorized agents.,, attorneys, experts, engineers, accountants and representatives shall have the right, but no obligation, at all reasonable times during business hours and upon reasonable notice, to enter onto the Land (a) to examine, test and inspect the Project without material, interference or prejudice to the Borrower's operations and (b) to perform such work in and about the Project made necessary by reason of the Borrower's default under any of the provisions of this Borrower Loan Agreement. The Governmental Lender, the Funding Lender, the Servicer, and their duly authorized agents,, attorneys, accountants and representatives shall also be pennitted, without any obligation to do so, at all reasonable times and upon reasonable notice during business hours, to examine the books and records of the Borrower with respect to the Project. Section 5.18 Notice of Default. The Borrower will advise the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer promptly in writing of the occurrence of any Potential Default or Event of Default hereunder, specifying the nature and period of existence of such event and the actions being taken or proposed to be taken with respect thereto. Section 5.19 Covenant with Governmental Lender and Funding Lender. The Borrower agrees that this Borrower Loan Agreement is executed and delivered in part to induce the purchase by others of the Governmental Lender Note and, accordingly, all covenants and agreements of the Borrower contained in this Borrower Loan Agreement are hereby declared to be for the benefit of the Governmental Lender, the Fiscal Agent, the Funding Lender and any lawful owner, holder or pledgee of the Borrower Note or the Governmental Lender Note from time to time. Section 5.20 Obligation of the Borrower to Construct or Rehabilitate the Project. The Borrower shall. proceed with reasonable dispatch to construct or rehabilitate, as appropriate, and 41 2020-11-03 Agenda Packet Page 31.9 of 50�9 equip the Project. If the proceeds of the Borrower Loan, together with the Other Borrower Moneys, available to be disbursed to the Borrower are not sufficient to ay the costs of such construction or p . rehabilitation as appro riate, and equipping, the Borrower shall ay such additional costs from its p A p . own funds. The Borrower shall not be entitled to any reimbursement from the Governmental Lender, the Fiscal Agent, the Funding Lender or the Servicer in respect of any such costs or to any diminution or abatement in the repayment of the Borrower Loan. The Governmental Lender, the Fiscal Agent and the Funding Lender shall not be liable to the Borrower or any other person if for any reason the Project is not completed or if the proceeds of the Borrower Loan are insufficient to p ay all costs of the Project. The Governmental Lender, the Fiscal Agent and the Funding Lender do not make any representation or warranty, either express or implied, that moneys, if any, which will be made available to the Borrower will be sufficient to complete the Project, and the Governmental Lender, the Fiscal Agent and the Funding Lender shall not be liable to the Borrower or any other person if for any reason the Pro ect is,not completed. j Section 5.21 Mal*ntenance of Insurance. Borrower will maintain the insurance required by the Security Instrument. Section 5.22 Information; Statements and Reports. Borrower shall furnish or cause to be furnished to Funding Lender and,with respect to subsection (a) only, to Governmental Lender: (a) Notice of Default. As soon as possible, and in any event not later than five (5) Business Days after the occurrence of any Event of Default or Potential Default, a statement of an Authorized Representative of Borrower describing the details of such Event of Default or Potential Default and any curative action Borrower proposes to take; (b) Financial Statements* Rent Rolls. in the manner and to the extent required under the Security Instrument, such financial statements.) expenses statements, rent rolls, reports and other financial documents and information as required by the Security Instrument and the other Borrower Loan Documents and Funding Loan Documents, in the form and within the time periods required therein; (c) General Partner. As soon as available and in any event within one hundred twenty (120) days after the end of each fiscal year of General Partner, copies of the financial statements of General Partner as of such date, prepared in substantially the form previously delivered to the Governmental Lender and Funding Lender and in a manner consistent therewith, or in such form (which may include a form prepared in accordance with GAAP) as Funding Lender may reasonably request; (d) Leasing Reports. Prior to the Conversion Date, on a monthly basis (and in any event within fifteen (15) days after the end of each Calendar Month), a report of all efforts made by Borrower, if any, to lease all or any portion of the Project during such Calendar Month and on a cumulative basis since Project inception, which report shall be prepared and delivered by Borrower, shall be in form and substance satisfactory to Funding Lender, and shall, if requested by Funding Lender,be supported by copies of letters of intent, leases or occupancy agreements, as applicable; (e) Audit R,e,p,,,o,,rts. Promptly upon. receipt thereof, copies of all reports, if any, submitted to Borrower by independent public accountants in connection with each annual, interim or special audit of the financial. statements of Borrower made by such accountants, including the comment letter submitted by such accountants to management in.connection with,their annual audit-, 42 2020-1.1-0,3 Agenda Packet Page 320 of 50�9 (f) Notices; Certificates or Communications. Immediately upon giving or receipt thereof, copies of any notices, certificates or other communications delivered at the Project or to Borrower or General Partner naming Governmental Lender or Funding Lender as addressee or which could reasonably be deemed to affect the structural integrity of the Project or the ability of Borrower to perform its obligations under the Borrower Loan Documents and the Funding Loan Documents; (g) Certification of Non-Foreign Status. Promptly upon request of Funding Lender from time to time, a Certification of Non-Foreign Status, executed on or after the date of such request by Funding Lender; (h) Compliance Certificates. Together with each of the documents required pursuant to Section 5.22(b) hereof submitted by or on behalf of Borrower, a statement, in form and substance satisfactory to Funding Lender and certified by an Authorized Borrower Representative, to the effect that Borrower is in compliance with all covenants, terms and conditions applicable to Borrower, under or pursuant to the Borrower Loan Documents and the Funding Loan Documents and under or pursuant to any other Debt owing by Borrower to any Person, and disclosing any noncompliance therewith, and any Event of Default or Potential Default, and describing the status of Borrower's actions to correct such noncompliance, Event of Default or Potential Default, as applicable; and G) Other Items and Information. Such other information concerning the assets, business, financial condition, operations, property and results of operations of Borrower, General Partner, Guarantor or the Proiect,. as Funding Lender or Governmental Lender reasonably requests fro�m time to time. Borrower shall fumish to Governmental Lender, upon its written request, any of the items described in the foregoing subsections (b)through and including(i) above. Section 5.23 Additional Notices. Borrower will, promptly after becoming aware thereof, give notice to Funding Lender and the Governmental Lender of: (a) any Lien affecting the Project, or any part thereof, other than Liens expressly permitted under this Borrower Loan Agreement-, (b) any Legal Action which is instituted, by or against ti&orrower, General Partner or Guarantor, or any Legal Action which is threatened against Borrower, General Partner or Guarantor which, in any case, if adversely deten-nined, could have a material adverse effect upon the business, operations, properties, assets,, management.) ownership or financial condition of Borrower, General Partner, Guarantor or the Project, (c) any Legal Action which constitutes an Event of Default or a Potential Default or a default under any other Contractual Obligation to which Borrower, General Partner or Guarantor is a party or by or to which Borrower, General Partner or Guarantor, or any of their respective properties or assets, may be bound or subiect.. which default would have a material adverse effect on the business, operations, assets (including the Project), or financial condition of Borrower, General Partner or Guarantor, as applicable; 43 2020-1.1-0,3 Agenda Packet Page 321 of 50�9 (d) any default, alleged default or potential default on the part of Borrower under any of the CC&R's (together with a copy of each notice of default, alleged default or potential default received from any other party thereto); (e) any notice of default, alleged default or potential default on the part of Borrower received from any tenant or occupant of the Project under or relating to its lease or occupancy agreement (together with a copy of any such notice)�, if, in the aggregate, notices from at least fifteen percent (15%) of the tenants at the Project have been received by Borrower with respect to, or alleging,the same default, alleged default or potential default; (f) any change or contemplated change in (i) the location of Borrower's or General Partner's executive headquarters, or principal place of business; (ii) the legal, trade, or fictitious business names, used by Borrower or General Partner; or (iii) the nature of the trade or business of Borrower; and (g) any default, alleged default or potential default on the part of any general or limited partner (including, without limitation, General Partner and the Equity Investor) under the Partnership Agreement. Section 5.24 Compliance with Other Agreements; Legal Requirements. (a) Borrower shall timely perform and comply with, and shall cause General Partner to timely perform and comply with the covenants, agreements, obligations and, restrictions imposed on them under the Partnership Agreement, and Borrower shall not do or permit to be done anything to impair any such party's rights or interests under any of the foregoing. (b) Borrower will, comply and, to the extent it is able, will require others to comply with, all Legal Requirements of all Governmental Authorities having jurisdiction over the Project or construction and/or rehabilitation of the Improvements, and will fumish Funding Lender with reports of any official searches for or notices of violation of any requirements established by such Governmental Authorities. Borrower will comply and, to the extent it is able, will require others to comply, with applicable CC&R's and all restrictive covenants and all obligations created by private contracts and leases which affect ownership, construction rehabilitation . Y fixturing, equipping, ject, and all other agreements re its to use or operation of the Pro' quiring a certain percentage of the Un* be rented to persons of low or moderate income. The Improvements, when completed, shall comply with all applicable building, zoning and other Legal Requirements, and will not violate any restrictions of record against the Project or the terms of any other lease of all or any portion of the Project. Funding Lender and Governmental Lender shall at all times have the right to audit, at Borrower's expense, Borrower's compliance with any agreement requiring a certain percentage of the Units to be rented to persons of low or moderate income, and Borrower shall supply all such information with respect thereto as Funding Lender or Governmental Lender, as applicable, may request and otherwise cooperate with Funding Lender or Governmental Lender, as applicable, in any such audit. Without limiting the generality of the foregoing, Borrower shall properly obtain, comply with and keep in effect (and promptly deliver copies to Funding Lender of) all permits, licenses and approvals which are required to be obtained from Governmental Authorities in. order to construct, occupy, operate, market and lease the Pro,ect. j Section 5.25 Completion and Maintenance of Project. Borrower shall, cause the construction or rehabilitation, as the case may be, of the Improvements, to be prosecuted with 44 2020-11-03 Agenda Packet Page 322 of 50�9 diligence and continuity and completed substantially in accordance with the Plans and Specifications, and in accordance with the Construction Funding Agreement, free and clear of any liens or claims for liens (but without prejudice to Borrower's rights of contest under Section 10.16 hereof) ("Completion") on or before the Completion Date. Borrower shall thereafter maintain the Project as a residential apartment complex in good order and condition, ordinary wear and tear excepted. A maintenance program shall be in place at all times to assure the continuation of first class maintenance. 0 Section 5.26 Fixtures,. Borrower shall deliver to Funding Lender, on demand, any contracts, bills of sale, statements, receipted vouchers or agreements under which Borrower or any other Person claims title to any materials, fixtures or articles incorporated into the Improvements. Section 5.27 Income from Project. Borrower shall first apply all Gross Income to Expenses of the Project, including all amounts then required to be paid under the Borrower Loan Documents and the Funding Loan Documents and the funding of all sums necessary to meet the Replacement Reserve Fund Requirement, before using or applying such Gross Income for any other purpose. Prior to the Conversion Date, except for the Asset Management Fee, as defined in and payable pursuant to the Partnership Agreement, or as otherwise permitted by the Borrower Loan Documents or the Funding Loan Documents or the Subordinate Loan Documents, Borrower shall not make or permit any distributions or other payments of Net Operating Income to its partners, shareholders or members, as applicable, in each case, without the prior Written Consent of Funding Lender. Section 5.28 Leases and Occupancy Agreements. (a) Lease A-p-proval. G) Borrower may enter into leases of space within the Improvements (and amendments to such leases) in the ordinary course of business with bona fide third party tenants without Funding Lender's prior Written Consent if: (A) The lease is, a Permitted Lease; (B) Borrower, acting in good faith following the exercise of due diligence, has determined that the tenant meets requirements imposed under any applicable CC&R and is financially capable of performing all of its obligations under the lease; and (C) The lease conforms to the Rent Schedule attached as an exhibit to the Construction Funding Agreement and reflects an arm's-length transaction, subject to the requirement that the Borrower comply with any applicable CC&R. (ii) If any Event of Default has occurred and is continuing, Funding Lender may make written demand on Borrower to submit all future leases for Funding Lender's approval prior to execution. Borrower shall comply with any such demand by Funding Lender. (iii) No approval of any lease by Funding Lender shall be for any purpose other than to protect Funding Lender's, security for the Borrower Loan and to preserve Funding Lender's rights under the Borrower Loan Documents and the Funding Loan Documents. No ap�p�roval. by Funding Lender shall result in a waiver of any default of Borrower. In no event shall 45 2020-1.1-0,3 Agenda Packet Page 323 of 50�9 any approval by Funding Lender of a lease be a representation of any kind with regard to the lease or its, enforceability, or the financial capacity of any tenant or guarantor. (b) Landlord's Obliaations. Borrower shall perform all obligations required to be performed by it as landlord under any lease affecting any part of the Project or any space within the Improvements. (c) Leasing and Marketing Agreements. Except as may be contemplated in the Management Agreement with Borrower's Manager, Borrower shall not without the approval of Funding Lender enter into any leasing or marketing agreement and Funding Lender reserves the right to approve the qualifications of any marketing or leasing agent. Section 5.29 Project Agreements and Licenses. To the extent not heretofore delivered to Funding Lender, Borrower will fumish to Funding Lender, as soon as available, true and correct copies of all Project Agreements and Licenses and the Plans and Specifications, together with assignments thereof to Funding Lender and consents to such assignments where required by Functing Lender, all in form and substance acceptable to Funding Lender. Neither Borrower nor General Partner has assigned, or granted, or will assign or grant, a security interest in any of the Project Agreements and Licenses, other than to Funding Lender. Section 5.30 Payment of Debt Payments. In addition to its obligations under the Borrower Note, Borrower will (i) duly and punctually pay or cause to be paid all principal of and interest on any Debt of Borrower as and when the same become due on or before the due date; (ii) comply with and perform all conditions, terms and obligations of other instruments or agreements evidencing or securing such Debt; (iii) promptly inform Funding Lender of any default, or anticipated default, under any such note, agreement.) instrument; and (iv) forward to Funding Lender a Copy of any notice of default or notice of any event that might result in default under any such note, agreement, instrument, including Liens encumbering the Project, or any portion thereof, which have been subordinated to the Security Instrument (regardless of whether or not permitted under this Borrower Loan Agreement). Section 5.31 ERISA. Borrower will comply, and will cause each of its ERISA Affiliates to comply, in all respects,with the provisions of ERISA. Section 5.32 Patriot Act Compliance. Borrower shall use its good faith and commercially reasonable efforts to comply with the Patriot Act and all applicable requirements of Governmental Authorities having jurisdiction over Borrower and/or the Project, including those relating to money laundering and terrorism. Funding Lender shall have the right to audit Borrower's compliance with the Patriot Act and alrlr applicable requirements of Governmental Authorities having jurisdiction over Borrower and/or the Project, including those relating to money laundering and terrorism. In the event that Borrower fails to comply with the Patriot Act or any such requirements of Governmental Authorities, then Funding Lender may, at its option, cause Borrower to comply therewith and any and all costs and expenses incurred by Funding Lender in connection therewith shall be secured by the Security Instrument and shall be immediately due and payable. Borrower covenants that it shall comply with all Legal Requirements and internal requirements of Funding Lender relating to money laundering, anti-tefforism, trade embargos and economic sanctions, now or hereafter in effect. Without limiting the foregoing, Borrower shall not take any action, or permit any action to be taken, that would cause Borrower's representations and 46 2020-11-03 Agenda Packet Page 324 of 50�9 warranties in Section 4,.1.48 and this Section 5.32 become untrue or inaccurate at any time during the term of the Funding Loan. Upon any Beneficiary Party's request from time to time during the term of the Funding Loan, Borrower shall certify in writing to such Beneficiary Party that Borrower's representations, warranties and obligations under Section 4.1.48 and this Section 5.32 remain true and correct and have not been breached, and in addition, upon request of any Beneficiary Party, Borrower covenants to provide all information required to satisfy obligations under all Legal Requirements and internal requirements of Funding Lender relating to money laundering, anti-, terrorism, trade embargos and economic sanctions, now or hereafter in effect, during the term of the Funding Loan. Borrower shall immediately notify the Funding Lender in writing of(a) Borrower's actual knowledge that any of such representations, warranties or covenants are no longer true and have been breached, (b) Borrower has a reasonable basis to believe that they may no longer be true and have been breached or (c) Borrower becomes the sub ect of an investigation by Governmental Authorities related to money laundering, anti-terrorism, trade embargos and economic sanctions. Borrower shall also reimburse Funding Lender for any expense incurred by Funding Lender in evaluating the effect of an investigation by Governmental Authorities on the Funding Loan and Funding Lender's interest in the collateral for the Funding Loan, in obtaining necessary license from Governmental Authorities as may be necessary for Funding Lender to enforce its rights under the Funding Loan Documents, and in complying with all Legal Requirements and internal requirements of Funding Lender relating to money laundering, anti-terrorism.) trade embargos and economic sanctions, now or hereafter in effect applicable to Funding Lender as a result of the existence of such an event and for any penalties or fines imposed upon Funding Lender as a result thereof. Section 5.33 Funds from Equity Investor. Borrower shall cause the Equity Investor to fund all installments of the Equity Contributions in the amounts and at the times subject and according to the terms of the Partnership Agreement. Section 5.34 Tax Covenants. The Borrower further represents, warrants and covenants as follows: (a) General. The Borrower shall not take any action or omit to take any action which, if taken or omitted, respectively, would adversely affect the exclusion of interest on the Governmental Lender Note from gross income (as defined in Section 61 of the Code), for federal income tax purposes and, if it should take or permit any such action,the Borrower will take all lawful actions that it can take to rescind such action promptly upon having knowledge thereof and that the Borrower will, take such action or actions, including amendment of this Borrower Loan Agreement, the Security Instrument and the Regulatory Agreement, as may be necessary, in the opinion of Tax Counsel, to comply fully with all applicable rules, rulings, policies, procedures, regulations or other official statements promulgated or proposed by the Department of the Treasury or the Internal Revenue Service applicable to the Governmental Lender Note, the Funding Loan or affecting the Project. Capitalized terms used in this Section 5.34 shall have the respective meanings assigned to them in the Regulatory Agreement or, if not defined therein, in the Funding Loan Agreement. With the intent not to limit the generality of the foregoing, the Borrower covenants and agrees that, prior to the final maturity of the Governmental Lender Note, unless 'it has received and filed with the Governmental Lender and the Funding Lender a Tax Counsel No Adverse Effect Opinion, as such term is defined in the Funding Loan Agreement (other than with respect to interest on any portion of the Governmental Lender Note for a period during which such portion of the Governmental Lender Note are held by a "substantial user" of any facility financed with the! proceeds of the Governmental 47 2020-1.1-0,3 Agenda Packet Page 325 of 50�9 Lender Note or a "related person," as such terms are used in Section 147(a) of the Code), the Borrower will comply with this Section 5.34. (b) Use of Proceeds. The use of the net proceeds of the Funding Loan at all times will satisfy the following requirements: (i) Limitation on Net Proceeds. At least 95% of the net proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note (within the meaning of the Code) actually expended by Borrower shall be used to pay Qualified Project Costs that are costs of a (.4qualified residential rental project" (within the meaning of Sections 142(a)(7) and 142(d) of the Code) and property that is "functionally related and subordinate" thereto (within the meaning of Sections 1.103-8(a)(3) and 1.103-8(b)(4,)(iii) of the Regulations). (ii) Limit on Costs of FundWg. The proceeds of the Funding Loan will be expended by Borrower for the purposes set forth in this Borrower Loan Agreement and in the Funding Loan Agreement and no portion thereof in excess of two percent of the proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note, within the meaning of Section 147(g) of the Code,will be expended to pay Costs of Funding. (iii) Prohibited Facilities. The Borrower shall not use or permit the use of any proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note or any income from the investment thereof to provide any airplane, skybox, or other private luxury box, health club facility, any facility primarily used for gambling, or any store the principal business of which is the sale of alcoholic beverages for consumption off premises. (iv) Limitation on Land. Less than 25 percent of the net proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note actually expended by Borrower will,be used, directly or indirectly, for the acquisition of land or an interest therein, nor will any portion of the net proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note be used, directly or indirectly, for the acquisition of land or an interest therein to be used for farming purposes. (v) Limitation on Existing Facilities. No portion of the net proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note will be used for the acquisition of any existing property or an interest unless (A) the first use of such property is pursuant to such acquisition or (B) the rehabilitation expenditures with respect to any building and the equipment therefor equal or exceed 15 percent of the cost of acquiring such building financed with the proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note (with respect to structures other than buildings, this clause shall be applied by substituting 100 percent for 15 percent). For purposes of the preceding sentence, the term "rehabilitation expenditures" shall have the meaning set forth in Section 147(d)(3) of the Code. (vi) Accuracy of Information. The information furnished by the Borrower and used by the Governmental Lender in preparing its certifications, with respect to Section 148 of the Code and the Borrower's information statement pursuant to Section 149(e) of the Code is accurate and complete as of the date of origination of the Funding Loan.. (vii) Limitation of Project Exp,,e,n.,d,i,tures. The acquisition and construction. of the Pro ect were not commenced (within the meaning of Section 144(a) of the Code) prior to the 48 2020-11-03 Agenda Packet Page 326 of 50�9 60th day preceding the adoption of the resolution of the Governmental Lender with respect to the Project on July 17, 2018, and no obligation for which reimbursement will be sought from proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note relating to the acquisition or construction of the Pro ect was paid or incurred prior to 60 days prior to such date, j except for permissible "Preliminary expenditures"', which include architectural, engineering surveying, soil testing, reimbursement bond issuance and similar costs incurred prior to the commencement of the acquisition and construction of the Project. (viii) Qualified Costs. The Borrower hereby represents, covenants and warrants,that the proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note shall be used or deemed used by Borrower exclusively to pay Qualified Project Costs. (c) Limitation on M . The average maturity of the Governmental Lender Note does not exceed 120 percent of the average reasonably expected economic life of the Project to be financed by the Funding Loan, weighted in proportion to the respective cost of each item comprising the property the cost of which has been or will be financed, directly or indirectly, with the net proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note. For purposes of the preceding sentence, the reasonably expected economic life of property shall be determined as of the later of (A) the Closing Date for the Funding Loan or (B) the date on which such property is placed in service (or expected to be placed in service). In addition, land shall not be taken into account in determining the reasonably expected economic life of property. (d) No Arbitraae.. The Borrower shall not take any action or omit to take any action with respect to the Gross Proceeds of the Funding Loan or of any amounts expected to be used to pay the principal thereof or the interest thereon which, if taken or omitted, respectively, would cause the Governmental Lender Note to be classified as an "arbitrage bond" within the meaning of Section 148 of the Code. Except as provided in the Funding Loan Agreement and this Borrower Loan Agreement, the Borrower shall not pledge or otherwise encumber, or permit the pledge or encumbrance of, any money, investment, or investment property as security for Toayment of any amounts due under this Borrower Loan Agreement or the Borrower Note relating to the portion of the Funding Loan evidenced by the Governmental Lender Note, shall not establish any segregated reserve or similar fund for such purpose and shall not prepay any such amounts in advance of the redemption date of an equal principal amount of the Funding Loan, unless the Borrower has obtained in each case a Tax Counsel No Adverse Effect Opinion with respect to such action, a copy of which shall be provided to the Governmental Lender and the Funding Lender. The Borrower shall not, at any time prior to the final maturity of the Funding Loan, invest or cause any Gross Proceeds to be invested in any investment (or to use Gross Proceeds to replace money so invested), if, as a result of such investment the Yield of all investments acquired with Gross Proceeds (or with money replaced thereby) on or prior to the date of such investment exceeds the Yield of the portion of the Funding Loan evidenced by the Governmental Lender Note to the Maturity Date, except as, permitted by Section 148 of the Code and Regulations thereunder or as provided in the Regulatory Agreement. The Borrower further covenants and agrees that it will comply with. all applicable requirements of said Section 148 and the rules and Regulations thereunder relating to the portion of the Funding Loan evidenced by the Governmental Lender Note and the interest thereon, including the employment of a Rebate Analyst acceptable to the Governmental Lender and Funding Lender for the calculation, of rebatable amounts to the United States Treasury Department. The Borrower agrees that it will cause the Rebate Analyst to calculate the rebatable amounts not later than forty-five days after the fifth anniversary of the Closing Date and each five years thereafter, and not later than forty-five days after the final Computation Date, and agrees that the Borrower will pay all costs associated therewith. The 49 2020-1.1-0,3 Agenda Packet Page 327 of 50�9 Borrower agrees to provide evidence of the employment of the Rebate Analyst satisfactory to the Governmental Lender and Funding Lender and will provide to the Governmental Lender copies of all rebate calculations obtained from the Rebate Analyst. (e) No Federal Guarantee. Except to the extent permitted by Section 149(b) of the Code and the Regulations and rulings thereunder, the Borrower shall not take or omit to take any action which would cause the Governmental Lender Note to be "federally guaranteed" within the meaning of Section 149(b) of the Code and the Regulations and rulings thereunder. (f) Representations. The Borrower has supplied or caused to be supplied to Tax Counsel all documents, instruments and written information requested by Tax Counsel, and all such documents, instruments and written information supplied by or on behalf of the Borrower at the request of Tax Counsel, which have been reasonably relied upon by Tax Counsel in rendering its opinion with respect to the exclusion from gross income of the interest on the Governmental Lender Note for federal income tax purposes.) are true and correct in all material respects, do not contain any untrue statement of a material fact and do not omit to state any material fact necessary to be stated therein in order to make the information provided therein, in light of the circumstances under which such information was provided, not misleading, and,the Borrower is not aware of any other pertinent inforrnation which Tax Counsel has not requested. (g) Qualified Residential Rental P The Borrower hereby covenants and agrees that the Project will be operated as a "qualified residential rental projecf' within the meaning of Section 142(d) of the Code, on a continuous basis during the longer of the Qualified Project Period (as defined in the Regulatory Agreement) or any period during which any portion of the Governmental Lender Note remain outstanding, to the end that the interest on the Governmental Lender Note shall be excluded from gross income for federal income tax purposes. The Borrower hereby covenants and agrees, continuously during the Qualified Project Period, to comply with all the provisions of the Regulatory Agreement. (h) Information Reporting Requirements. The Borrower will comply with the information reporting requirements of Section 149(e)(2) of the Code requiring certain inforrnation regarding the Governmental Lender Note to be filed with the Internal Revenue Service within prescribed time limits. G) Funding Loan Not The Borrower covenants and agrees that not more than 50% of the proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note will be invested in Nonpurpose Investments having a substantially guaranteed Yield for four years or more within the meaning of Section 149(f)(3)(A)�(ii) of the Code, and the Borrower reasonably expects that at least 85% of the spendable proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note will be used to carry out the governmental purposes of the Funding Loan within the three-year period beginning on the Closing D�ate. Termination of Restrictions. Although the parties hereto recognize that, subject to the provisions of the Regulatory Agreement, the provisions of this Borrower Loan. Agreement shall terminate in. accordance with Section 10.14 hereof, the parties hereto recognize that pursuant to the Regulatory Agreement, certain.requirements, including the requirements incorporated by reference in,this Section, may continue in.effect beyond the term hereof. 50 2020-1.1-0,3 Agenda Packet Page 328 of 50�9 (k) Public Ap-proval. The Borrower covenants and agrees that the proceeds of the Funding Loan will not be used by Borrower in a manner that deviates in any substantial degree from the Project described in the written notice of a public hearing regarding the Funding Loan. (1) 40/60 Test Election. The Borrower and the Governmental Lender hereby elect to apply the requirements of Section 142(d)(1)(B) to the Project. The Borrower hereby represents, covenants and agrees, continuously during the Qualified Project Period, to comply with all the provisions of the Regulatory Agreement. (m) Modification of Tax Covenants. Subsequent to the origination of the Funding Loan and prior to its payment in full (or provision for the payment thereof having been made in accordance with the provisions of the Funding Loan Agreement), this Section 5.34 hereof may not be amended, changed, modified, altered or terminated except as permitted herein and by the Funding Loan Agreement and with the Written Consent of the Governmental Lender and the Funding Lender. Anything contained in this Borrower Loan Agreement or the Funding Loan Agreement to the contrary notwithstanding, the Governmental Lender, the Funding Lender and. the Borrower hereby agree to amend,this Borrower Loan Agreement and, if appropriate, the Funding Loan Agreement and the Regulatory Agreement, to the extent required, in the opinion of Tax Counsel, in order for interest on the Governmental Lender Note to remain excludable from gross income for federal income tax purposes. The party requesting such amendment, which may include the Funding Lender, shall notify the other parties to this Borrower Loan Agreement of the proposed amendment and send a co y of such requested amendment to Tax Counsel. After review of such proposed amendment, Tax P, Counsel shall render to the Funding Lender and the Governmental Lender an opinion as to the effect of such proposed amendment upon the includability of interest on the Governmental Lender Note in the gross income of the recipient thereof for federal income tax purposes. The Borrower shall pay all necessary fees and, expenses incurred. with respect to such amendment. The Borrower, the Governmental Lender and, where applicable, the Funding Lender per written instructions from the Governmental Lender shall execute, deliver and, if applicable, the Borrower shall file of record, any and all documents and instruments including without limitation an amendment to the Regulatory Agreement, with a file-stamped copy to the Funding Lender, necessary to effectuate the intent of this Section 5.34, and the Borrower and the Governmental Lender hereby appoint the Funding Lender as their true and lawful attomey-in-fact to execute, deliver and, if applicab�le, file of record on behalf of the Borrower or the Governmental Lenderl as is applicable, any such document or instrument (in such form as may be approved by and upon instruction of Tax Counsel) if either the Borrower or the Governmental Lender defaults in the performance of its obligation under this Section 5.34; provided, however, that the Funding Lender shall take no action under this Section 5.34 without first notifying the Borrower or the Governmental Lender, as is applicable, of its intention to take such action and providing the Borrower or the Governmental Lender, as is applicable, a reasonable opportunity to comply with the requirements, of this Section 5.34. The Borrower irrevocably authorizes and directs the Funding Lender and any other agent designated by the Governmental Lender to make payment of such amounts from funds of the Borrower, if any, held by the Funding Lender, or any agent of the Governmental Lender or the Funding Lender. The Borrower further covenants and agrees that, pursuant to the requirements of Treasury Regulation Section L 1,48-1,(b), it (or any related person, conternplated by such regulations) will not purchase interests in the portion of the Funding Loan evidenced by the Governmental Lender Note. 51 2020-1.1-0,3 Agenda Packet Page 329 of 50�9 Secti'on 5.35 Payment of Rebate. (a) Arbitrnze Rebate. The Borrower agrees to take all steps necessary to compute and pay any rebatable arbitrage relating to the portion of the Funding Loan evidenced by the Governmental Lender Note in accordance with Section 148(f) of the Code including: (i) DeliveKy of Documents and Money on Computation Dates. The Borrower will deliver to the Fiscal Agent, with a copy to the Funding Lender, within 55 days after each Computation Date: (A) with a copy to the Governmental Lender, a statement, signed by the Borrower, stating the Rebate Amount as, of such Computation Date; (B) if such Computation Date is an installment Computation Date, an amount that, together with any amount then held for the credit of the Rebate Fund, is equal to at least 90% of the Rebate Amount as of such Installment Computation Date, less any"previous rebate payments" made to the United States (as that term is used in Section 1.148-3(f)(I) of the Regulations), or (2) if such Computation Date is the final Computation Date, an amount that, together with any amount then held for the credit of the Rebate Fund, is equal to the Rebate Amount as of such final Computation Date, less any"previous rebate payments"made to the United States (as that term is used in Section 1.148,-3(f)(1) of the Regulations); and (C) with a copy to the Governmental Lender, an Internal Revenue Service Form 8038-T properly signed and completed as of such Computation Date. (ii) Correction of Underpayments. If the Borrower shall discover or be notified as of any date that any payment paid to the United States Treasury pursuant to this Section 5.35 of an amount described in Section 5.35(a)(i)(A) or (13) above shall have failed to satisfy any requirement of Section 1.148-3 of the Regulations (whether or not such failure shall be due to any default by the Borrower, the Governmental Lender or the Funding Lender), the Borrower shall (1)pay to the Fiscal Agent (for deposit to the Rebate Fund) and cause the Fiscal Agent to pay to the United States Treasury from the Rebate Fund the underpayment of the Rebate Amount, together with any penalty and/or interest due, as specified in Section 1.148-3(h) of the Regulations, within 175 days after any discovery or notice and (2) deliver to the Fiscal Agent an Internal Revenue Service Form 8038-T completed as of such date. If such underpayment of the Rebate Amount, together with any penalty and/or interest due, is not paid to the United States Treasury in the amount and manner and by the time specified in the Regulations, the Borrower shall take such steps as are necessary to prevent the Governmental Lender Note from becoming arbitrage bonds within the meaning of Section 148 of the Code. (iii) Records. The Borrower shall retain all of its accounting records relating to the funds established under this Borrower Loan Agreement and all calculations made in preparing the statements described in this Section 5.35 for at least six years, after the later of the final maturity of the Governmental Lender Note or the date the Funding Loan is retired in full. (iv) Costs. The Borrower agrees to pay all of the fees and expenses of a nationally recognized Tax Counsel, the Rebate Analyst a certified public accountant and any other necessary consultant employed by the Borrower or the Funding Lender in connection with computing the Rebate Amount. 52 2020-11-03 Agenda Packet Page 330 of 50�9 (v) No Diversion of Rebatable Arbit The Borrower will not indirectly pay any amount otherwise payable to the federal government pursuant to the foregoing requirements to any person other than the federal government by entering into any investment arrangement with respect to the Gro�ss Proceeds of the portion of the Funding Loan evidenced by the Governmental Lender Note which is not purchased at Fair Market Value or includes terms that the Borrower would not have included if such portion of the Funding Loan were not subject to Section 148(f) of the Code. (vi) Modification of Requirements. If at any time during the term of this Borrower Loan Agreement, the Governmental Lender, the Funding Lender or the Borrower desires to take any action which would otherwise be prohibited by the terms of this Section 5.35, such Person shall be permitted to take such action if it shall first obtain and provide to the other Persons named herein a Tax Counsel No Adverse Effect Opinion (as defined in the Funding Loan Agreement) with respect to such action. (b) Rebate Fund. The Borrower acknowledges that the Fiscal Agent shall establish and hold a separate fund designated as the "Rebate Fund" under the Funding Loan Agreement and deposit or transfer to the credit of the Rebate Fund. each amount delivered to the Fiscal Agent by the Borrower for deposit thereto and each amount directed by the Borrower to be transferred thereto, as further described in Section 7.8 of the Funding Loan Agreement. Section 5.36 Covenants under Funding Loan Agreement. The Borrower will fully and faithfully perform all the duties and obligations which the Governmental Lender has covenanted and agreed in the Funding Loan Agreement to cause the Borrower to perform and any duties and obligations which the Borrower is required in the Funding Loan Agreement to perform. The foregoing will not a , lv to any duty or undertaking of the Governmental Lender that by its nature PP I cannot be delegated or assigned. Section 5.37 Continuing Disclosure Agreement. The Borrower and the Funding Lender shall enter into the Continuing Disclosure Agreement to provide for the continuing disclosure of information about the Funding Loan, the Borrower and other matters as specifically provided for in such agreement. ARTICLE VI NEGATIVE COVENANTS Borrower hereby covenants and agrees as follows, which covenants shall remain in effect so long as any Borrower Payment Obligation or other obligation of Borrower under any of the other Borrower Loan Documents or the Funding Loan Documents remains outstanding or unperformed. Borrower covenants and agrees,that it will not, directly or indirectly: Section 6.1 Management Agreement. Without first obtaining the Funding Lender"s prior Written Consent, enter into the Management Agreement, and thereafter the Borrower shall not, without the Funding Lender's, prior Written Consent (which consent shall not be unreasonably withheld) and subject to the Regulatory Agreement: (i) surrender, terminate or cancel the Management Agreement or otherwise replace the Manager or enter into any other management agreement; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase or consent to the increase of the amount of any charges under the Management 53 2020-11-03 Agenda Packet Page 331 of 50�9 Agreement; (iv) otherwise modify, change, supplement, alter or amend in any material respect, or waive or release in any material respect any of its rights and remedies under, the Management Agreement; or(v) suffer or ermit the occurrence and continuance of a default beyond any applicable p cure period under the Management Agreement (or any successor management agreement) if such default permits the ManaLyer to terminate the Management Agreement (or such successor 4-11 management agreement). 0 Section 6.2 Dissolution. Dissolve or liquidate, in whole or in part, merge with or consolidate into another Person. Section 6.3 Change in Business or Operation of Property. Enter into any line of business, other than the ownership and operation of the Pro ect, or make any material change in the j sco e or nature of its business ob ectives, purposes or o erations, or undertake or articipate in p j p p activities other than the continuance of its present business and activities incidental or related thereto or otherwise cease to operate the Project as a multi-family property or terminate such business for any reason whatsoever (other than temporary cessation in connection with construction or rehabilitation as appropriate, of the Pro ect). j Section 6�.4 Debt Cancellation. Cancel or otherwise forgive or release any claim or debt owed to the Borrower by a Person, except for adequate consideration or in the ordinary course of the Borrower's business in its reasonable judgment. Section 6.5 Assets. Purchase or own any real ro ertv or personal property incidental P P thereto other than the Project. Section 6.6 Transfers. Makel suffer or permit the occurrence of any Transfer other than a transfer permitted under the Security Instrument and Section 10 of the Regulatory Agreement, nor transfer any material License required for the operation of the Pro ect. i Section 6.7 Debt. Other than as expressly approved in writing by the Funding Lender, create, incur or assume any indebtedness for borrowed money (including subordinate debt) whether unsecured or secured,by all or any portion of the Project or interest therein or in the Borrower or any partner thereof (including subordinate debt) other than (1) the Borrower Payment Obligations, (ii) secured indebtedness incurred pursuant to or permitted by the Borrower Loan Documents and the Funding Loan Documents, (iii) trade payables incurred in the ordinary course of business and (iv) deferred developer fees. Section 6.8 Assignment of Rights. Without the Funding Lender's prior Written Consent,, attempt to assign the Borrower's rights or interest under any Borrower Loan Document or Funding Loan Document in contravention of any Borrower Loan.Document or Funding Loan Document. Section 6.9 Principal Place of Business. Change its, principal place of business without providing 30 days' prior Written Notice of the change to the Funding Lender and the Servicer. Section 6.10 Partnership Agreement. Without the Funding Lender's prior Written Consent (which consent shall not be unreasonably withheld) surrender, terminate, cancel, modify, change, supplement, alter or amend in any material respect, or waive! or release in any material respect (except as allowed by the Security Instrument), any of its rights or remedies under the Partnership Agreement; provided, however, the consent of Funding Lender is not required for an 54 2020-1.1-0,3 Agenda Packet Page 332 of 50�9 amendment of the Partnership Agreement resulting solely from the "Permitted Transfer" of partnership interests of Borrower as defined in and permitted by the Security Instrument. Section 6.11 ERISA. Maintain, sponsor, contribute to or become obligated to contribute to, or suffer or permit any ERISA Affiliate of the Borrower to, maintain, sponsor, contribute to or become obligated to contribute to, any Plan, or permit the assets of the Borrower to become (.4plan assets," whether by operation of law or under regulations promulgated under ERISA. 0 Section 6.12 No Hedging Arrangements. Without the prior Written Consent of the Funding Lender or unless otherwise required by this Borrower Loan Agreement, the Borrower will not enter into or guarantee, provide security for or otherwise undertake any form of contractual obligation with respect to any interest rate swap, interest rate cap or other arrangement that has the effect of an interest rate swap or interest rate cap or that otherwise (directly or indirectly, derivatively or synthetically) hedges interest rate risk associated with being a debtor of variable rate debt or any agreement or other arrangement to enter into any of the above on a future date or after the occurrence of one or more events in the future. Section 6�.13 Loans and Investments; Distributions; Related Party Payments. (a) Without the prior Written Consent of Funding Lender in each instance, Borrower shall not (i) lend money, make investments, or extend credit, other than in the ordinary course of its business as presently conducted; or (ii) repurchase, redeem or otherwise acquire any interest in Borrower, any Borrower Affiliate or any other Person owning an interest, directly or indirectly, in Borrower, or make any distribution, in cash or in kind, in respect of interests in Borrower, any Borrower Affiliate or any other Person owning an interest, directly or indirectly, in Borrower (except to the extent permitted by the Security Instrument and subject to the limitations set forth in Section 5.27 hereof). (b) Disbursements for fees and expenses of any Borrower Affiliate and developer fees (however characterized) will only be paid to the extent that such fee or expense bears a proportionate relationship to the percentage of completion of the construction or rehabilitation, as the case may be, of the Improvements, as determined by the Construction Consultant, and only after deducting the applicable Retainage. Except as otherwise permitted hereunder or by the Funding Lender, no Disbursements for the Developer Fee or any "deferred developer fees" shall be made prior to the Conversion Date other than in accordance with the Approved Developer Fee Schedule. Section 6.14 Amendment of Related Documents or CC&R's. Without the prior Written Consent of Funding Lender in each instance.) except as provided herein or in the Construction Funding Agreement, Borrower shall not enter into or consent to any amendment, termination, modification, or other alteration of any of the Related Documents or any of the CC&R's (including, without limitation., those contained in this Borrower Loan Agreement, any Architect"s Agreement or Engineer's Contract, any Construction Contract, and any Management Agreement, but excluding the Partnership Agreement, which is covered by Section 6.10), or any assignment, transfer, pledge or hypothecation of any of its rights thereunder, if any. Section 6.1.5 Personal Property. Borrower shall not install materials, personal property, equipment or fixtures subject to any security agreement or other agreement or contract wherein the right is reserved to any Person. other than Borrower to remove or repossess any such materials, equipment or fixtures, or whereby title to any of the same is not completely vested in Borrower at the 55 2020-1.1-0,3 Agenda Packet Page 333 of 50�9 time of installation, without Funding Lender's prior Written Consent; provided, however, that this Section 6.15 shall not apply to laundry equipment or other equipment that is owned by a third-party vendor and commercial tenants. 0 Section 6.16 Fiscal Year'. Without Funding Lender's Written Consent, which shall not be unreasonably withheld, neither Borrower nor General Partner shall change the times of commencement or termination of its fiscal year or other accounting periods, or change its methods of accounting, other than to conform to GAAP. 0 Section 6.17 Publicity. Neither Borrower nor General Partner shall issue any publicity release or other communication to any print, broadcast or on-line media, post any sign or in any other way identify Funding Lender or any of its Affiliates as the source of the financing provided for herein, without the prior written approval of Funding Lender in each instance (provided that nothing herein shall prevent Borrower or General Partner from identifying Funding Lender or its Affiliates as the source of such financing to the extent that Borrower or General Partner are required to do so by disclosure requirements applicable to publicly held companies). With the exception of Equity Investor signage posted on the Project, Borrower and, General Partner agree that no sign shall be posted on the Project in connection with the construction or rehabilitation of the Improvements unless such sign identifies Citigroup and its affiliates as the source of the financing provided for herein or Funding Lender consents to not being identified on any such sign. 'I. Section 6.18 Subordinate Loan Documents. Without Functing Lender's prior written consent, Borrower will not surrender, terminate, cancel, modify, change, supplement, alter, amend, waive,, release, assign, transfer, pledge or hypothecate any of its rights or remedies under the Subordinate Loan Documents. ARTICLE V11 RESERVED ARTICLE VIII DEFAULTS Section 8.1 Events of Default. Each of the following events shall constitute an"'Event of Default"under this Borrower Loan Agreement: (a) failure by the Borrower to pay any Borrower Loan Payment in the manner and on the date such payment is due in accordance with the terms and provisions of the Borrower Note, or the failure by the Borrower to pay any Additional Borrower Payment on the date such payment is due in accordance with the terms and provisions of the Borrower Note, the Security Instrument, this Borrower Loan Agreement or any other Borrower Loan Document; (b) failure by or on behalf of the Borrower to pay when due any amount (other than as provided in subsection (a) above or elsewhere in this Section 8.1) required to be paid by the Borrower under this Borrower Loan Agreement, the Borrower Note, the Security Instrument or any of the other Borrower Loan Documents or Funding Loan Documents, including a failure to repay any amounts that have been, previously paid but are recovered, attached or enjoined pursuant to any 56 2020-1.1-0,3 Agenda Packet Page 334 of 50�9 insolvency, receivership, liquidation or similar proceedings, which default remains uncured for a period of five (5) days after Written Notice thereof shall have been given to the Borrower; (c) an Event of Default, as defined in the Borrower Note, the Security Instrument or any other Borrower Loan Document, occurs (or to the extent an "Event of Default" is not defined in any other Borrower Loan Document, any default or breach by the Borrower or any Guarantor of its obligations, covenants, representations or warranties under such Borrower Loan Document occurs and any applicable notice and/or cure period has expired); (d) any representation or warranty made by any of the Borrower, the Guarantor or the General Partner in any Borrower Loan Document or Funding Loan Document to which it is a party, or in any report, certificate, financial statement or other instrument, agreement or document furnished by the Borrower, the Guarantor or the General Partner in connection with any Borrower Loan Document or Functing Loan Document, shall be false or misleading in any material respect as of the Closing Date; (e) the Borrower shall make a general assignment for the benefit of creditors, or shall generally not be paying its debts as they become due; (f) the Borrower Controlling Entity shall make a general assignment for the benefit of creditors, shall generally not be paying its debts as they become due, or an Act of Bankruptcy with respect to the Borrower Controlling Entity shall occur, unless in all cases the Borrower Controlling Entity is replaced with a substitute Borrower Controlling Entity that satisfies the requirements of Section 21 of the Security Instrument; which, in the case of a no�n rofit Borrower I p Controlling Entity, may be replaced within sixty (60) days of such event with another nonprofit Borrower Controlling Entity acceptable to the Funding Lender, in which case no Event of Default shall be deemed to have occurred; (g) any portion of Borrower Deferred, Equity to be made by Equity Investor and required for (1) completion of the construction or rehabilitation, as the case may be, of the Improvements, (ii)the satisfaction of the Conditions of Conversion or (iii) the operation of the Improvements, is not received in accordance with the Partnership Agreement (and subject to the terms and conditions as set forth therein) after the expiration of all applicable notice and cure periods; (h) the failure by Borrower or any ERISA Affiliate of Borrower to comply in all, respects with ERISA, or the occurrence of any other event (with respect to the failure of Borrower or any ERISA Affiliate to pay any amount required to be paid under ERISA or with respect to the termination of, or withdrawal of Borrower or any ERISA Affiliate from, any employee benefit or welfare plan subject to ERISA)the effect of which is to impose upon Borrower(after giving effect to the tax consequences thereof) for the payment of any amount in excess of Fifty Thousand Dollars ($50�000); (i) a Bankruptcy Event shall occur with respect to Borrower, any General Partner or Guarantor, or there shall be a change in the assets, liabilities or financial position of any such Person which. has a material adverse effect upon, the ability of such Person to perform such Person's obligations under this Borrower Loan Agreement, any other Borrower Loan. Document or any Related Document, provided that any such Bankruptcy Event with respect to a Guarantor shall not constitute an Event of Default: (i) if such. Bankruptcy Event occurs on or after the date upon which 57 2020-11-03 Agenda Packet Page 335 of 50�9 the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor), or (ii) if such Bankruptcy Event occurs prior to the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor) and the Borrower replaces such Guarantor with a person or entity satisfying the Funding Lender's mortgage credit standards for principals and acceptable to the Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from the Funding Lender, and provided further that any such Bankruptcy Event with respect to the Managing General Partner shall not constitute an Event of Default if the Managing General Partner is replaced with a substitute non-profit managing general partner that satisfies the requirements of Section 21 of the Security Instrument and is acceptable to Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from Funding Lender; 0) all or any part of the property of Borrower is attached, levied upon or otherwise seized by legal process, and such attachment, levy or seizure is not quashed, stayed, or released: (i)prior to completion of the construction or rehabilitation, as the case may be, of the Improvements, within ten (10) days of the date thereof or (ii) after completion of the construction or rehabilitation, as the case may be, of the Improvements,within thirty(30�) days of the date thereof; (k) subject to Section I O�.16 hereof, Borrower fails to pay when due any monetary obligation (other than pursuant to this Borrower Loan Agreement) to any Person in excess of $100,000, and such failure continues beyond the expiration of any applicable cure or grace periods; (1) any material litigation or proceeding is commenced before any Governmental Authority against or affecting Borrower, any General Partner or Guarantor, or property of Borrower, any General Partner or Guarantor, or any part thereof, and such litigation or proceeding is not defended diligently and in good faith by Borrower, any General Partner or Guarantor, as applicable, provided that any such material litigation or proceeding against a Guarantor shall not constitute an Event of Default: (1) if such material litigation is commenced on or after the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor), or (ii) if such material litigation or proceeding is commenced prior to the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all, of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor) and the Borrower replaces such Guarantor with a person or entity satisfying the Funding Lender's mortgage credit standards for principals and acceptable to the Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from the Funding Lender, and provided further that any such material litigation or proceeding against the Managing General Partner shall not constitute an Event of Default if the Managing General Partner is replaced with a substitute non-profit managing general partner that satisfies the requirements of Section 21 of the Security Instrument and is acceptable to Funding Lender in its sole and absolute discretion within thirty(30) days after notice thereof from Funding Lender, (m) a final judgment or decree for monetary damages in excess of$50,000 or a 'monetary fine or penalty (not subject to appeal or as to which the time for appeal has expired) is entered against Borrower, any General Partner or Guarantor by any Governmental Authority, and such judgment, decree, fine or penalty is not paid and discharged or stayed (i) prior to completion of the construction or rehabilitation, as the case may be, of the! Improvements, within ten (10) days after 58 2020-1.1-0,3 Agenda Packet Page 336 of 50�9 entry thereof or (ii) after completion of the construction or rehabilitation, as the case may be, of the Improvements, within thirty (30) days after entry thereof(or such longer period as may be permitted for payment by the terms of such judgment, fine or penalty) , provided that any such judgment, decree, fine or penalty against a Guarantor shall not constitute an Event of Default: (i) if such judgment, decree, fine or penalty is entered on or after the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor), or (ii) if such judgment, decree, fine or penalty is entered prior to the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor) and the Borrower replaces such Guarantor with a person or entity satisfying the Funding Lender's mortgage credit standards for principals and acceptable to the Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from the Funding Lender, and provided further that any such judgment, decree, fine or penalty against the managing general partner shall not constitute an Event of Default if the managing general partner is replaced.with a substitute non-profit managing general partner that satisfies the requirements of Section 21 of the Security Instrument and is acceptable to Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from Funding Lender; (n) a final, un-appealable and uninsured money judgment or judgments, in favor of any Person other than a Governmental Authority, in the aggregate sum of$50,000 or more shall be rendered against Borrower, any General Partner or Guarantor, or against any of their respective assets, that is not paid, superseded or stayed (i) prior to completion of the construction or rehabilitation, as the case may be, of the Improvements, within ten (10) days after entry thereof or (ii) after completion of the construction or rehabilitation, as the case may be, of the Improvements, within thirty (30) days after entry thereof(or such longer period,as may be permitted for payment by the terms of such judgment); or any levy of execution, writ or warrant of attachment, or similar process, is entered or filed against Borrower, any General Partner or Guarantor, or against any of their respective assets (that is likely to have a material adverse effect upon the ability of Borrower, any General Partner or Guarantor to perform their respective obligations under this Borrower Loan Agreement, any other Borrower Loan Document or any Related Document), and such judgment, writ, warrant or process shall remain unsatisfied, unsettled, unvacated, unhanded and unstayed (i)prior to completion of the construction or rehabilitation, as the case may be, of the Improvements, for a period of ten (10�) days or (ii) after completion of the construction or rehabilitation, as the case may be, of the Improvements, for a period of thirty (30) days, or in any event later than five (5) Business Days prior to the date of any proposed sale thereunder, provided that any such judgment, levy, writ, warrant, attaclunent or similar process against a Guarantor shall not constitute an Event of Default: (i) if such judgment, levy, writ, warrant, attachment or similar process is entered on or after the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than one Guaranty was executed by such Guarantor), or (ii.) if such. judgment, levy, writ, warrant, attachment or similar process is entered prior to the date upon which the Guaranty terminates in accordance with its terms (or the date upon which all of the Guaranties have terminated in accordance with their terms, if more than. one Guaranty was executed by such Guarantor) and the Borrower replaces such Guarantor with a person or entity satisfying the Funding Lender's mortgage credit standards for principals and acceptable to the Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from the Funding Lender, and provided further that any such judgment, levy, writ, warrant, attachment or similar process against the managing general partner shall not constitute an Event of Default if the managing general partner is replaced with a substitute non-profit managing 59 2020-1.1-0,3 Agenda Packet Page 337 of 50�9 general partner that satisfies the requirements of Section 21 of the Security Instrument and is acceptable to Funding Lender in its sole and absolute discretion within thirty (30) days after notice thereof from Funding Lender; (o) the inability of Borrower to satisfy any condition for the receipt of a Disbursement hereunder (other than an Event of Default specifically addressed in this Section 8.1) and failure to resolve the situation to the satisfaction of Funding Lender for a period in excess of thirty (30) days after Written Notice from Funding Lender unless (i) such inability shall have been caused by conditions beyond the control of Borrower, including, without limitation, acts of God or the elements, fire, strikes, and disruption of shipping; (ii) Borrower shall have made adequate provision, acceptable to Funding Lender, for the protection of materials, stored on-site or off-site and for the protection of the Improvements to the extent then constructed against deterioration and against other loss or damage or theft; (iii) Borrower shall furnish to Funding Lender satisfactory evidence that such cessation of construction or rehabilitation will not adversely affect or interfere with the rights of Borrower under labor and materials contracts or subcontracts relating to the construction or operation of the Improvements; and (iv) Borrower shall furnish to Funding Lender satisfactory evidence that the completion of the construction or rehabilitation of the Improvements can be accomplished,by the Completion Date; (p) the construction or rehabilitation of the Improvements is abandoned or halted prior to completion for any period of thirty (30�) consecutive days , provided that such cessation of construction or rehabilitation shall not constitute an Event of Default if (i) such cessation of construction shall have been caused by conditions beyond the control of Borrower, including, without limitation, acts of God or the elements, acts of terrorism, acts of war, fire, strikes and disruption of shipping, Borrower notifies Funding Lender of such condition in writing within 15 days, and such cessation does not exceed an aggregate period of sixt (60) consecutive days; (ii) y I Borrower shall have made adequate provision, acceptable to Funding Lender, for the protection of materials stored on-site or off-site and for the protection of the Improvements to the extent then constructed or rehabilitated against deterioration and against other loss or damage or theft-, (iii) Borrower shall furnish to Funding Lender satisfactory evidence that such cessation of construction will, not adversely affect or interfere with the rights of Borrower under labor and materials contracts or subcontracts relating to the construction or operation of the Improvements; and(iv) Borrower shall fumish to Funding Lender satisfactory evidence that the completion of the construction or rehabilitation; (q) Borrower shall fail to keep in force and effect any material permit, license, consent or approval required under this Borrower Loan Agreement, or any Governmental Authority with jurisdiction over the Mortgaged Property or the Project orders or requires that construction or rehabilitation of the Improvements be stopped, in whole or in part, or that any required approval, license or permit be withdrawn or suspended, and the order, requirement, withdrawal or suspension remains in effect for a period of thirty(30) days-, (r) failure by the Borrower to Substantially Complete the construction or rehabilitation, as the case may be, of the Improvements in accordance with. this Borrower Loan Agreement on or prior to the Substantial Completion Date, (s) failure by Borrower to complete the construction or rehabilitation, as the case may be, of the Improvements in accordance with this Borrower Loan, Agreement on or prior to the Completion Date; 60 2020-1.1-0,3 Agenda Packet Page 338 of 50�9 W failure by Borrower to satisfy the Conditions to Conversion on or before the Outside Conversion Date or the Extended Outside Conversion Date, if applicable; (u) an "Event of Default" or "Default" (as defined in the applicable agreement) shall occur under any of the Subordinate Loan Documents, after the expiration of all applicable notice and cure periods; or (v) Borrower fails to obtain all grading, foundation, building and all other construction permits, licenses and authorizations from all applicable Governmental Authorities or third parties necessary for the completion of the construction or rehabilitation, as the case may be, of the Improvements, and the operation of, and access to, the Project, prior to the commencement of any work for which such permit, license or authorization is required; or (w) any failure by the Borrower to perform or comply with any of its obligations under this Borrower Loan Agreement (other than those specified in this Section 8.1)�, as and when required, that continues for a period of thirty(30) days after written notice of such failure by Funding Lender or the Servicer on its behalf to the Borrower (with a copy to the limited partner of the Borrower); provided, however, if such failure is susceptible of cure but cannot reasonably be cured, within such thirty (30) day period, and the Borrower shall have commenced. to cure such failure within such thirty (30) day period and. thereafter diligently and expeditiously proceeds to cure the same, such thirty (30�) day period shall be extended for an additional period of time as is reasonably necessary for the Borrower in the exercise of due diligence to cure such failure, such additional period not to exceed sixty (60) days. However, no such notice or grace period shall apply to the extent such failure could, in the Funding Lender's judgment, absent immediate exercise by the Funding Lender of a right or remedy under this Borrower Loan Agreement, result in harm to the Funding Lender, impainnent of the Borrower Note or this Borrower Loan Agreement or any security given under any other Borrower Loan Document. Additionally, except with respect to any payment due on the Borrower Note and Additional Borrower Payments, (a) any Default or Event of Default that occurs by reason of acts or omissions of a general partner of Borrower shall be deemed, cured if such general partner of Borrower is replaced, within thirty (30) days after notice to Borrower and the Equity Investor of such Default or Event of Default by Funding Lender, by a substitute general partner approved by Funding Lender in its sole discretion, except if such replacement is an affiliate of the Equity Investor, no such approval by Funding Lender shall be required, provided in either case such replacement is approved by the Governmental Lender in the manner and to the extent provided in the Regulatory Agreement and such substitute general partner timely cures such Default or Event of Default; and (b) any Default or Event of Default that occurs which can be cured by replacement of any guarantor of the Borrower Loan shall be deemed cured if such guarantor is replaced by a substitute guarantor approved by Funding Lender in its sole discretion, which substitute guarantor executes such guaranty agreements requested by Funding Lender within thirty (30) days after notice to Borrower of such Default or Event of Default by Funding Lender. Section 8.2 Remedies. Section 8.2.1. Acceleration. Upon the occurrence of an Event of Default (other than. an. Event of Default described in paragraph (e), (f) or (i) of Section 8.1) and at any time and from time to time thereafter, as long as such Event of Default continues to exist, in, addition to any other rights or remedies available to the Governmental Lender pursuant to the Borrower Loan 61 2020-1.1-0,3 Agenda Packet Page 339 of 50�9 Documents or at law or in equity, the Funding Lender may, take such action (whether directly or by directing the actions of the Fiscal Agent), without notice or demand, as the Funding Lender deems, advisable to protect and enforce its rights, against the Borrower and in and to the Project, including declaring the Borrower Payment Obligations to be immediately due and payable (including, without limitation, the principal of, Prepayment Premium, if any, and interest on and all other amounts due on the Borrower Note to be immediately due and payable), without notice or demand, and apply such payment of the Borrower Payment Obligations in any manner and in any order determined by Funding Lender, in Funding Lender's sole and absolute discretion; and upon any Event of Default described in paragraph (e), (f) or (i) of Section 8.1, the Borrower Payment Obligations shall become immediately due and payable, without notice or demand, and the Borrower hereby expressly waives any such notice or demand, anything contained in any Borrower Loan Document to the contrary notwithstanding. Notwithstanding anything herein to the contrary, enforcement of remedies hereunder and under the Funding Loan Agreement shall be controlled by the Funding Lender. 0 Section 8.2.2 Remedies Cumulative. Upon the occurrence of an Event of Default, all or any one or more of the rights, powers, privileges and, other remedies available to the Funding Lender against the Borrower under the Borrower Loan Documents or at law or in equity may be exercised by the Funding Lender or the Fiscal Agent, at any time and from time to time, whether or not all or any of the Borrower Payment Obligations shall be declared due and payable, and whether or not the Funding Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Borrower Loan Documents. Any such actions taken by the Funding Lender shall be cumulative and concurrent and may be pursued independently, singly, successively, together or otherwise, at such time and in such order as the Funding Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of the Funding Lender permitted by law, equity or contract or as set forth in the Borrower Loan Documents. Without limiting the generality of the foregoing, the Borrower agrees that if an Event of Default is continuing, all Liens and other rights, remedies or privileges provided to the Funding Lender shall remain in full force and effect until they have exhausted all of its remedies, the Security Instrument has, been foreclosed, the Project has been sold and/or otherwise realized upon satisfaction of the Borrower Payment Obligations or the Borrower Payment Obligations has been paid in full. To the extent permitted by applicable law, nothing contained in any Borrower Loan Document shall be construed as requiring the Funding Lender to resort to any portion of the Project for the satisfaction of any of the Borrower Payment Obligations in preference or priority to any other portion, and the Funding Lender may seek satisfaction out of the entire Project or any part thereof, in its absolute discretion. Notwithstanding any provision herein to the contrary, the Governmental Lender, the Fiscal Agent and the Funding Lender agree that any cure of any default made or tendered by the Equity Investor under the! Borrower Loan Documents or the Funding Loan Documents shall be deemed to be a cure by the Borrower and shall be accepted or re ected on the same basis as if made or tendered by the Borrower. Section 8.2.3 Delay. No delay or omission to exercise any remedy, right, power accruing upon an Event of Default, or the granting of any indulgence or compromise by the Funding Lender or the Fiscal Agent shall impair any such remedy, right or power hereunder or be construed as a waiver thereof, but any such remedy, right or power may be exercised from time to time and as often as may be deemed expedient. A waiver of one Potential Default or Event of Default shall not be construed to be! a waiver of any subsequent Potential Default or Event of Default or to impair any remedy, right or power consequent thereon. Notwithstanding any other provision of this Borrower 62 2020-11-03 Agenda Packet Page 340 of 50�9 Loan Agreement, the Funding Lender and the Fiscal Agent reserve the right to seek a deficiency judgment or preserve a deficiency claim, in connection with the foreclosure of the Security Instrument to the extent necessary to foreclose on the Project, the Rents, the funds or any other collateral. Section 8.2.4 Set Off; Waiver of Set Off. Upon the occurrence of an Event of Default, Funding Lender may, at any time and from time to time, without notice to Borrower or any other Person (any such notice being expressly waived)�, set off and appropriate and apply(against and on account of any obligations and liabilities of the Borrower to the Funding Lender or the Fiscal Agent arising under or connected with this Borrower Loan Agreement and the other Borrower Loan Documents and the Funding Loan Documents, irrespective of whether or not the Funding Lender shall have made any demand therefor, and although such obligations and liabilities may be contingent or unmatured)�, and the Borrower hereby grants to the Funding Lender, as security for the Borrower Payment Obligations, a security interest in, any and all deposits (general or special, including but not limited to Debt evidenced.by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Debt at any time held or owing by the Funding Lender to or for the credit or the account of the Borrower. Section 8.2.5 Assumption of Obligations. In the event that the Funding Lender or its assignee or designee shall become the legal or beneficial owner of the Project by foreclosure or deed in lieu of foreclosure, such party shall succeed to the rights and the obligations of the Borrower under this Borrower Loan Agreement.) the Borrower Note, the Regulatory Agreement, and any other Borrower Loan Documents and Funding Loan Documents to which the Borrower is a party. Such assumption shall be effective from and after the effective date of such acquisition and shall be made with the benefit of the limitations of liability set forth therein and without any liability for the prior acts of the Borrower. Section 8.2.6 Accounts Receivable. Upon the occurrence of an Event of Default, Funding Lender shall have the right, to the extent permitted by law, to impound and take possession of books, records,, notes and other documents evidencing Borrower's accounts, accounts receivable and other claims for payment of money, arising in connection with the Project, and to make direct collections on such accounts, accounts receivable and claims for the benefit of Funding Lender. Section 8.2.7 Defaults under Other Documents. Funding Lender shall have the right to cure any default under any of the Related Documents and the Subordinate Loan Documents, but shall have no obligation to do so. Section 8.2.8 Abatement of Disbursements. Notwithstanding any provision to the contrary herein or any of the other Borrower Loan Documents or the Funding Loan Documents, Funding Lender's obligation to make further Disbursements shall abate (i) during the continuance of any Potential Default, (ii) after any disclosure to Funding Lender of any fact or circumstance that, absent such disclosure, would cause any representation or warranty of Borrower to fail to be true and correct in all material respects, unless and until Funding Lender elects to permit further Disbursements notwithstanding such. event or circumstance; and (iii) upon the occurrence of any Event of Default. Section 8.2.9 Completion of Improvements. Upon the occurrence of any Event of Default, Funding Lender shall have the right to cause an independent contractor selected by Funding Lender to enter into possession of the Project and to perform any and all work and labor 63 2020-11-03 Agenda Packet Page 341 of 50�9 necessary for the completion of the Project substantially in accordance with the Plans, and Specifications, if any, and to perform Borrower's obligations under this Borrower Loan Agreement. All sums expended by Funding Lender for such purposes shall be deemed to have been disbursed to and borrowed by Borrower and shall be secured by the Security Documents. 0 Section 8.2.10 Right to Directly Enforce. Notwithstanding any other provision hereof to the contrary, the Funding Lender shall have the right to directly enforce all rights and remedies hereunder with or without involvement of the Governmental Lender or the Fiscal Agent, provided that only the Governmental Lender may enforce the Unassigned Rights. In the event that any of the provisions set forth in this Section 8.2.10 are inconsistent with the covenants, terms and conditions of the Security Instrument, the covenants, terms and conditions of the Security Instrument shall prevail. Section 8.2.11 Power of Attorney. Effective upon the occurrence of an Event of Default, and continuing until and unless such Event of Default is cured or waived, Borrower hereby constitutes and appoints Funding Lender, or an independent contractor selected by Funding Lender, as its true and lawful attorney-in-fact with full power of substitution, for the purposes of completion of the Pro ect and performance of Borrower's obligations under this Borrower Loan Agreement in j the name of Borrower, and, hereby empowers said, attorney-in-fact to do any or all of the following upon the occurrence and, continuation of an Event of Default (it being understood and agreed that said power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked until full payment and performance of all obligations under this Borrower Loan Agreement and the other Borrower Loan Documents and the Funding Loan Documents): (a) to use any of the funds of Borrower or General Partner, including any balance of the Borrower Loan,, as applicable, and any funds which may be held by Funding Lender for Borrower (including all funds in all deposit accounts in which Borrower has granted to Funding Lender a security interest), for the purpose of effecting completion of the construction or rehabilitation, as the case may be, of the Improvements, in the manner called for by the Plans and Specifications; (b) to make such additions, changes and corrections in the Plans and Specifications as shall be necessary or desirable to complete the Project in substantially the manner contemplated by the Plans and Specifications; (c) to employ any contractors, subcontractors, agents, architects and inspectors required for said purposes; (d) to employ attorneys to defend against attempts to interfere with the exercise of power granted hereby; (e) to pay, settle or compromise all existing bills and claims which are or may be liens against the Project or the Improvements, or may be necessary or desirable! for the completion of the construction or rehabilitation, as the case may be, of the Improvements, or clearance of objections to or encumbrances on title, (f) to execute all applications and certificates in the name of Borrower, which may be required by any other construction contract, 64 2020-11-03 Agenda Packet Page 342 of 50�9 (g) to prosecute and defend all actions or proceedings in connection with the Project and to take such action, require such perfo�rmance and do any and every other act as is deemed necessary with respect to the completion of the construction or rehabilitation, as the case may be, of the Improvements,which Borrower might do on its own behalf; (h) to let new or additional contracts to the extent not prohibited by their existing contracts; (i) to employ watchmen and erect security fences to protect the Project fro�m inj ury; and to take such action and require such performance as it deems necessary under any of the bonds or insurance policies to be furnished hereunder, to make settlements and compromises with the sureties or insurers thereunder, and in connection therewith to execute instruments of release and satisfaction. It is the intention of the parties hereto that upon the occurrence and continuance of an Event of Default, rights and remedies may be pursued pursuant to the terms of the Borrower Loan Documents and. the Funding Loan Documents. The parties hereto acknowledge that, among the possible outcomes to the pursuit of such remedies, is the situation where the Funding Lender assignees or designees become the owner of the Pro ect and,assume the obligations identified above, j and the Borrower Note, the Borrower Loan and. the other Borrower Loan Documents and Funding Loan Documents remain outstanding. ARTICLE IX SPECIAL PROVISIONS Section 9.1 Sale of Note and Secondary Market Transaction. Section 9.1.1 Cooperation. Subject to the restrictions of Section 2.4 of the Funding Loan Agreement, at the Funding Lender's or the Servicer's request (to the extent not already required to be provided by the Borrower under this Borrower Loan Agreement)�, the Borrower shall use reasonable efforts to satisfy the market standards to which the Funding Lender or the Servicer customarily adheres or which may be reasonably required in the marketplace or by the Funding Lender or the Servicer in connection with one or more sales or assignments of all or a portion of the Governmental Lender Note or participations therein or securitizations of single or multi-class securities (the "Securities") secured by or evidencing ownership interests in all or a portion of the Governmental Lender Note (each such sale, assignment and/or securitization, a "Secondary Market Tran.saction")�; provided that neither the Borr ower nor the Governmental Lender shall incur any third party or other out-of-pocket costs and expenses in connection with a Secondary Market Transaction, including the costs associated with the delivery of any Provided Information or any opinion required in connection therewith, and all such costs shall be paid by the Funding Lender or the Servicer, and shall not materially modify Borrower's rights or obligations. Without limiting the generality of the foregoing, the Borrower shall, so long as the Borrower Loan is still outstanding: (a) (i)provide such financial and other information, with respect to the Borrower Loan, and with respect to the Project, the Borrower, the Manager, the contractor of the Pro ect or the j Borrower Controlling Entity, (ii) provide financial statements, audited, if available, relating to the 65 2020-1.1-0,3 Agenda Packet Page 343 of 50�9 Project with customary disclaimers for any forward looking statements or lack of audit, and (iii), at the expense of the Funding Lender or the Servicer, perform or permit or cause to be performed or permitted such site inspection, appraisals, surveys, market studies, environmental reviews and reports, (Phase I's and, if appro�priate, Phase 11's), engineering reports and other due diligence investigations of the Project, as may be reasonably requested from time to time by the Funding Lender or the Servicer or the Rating Agencies or as may be necessary or appropriate in connection with a Secondary Market Transaction or Exchange Act requirements (the items provided to the Funding Lender or the Servicer pursuant to this paragraph (a) being called the "Provided Information"'), together, if customary, with appropriate verification of and/or consents (including, without limitation, auditor consents) to include or incorporate by reference the Provided Information in an offering document or otherwise provide the Provided Information to investors and potential investors or opinions, of counsel of independent attorneys acceptable to the Funding Lender or the Servicer and the Rating Agencies; (b) make such representations and warranties as of the closing date of any Secondary Mark-et Transaction with respect to the Project, the Borrower, the Borrower Loan Documents and the Funding Loan Documents reasonably acceptable to the Funding Lender or the Servicer, consistent with the facts covered by such representations and,warranties as they exist on the date thereof; and. (c) execute such amendments to the Borrower Loan Documents and the Funding Loan Documents to accommodate such Secondary Market Transaction so long as such amendment does not affect the material economic terms of the Borrower Loan Documents and the Funding Loan Documents and is not otherwise adverse to the Borrower in its reasonable discretion. Section 9.1.2 Use of Information. The Borrower understands that certain of the Provided Information and the required records may be included in disclosure documents in connection with a Secondary Market Transaction, including a prospectus or private placement memorandum (each, a "Secondary Market Disclosure D�ocument")�, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies and service providers or other parties relating to the Secondary Market Transaction. In the event that the Secondary Market Disclosure Document is required to be revised, the Borrower shall cooperate, subject to Section 9.LI(c) hereof, with the Funding Lender and the Servicer in updating the Provided Information or required records for inclusion or summary in the Secondary Market Disclosure Document or for other use reasonably required in connection with a Secondary Market Transaction by providing all current information pertaining to the Borrower and the Project necessary to keep the Secondary Market Disclosure Document accurate and complete in all material respects with respect to such matters. The Borrower hereby consents to any and all such disclosures of such information. The Borrower and the Funding Lender agree and acknowledge that the Governmental Lender undertakes no obligation hereunder or in the Funding Loan Agreement to participate in the preparation of, or to approve, any Secondary Market Disclosure Document. Section 9.1.3 Borrower Obligations Regarding Secondary Market Disclosure Documents. In. connection with. a Secondary Market Disclosure Document, the Borrower shall provide, or in. the case of a B orrower-engaged third party such as the Manager, cause it to provide, information reasonably requested by the Funding Lender pertaining to the Borrower, the Project or such. third party (and portions of any other sections reasonably requested by the Funding Lender pertaining to the Borrower, the Project or the! third party). The Borrower shall, if requested by the 66 2020-11-03 Agenda Packet Page 344 of 50�9 Funding Lender and the Servicer, certify in writing that the Borrower has carefully examined those portions of such Secondary Market Disclosure Document, pertaining to the Borrower, the Project or the Manager, and such portions (and portions of any other sections reasonably requested and pertaining to the Borrower, the Project or the Manager) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; provided that the Borrower shall not be required to make any representations or warranties regarding any Provided Information obtained from a third party except with respect to information it provided to such parties. Furthermore, the Borrower hereby indemnifies the Funding Lender and the Servicer for any Liabilities to which any such parties may become subject to the extent such Liabilities arise out of or are based upon the use of the Provided Information in a Secondary Market Disclosure Document. Section 9.1.4 Borrower Indemnity Regarding Filings, In connection with filings under the Exchange Act or the Securities Act, the Borrower shall (i) indemnify Funding Lender and the underwriter group for any securities (the "Underwriter Group") for any Liabilities to which Funding Lender, the Servicer or the Underwriter Group may become subject insofar as the Liabilities arise out of or are based upon the omission or alleged omission to state in the Provided Information of a material fact required to be stated in the Provided Information in order to make the statements in the Provided Information, in the light of the circumstances under which they were made not misleading and (ii) reimburse the Funding Lender, the Servicer, the Underwriter Group, and other indemnified parties listed above for any legal or other expenses reasonably incurred by the Funding Lender, the Servicer or the Underwriter Group in connection with defending or investigating the Liabilities; provided that the Borrower shall not provide any indemnification regarding any Provided Information obtained from unrelated third parties except with respect to information it provided to such parties. Section 9.1.5 Indemnification Procedure. Promptly after receipt by an indemnified party under Sections 9.1.3 and 9.1.4 hereof of notice of the commencement of any action for which a claim for indemnification is to be made against the Borrower, such indemnified party shall notify the Borrower in writing of such commencement, but the omission to so notify the Borrower will not relieve the Borrower from any liability that it may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the Borrower. In the event that any action is brought against any indemnified party, and it notifies the Borrower of the commencement thereof, the Borrower will be entitled,jointly with any other indemnifying party, to participate therein and, to the extent that it (or they) may elect by Written Notice delivered to the indemnified party promptly after receiving the aforesaid notice of commencement, to assume the defense thereof with counsel selected by the Borrower and reasonably satisfactory to such indemnified party in its sole discretion. After notice from the Borrower to such indemnified party under this Section 9.1.5, the Borrower shall not be responsible for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation. No indemnified party shall settle or compromise any claim for which the Borrower may be liable hereunder without the prior Written,Consent of the Borrower. Section 9.1.6 Contribution. In order to provide for just and equitable contribution in circumstances in which the indemnity agreement provided for in Section. 9.1.4 hereof is for any reason held to be unenforceable by an. indemnified party in respect of any Liabilities (or action in respect thereof) referred to therein which would otherwise be indemnifiable under Section 9.1.4 hereof, the Borrower shall contribute to the amount paid or payable by the indemnified party as a result of such Liabilities (or action in respect thereof); provided, ho�we!ve!r, that no Person 67 2020-11-03 Agenda Packet Page 345 of 50�9 guilty of fraudulent misrepresentation (within the meaning of Section I 0(f) of the Securities Act) shall be entitled to contribution from any Person not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall 'be considered: (i) the indemnified parties and the Borrower's relative knowledge and access to information concerning the matter with respect to which the claim was asserted; (ii) the opportunity to correct and prevent any statement or omission; and (iii) any other equitable considerations appropriate in the circumstances. The parties hereto hereby agree that it may not be equitable if the amount of such contribution were determined by pro rata or per capita allocation. ARTICLE X MISCELLANEOUS Section 10.1 Notices,. All notices, consents, approvals and requests required or permitted hereunder or under any other Borrower Loan Document or Funding Loan Document (a "notice") shall be deemed, to be given and made when delivered by hand, recognized overnight delivery service, confirmed facsimile transmission (provided any telecopy or other electronic transmission received by any party after 4:00 p�.m., local time, as evidenced. by the time shown on such transmission, shall be deemed to have been received the following Business Day), or five (5) calendar days after deposited in the United States mail, registered or certified, postage prepaid, with return receipt requested, addressed as follows: If to the Fiscal Agent: U.S. Bank National Association Global Corporate Trust Services 633 West 5th Street Los Angeles, California 90071 Attention: Ismael Diaz Telephone.- (213) 615-6063 If to the Governmental Lender: Chula Vista Housing Authority 276 Fourth Avenue Chula Vista, California 919 10 Attention: Executive Director Phone: (619) 691-5263 If to the Borrower: Otay Affordable I V8, L.P. c/o O�tay Affordable I V8, LLC 11150 W. Olympic Blvd. Suite 620 Los Angeles, CA 90064 Telephone: (310) 575-3543 x126 Facsimile: (310) 575-3563 Attn.- Senior Project Manager with a copy to: Bocarsly, Emden, Cowan, Esmail &Arndt, LLP 633 West Fiflh Street. I 64th,Floor Los Angeles, California 90071 Attention: Nicole Deddens Telephone: (213) 239-8029 68 2020-1.1-0,3 Agenda Packet Page 346 of 50�9 If to the Equity Investor: Boston Financial Investment Management, LP 8721 Sunset Boulevard, PHI Los Angeles, CA 90069 Attention.* Roy Faerber, Senior Vice President with a copy to: Holland& Knight 10 St. James Avenue, I Ith Floor Boston, MA 02116 Attention.* Kristin Kassetta, Esq. Telephone: (617) 573-5875 If to the Funding Lender: Citibank, N.A. 388 Greenwich Street, Trading 6 1h Floor New York, New York 100 13 Attentiow Transaction and Asset Management Group, Re: Otay Ranch Apartments Deal ID No. 60000682 Facsimile: (212) 723-8209 and to: Citibank,N.A. 325 East Hillcrest Drive, Suite 160 Thousand Oaks, California 91360 Attentiow Operations Manager/Asset Manager Re: Otay Ranch Apartments Deal ID No�. 60000682 Facsimile: (805) 557-0924 prior to the Conversion Date, with a copy to: Citibank,N.A. 388 Greenwich Street,, Trading 6 1h Floor New York,New York 100 13 Attention: Account Specialist Re: Otay Ranch Apartments Deal ID No. 60000682 Facsimile: (212) 723-8209 following the Conversion Date with a copy to: Citibank,N.A. c/o Berkadia Commercial Servicing Department 323 Norristown Road, Suite 300 Ambler, Pennsylvania 19002 Attention: Client Relations Manager Re: Otay Ranch Apartments Deal ID No. 6,00006,82 Facsimile: (215) 328-0305 69 2020-1.1-0,3 Agenda Packet Page 347 of 50�9 and a copy of any notices of default sent to: Citibank, N.A. 388 Greenwich Street, 17th Floor New York,New York 100 13 Attention.* General Counsel's Office Re: Otay Ranch Apartments Deal ID No. 6,00006,82 Facsimile: (212) 723-8939 Any party may change such party's address for the notice or demands required under this, Borrower Loan Agreement by providing written notice of such change of address to the other parties by written notice as provided herein. Section 10.2 Brokers and Financial Advisors. The Borrower hereby represents that it has dealt with no financial advisors, brokers, underwriters, placement agents, agents or finders in connection with the Borrower Loan, other than those disclosed to the Funding Lender and.whose fees shall be paid, by the Borrower pursuant to separate agreements. The Borrower and the Funding Lender shall indemnify and hold the other harmless from and against any and. all claims, liabilities, costs and expenses of any kind in any way relating to or arising from a claim by any Person that such Person acted on behalf of the indemnifying party in connection with the transactions contemplated herein. The provisions of this Section 10.2 shall survive the expiration and termination of this Borrower Loan Agreement and the repayment of the Borrower Payment Obligations. Section 10.3 Survival. This Borrower Loan Agreement and all covenants, agreements, representations and warranties made herein and in the certificates delivered pursuant hereto shall survive the making by the Governmental Lender of the Borrower Loan and the execution and delivery to the Governmental Lender of the Borrower Note and,the assignment of the Borrower Note to the Funding Lender, and shall continue in full force and effect so long as all or any of the Borrower Payment Obligations is unpaid. All the Borrower's covenants and agreements in this Borrower Loan Agreement shall inure to the benefit of the respective leizal representatives successors and assigns of the Governmental Lender, the Fiscal Agent, the Funding Lender and, the Servicer. Section 10.4 Preferences. The Governmental, Lender shall have the continuing and exclusive right to apply or reverse and reapply any and all payments by the Borrower to any portion of the Borrower Payment Obligations. To the extent the Borrower makes a payment to the Governmental Lender or the Servicer, or the Governmental Lender or the Servicer receives proceeds of any collateral, which is in whole or part subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any bankruptcy law, state! or federal law, common law or equitable cause, then, to the extent of such payment or proceeds received, the Borrower Payment Obligations or part thereof intended to be satisfied shall be revived and continue in full force and effect, as if such payment or proceeds had not been.received by the Governmental Lender or the Servicer. Section 1.0.5 Waiver of Notice. The Borrower shall not be entitled to any notices of any nature whatsoever from the Funding Lender,, the Fiscal Agent or the Servicer except with respect to matters for which this Borrower Loan.Agreement or any other Borrower Loan Document specifically and expressly provides for the giving of notice by the Funding Lender, the Fiscal Agent or the 70 2020-1.1-0,3 Agenda Packet Page 348 of 50�9 Servicer, as the case may be, to the Borrower and except with respect to matters for which the Borrower is not, pursuant to applicable Legal Requirements, permitted to waive the giving of notice. The Borrower hereby expressly waives the right to receive any notice from the Funding Lender, the Fiscal Agent or the Servicer, as the case may be, with respect to any matter for which no Borrower Loan Document specifically and expressly provides for the giving of notice by the Funding Lender, the Fiscal Agent or the Servicer to the Borrower. 0 Section 10.6 Offsets, Counterclaims and Defenses. The Borrower hereby waives the right to assert a counterclaim, other than a compulsory counterclaim, in any action or proceeding brought against it by the Funding Lender or the Servicer with respect to a Borrower Loan Payment. Any assignee of Funding Lender's, interest in and to the Borrower Loan Documents or the Funding Loan Documents shall take the same free and clear of all offsets, counterclaims or defenses that are unrelated to the Borrower Loan Documents or the Funding Loan Documents which the Borrower may otherwise have against any assignor of such documents, and no such unrelated offset, counterclaim or defense shall be interposed or asserted by the Borrower in any action or proceeding brought by any such assignee upon such documents, and any such right to interpose or assert any such unrelated. offset, counterclaim or defense in any such action or proceeding is hereby expressly waived by the Borrower. Section 10.7 Publicity. The Funding Lender and.the Servicer (and any Affiliates of either party) shall have the right to issue press releases, advertisements and other promotional materials describing the Funding Lender's or the Servicer's participation in the making of the Borrower Loan or the Borrower Loan's inclusion in any Secondary Market Transaction effectuated by the Funding Lender or the Servicer or one of its or their Affiliates. All news releases, publicity or advertising by the Borrower or Borrower Affiliates through any media intended to reach the general public, which refers to the Borrower Loan Documents or the Funding Loan Documents, the Borrower Loan, the Funding Lender or the Servicer in a Secondary Market Transaction, shall be subject to the prior Written Consent of the Funding Lender or the Servicer, as applicable. Section 10.8 Construction of Documents. The parties hereto acknowledge that they were represented by counsel in connection with the negotiation and drafting of the Borrower Loan Documents and the Funding Loan Documents and that the Borrower Loan Documents and the Funding Loan Documents shall,not be subject to the principle of construing their meaning against the party that drafted them. Section 10.9 No Third Party Beneficiaries. The Borrower Loan Documents and the Funding Loan Documents are solely for the benefit of the Governmental Lender, the Funding Lender, the Servicer, the Fiscal Agent and the Borrower and, with respect to Sections 9.1.3 and 9.1.4 hereof, the Underwriter Group, and nothing contained in any Borrower Loan Document shall be deemed to confer upon anyone other than the Governmental Lender, the Funding Lender, the Fiscal Agent, the Servicer, and the Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained therein. Section 1.0.1.0 Assignment. The Borrower Loan, the Security Instrument, the Borrower Loan Documents and the Funding Loan. Documents and all Funding Lender's or Fiscal Agent's rights, title, obligations and interests therein. may be assigned by the Funding Lender or the Fiscal Agent, as appropriate, at any time in its sole discretion, whether by operation of law (pursuant to a merger or other successor in, interest) or otherwise, subject in any event to the provisions of Section 2.4 of the Funding Loan Agreement. Upon such assignment, all references to Funding 71 2020-11-03 Agenda Packet Page 349 of 50�9 Lender or the Fiscal Agent, as appropriate, in this Borrower Loan Agreement and in any Borrower Loan Document shall be deemed to refer to such assignee or successor in interest and such assignee or successor in interest shall thereafter stand in the place of the Funding Lender or the Fiscal Agent, as appropriate. The Borrower shall accord full recognition to any such assignment, and all rights and remedies of Funding Lender in connection with the interest so assigned shall be as fully enforceable by such assignee as they were by Funding Lender before such assignment. In connection with any proposed assignment, Funding Lender may disclose to the proposed assignee any information that the Borrower has delivered, or caused to be delivered, to Funding Lender with reference to the Borrower, General Partner, Guarantor or any Borrower Affiliate, or the Project, including information that the Borrower is required to deliver to Funding Lender pursuant to this Borrower Loan Agreement, provided that such proposed assignee agrees to treat such information as confidential. The Borrower may not assign its rights, interests or obligations under this Borrower Loan Agreement or under any of the Borrower Loan Documents or Funding Loan Documents, or the Borrower's interest in any moneys to be disbursed or advanced hereunder, except only as may be expressly permitted hereby. Section 10.11 [Reserved]. Section 10.12 Governmental Lender, Funding Lender and Servicer Not in Control; No Partnership. None of the covenants or other provisions contained in this Borrower Loan Agreement shall, or shall be deemed to, give the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer the right or power to exercise control over the affairs or management of the Borrower, the power of the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer being limited to the rights to exercise the remedies referred to in the Borrower Loan Documents and the Funding Loan Documents. The relationship between the Borrower and the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer is, and at all times shall remain, solely that of debtor and creditor. No covenant or provision of the Borrower Loan Documents or the Funding Loan Documents is intended, nor shall it be deemed or construed, to create a partnership, joint venture, agency or common interest in profits or income between the Borrower and the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer or to create an equity interest in the Project in the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer. Neither the Governmental Lender, the Funding Lender, the Fiscal, Agent nor the Servicer undertakes or assumes any responsibility or duty to the Borrower or to any other person with respect to the Pro ect or the Borrower Loan except as expressly provided in the Borrower Loan Documents or the Funding Loan Documents; and notwithstanding any other provision of the Borrower Loan Documents and the Funding Loan Documents-, (1) the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer are not, and shall not be construed as, a partner,joint venturer, alter ego, manager, controlling person or other business associate or participant of any kind of the Borrower or its stockholders, members,, or partners and the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer do not intend to ever assume such status; (2) the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer shall in no event be liable for any the Borrower Payment Obligations, expenses or losses incurred or sustained by the Borrower; and (3)the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer shall not be deemed responsible for or a participant in any acts, omissions or decisions of the Borrower, the Borrower Controlling Entities or its stockholders, members, or partners. The Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer and the Borrower disclaim any intention to create any partne!rship�,joint venture, agency or common interest in profits or income between the Governmental Lender, the Funding Lender, the Se!rvicer, the Fiscal Agent and 72 2020-1.1-0,3 Agenda Packet Page 350 of 50�9 the Borrower, or to create an equity interest in the Project in the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer, or any sharing of liabilities, losses, costs or expenses. Section 10.13 Release. The Borrower hereby acknowledges that it is executing this Borrower Loan Agreement and each of the Borrower Loan Documents and the Funding Loan Documents to which it is a party as its own voluntary act free from duress and undue influence. 0 Section 10.14 Term of Borrower Loan Agreement. This Borrower Loan Agreement shall be in full force and effect until all payment obligations of the Borrower hereunder have been paid in full and the Borrower Loan and the Funding Loan have been retired or the payment thereof has been provided for; except that on and after payment in full of the Borrower Note, this Borrower Loan Agreement shall be terminated, without further action by the parties hereto; provided, however, that the obligations of the Borrower under Sections 5.11, 5.14, 5.15, 9.1.3, 9.1.4, 9.1.5, 9.1.6 and 10.15 hereof, as well as under Section 5.7 of the Construction Funding Agreement, shall survive the termination of this Borrower Loan Agreement. Section 10.15 Reimbursement of Expenses. If, upon or after the occurrence of any Event of Default or Potential Default, the Governmental Lender, the Funding Lender, the Fiscal Agent or the Servicer shall employ attorneys or incur other expenses for the enforcement of performance or observance of any obligation or agreement on the part of the Borrower contained herein, the Borrower will on demand therefor reimburse the Governmental Lender, the Funding Lender, the Fiscal Agent and the Servicer for fees of such attorneys and such other expenses so incurred. The Borrower's obligation to pay the amounts required to be paid under this Section 10.15 shall be subordinate to its obligations to make payments under the Borrower Note. Section 10.16 Permitted Contests. Notwithstanding anything to the contrary contained in this Borrower Loan Agreement, Borrower shall have the right to contest or object in good faith to any claim, demand, levy or assessment (other than in respect of Debt or Contractual Obligations of Borrower under any Borrower Loan Document or Related Document) by appropriate legal proceedings that are not prejudicial to Funding Lender's rights, but this shall not be deemed or construed as in any way relieving, modifying or providing any extension of time with respect to Borrower's covenant to pay and comply with any such claim, demand, levy or assessment, unless Borrower shall have given prior Written Notice to the Funding Lender of Borrower's intent to so contest or object thereto, and unless (i) Borrower has, in the Funding Lender's judgment, a reasonable basis for such contest, (ii) Borrower pays when due any portion of the claim, demand, levy or assessment to which Borrower does not object, (iii) Borrower demonstrates to Funding Lender's satisfaction that such legal proceedings snall conclusively operate to prevent enforcement prior to final determination of such proceedings, (iv) Borrower furnishes such bond, surety, undertaking or other security in connection therewith as required by law, or as, requested by and satisfactory to Funding Lender, to stay such proceeding, which bond, surety, undertaking or other security shall be issued by a bonding company, insurer or surety company reasonably satisfactory to Funding Lender and shall be sufficient to cause the claim, demand, levy or assessment to be insured against by the Title Company or removed as a lien against the Project, (v) Borrower at all times prosecutes the contest with. due diligence, and (vi.) Borrower pays, promptly following a determination of the amount of such claim, demand, levy or assessment due and owing by Borrower, the amount so determined to be due and owing by Borrower. In the event that Borrower does not make, promptly following a determination of the amount of such claim, demand, levy or assessment due and owing by Borrower, any payment required to be made pursuant to clause (vi) of the 73 2020-11-03 Agenda Packet Page 351 of 50�9 preceding sentence, an Event of Default shall have occurred, and Funding Lender may draw or realize upon any bond or other security delivered to Funding Lender in connection with the contest by Borrower, in order to make such payment. 0 Section 10.17 Funding Lender Approval of Instruments and Parties. All proceedings taken in accordance with transactions provided for herein, and all surveys, appraisals and documents required or contemplated by this Borrower Loan Agreement and the persons responsible for the execution and preparation thereof, shall be satisfactory to and sub ect to approval by Funding Lender. Funding Lender's approval of any matter in connection with the Project shall be for the sole purpose of protecting the security and rights of Funding Lender. No such approval shall result in a waiver of any default of Borrower. In no event shall Funding Lender's approval be a representation of any kind with regard to the matter being approved. Section 10.18 Funding Lender Determination of Facts. Funding Lender shall at all times be free to establish independently, to its reasonable satisfaction, the existence or nonexistence of any fact or facts, the existence or nonexistence of which is a condition of this Borrower Loan Agreement. Section 10.19 Calendar Months. With respect to any payment or obligation that is due or required to be performed within a specified number of Calendar Months after a specified. date, such payment or obligation shall become due on the day in the last of such specified number of Calendar Months that corresponds numerically to the date so specified; provided, however, that with respect to any obligation as to which such specified date is the 29th, 3 Oth or 3 1 st day of any Calendar Mo�nth: if the Calendar Month in which such payment or obligation would otherwise become due does not have a numerically corresponding date, such obligation shall become due on the first day of the next succeeding Calendar Month. Section 10.20 Determinations by Lender. Except to the extent expressly set forth in this Borrower Loan Agreement to the contrary, in any instance where the consent or approval of the Governmental Lender and the Funding Lender may be given or is required, or where any determination,judgment or decision is to be rendered by the Governmental Lender and the Funding Lender under this Borrower Loan Agreement, the granting, withholding or denial of such consent or approval and the rendering of such determination,judgment or decision shall be made or exercised by the Governmental Lender and the Funding Lender, as applicable (or its designated representative) at its sole and exclusive option and in its sole and absolute discretion. Section 10.21 Governing Law. This Borrower Loan Agreement shall be governed by and enforced in accordance with the laws of the State, without giving effect to the choice of law principles of the State that would require the application of the laws of a jurisdiction other than the State. Section 10.22 Consent to Juris diet ion and Venue, Borrower agrees that any controversy arising under or in relation to this Borrower Loan Agreement shall be litigated exclusively in the State. The state and federal courts and authorities with jurisdiction in the State shall have exclusive jurisdiction over all controversies which shall arise under or in relation to this Borrower Loan Agreement. Borrower irrevocably consents to service,jurisdiction., and venue of such courts for any such. litigation and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. However, nothing herein. is intended to limit Beneficiary Parties' right to bring any suit, action or proceeding relating to matters arising under this Borrower Loan Agreement against Borrower or any of Borrower's assets in any court of any other jurisdiction. 74 2020-1.1-0,3 Agenda Packet Page 352 of 50�9 Section 10.23 Successors and Assigns. This, Borrower Loan Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, successors-in-interest and assigns, as appropriate. The terms used to desi�znate any of the parties herein shall be deemed to include the heirs, legal representatives, successors, successors-in-interest and assigns, as appropriate, of such parties. References to a (.4person" or"persons" shall be deemed to include individuals and entities. 0 Section 10.24 Severability. The invalidity, illegality or unenforceability of any provision of this Borrower Loan Agreement shall not affect the validity, legality or enforceability of any other provision, and all other provisions shall remain in full force and effect. Section 10.25 Entire Agreement; Amendment and Waiver. This Borrower Loan Agreement contains the complete and entire understanding of the parties with respect to the matters covered. This Borrower Loan Agreement may not be amended, modified or changed, nor shall any waiver of any provision hereof be effective, except by a written instrument signed by the party against whom enforcement of the waiver, amendment, change, or modification is sought, and then only to the extent set forth in that instrument. No specific waiver of any of the terms of this Borrower Loan Agreement shall be considered as a general waiver. Without limiting the generality of the foregoing, no Disbursement shall constitute a waiver of any conditions to the Governmental Lender's or the Funding Lender's obligation to make further Disbursements nor, in the event Borrower is unable to satisfy any such conditions, shall any such waiver have the effect of precluding the Governmental Lender or the Funding Lender from thereafter declaring such inability to constitute a Potential Default or Event of D�efault under this Borrower Loan Agreement. Section 10.26 Counterparts. This Borrower Loan Agreement may be executed in multiple counterparts.) each of which shall constitute an original document and all of which together shall constitute one agreement. Section 10.27 Captions. The captions of the sections of this Borrower Loan Agreement are for convenience only and, shall be disregarded in construing this Borrower Loan Agreement. Section 10.28 Servicer. Borrower hereby acknowledges and agrees that, pursuant to the ten,ns of Section 39 of the Security Instrument: (a) from time to time, the Governmental Lender or the Funding Lender may appoint a servicer to collect payments, escrows and deposits, to give and to receive notices under the Borrower Note, this Borrower Loan Agreement or the other Borrower Loan Documents,, and to otherwise service the Borrower Loan and (b�) unless Borrower receives Written Notice from the Governmental Lender or the Funding Lender to the contrary.) any action or right which shall or may be taken or exercised by the Governmental Lender or the Funding Lender may be taken or exercised by such servicer with the same force and effect. Section 10.29 Beneficiary Parties as Third Party Beneficiary. Each of the Beneficiary Parties shall be a third party beneficiary of this Borrower Loan Agreement for all purposes. Section 10.30 Waiver of Trial by Jury. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EACH OF BORROWER AND THE BENEFICIARY PARTIES (A) COVENANTS AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS BORROWER LOAN AGREEMENT OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE 75 2020-1.1-0,3 Agenda Packet Page 353 of 50�9 EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BYEACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL. IF FOR ANY REASON THIS WAIVER IS DETERMINED TO BE UNENFORCEABLE, ALL DISPUTES WILL BE RESOLVED BY JUDICIAL REFERENCE PURSUANT TO THE PROCEDURES SET FORTH IN THE SECURITY INSTRUMENT. 0 Section 10.31 Time of the Essence. Time is of the essence with respect to this Borrower Loan Agreement. Section 10.32 [Reserved]. Section 10.33 Reference Date. This Borrower Loan Agreement is dated for reference purposes only as of the first day of November 2020, and will not be effective and binding on the parties hereto unless and until the Closing Date (as defined herein) occurs. ARTICLE XI LIMITATIONS ON LIABILITY Section 11.1 Limitation on Liability. Notwithstanding anything to the contrary herein, the liability of the Borrower hereunder and under the other Borrower Loan Documents and the Funding Loan Documents shall be limited to the extent set forth in the Borrower Note. Section 11.2 Limitation on Liability of Governmental Lender. The Governmental Lender shall not be obligated to pay the principal (or prepayment price) of or interest on the Funding Loan, except frommoneys and assets received by the Fiscal Agent or the Funding Lender on behalf of the Governmental Lender pursuant to this Borrower Loan Agreement. Neither the faith and credit nor the taxing power of the State, or any political subdivision thereof, nor the faith and credit of the Governmental Lender is pledged to the payment of the principal (or prepayment price) of or interest on the Funding Loan. The Governmental Lender shall not be liable for any costs, expenses, losses, damages, claims or actions, of any conceivable kind on any conceivable theory, under or by reason of or in connection with this Borrower Loan Agreement or the Funding Loan Agreement, except only to the extent amounts are received for the payment thereof from the Borrower under this Borrower Loan Agreement. The Borrower hereby acknowledges that the Governmental, Lender's sole source of moneys to repay the Funding Loan will be provided by the payments made by the Borrower pursuant to this Borrower Loan. Agreement, together with investment income on. certain funds and accounts held by the Fiscal Agent under the Funding Loan Agreement, and hereby agrees that if the payments to be made hereunder shall ever prove insufficient to pay all principal (or prepayment price) of and interest on the Funding Loan as the same shall become due (whether by maturity, redemption, acceleration or otherwis,e)�, then upon notice from the Fiscal Agent, the Funding Lender or the! Servicer, the Borrower shall pay such amounts as are required from time to time to prevent any deficiency or default in the payment of such principal (or prepayment price) of or interest on the Funding Loan, including, but not limited to, any deficiency caused by acts, omissions, nonfeasance or malfeasance on the part of the Fiscal Agent, the Funding Lender, the Borrower, the Governmental Lender or any 76 2020-1.1-0,3 Agenda Packet Page 354 of 50�9 third party, subject to any right of reimbursement from the Fiscal Agent, the Funding Lender, the Governmental Lender or any such third party, as the case may be, therefor. Section 11.3 Waiver of Personal Liability. No commissioner, member, officer, agent or employee of the Governmental Lender shall be individually or personally liable for the payment of any principal (o�r prepayment price) of or interest on the Funding Loan or any other sum hereunder or be subject to any personal liability or accountability by reason of the execution and delivery of this Borrower Loan Agreement; but nothing herein contained shall relieve any such member, director, officer, agent or employee from the performance of any official duty provided by law or by this Borrower Loan Agreement. Section 11.4 Limitation on Liability of Governmental Lender's or Funding Lender's Commissioners, Officers,Employees,,Etc. (a) Borrower assumes all risks of the acts or omissions of the Governmental Lender and the Funding Lender, provided, however, this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and. remedies as it may have against the Governmental Lender and. the Funding Lender at law or under any other agreement. None of Governmental Lender, the Fiscal Agent and the Funding Lender, nor the other Beneficiary Parties or their respective commissioners, officers, directors, employees or agents shall be liable or responsible for (i) for any acts or omissions of the Governmental Lender and the Funding Lender; or (ii) the validity, sufficiency or genuineness of any documents, or endorsements, even if such documents should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged. In furtherance and not in limitation of the foregoing, the Governmental Lender and the Funding Lender may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, unless acceptance in light of such notice or information constitutes gross negligence or willful misconduct on the part of the Funding Lender, or willful misconduct of the Governmental Lender. (b) None of the Governmental Lender, the Fiscal Agent, the Funding Lender, the other Beneficiary Parties or any of their respective co�mmissioners, officers, directors, employees or agents shall be liable to any contractor,, subcontractor, supplier, laborer, architect, engineer or any other party for services performed or materials supplied in connection with the Project. The Governmental Lender and the Funding Lender shall not be liable for any debts or claims accruing in favor of any such parties against the Borrower or others or against the Proiect. Borrower is not and shall not be an agent of the Governmental Lender and the Funding Lender for any purpose. Neither the Governmental Lender nor the Funding Lender is a joint venture partner with Borrower in any manner whatsoever. Prior to default by Borrower under this Borrower Loan Agreement and the exercise of remedies granted herein, the Governmental Lender and the Funding Lender shall not be deemed to be in privity of contract with any contractor or provider of services to the Project, nor shall any payment of funds directly to a contractor, subcontractor or provider of services be deemed to create any third party beneficiary status or recognition of same by the Governmental Lender and the Funding Lender. Approvals granted by the Governmental Lender and the Funding Lender for any 'matters covered under this Borrower Loan Agreement shall be narrowly construed to cover only the parties and facts identified in any written approval or, if not in writing, such approvals shall be solely for the benefit of Borrower. (c) Any obligation or liability whatsoever of the Governmental Lender and the Funding Lender that may arise at any time under this Borrower Loan Agreement or any other 77 2020-11-03 Agenda Packet Page 355 of 50�9 Borrower Loan Document shall be satisfied, if at all, out of the Funding Lender's assets only. No such obligation or liability shall be personally binding upon, nor shall resort for the enforcement thereof be had to, the Project or any of the Governmental Lender's or the Funding Lender's shareholders (if any), directors, officers, employees or agents.) regardless of whether such obligation or liability is in the nature of contract, tort or otherwise. 0 Section 11.5 Delivery of Reports, Etc. The delivery of reports, information and documents to the Governmental Lender and the Funding Lender as provided herein is for informational purposes only and the Governmental Lender's and the Funding Lender's receipt of such shall not constitute constructive knowledge of any information contained therein or determinable from information contained therein. The Governmental Lender and the Funding Lender shall have no duties, or responsibilities except those that are specifically set forth herein, and no other duties or obligations shall be implied in this Borrower Loan Agreement against the Governmental Lender and the Funding Lender. [Remainder of Page Intentionally Left Blank] 78 2020-11-03 Agenda Packet Page 356 of 50�9 IN WITNESS WHEREOF, the undersigned have duly executed and delivered this Borrower Loan Agreement by their respective authorized representative, as of the date first set forth above. BORROWER: OTAY AFFORDABLE I V81 L.P.1 a California limited partnership By: FOUNDATION FOR AFFORDABLE HOUSING V, INC.1 a California nonprofit corporation its Sole Member By: D�eborrah A. Willard President By: Otay Affordable I V8, LLC, a California limited liability company, its administrative general partner By: George Russo Chief Financial Officer OR By: Kasey Burke Vice President (signatures follow on subsequent page) [Signature Page to Borrower Loan Agreement—Otay Ranch Apartments] S-1 2020-1.1-0,3 Agenda Packet Page 357 of 50�9 GOVERNMENTAL LENDER: CHULA VISTA HOUSING AUTHORITY By: Executive Director Agreed to and Acknowledged by: FUNDING LENDER. CITIBANK,N.A. By: Name: Title: Deal ID No. 60000682 [Signature Page to Borrower Loan Agreement—Otay Ranch Apartments] S-2 2020-1.1-0,3 Agenda Packet Page 358 of 50�9 C', 3 f tradling Yocca Carlson &Rauth Drqft dated October 29, 2020 Recording Requested By and When Recorded Mail To: Stradling Yocca Carlson&Rauth 660 Newp�ort Center Drive, Suite 16,00 Newp�ort Beach, California 92660 Attention: Bradley R. Neal, Esq. REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS By and Between CHULA VISTA HOUSING AUTHORITY and OTAY AFFORDABLE I V8�L.P. 0 a California limited partnership Dated as of November 1.2020 Relating to: CHULA VISTA HOUSING AUTHORITY MULTIFAMILY HOUSING REVENUE NOTE (OTAY RANCH APARTMENTS) 2020 SERIES A 2020-1.1-0,3 Agenda Packet Page 359 of 50�9 TABLE OF CONTENTS Section 1. D�efinitions and Interpretation....................................................................................... I Section 2. Representations, Covenants and Warranties of the Owner...........................................5 Section 3. Qualified Residential Rental Project.............................................................................5 Section 4. Low Income Tenants and Very Low Income Tenants; Reporting Requirements.........6 Section 5. Tax-Exempt Status of Note...........................................................................................8 Section 6. Requirements of the Housing Law................................................................................8 Section 7. Requirements of the Governmental Lender..................................................................9 Section 8. Modification of Covenants.......................................................................................... I I Section 9. Indemnification; Other Payments ............................................................................... I I Section10. Consideration.............................................................................................................. 13 Section11. Reliance....................................................................................................................... 13 Section 12. Transfer of the Project ................................................................................................ 13 Section13,. Term............................................................................................................................ 14 Section 14. Covenants to Run With the Land................................................................................ 15 Section 15. Burden and Benefit..................................................................................................... 15 Section 16. Uniformity; Common Plan ......................................................................................... 16 Section 17. D�efault; Enforcement.................................................................................................. 16 Section 18. Recording and Filing................................................................................................... 17 Section19. Payment of Fees.......................................................................................................... 17 Section 20. Governing Law; Venue............................................................................................... 17 Section21. Amendments; Waivers................................................................................................ 18 Section22. Notices........................................................................................................................ 18 Section23,. Severability................................................................................................................. 19 Section 24. Multiple Counterparts................................................................................................. 19 Section 25. Limitation on Liability............................ 19 Section 26. Third-Party Beneficiary..............................................................................................20 Section 27. Property Management.................................................................................................20 Section 28. Requirements of CDLAC ...........................................................................................21 EXHIBIT A DESCRIPTION OF REAL PROPERTY EXHIBIT B FORM OF INCOME CERTIFICATION EXHIBIT C FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE EXHIBIT D CDLAC RESOLUTION i 2020-1.1-0,3 Agenda Packet Page 360 of 50�9 REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS THIS REGULATORY AGREEMENT AND DECLARATION OF RESTRICTIVE COVENANTS (as supplemented and amended from time to time, this "Regulatory Agreement") is made and entered into as of November 1, 2020i by and between the CHULA VISTA HOUSING AUTHORITY, a public body, corporate and politic, duly organized and existing under the laws of the State of California (together with any successor to its rights, duties and obligations, the "Governmental Lender"), and OTAY RANCH AFFORDABLE I V8, LP, a California limited partnership, duly organized, validly existing and in good standing under the laws of the State of California(together with any successor to its rights, duties and obligations hereunder and as owner of the Project identified herein, the "Owner"). WITNE S SETH: WHEREAS,, pursuant to Chapter I of Part 2 of Division 24 of the California Health and Safety Code (as amended, the "Housing Law"), and the hereinafter defined Funding Loan Agreement, the Governmental Lender has agreed to execute and, deliver its Chula Vista Housing Authority Multifamily Housing Revenue Note (Otay Ranch Apartments) 2020 Series A (the "Note") in the aggregate principal amount of$ WHEREAS, the Note will be executed and delivered pursuant to a Funding Loan Agreement, dated as of November L 2020 (the "Funding Loan Agreement"), among the Governmental Lender, 4 1. Citibank, N.A., the Funding Lender (the ' Functing Lender") and U.S. Bank National Association, as fiscal agent; WHEREAS, the proceeds of the Note will be used to fund a loan (the "Borrower Loan") as defined in the Funding Loan Agreement) to the Owner to finance the acquisition, construction and equipping of the multifamily rental housing project known as Otay Ranch Apartments, located,on the real property site described in Exhibit A hereto (as further described herein, the "Project"); WHEREAS in order to assure the Governmental Lender and the owner of the Note that interest on the Note will be excluded, from gross income for federal income tax purposes under Section 103 of the Internal Revenue Code of 1986 (the "Code"), and to satisfy the public purposes for which the Note are authorized to be executed and delivered under the Housing Law, and to satisfy the purposes of the Governmental Lender in determining to execute and deliver the Note,,, certain limits on the occupancy of units in the Project need to be established and certain other requirements need to be met; NOW, THEREFORE, in consideration. of the execution and delivery of the Note by the Governmental Lender and the! mutual covenants and undertakings set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Governmental Lender and the Owner hereby agree as follows: Section 1. D�efinitions and InteEpretation. Unless the context otherwise requires, the capitalized terms used herein shall have the respective meanings assigned to them in the recitals hereto, in this Section I, or in the Funding Loan Agreement. 2020-1.1-0,3 Agenda Packet Page 361 of 50�9 "Administrator" means the Governmental Lender or any administrator or program monitor appointed by the Governmental Lender to administer this Regulatory Agreement, and any successor administrator appointed by the Governmental Lender. "Area" means the Metropolitan Statistical Area or County, as applicable, in which the Project is located, as defined by the United States Department of Housing and Urban Development. "Available Units" means residential units in the Project that are actually occupied and residential units in the Project that are vacant and have been occupied at least once after becoming available for occupancy, provided that (a) a residential unit that is vacant on the later of(i) the date the Project is acquired or (ii)the Closing Date is not an Available Unit and does not become an Available Unit until it has been occupied for the first time after such date, and (b�) a residential unit that is not available for occupancy due to renovations is not an Available Unit and does not become an Available Unit until it has been occupied for the first time after the renovations are completed. "CD�LAC"means the California Debt Limit Allocation Committee or its successors. "CD�LAC Conditions"has the meaning given such term in Section 28(a). "CD�LAC Resolution" means CDLAC Resolution No. 20-435 attached hereto as Exhibit D, adopted on February 18, 2020, as revised,July 22, 2020, and relating to the Project, as such resolution may be modified or amended from time to time. "Certificate of Continuing Program Compliance" means the Certificate to be filed by the Owner with the Administrator, on behalf of the Governmental Lender, pursuant to Section 4(f) hereof, which shall be substantially in the form attached as Exhibit C hereto or in such other comparable form as may be provided by the Governmental Lender to the Owner, or as otherwise approved by the Governmental Lender. "City" means the City of Chula Vista, California. "Closing Date"means the date the Note is originally executed and delivered. "Compliance Period" means the period beginning on the first day of the Qualified Project Period and ending on the later of the end of the Qualified Project Period or such later date as set forth in Section 28(c) of this Regulatory Agreement. "County"means the County of San Diego, California. "D�eed of Trust"means the "Security Instrument" as defined in.the Funding Loan Agreement, as the same may be modified, amended or supplemented from time to time. "Gross Income" means the gross income of a person (together with the gross 'income of all persons who intend to reside with such. person. in one residential un.it) as calculated in. the manner prescribed in under Section 8 of the Housing Act. "Housing Act"means the United States Housing Act of 1937, as, amended, or its successor. "Housing Law" means Chapter I of Part 2 of Division 24 of the California Health and Safety Code, as amended. 2 2020-1.1-0,3 Agenda Packet Page 362 of 50�9 "Income Certification" means a Tenant Income Certification and a Tenant Income Certification Questionnaire in the form attached as Exhibit13 hereto or in such other comparable form as,may be provided by the Governmental Lender to the Owner, or as otherwise approved by the Governmental Lender. "Investor Limited Partner" means [Boston Financial Investment Management, L.P.], a or any other successor entity or assignee in such entity's capacity as an equity investor in the Owner. "Loan Agreement" means the "Borrower Loan Agreement" as defined in the Funding Loan Agreement, as the same may be modified, amended or supplemented from time to time. "Low Income Tenant"'means a tenant occupying a Low Income Unit. "Low Income Unit" means any Available Unit if the aggregate Gross Income of all tenants therein does not exceed limits determined in a manner consistent with determinations of"low-income families" under Section 8 of the Housing Act, provided that the percentage of median gross income that qualifies as low income hereunder shall be sixty percent (60%) of median gross income for the Area,with adjustments for family size. A unit occupied by one or more students shall only constitute a Low Income Unit if such students meet the requirements of Section 142(d)(2)(C) of the Code. The determination of an Available Unit's status as a Low Income Unit shall be made by the Owner upon commencement of each lease term with respect to such unit, and, annually thereafter, on the basis of an Income Certification executed by each tenant. "Manager" means a property manager meeting the requirements of Section 27 hereof , is hereby approved as the initial Manager. "Noteowner Representative" or "Noteowner" means during any period in which the Notes are outstanding, the "Noteowner"under and as such term is defined in the Funding Loan Agreement. If at any time the Notes are not outstanding then there is no Noteowner Representative and references herein to the Noteowner Representative are void and inapplicable and shall be disregarded. "Project" means the 173-unit plus 2 manager's units multifamily rental housing development located in the City of Chula Vista, San Diego County on the real property site described in Exhibit A hereto, consisting of those facilities, including real pro�perty, structures, buildings, fixtures or equipment situated thereon, as it may at any time exist, the acquisition, construction and equipping of which facilities are to be financed, in whole or in part, from the proceeds of the sale of the Note or the proceeds of any payment by the Owner pursuant to the Loan Agreement, and any real property, structures, buildings, fixtures or equipment acquired in substitution for, as a renewal or replacement of, or a modification or improvement to, all. or any part of the facilities described in the Loan Agreement. "Q�ualified Project Period"means the period beginning on the Closing Date and ending on the later of(a) the date which is 55 years after the date on which fifty percent (50%) of the dwelling units in the Pro ect are occupied, (b) the first day on which no Tax-Exempt obligations with respect to the Project are Outstanding, or (c) the date on which any assistance provided with respect to the Pro ect under Section 8 of the United States Housing Act of 1937 terminates. 3 2020-1.1-0,3 Agenda Packet Page 363 of 50�9 "Regulations" means the Income Tax Regulations of the Department of the Treasury applicable under the Code from time to time. "Regulatory Agreement" means this Regulatory Agreement and Declaration of Restrictive Covenants, as it may be supplemented and amended from time to time. "Rental Payments" means the rental payments paid by the occupant of a unit, excluding any supplemental rental assistance to the occupant from the State, the federal government, or any other public agency, but including any mandatory fees or charges imposed on the occupant by the Owner as a condition of occupancy of the unit. "Tax-Exempt" means with respect to interest on any obligations of a state or local government, including the Note, that such interest is excluded from gross income for federal income tax purposes; provided, however, that such interest may be includable as an item of tax preference or otherwise includable directly or indirectly for purposes of calculating other tax liabilities, including any alternative minimum tax or environmental tax.) under the Code. "Tax Certificate"means the "Tax Certificate" as defined in the Funding Loan Agreement. "TCAC"means the California Tax Credit Allocation Committee. "Transfer" means the conveyance, assignment, sale or other disposition of all or any portion of the Project; and shall also include, without limitation to the foregoing, the following: (1) an installment sales agreement wherein Owner agrees to sell the Project or any part thereof for a price to be paid in installments; and (2) an agreement by the Owner leasing all or a substantial art of the I P Project to one or more persons or entities pursuant to a single or related transactions. "Very Low Income Tenant" means a tenant occupying a Very Low Income Unit. "Very Low Income Unit" means any Available Unit if the aggregate Gross Income of all tenants therein does not exceed limits determined in a manner consistent with determinations of 44very low-income families" under Section 8 of the Housing Act, provided that the percentage of median gross income that qualifies as very low income hereunder shall be fifty percent (50%) of median gross income for the Area, with adjustments for family size. A unit occupied by one or more students shall only constitute a Very Low Income Unit if such students meet the requirements of Section 142(d)(2)(C) of the Code. The determination of an Available Unit's status as a Very Low Income Unit shall be made by the Owner upon commencement of each lease term with respect to such unit, and annually thereafter, on the basis of an Income Certification executed by each tenant. Unless the context clearly requires otherwise, as used in this Regulatory Agreement, words of any gender shall be co�nstrued to include each. other gender when appropriate and words of the singular number shall be construed to include the plural number, and vice versa, when. appropriate. This Regulatory Agreement and all the terms and provisions hereof shall be construed to effectuate the purposes set forth herein and to sustain the validity hereof. The titles and headings of the sections of this Regulatory Agreement have been inserted for convenience of reference only, and are not to be considered a part hereof and shall not in any way modify or restrict any of the terms or provisions hereof or be considered or given any effect in 4 2020-1.1-0,3 Agenda Packet Page 364 of 50�9 construing this Regulatory Agreement or any provisions hereof or in ascertaining intent, if any question of intent shall arise. The parties to this Regulatory Agreement acknowledge that each party and their respective counsel have participated in the drafting and revision of this Regulatory Agreement. Accordingly, the parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Regulatory Agreement or any supplement or exhibit hereto. Section 2. Representations, Covenants and Warranties of the Owner. (a) The Owner hereby incorporates herein, as if set forth in full herein, each of the representations, covenants and warranties of the Owner contained in the Tax Certificate and the Loan Agreement relating to the Pro ect. i (b) The Owner hereby represents and warrants that the Pro ect is located entirely within the City. (c) The Owner acknowledges, represents and, warrants that it understands the nature and, structure of the transactions contemplated by this Regulatory Agreement; that it is familiar with the provisions of all of the documents and instruments relating to the Note to which it is a party or of which it is a beneficiary; that it understands the financial and legal risks inherent in such transactions; and that it has not relied on the Governmental Lender for any guidance or expertise in analyzing the financial or other consequences of such financing transactions or otherwise relied on the Governmental Lender in any manner except to execute and deliver or issue, as the case may be, the Note in order to provide funds to assist the Owner in constructing and developing the Project. Section 3. Qual,i,fied Residential Rental Pr . The Owner hereby acknowledges and agrees that the Project is to be owned, managed and operated as a "residential rental project,, (within the meaning of Section 142(d) of the Code) for a term equal to the Compliance Period. To that end, and for the tenn of this Regulatory Agreement, the Owner hereby represents, covenants, warrants and agrees as follows: (a) The Project will be constructed, developed and operated for the purpose of providing multifamily residential rental property. The Owner will own, manage and operate the Project as a project to provide multifamily residential rental property comprised of a building or structure or several interrelated buildings or structures, together with any functionally related and subordinate facilities, and no other facilities, in accordance with Section 142(d) of the Code, Section 1.103-8(b) of the Regulations and the provisions of the Housing Law, and in accordance with such requirements as may be imposed thereby on the Pro ect from time to time. i (b) All of the dwelling units in the Project (except for not more than two units set aside for a resident manager or other administrative use) will be similarly constructed units, and each dwelling unit in the Project will contain complete separate and distinct facilities for living, sleeping, eating, cooking and sanitation for a single person or a family, including a sleeping area, bathing and sanitation facilities and cooking facilities, equipped with a cooking range, refrigerator and sink. (c) None of the dwelling units in. the Pro ect will at any time be utilized on, a transient j basis or rented for a period of less than 30 consecutive days, or will ever be used as a hotel, motel, 5 2020-1.1-0,3 Agenda Packet Page 365 of 50�9 dormitory, fraternity house, sorority house, rooming house, nursing home, hospital, sanitarium, rest home or trailer court or park; provided that the use of certain units for tenant guests on an intermittent basis shall not be considered transient use for purposes of this Regulatory Agreement. (d) No part of the Project will at any time during the Compliance Period be owned by a cooperative housing corporation, nor shall the Owner take any steps in connection with a conversion to such ownership or use, and the Owner will not take any steps in connection with a conversion of the Project to condominium ownership during the Compliance Period (except that the Owner may obtain final map approval and the Final Subdivision Public Report frorn the California Department of Real Estate and may file a condominium plan with the City). (e) All of the Available Units in the Project will be available for rental during the period beginning on the date hereof and ending on the termination of the Compliance Period on a continuous "first-come first-served" basis to members of the general ublic; which for urpo�ses of I I P I p this Regulatory Agreement means the general population, and the Owner will not give preference to any particular class or group in renting the dwelling units in the Project, except to the extent that dwelling units are required to be leased or rented in such a manner that they constitute Low Income Units or Very Low Income Units. (f) The Project consists of a parcel or parcels that are contiguous except for the interposition of a road, street or stream, and all of the facilities of the Project comprise a single geographically and functionally integrated project for residential rental property, as evidenced by the ownership, management.) accounting and operation of the Pro ect. j (g) No dwelling unit in the Project shall be occupied by the Owner-, providedl however, that if the Project contains five or more dwelling units, this provision shall not be construed to prohibit occupancy of not more than one dwelling unit by a resident manager or maintenance personnel, any of whom may be the Owner. Section 4. Low Income Tenants and Very Low Income Tenants; Reporting Requirements. Pursuant to the requirements of the Code, the Owner hereby represents, warrants and covenants as follows: (a) During the Compliance Period, no less than 120 of the total number of completed units in the Project shall at all times be Low Income Units and 53 of the total number of completed units in the Project shall at all times be Very Low Income Units. For the purposes of this paragraph (a), a vacant unit that wasmost recently a Low Income Unit or Very Low Income Unit is treated as a Low Income Unit or Very Low Income Unit, respectively, until reoccupied, other than for a temporary period of not more than 31 days, at which time the character of such unit shall be redetermined. (b) No tenant qualifying as a Low Income Tenant or Very Low Income Tenant upon initial occupancy shall be denied continued occupancy of a unit in the Project because, after admission, the aggregate Gross Income of all tenants in the unit occupied by such Low Income Tenant or Very Low Income Tenant, respectively, increases to exceed the qualifying limit fo�r a Low Income Unit or Very Low Income Unit, respectively. However, should the aggregate Gross Income of tenants in, a Low Income Unit or Very Low Income Unit as of the most recent determination thereof, exceed one hundred forty percent (140%) of the applicable income limit for a Low Income Unit or Very Low Income Unit, respectively, occupied by the same number of tenants, the next 6 2020-1.1-0,3 Agenda Packet Page 366 of 50�9 available unit of comparable or smaller size must be rented to (or held vacant and available for immediate occupancy by) Low Income Tenant(s) or Very Low Income Tenant(s), respectively. The unit occupied by such tenants whose aggregate Gross Income exceeds such applicable income limit shall continue to be treated as a Low Income Unit or Very Low Income Unit for purposes of the requirements of Section 4(a) hereof unless and until an Available Unit of comparable or smaller size is rented to persons other than Low Income Tenants or Very Low Income Tenants, respectively. (c) For the Compliance Period, the Owner will obtain, complete and maintain on file Income Certifications for each Low Income Tenant and Very Low Income Tenant, including (i) an Income Certification dated immediately prior to the initial occupancy of such Low Income Tenant or Very Low Income Tenant in the unit and a second Income Certification dated one year after the Low Income Tenant's or Very Low Income Tenant's initial move-in date, and (ii) thereafter, an annual Income Certification with respect to each Low Income Tenant and Very Low Income Tenant. In lieu of obtaining the annual Income Certifications required by clause (ii) of the preceding sentence.) the Owner may, with respect to any particular twelve-month period ending November 1, deliver to the Administrator no later than fifteen days after such date a certification that as of November 1, no residential unit in the Project was occupied within the preceding twelve months by a new resident whose income exceeded the limit applicable to Low Income Tenants or Very Low Income upon admission to the Pro ect. The Administrator may at any time and in its sole and. absolute discretion j notify the Owner in writing that it will no longer accept certifications of the Owner made pursuant to the preceding sentence and that the Owner will thereafter be required to obtain annual Income Certifications for tenants. The Owner will also provide such additional information as may be required in the future by the Code, the State or the Governmental Lender, as the same may be amended from time to time, or in such other form and manner as may be required by applicable rules, rulings, policies, procedures, Regulations or other official statements now or hereafter promulgated, proposed or made by the Department of the Treasury or the Internal Revenue Service with respect to Tax-Exempt obligations. Upon request of the Administrator or the Governmental Lender, copies of Income Certifications for Low Income Tenants and Very Low Income Tenants commencing or continuing occupation of a Low Income Unit or Very Low Income Unit, respectively, shall be submitted to the Administrator or the Governmental Lender, as requested. (d) The Owner shall make a good faith effort to verify that the income information provided by an applicant in an Income Certification is accurate by taking one or more of the following steps as a part of the verification process: (1) obtain pay stubs for the three most recent pay periods, (2) obtain an income tax return for the most recent tax year, (3) obtain a credit report or conduct a similar type credit search, (4) obtain an income verification from the applicant's current employer, (5) obtain an income verification from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of such agencies, or (6) if the applicant is unemployed and does, not have an income tax return, obtain another form of independent verification reasonably acceptable to the Governmental Lender. (e) The Owner will maintain complete and accurate records pertaining to the Low Income Units and Very Low Income Units, and will permit any duly authorized representative of the Governmental Lender, the Department of the Treasury or the Internal Revenue Service to inspect the books and records of the Owner pertaining to the Project, including those records pertaining to the occupancy of the Low Income Units and Very Low Income Units. (f) The Owner will prepare and submit to the Administrator, on behalf of the Governmental Lender, not less than annually, commencing not less than one year after the Closing 7 2020-1.1-0,3 Agenda Packet Page 367 of 50�9 Date, a Certificate of Continuing Program Compliance executed by the Owner in substantially the form attached hereto as Exhibit C. During the Compliance Period, the Owner shall submit a completed Internal Revenue Code Form 8703 or such other annual certification as required by the Code with respect to the Project, to the Secretary of the Treasury on or before March 31 of each year (or such other date as may be required by the Code)�. (g) For the Compliance Period, all tenant leases or rental agreements shall be subordinate to this Regulatory Agreement and the Deed of Trust. All leases pertaining to Low Income Units or Very Low Income Units shall contain clauses, among others, wherein each tenant who occupies a Low Income Unit or Very Low Income Unit: (i) certifies, the accuracy of the statements made by such tenant in the Income Certification; (ii) agrees that the family income and other eligibility requirements shall be deemed substantial and material obligations of the tenancy of such tenant, that Such tenant will comply promptly with all requests for information with respect thereto from the Owner, the Governmental Lender or the Administrator on behalf of the Governmental Lender and that the failure to provide accurate information in the Income Certification or refusal to comply with a request for information with respect thereto shall be deemed. a violation of a substantial obligation of the tenancy of such tenant; (iii) acknowledges that the Owner has relied on the statements made by such tenant in the Income Certification and supporting information supplied, by the Low Income Tenant or Very Low Income Tenant in detennining qualification for occupancy of a Low Income Unit or Very Low Income Unit, respectively, and that any material misstatement in such certification (whether or not intentional) will be cause for immediate termination of such lease or rental agreement; and (iv) agrees that the tenant's income is subject to annual certification in accordance with Section 4(c) and that if upon any such certification the aggregate Gross Income of tenants in such unit exceeds the applicable income limit under Section 4(b), the unit occupied by such tenant may cease to qualify as a Low Income Unit or Very Low Income Tenant, respectively, and such unit's rent may be subject to increase. For purposes of this Section 4, no unit occupied by a residential manager shall be treated as a rental unit during the time of such occupation. Section 5. Tax-Exempt Status of Note. The Owner and the Governmental Lender,, as applicable, each hereby represents.) warrants and agrees as follows: (a) The Owner and the Governmental Lender will not knowingly take or permit, or omit to take or cause to be taken, as is appropriate, any action that would adversely affect the Tax-Exempt nature of the interest on the Note and, if either of them should take or permit, or omit to take or cause to be taken, any such action, it will take all lawful actions necessary to rescind or correct such actions or omissions promptly upon obtaining knowledge thereof (b) The Owner and the Governmental Lender will file of record such documents and take such other steps as are necessary, in the written opinion of Tax Counsel filed with the Governmental Lender (with a copy to the Owner), in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project, including, but not limited to�, the execution and recordation of this Regulatory Agreement in the real property records of the County. Section 6. Requirements of the Housing Law. In addition. to the other requirements set forth, herein, the Owner hereby agrees that it shall comply with each. of the requirements of Section. 52080 of the Housing Law, including the following: 8 2020-1.1-0,3 Agenda Packet Page 368 of 50�9 (a) Not less than 94 of the total number of units, in the Project shall be Low Income Units and not less than 24, of the total number of units in the Project shall be Very Low Income Units. The units, made available to meet these requirements shall be of comparable quality and offer a range of sizes and numbers of bedrooms comparable to the units that are available to other tenants in the Project. (b) The Rental Payments for the Low Income Units paid by the tenants thereof (excluding any supplemental rental assistance from the State, the federal government or any other public agency to those tenants or on behalf of those units) shall not exceed 30% of an amount equal to 60% of the median adjusted gross income for the Area. The Rental Payments for the Very Low Income Units paid by the tenants thereof (excluding any supplemental rental assistance from the State, the federal government or any other public agency to those tenants or on behalf of those units) shall not exceed 30% of an amount equal to 50% of the median adjusted gross income for the Area. (c) The Owner shall accept as tenants, on the same basis as all other prospective tenants, low-income persons who are recipients of federal certificates or vouchers for rent subsidies pursuant to the existing program under Section 8 of the Housing Act. The Owner shall not permit any selection criteria to be applied. to Section 8 certificate or voucher holders that is more burdensome than the criteria applied to all other prospective tenants. -1 fN (d) The units reserved tor occupancy as required by Section 4(a) shall remain available on a priority basis for occupancy at all times on and after the Closing Date and continuing through the Compliance Period. (e) During the three (3) years prior to the expiration of the Compliance Period, the Owner shall continue to make available, to eligible households, Low Income Units and Very Low Income Units that have been vacated to the same extent that nonreserved units are made available to noneligible households. (f) Following the expiration or termination of the Compliance Period, except in the event of foreclosure and, payoff of the Note, deed in lieu of foreclosure, eminent domain, or action of a federal agency preventing enforcement, units reserved for occupancy as required by subsection (a) of this Section shall remain available to any eligible tenant occupying a reserved unit at the date of such expiration or termination, at the rent determined by subsection (b) of this Section, until the earliest of (1) the household's income exceeds 140% of the maximum eligible income specified above, (2)the household voluntarily moves or is evicted for good cause (as defined in the Housing Law), (3) 60 years after the date of the commencement of the Compliance Period, or (4) the Owner pays the relocation assistance and benefits to households as provided in Section 7264(b) of the California Government Code. (g) Except as set forth in Section 13 hereof, the covenants and conditions of this Regulatory Agreement shall be binding upon successors in interest of the Owner. (h) This, Regulatory Agreement shall be recorded in the office of the County recorder, and shall be recorded in the grantor-grantee index under the name of the Owner as grantor and under the name of the Governmental Lender as grantee. Section. 7. Requirements of the Governmental Lender. In addition,to other requirements set forth herein and to the extent not prohibited by the requirements set forth, in. Sections 4 through 6 9 2020-1.1-0,3 Agenda Packet Page 369 of 50�9 hereof, the Owner hereby agrees to comply with each of the requirements of the Governmental Lender set forth in this Section 7, as follows: (a) For the duration of the Compliance Period, notwithstanding any retirement of the Note or termination of the Loan Agreement, the Owner will pay to the Governmental Lender all of the amounts required to be paid by the Owner under the Loan Agreement and Section 19 hereof and will indemnify the Governmental Lender as provided in Section 9 of this Regulatory Agreement. (b) All tenant lists, applications and waiting lists relating to the Project shall at all times be kept separate and identifiable from any other business of the Owner and shall be maintained as required by the Governmental Lender, in a reasonable condition for proper audit and subject to examination during business hours by representatives of the Governmental Lender upon reasonable advance notice to the Owner. (c) The Owner acknowledges that the Governmental Lender has appointed the Administrator to administer this Regulatory Agreement and to monitor performance by the Owner of the terms, provisions and requirements hereof. The Owner shall comply with any reasonable request made by the Administrator or the Governmental Lender to deliver to any such Administrator, in addition to or instead of the Governmental Lender, any reports, notices or other documents required to be delivered, pursuant hereto, and to make the Project and the books and records with respect thereto available for inspection by the Administrator as an agent of the Governmental Lender. The fees and expenses of the Administrator shall be paid by the Governmental Lender. (d) For purposes of Section 6(b), the base rents shall be adjusted for household size, based upon the following unit sizes and household sizes: Unit Size Household Size One Bedroom One and a Half Persons Two Bedrooms Three Persons Three Bedrooms Four and,a Half Persons (e) Notwithstanding any other provisions of this Regulatory Agreement, in no event shall all of the rent, including the portion paid by the Low Income Tenant and any other person or entity, collected by Owner (the "Total Rent") for any Low Income Unit exceed the amount of rent set forth in this Regulatory Agreement. Total Rent includes all payments made by the Low Income Tenant and all subsidies received by Owner. In the case of Low Income Tenants receiving Section 8 benefits, Owner acknowledges that it shall not accept any subsidy or payment that would cause the Total Rent received for any Low Income Unit to exceed the maximum rents allowed by this Regulatory Agreement fo�r such Low Income Unit. Should Owner receive Total Rent in excess of the! allowable maximum rent set forth in this, Regulatory Agreement for a Low Income Unit, Owner agrees, to immediately notify the Governmental Lender and reimburse the Governmental Lender for any such overpayment. Any of the foregoing requirements of the Governmental Lender contained in this Section 7 'may be expressly waived by the Governmental Lender, in its sole discretion, in writing, but (i)no waiver by the Governmental Lender of any requirement of this Section 7 shall, or shall be deemed to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Governmental Lender has received an opinion of Tax Counsel that any such provision is not required by the Housing Law and may be waived without adversely affecting the exclusion from gross income 10 2020-1.1-0,3 Agenda Packet Page 370 of 50�9 of interest on the Note for federal income tax urposes; and (ii) any requirement of this Section 7 p shall be void and of no force and effect if the Governmental Lender and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Note to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Housing Law or any other state or federal law. In the event of any conflict between this Regulatory Agreement and any other regulatory agreement regarding the Project, the more restrictive terms shall prevail. Section 8. Modification of Covenants. The Owner and the Governmental Lender hereby agree as follows: (a) To the extent any amendments to the Housing Law, the Regulations, or the Code shall, in the written opinion of Tax Counsel filed with the Governmental Lender and the Owner, retroactively impose requirements upon the ownership or operation of the Project more restrictive than those imposed by this Regulatory Agreement, and if such requirements are applicable to the Project and compliance therewith is necessary to maintain the validity of, or the Tax-Exempt status of interest on the Note, this Regulatory Agreement shall be deemed to be automatically amended to impose such additional or more restrictive requirements. (b) To the extent that the Housing Law, the Regulations or the Code, or any amendments thereto, shall, in the written opinion of Tax Counsel filed with the Governmental Lender and the Owner!) impose requirements upon the ownership or operation of the Project less restrictive than imposed by this Regulatory Agreement, this Regulatory Agreement may be amended or modified to provide such less restrictive requirements but only by written amendment signed by the Governmental Lenden) at its sole discretion,, and the Owner with the consent of the Noteowner Representative, and only upon receipt by the Governmental Lender of the written opinion of Tax Counsel to the effect that such amendment will not affect the Tax-Exempt status of interest on the Note or violate the requirements of the Housing Law, and otherwise in accordance with Section 21 hereof. (c) The Owner and the Governmental Lender shall execute, deliver and if applicable, file of record any and all documents and instruments necessary to effectuate the intent of this Section 8. Section 9. Indemnification; ther Pgym,e,,nts. To the fullest extent permitted by law, the Owner agrees to indemnify, hold harmless and defend the Governmental Lender and each of its officers, mployees.) attorneys, agents, and program ,, governing members, directors, officials, e participants (collectively, the "Indemnified Parties"), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation., reasonable attorneys' fees and expenses, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law(including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to: (i) the Note, the Funding Loan Agreement.) the Loan Agreement, this Regulatory Agreement, or the Tax Certificate and all documents related thereto, or the execution or amendment hereof or thereof or in connection. with transactions contemplated hereby or 2020-1.1-0,3 Agenda Packet Page 371 of 50�9 thereby, including, as applicable, the execution and delivery or transfer of interests in the Note; (ii) any act or omission of the Owner or any of its agents, contractors, servants, employees or licensees in connection with the Loan or the Project, the operation of the Project, or the condition, environmental or otherwise, occupancy, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition, installation, construction or rehabilitation of, the Pro ect or any part thereof; j (iii) any lien or charge upon payments by the Owner to the Governmental Lender or any taxes (including,without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the Governmental Lender in respect of any portion of the Project; (iv) any violation of any environmental law, rule or regulation with respect to�, or the release of any toxic substance from, the Project or any part thereof; (v) the defeasance and/or redemption, in whole or in part, of the Note; (vi) any untrue statement or misleading statement or alleged untrue statement or alleged misleading statement of a material fact contained in any offering statement or disclosure document for the Note or any of the documents relating to the Note, or any omission or alleged omission from any offering statement or disclosure document for the Note of any material fact necessary to be stated therein in order to make the statements made thereiril in the light of the circumstances under which they were made,not misleading,- or (vii) any declaration of taxability of interest on the Note, or allegations (or regulatory inquiry) that interest on the Note is taxable for federal tax purposes; except to the extent such damages are caused by the willful misconduct or gross negligence of such Indemnified Party. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Owner, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified, Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Owner shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Owner if in the judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel. In addition to the foregoing, the Owner shall pay upon demand all of the fees and expenses paid or incurred by the Governmental Lender in enforcing the provisions hereof. In addition thereto., the Owner will pay upon demand all of the fees and expenses paid or incurred by the Governmental Lender in enforcing the provisions hereof, as more fully set forth in the Loan.Agreement. 12 2020-11-03 Agenda Packet Page 372 of 50�9 The provisions of this Section 9 shall survive the final payment or defeasance of the Note and the term of this Regulatory Agreement. Section 10. Consideration. The Governmental Lender has agreed to execute and deliver the Note to provide funds to lend to the Owner to finance the Project, all for the purpose, among others, of inducing the Owner to acquire, construct, develop and operate the Project. In consideration of the execution and delivery of the Note by the Governmental Lender, the Owner has entered into this Regulatory Agreement and has agreed to restrict the uses to which this Project can be put on the terms and conditions set forth herein. Section 11. Reliance. The Governmental Lender and the Owner hereby recognize and agree that the representations and covenants set forth herein may be relied upon by all persons, including but not limited to the Administrator, interested in the legality and validity of the Note, in the exemption fro�m California personal income taxation of interest on the Note and in the Tax- Exempt status of the interest on the Note. In performing their duties and obligations hereunder, the Governmental Lender, the Administrator may rely upon statements and certificates of the Low Income Tenants, and upon audits of the books and records of the Owner pertaining to the Project. In addition, the Governmental Lender may consult with counsel, and the opinion of such counsel shall be full and. complete authorization and, protection in respect of any action taken or suffered by the Governmental Lender hereunder in good faith and in conformity with such opinion. Section 12. Transfer of the P . For the Compliance Period, the Owner shall not Transfer the Project, in whole or in part,, without the prior written consent of the Governmental Lender!) which consent shall not be unreasonably withheld or delayed if the following conditions are satisfied: (A) the receipt by the Governmental Lender of evidence acceptable to the Governmental Lender that (1)the Owner shall not be in default hereunder or under the Loan Agreement, if in effect (which may be evidenced by a Certificate of Continuing Program Compliance), or the transferee undertakes to cure any defaults of the Owner to the reasonable satisfaction of the Governmental Lender; (2)the continued operation of the Project shall comply with the provisions of this Regulatory Agreement; (3) either (a)the transferee or its Manager has at least three years' experience in the ownership, operation and management of similar size rental housing projects,, and at least one year's experience in the ownership, operation and management of rental housing projects containing below- market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects, or (b) the transferee agrees to retain a Manager with the experience and record described in subclause (a) above, or (c) the transferring Owner or its management company will continue to manage the Project., or another management company reasonably acceptable to the Governmental Lender will manage, for at least one year following such Transfer and, if applicable, during such period the transferring Owner or its management company will provide training to the transferee and its manager in the responsibilities relating to the Low Income Units; and (4) the person or entity that is to acquire the Project does not have pending against it, and does not have a history of significant and 'material building code violations or complaints concerning the maintenance, upkeep, operation, and regulatory agreement compliance of any of its projects as identified by any local, state or federal regulatory agencies; (B) the execution by the transferee of any document reasonably requested by the Governmental Lender with respect to the assumption of the Owner's obligations under this Regulatory Agreement and the Loan Agreement (if then. in effect), including without limitation an instrument of assumption hereof and thereof, and delivery to the! Governmental Lender of an opinion of such transferee's counsel to the! effect that each such document and this Regulatory Agreement are valid, binding and enforceable obligations of such transferee, subject to bankruptcy and other 13 2020-1.1-0,3 Agenda Packet Page 373 of 50�9 standard limitations affectin creditor's rights; (C) receipt by the Governmental Lender of an opinion 9 1 of Tax Counsel to the effect that any such Transfer will not adversely affect the Tax-Exempt status of interest on the Note; (D�) receipt by the Governmental Lender of all fees and/or expenses then currently due and payable to the Governmental Lender by the Owner; and (E)receipt by the Governmental Lender of evidence of satisfaction of compliance with the provisions of Section 28(d)(i)related to notice to CDLAC of transfer of the Project. It is hereby expressly stipulated and agreed that any Transfer of the Project in violation of this Section 12 shall be null, void and without effect, shall cause a reversion of title to the Owner, and shall be ineffective to relieve the Owner of its obligations under this Regulatory Agreement. The written consent of the Governmental Lender to any Transfer of the Project shall constitute conclusive evidence that the Transfer is not in violation of this Section 12. Nothing in this Section shall affect any provis,ion of any other document or instrument between the Owner and any other party which requires the Owner to satisfy certain conditions or obtain the prior written consent of such other party in order to Transfer the Pro ect. Upon any Transfer that complies with this Regulatory Agreement, j the Owner shall be fully released from its obligations hereunder to the extent such obligations have been fully assumed in writing by the transferee of the Pro.ect. 9 The foregoing notwithstanding, the Project may be transferred pursuant to a foreclosure, exercise of power of sale or deed in lieu of foreclosure or comparable conversion under the Deed of Trust without the consent of the Governmental Lender or compliance with the provisions of this Section 12. The Governmental Lender hereby approves the transfer of limited partnership interests in the Owner, including, without limitation, the transfer of limited partnership interests in the Owner from the Investor Limited Partner and the transfer of interests in the limited partner of Owner. The Governmental Lender hereby agrees that the removal of the general partner pursuant to the Owner's partnership agreement shall not require the consent of Governmental Lender. For the Compliance Period, the Owner shall not: (1) encumber any of the Project or grant commercial leases of any part thereof, or permit the conveyance, transfer or encumbrance of any part of the Project, except for (A) encumbrances permitted under the Deed of Trust, or (B) a Transfer in accordance with the terms of this Regulatory Agreement, in each case upon receipt by the Governmental Lender of an opinion of Tax Counsel to the effect that such action will not adversely affect the Tax-Exempt status of interest on the Note (provided that such opinion will not be required with respect to any encumbrance, lease or transfer relating to a commercial operation or ancillary facility that will be available for tenant use and is customary to the operation of multifamily housing developments similar to the Project); (2) demolish any part of the Project or substantially subtract from any real or personal property of the Project, except to the extent that what is demolished or removed is replaced with comparable property or such demolition or removal is otherwise permitted by the Loan Agreement or the Deed of Trust; or (3)permit the use of the dwelling accommodations of the Pro ect for any purpose except rental residences. j Section 13. 'Term. This, Regulatory Agreement and all and several of the! terms hereof shall become effective upon. its execution and delivery, and shall remain in full force and effect for the period provided herein and shall terminate as to any -orovision not otherwise provided with. a specific termination date and shall terminate in, its entirety at the end of the Compliance Period, it being expressly agreed and understood that the provisions hereof are intended to survive the retirement of the and discharge of the Funding Loan Agreement, and the Loan Agreement. 14 2020-1.1-0,3 Agenda Packet Page 374 of 50�9 The terms of this Regulatory Agreement to the contrary notwithstanding, the requirements of this, Regulatory Agreement shall terminate and be of no further force and effect in the event of involuntary noncompliance with the provisions of this Regulatory Agreement caused by fire or other casualty, seizure, requisition, foreclosure or transfer of title by deed in lieu of foreclosure, change in a federal law or an action of a federal agency after the Closing Date, which prevents the Governmental Lender from enforcing such provisions, or condemnation or a similar event, but only if, within a reasonable period, either the Note are retired or amounts received as a consequence of such event are used to provide a project that meets the requirements hereof; provided, however, that the preceding provisions of this sentence shall cease to apply and the restrictions contained herein shall be reinstated if, at any time subsequent to the termination of such provisions as the result of the foreclosure or the delivery of a deed in lieu of foreclosure or a similar event, the Owner or any related person (within the meaning of Section 1.103-I O(e) of the Regulations) obtains an ownership interest in the Project for federal income tax purposes,. The Owner hereby agrees that, following any foreclosure, transfer of title by deed in lieu of foreclosure or similar event, neither the Owner nor any such related person as described above will obtain an ownership interest in the Project for federal tax purposes. Notwithstanding any other provision of this Regulatory Agreement, this Regulatory Agreement may be terminated upon agreement by the Governmental Lender and.the Owner, with the consent of CDLAC, upon receipt by the Governmental Lender of an opinion of Tax Counsel to the effect that such termination will not adversely affect the exclusion from gross income of interest on the Note for federal income tax purposes. Upon the termination of the terms of this Regulatory Agreement, the parties hereto agree to execute, deliver and record appropriate instruments of release and discharge of the terms hereof; provided, however, that the execution and delivery of such instruments shall not be necessary or a prerequisite to the termination of this Regulatory Agreement in accordance with its terms. Section 14. Covenants to Run With the Land. Notwithstanding Section 1461 of the California Civil Code, the Owner hereby subjects the Project to the covenants, reservations and restrictions set forth in this Regulatory Agreement. The Governmental Lender and,the Owner hereby declare their express intent that the covenants,,, reservations and restrictions set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors in title to the Project; provided, however.) that on the termination of this Regulatory Agreement said covenants, reservations and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Project or any portion thereof shall conclusively be held to have been executed, delivered and accepted subject to such covenants, reservations and restrictions, regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instruments. Section 15. Burden and Benefit. The Governmental Lender and the Owner hereby declare their understanding and intent that the burdens of the covenants set forth herein touch and concern the land in that the Owner's legal interest in the Project is rendered less valuable thereby. The Governmental Lender and the Owner hereby further declare their understanding and intent that the benefits of such covenants touch.and concern the land by enhancing and increasing the enjoyment and use of the Project by Low Income Tenants and Very Low Income Tenants, the intended beneficiaries of such covenants, reservations and restrictions, and by furthering the public purposes for which the Note were executed and delivered. 15 2020-11-03 Agenda Packet Page 375 of 50�9 Section 16. Uniformity; Common Plan. The covenants, reservations and restrictions hereof shall apply uniformly to the entire Project in order to establish and carry out a common plan for the use of the site on which the Project is located. Section 17. D�efault; Enforcement. If the Owner defaults in the performance or observance of any covenant, agreement or obligation of the Owner set forth in this Regulatory Agreement, and if such default remains uncured for a period of 60 days after written notice thereof shall have been given by the Governmental Lender or the Noteowner Representative to the Owner, or fo�r a period of 60 days from the date the Owner should, with reasonable diligence, have discovered such default, then the Governmental Lender shall declare an "Event of Default" to have occurred hereunder; provided, however, that if the default is of such a nature that it cannot be corrected within 60 days, such default shall not constitute an Event of Default hereunder so long as (i)the Owner institutes corrective action within said 60 days and diligently pursues such action until the default is corrected,, and (ii) in the opinion of Tax Counsel, the failure to cure said default within 60 days will not adversely affect the Tax-Exemp�t status of interest on the Note. The Governmental Lender shall have the right to enforce the obligations of the Owner under this Regulatory Agreement within shorter periods of time than are otherwise provided herein if necessary to insure compliance with the Housing Law or the Code. Any cure of any default made or tendered,by the Investor Limited Partner shall be deemed to be a cure by Owner and shall be accepted or rejected on the same basis as if made or tendered by Owner. Following the declaration of an Event of Default hereunder, the Governmental Lender, subject to the terms of the Funding Loan Agreement, may take any one or more of the following steps, in addition to all other remedies provided by law or equity: (i) by mandamus or other suit, action or proceeding at law or in equity, including injunctive relief, require the Owner to perform its obligations and covenants hereunder or enjoin any acts or things that may be unlawful or in violation of the rights of the Governmental Lender hereunder-, (ii) have access to and inspect, examine and make copies of all of the books and records of the Owner pertaining to the Project; (iii) take such other action at law or in equity as may appear 'necessary or desirable to enforce the obligations, covenants and agreements of the Owner hereunder-, and (iv) with the consent of the Noteowner Representative, which consent shall not be unreasonably withheld, declare a default under the Funding Loan Agreement or Loan Agreement, as applicable, and proceed with any remedies provided therein. The Owner hereby agrees that specific enforcement of the Owner's agreements contained herein is the only means by which the Governmental Lender may fully obtain the benefits of this Regulatory Agreement made by the Owner herein, and the Owner therefore agrees to the imposition of the remedy of specific performance against it in the case of any Event of Default by the Owner hereunder. The Governmental Lender hereby agrees that cure of any Event of Default made or tendered by any partner of the Owner shall be deemed to be a cure by the Owner and shall be accepted or rejected on.the same basis as if made or tendered by the Owner. 16 2020-1.1-0,3 Agenda Packet Page 376 of 50�9 All reasonable fees, costs and expenses, (including reasonable attorney's fees and expenses) the Governmental Lender incurred in taking any action pursuant to this Section shall be the sole responsibility of the Owner. Section 18. Recording and Fili (a) The Owner shall cause this Regulatory Agreement and all amendments and supplements hereto and thereto, to be recorded and filed in the real property records of the County, and in such other places as the Governmental Lender may reasonably request. The Owner shall pay all fees and charges incurred in connection with any such recording. (b) The Owner and the Governmental Lender will file of record such other documents and take such other steps as are reasonably necessary, in the opinion of Tax Counsel, in order to insure that the requirements and restrictions of this Regulatory Agreement will be binding upon all owners of the Project. (c) The Owner hereby covenants to include or reference the requirements and restrictions contained in this Regulatory Agreement in any documents transferring any interest in the Project to another person to the end that such transferee has notice of, and. is bound by, such restrictions, and, except in the case of a foreclosure or comparable involuntary conversion of the Deed of Trust, whereby the Funding Lender becomes the owner of the Project, to obtain the agreement from any transferee to abide by all requirements and restrictions of this Regulatory Agreement. Section 19. Payment of Fees. Notwithstanding any prepayment of the Loan and discharge of the Funding Loan Agreement, the Owner shall continue to pay the fees of the Governmental Lender as provided in this Section 19, unless such prepayment is made in connection with a refunding of the Note. The Owner agrees to pay to the Governmental Lender (i) an initial issuance fee of which shall be paid on or before the Closim4 Date, (ii) the Governmental Lender's annual administration fee (the "Annual Administration Fee"), which shall be an amount equal to $ , payable semi-annually in equal installments on each November 15 and May 15 (provided the first two semi-annual installments due May 15, 2021 and November 15,, 2021 shall be due and payable on the Closing Date), and continuing throughout the Compliance Period, and (ill) within 30 days after receipt of request for payment thereof, all reasonable out-of-pocket expenses of the Governmental Lender (not including salaries and wages of Governmental Lender employees) related to the Note, the Project and the financing thereof, including, without limitation, legal fees and expenses incurred in connection with the interpretation, performance, enforcement or amendment of any documents relating to the Project or the Note, including without limitation any legal fees and expenses incurred in connection with any audit of the Note by the Internal Revenue Service. If the Owner fails to make payment of the Annual Administration Fee for a period of two consecutive years or more, the Governmental Lender may, in its sole discretion, declare the total amount of the Annual Administration Fee through the end of the Compliance Period immediately due and payable, such amount to be discounted at a rate equal to the then current market rate for U.S. Treasury obligations of a maturity equal to the remaining term of the Compliance Period. Section 20. Govem,,i.,n,g,,,,,,,,,,,,,,,,,,,,L,aw; enue. This Regulatory Agreement shall be construed in accordance with and governed by the laws of the State of Califorriia applicable to contracts made and performed in the State of California. This Regulatory Agreement shall be enforceable in the State of 17 2020-1.1-0,3 Agenda Packet Page 377 of 50�9 California, and any action arising hereunder shall (unless waived by the Governmental Lender in writing)be filed and maintained in the Superior Court of California, County of San Diego. Section 2 1. Amendments; Waivers. (a)Except as provided in Sections 8(a) and 28(e) hereof, this Regulatory Agreement may be amended only by a written instrument executed by the parties hereto or their successors in title, and duly recorded in the real property records of the County of San Diego, California, and only upon (i) receipt by the Governmental Lender of an opinion from Tax Counsel that such amendment will not adversely affect the Tax-Exempt status of interest on the Note and is not contrary to the provisions of the Housing Law and (ii)the written consent of the Noteowner Representative, who shall receive a copy of any such amendment. (b) Anything to the contrary contained herein notwithstanding, the Governmental Lender and the Owner hereby agree to amend this Regulatory Agreement to the extent required, in the opinion of Tax Counsel, in order that interest on the Note remains Tax-Exempt. The parties requesting such amendment shall notify the other parties to this Regulatory Agreement of the proposed amendment, with a copy of such proposed amendment to Tax Counsel and a request that Tax Counsel render to the Governmental Lender an opinion as to the effect of such proposed amendment upon the Tax-Exempt status of interest on the Note. This provision shall not be subject to any provision of any other agreement requiring any party hereto to obtain the consent of any other person in order to amend this Regulatory Agreement. (c) Any waiver of, or consent to, any condition under this Regulatory Agreement must be expressly made in writing. Section 22. Notices. Any notice required to be given hereunder shall be made in writing and shall be given by personal delivery, overnight delivery, certified or registered mail, postage prepaid, return receipt requested, or by telecopy, in each case at the respective addresses specified in the Funding Loan Agreement, or at such other addresses as may be specified in writing by the parties hereto. Unless otherwise specified by the Administrator, the address of the Administrator is: Chula Vista Housing Authority 276 Fourth Avenue Chula Vista, California 919 10 Attention: Executive Director 18 2020-1.1-0,3 Agenda Packet Page 378 of 50�9 Unless, otherwise specified by CDLAC, the address of CDLAC is: California Debt Limit Allocation Committee 915 Capitol Mall, Room 311 Sacramento, CA 95814 Attention: Executive Director The Governmental Lender, the Administrator, CDLAC, and the Owner may, by notice given hereunder, designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Notice shall be deemed given on the date evidenced by the postal or courier recei t or other written evidence of delivery or electronic transmission; provided p that any telecopy or other electronic transmission received by any party after 4:00 p.m., local time of the receiving party, as evidenced by the time shown on such transmission, shall be deemed to have been received the following Business Day. A co y of each notice of default provided to the Owner P, hereunder shall also be provided to the Investor and the Noteowner Representative at the addresses set forth in the Funding Loan Agreement. A copy of each notice sent by or to the Owner shall also be sent to the Manager at the address of the Manager provided by the Owner to the Administrator; but such copies shall not constitute notice to the Owner, nor shall any failure to send such copies constitute a breach of this Regulatory Agreement or a failure of or defect in notice to the Owner. The Owner shall notify the Governmental Lender and the Administrator in writing of any change to the name of the Project or any change of name or address for the Owner or the Manager. The Owner shall further notify CDLAC in writing of any event provided in Section 28(d)hereof Section 23. Sever . If any provision of this Regulatory Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions hereof shall not in any way be affected or impaired thereby. Section 24. Multiple Countelparts. This Regulatory Agreement may be simultaneously executed in multiple counterparts, all of which shall constitute one and the same instrument, and each of which shall be deemed to be an original. Section 25. Limitation on Li Notwithstanding the foregoing or any other provision or obligation to the contrary contained in this Regulatory Agreement, (i) the liability of the Owner under this Regulatory Agreement to any person or entity, including, but not limited to, the Noteowner Representative or the Governmental Lender and their successors and assigns, is limited to the Owner's interest in the Project, the Pledged Revenues and the amounts held in the funds and accounts created under the Funding Loan Agreement, or any rights of the Owner under any guarantees relating to the Project, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this, Regulatory Agreement or any other agreement securing the obligations of the Owner under this Regulatory Agreement; and (ii) from and after the date of this Regulatory Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Regulatory Agreement, any agreement pertaining to any Project or any other agreement securing the Owner's obligations under this Regulatory Agreement), shall be rendered against the Owner, the assets of the Owner (other than. the Owner's interest in, the Project, this Regulatory Agreement., amounts held in the funds and accounts created under the Funding Loan Agreement, any rights of the 19 2020-11-03 Agenda Packet Page 379 of 50�9 Owner under the Funding Loan Agreement, or any other documents relating to the Note or any rights of the Owner under any guarantees relating to the Project), its partners, members, successors, transferees or assigns and each of their respective officers, directors, employees, partners,, agents, heirs and personal representatives, as the case may be, in any action or proceeding arising out of this Regulatory Agreement and the Funding Loan Agreement or any agreement securing the obligations of the Owner under this Regulatory Agreement, or any judgment, order or decree rendered pursuant to any such action or proceeding, except to the extent provided in the Loan Agreement. Section 26. Third-Party B,enefi . The City and CDLAC are intended to be and shall each be a third-p�arty beneficiary of this, Regulatory Agreement. The City shall have the right (but not the obligation) to enforce, separately or jointly with the Governmental Lender or to cause the Governmental Lender to enforce, the ten'ns of this Regulatory Agreement and to pursue an action for sp�ecific performance or other available remedy at law or in equity in accordance with Section 17 hereof. CDLAC shall have the right (but not the obligation) to enforce the CDLAC Conditions and to pursue an action for specific performance or other available remedy at law or in equity in accordance with Section 17 hereof, provided that any such action or remedy shall not materially adversely affect the interests and rights of the Noteowner. Section 27. Property Management. The Owner agrees that at all times the Project shall be managed by a property manager (i) approved by the Governmental Lender in its reasonable discretion and (ii)who has at least three years' experience in the ownership, operation and management of similar size rental housing projects.) and at least one year's experience in the ownership, operation and management of rental housing projects containing below-market-rate units, without any record of material violations of discrimination restrictions or other state or federal laws or regulations or local governmental requirements applicable to such projects (the "Manager"). The Owner shall submit to the Governmental Lender from time to time such information about the background, experience and financial condition of any existing or proposed Manager as the Governmental Lender may reasonably require to determine whether such Manager meets the requirements for a Manager set forth herein. The Governmental Lender reserves the right to conduct periodic reviews of the management practices and of the Manager to determine if the Project is being operated and managed in accordance with the requirements and standards of this Agreement. The Owner agrees to cooperate with the Governmental Lender in such reviews. Replacement o Manager. If the Governmental Lender determines in its reasonable judgment that the Project is not being operated and managed in accordance with one or more of the material requirements or standards of this Agreement, the Governmental Lender may deliver notice to the Owner and the Noteowner Representative requesting replacement of the Manager, which notice shall state clearly the reasons for such request. The Owner agrees that, upon receipt of such notice, it shall within 60 days submit to the Governmental Lender, with copies to the Noteowner Representative, a proposal to engage a new Manager meeting the requirements of this Section 27. Each of the Governmental Lender and the Noteowner Representative shall each respond within 30 days to such proposal or such approval shall be deemed given. Upon receipt of such consent or deemed consent, the Owner shall within 60 days terminate the existing Manager's engagement and engage the 'new Manager. If such, proposal is denied by either the Governmental Lender or the Noteowner Representative, the Owner agrees that upon receipt of notice of such, denial, it shall within. 60 days submit to the Governmental Lender, with copies to the Noteowner Representative, a proposal to engage another new Manager meeting the requirements of this Section 27, subject to the Governmental Lender's and Noteowner Representative's consent or deemed consent pursuant to the terms hereof. 20 2020-11-03 Agenda Packet Page 380 of 50�9 Notwithstanding any other provision of this Section 27 to the contrary, the Noteowner Representative may at any time by written instruction to the Governmental Lender and the Owner deny the Governmental Lender's request for a replacement Manager and direct that the existing Manager be retained. Section 28. Requirements of CDLAC. In addition to other requirements set forth herein and to the extent not prohibited by the requirements set forth in Sections 4 through 6 hereof, the Owner hereby agrees to comply with each of the requirements of CDLAC set forth in this Section 28, as follows: (a) The Owner shall comply with the CDLAC, Resolution attached hereto as Exhibit E and the CDLAC Conditions set forth in Exhibit A thereto (collectively, the "CDLAC Conditions"), which conditions are incorporated herein by reference and made a part hereof. The Owner will prepare and submit to the Governmental Lender, not later than February I of each year, until the Project is completed, and on February I every three years thereafter until the end of the Compliance Period, a Certificate of Compliance 11 for Qualified Residential Rental Projects, in substantially the form required or otherwise provided by CDLAC from time to time, executed. by an authorized representative of the Owner. Such Certificate of Compliance 11 for Qualified Residential Rental Projects shall be shall be prepared pursuant to the terms of the CDLAC Conditions. Additionally, the Owner will prepare and submit to the Governmental Lender, a Certificate of Completion, in substantially the form required or otherwise provided by CDLAC from time to time, executed by an authorized representative of the Owner certifying among other things to the substantial completion of the Project. Compliance with the terms of the CDLAC Conditions not contained within this Regulatory Agreement, but referred to in the CDLAC Conditions are the responsibility of the Owner to report to the Governmental Lender. (b) The Owner acknowledges that the Governmental Lender and,the Administrator shall monitor the Owner's compliance with the terms of the CDLAC Conditions. The Owner acknowledges that the Governmental Lender will prepare and submit to CD�LAC, not later than March I of each year, until the Project is completed, and on March I every three years thereafter until the end of the Compliance Period, a Self-Certification Certificate in the form provided by CDLAC. The Owner will cooperate fully with the Governmental Lender in connection with such monitoring and reporting requirements. (c) Except as otherwise provided in Section 13 of this Regulatory Agreement, this, Regulatory Agreement shall terminate on the date 55 years after the date on which at least fifty percent (50%) of the units in the Project are first occupied or otherwise after the commencement of the Qualified Project Period. (d) The Owner shall notify CDLAC, in writing of: (i) any change in ownership of the Project, (ii) any change in the Governmental Lender, (iii) any change! in the name of the Project or the Manager; (iv) any material default under the Funding Loan Agreement, the Loan Agreement or this, Regulatory Agreement, including, but not limited to, such defaults associated with the Tax- Exempt status of the Note, and the income and rental requirements as provided in Sections 4 and 6 hereof and the CDLAC Conditions; or(v) termination.of this Regulatory Agreement. (e) CD�LAC shall have the right, but not the obligation, to deliver revised CDLAC Conditions to the Owner after the Closing Date,, at any time; that are not more restrictive than the original CDLAC Conditions-, provided however, that, with the prior written consent of the 21 2020-1.1-0,3 Agenda Packet Page 381 of 50�9 No�teowner Representative, which will not be unreasonably withheld: (i) any changes in the terms and conditions of the CD�L,AC Conditions prior to the recordation against the Project in the real property records, of the County of a regulatory agreement between Owner and TCAC ("TCAC Regulatory Agreement") shall be limited to such changes as are necessary to correct any factual errors or to otherwise conform the CDLAC. Conditions to any change in facts or circumstances applicable to the Owner or the Project; and(ii) after recordation of the TCAC Regulatory Agreement, any changes in the terms and conditions of the CDLAC Conditions shall be limited to such changes as are necessary to conform Items 1, 6, 7, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25 and/or 26 of Exhibit A to the CDLAC, Conditions to any change in ten-ns and conditions requested by Owner and approved by CDLAC. The Owner shall record or cause to be recorded in the real property records of the County an amendment to this Regulatory Agreement containing such revised CD�LAC Conditions, executed by the parties hereto or their successor in title and pay any expenses in connection therewith. The Owner shall provide CDLAC with a copy of that recorded amendment reflecting the revised CDLAC Conditions. Any of the foregoing requirements of the CDLAC contained in this Section 28 may be expressly waived. by CDLAC, in its sole discretion, in writing, but (i) no waiver by CDLAC. of any requirement of this Section 28, shall, or shall be deemed,to, extend to or affect any other provision of this Regulatory Agreement except to the extent the Governmental Lender has received an opinion of Tax Counsel that any such provision is not required by the Housing Law and may be waived without adversely affecting the exclusion from gross income of interest on the Note for federal income tax purposes; and (ii) any requirement of this Section 28 shall be void and of no force and effect if the Governmental Lender and the Owner receive a written opinion of Tax Counsel to the effect that compliance with any such requirement would cause interest on the Note to cease to be Tax-Exempt or to the effect that compliance with such requirement would be in conflict with the Housing Law or any other state or federal law. 22 2020-1.1-0,3 Agenda Packet Page 382 of 50�9 IN WITNESS WHEREOF, the Governmental Lender and the Owner have executed this Regulatory Agreement by duly authorized representatives, all as of the date first above written. CHULA VISTA HOUSING AUTHORITY By: Executive Director [Execution Page to Regulatory Agreement and Declaration of Restrictive Covenants Dated as of November I� 2020] 2020-1.1-0,3 Agenda Packet Page 383 of 50�9 OTAY AFFORDABLE I V81 L.P., a California limited partnership By: FOUNDATION FOR AFFORDABLE HOUSING V, INC.1 a California nonprofit corporation its Sole Member By: D�eborrah A. Willard President By: Otay Affordable I V8, LLC, a California limited liability company, its administrative general partner By: George Russo Chief Financial Officer OR By: Kasey Burke Vice President [Execution Page to Regulatory Agreement and Declaration of Restrictive Covenants Dated as of November I� 2020] 2020-1.1-0,3 Agenda Packet Page 384 of 50�9 EXHIBIT A DESCRIPTION OF REAL PROPERTY Real property in the City of Chula Vista, County of San Diego, State of California, described as follows: A-] 2020-1.1-0,3 Agenda Packet Page 385 of 50�9 EXHIBIT B FORM OF INCOME CERTIFICATION B-1 2020-1.1-0,3 Agenda Packet Page 386 of 50�9 EXHIBIT C FORM OF CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE The undersigned, , being duly authorized to execute this certificate on behalf of OTAY AFFORDABLE I V8� L.P. (the "Owner"), hereby represents and warrants that: I. The undersigned has read and is thoroughly familiar with the provisions of the following documents associated with the Borrower's participation in the Chula Vista Housing Authority's (the "Governmental Lender") Multifamily Housing Revenue Note (Otay Ranch Apartments), 2020 Series A, such documents including: (a) the Regulatory Agreement and Declaration of Restrictive Covenants (the "Regulatory Agreement") dated as of November 1, 2020 between the Owner and the Governmental Lender; (b) the Note executed and delivered from the Owner to the Governmental Lender representing the Owner's obligation to repay the Loan. 2. As of the date of this certificate,, the following percentages of residential units in the Project (i) are occupied by Very Low Income Tenants and Low Income Tenants (as such terms are defined in the Regulatory Agreement) or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Very Low Income Tenant and Low Income Tenant vacated,such unit; as indicated: 1 2 3 Studio Bedroom Bedrooms Bedrooms 'Total Occupied by Very Low Income Tenants: %Unit Nos.: Held vacant for occupancy continuously since last occupied by a Very Low Income Tenant: %Unit Nos.: 1 2 3 Studio Bedroom Bedrooms Bedrooms 'Total Occupied by Low Income Tenants: %Unit Nos.: Held vacant for occupancy continuously since last occupied by a Low Income Tenant: %Unit Nos.: C-1 2020-1.1-0,3 Agenda Packet Page 387 of 50�9 3. The Owner hereby certifies that the Owner is not in default under any of the terms of the above documents and no event has occurred which, with the passage of time, would constitute an event of default thereunder, with the exception of the following [state actions being taken to remedy default]. OTAY RANCH AFFORDABLE I V81 L.P. a California limited partnership By: Its: C-2 2020-1.1-0,3 Agenda Packet Page 388 of 50�9 EXHIBIT D CDLAC RESOLUTION THE CALIFORNIA DEBT LIMIT ALLOCATION COMMITTEE RESOLUTION NO. 20-435 D-1 2020-1.1-0,3 Agenda Packet Page 389 of 50�9 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0412 TI1TLE RESOLUTION OF THE CITY COUNCIL OF'THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2020-21 CIP BUDGET BY APPROPRIATING $2,31�800.68 FROM UNANTICIPATED REVENUE FROM LEXINGTON INSURANCE COMPANY TO THE CAPITAL IMPROVEMENT FUND FOR CVEATC PEDESTRIAN BRIDGE REPAIR PROJECT (GGV0241) (4/5 VOTE REQUIRED) RECOMMENDED ACTION Council adopt the resolution. SUMMARY On February 1,2018,,the Chula Vista Elite Athlete Training Center(CVEATC)pedestrian bridge collapsed due to a vehicle collision.Thereafter,the City filed a claim with Lexington Insurance Company ("Lexington") and per Resolution No. 2018-178,, City staff created the CVEATC Pedestrian Bridge Repair project (GGV0241) appropriating the first partial payment from Lexington to the project. Lexington recently made an additional partial payment on the claim in the amount of$2,31,800.68. This item would appropriate this additional partial payment of$,231,8,00.68,to Cap�ital Improvement Project(CIP) GGV0241. ENVIRONMENTAL REVIEW The proposed Project has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the project qualifies for a Categorical Exemption pursuant to State CEQA Guidelines Section 15,301 Class I (Existing Facilities) and Section 15303 class 3 (New Construction or Conversion of Small Structures). Notwithstanding the foregoing, it has also been determined that the Pedestrian Bridge Repair in the Chula Vista Elite Athlete Training Center was adequately covered in previously adopted/certified Environmental Impact Report, EIR 89-11 and Supplemental Environmental Impact Re�port, SEIR 89-11 for the Olympic Training Center. Thus, no further environmental review is necessary. DISCUSSION Per Resolution No.2018-178,C�ity staff created the CVEATC Pedestrian Bridge Repair project(CIP GGV0241) for the design and repair of the CVEATC bridge and guard house. City staff filed a claim with Lexington and received partial payments on the claim which have been appropriated into the proj�eclt. 'The available balance for the project is $417,66,1.77. Lexington recently made an additional partial payment on the claim in the amount of$231,800.68 for a current balance of$649,462.45. Staff recommends appropriating the additional partial payment of$231,800.68 received from Lexington to CIP GGV0241 in order to complete the design for the project. P �3ge 1 2020-1.1-0,3 Agenda Packet Page 390 of 5019 Upon completion of'the design phase,which includes Plans,Specifications,and Estimate (PS&E),the City will return to the Council to appropriate additional funds r�equir�ed to complete the construction phase of the project. City staff will coordinate with Lexington for the remaining undisputed balance to complete the project. DECISION-MAKER C"ONFLIC'Ir Staff has reviewed the property holdinas of the Council members and has found that Councilmember Stephen Padilla has property holdings within 1,,000 feet of the boundaries of the property which is the subject of this action. However,to the extent that any decision would have a reasonably foreseeable financial effect on the member's real property, the effect would be, nominal, inconsequential, or insignificant. Consequently, pursuant to California Code of Regulations Title 2, sections 18700 and 18702(b),this item does not present a real property-related conflict of interest under the Political Reform Act(Cal. Gov't Code§8710�0,et seq.). Staff is not independently aware and has not been informed by any City Council membe�r., of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. CURREN'T-YEAR FISCAL IMPACI 11 Approval of Resolution will appropriate$23,1,800.68 to CIP GGV0241 to cover design and Construction costs associated with the bridge and guard house repairs and cover staff costs associated with oversight of the project. Therefore,there is no direct impact to the General Fund. ONGOING FISCAL IMPAC oil Upon completion of the project,the improvements will require routine maintenance. MYTACHMENTS 1. None Staff Contact: Yan Fen Liu,Assistant Engineer P �3ge 2 2020-1.1-0,3 Agenda Packet Page 391 of 5019 RESOLUTION NO. 2020 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF' CHULA VISTA AMENDING THE FISCAL YEAR 2020-,21 CIP BUDGET BY APPROPRIATING $231,800.68 FROM UNANTICIPATED REVENUE FROM LEXINGTON INSURANCE COMPANY TO THE CAPITAL IMPROVEMENT FUND FOR CHULA VISTA ELITE ATHLETE TRAINING CENTER (CVEATC) PEDESTRIAN BRIDGE REPAIR PROJECT (GGV024 1) WHEREAS, per City of Chula Vista City Council Resolution No. 2018-178, City staff created the CVEATC Pedestrian Bridge Repair Project (CIP GGV0241) for the design and repair of the CVEATC bridge and guard house; and WHEREAS, pursuant to its claim with Lexington Insurance Company (Lexingto�n), City received partial payments in the amount of$649,462.45 and the City previously appropriated those partial payments to CIP GGV0241-, and WHEREAS, on September 22, 2020, the City received an additional partial payment pursuant to its claim in the amount of$231,800.68; and WHEREASI Staff recommends appropriating the additional partial payment of $231,800.68 from Lexington to CIP GGV0241 in order to commence and comp�lete the project design. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that it appropriates $231,800.68 from unanticipated revenue received from Lexington Insurance Company to CIP GGV0241. Presented by: Approved as, to form.- William S. Valle Glen R. Googins Director of Engineering & Capital City Attorney Projects/ City Engineer 2020-1.1-0,3 Agenda Packet Page 392 of 50�9 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0431 II.e PUBLIC HEARING REGARDING ANNEXATION OF TERRITORY TO COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) A. RESOLUTION OF THE CITY COUNCIL, OF THE CITY OF CHULA VISTA,ACTING AS'THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), MAKING CERTAIN DETERMINATIONS AND,AUTHORIZING SUBMITTAL OF LEVY OF SPECIAL TAXES TO, THE QUALIFIED ELECTORS OF' CERTAIN TERRITORY PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) AND IMPROVEMENT AREA"C"THERETO B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), DECLARING THE, RESULTS OF A SPECIAL ELECTION IN THAT TERRITORY DESIGNATED AS COMMUNITY FACILITIES DISTRICT NO., 97-2 (PRESERVE MAINTENANCE DISTRICT), IMPROVEMENT' AREATP) ANNEXATION NO. 11 AND ADDING SUCH TERRITORY TO SUCH IMPROVEMENT AREA RECOMMENDED ACTION Council conduct the public hearing and adopt the resolutions. SUMMARY Bonita Glen Investors, LLC has requested the City conduct proceedings to establish a perpetual funding mechanism for their share of the Otay Ranch Preserve in conformance with development requirements. On September 22, 2020, the City Council initiated the Community Facilities District No. 97-2 (Preserve Maintenance District) (CFD No. 97-2) annexation proceedings by adoption of Resolutions 2020-219 and 2020-220.Tonight I Is actions are the next steps in the formal proceedings to annex the territory within Bonita Glen (referred to as "Annexation No. 11") into CFD No. 97-2 and Improvement Area "C" thereof: (a) conducting a public hearing pertaining to the proposed annexation and (b) immediately following such public hearing, conducting an election of the qualified electors of Annexation No. 11 regarding the autho�rization to levy special taxes within Annexation No. 11 and, following the canvass of the ballots received,declaring the results of such election. Special taxes levied within Improvement Area"C"fund the costs of the Resource Monitoring Program as well as Preserve Operations and Maintenance consistent with the requirements of the Otay Ranch Resource Management Plan Phases I and 11,plus a pro-rata share of Administrative Expenses of CFD No.97-2.The City 1111. 0 0 1 PIi3ge 1 1 2020-1.1-0,3 Agenda Packet Page 393 of 5019 has retained the services of Willdan Financial Services as special tax consultant and Best, Best and Krieger LLP as legal counsel to provide assistance during the proceedings.Tonight's action will complete the formal proceedings to annex Annexation No.11 to C17D No.97-2 and Improvement Area"C"thereof. See Attachment 1 for the Annexation Map. ENVIRONMENTAL REVIEW The City's Development Services Director has reviewed the proposed activity for comp�liance with the California Environmental QualityAct(CEQA)and has determined thatthe activityis nota"Project 11 as defined under Section 15,378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUSSION In July 199�8,, Council formed CFD No. 97-2 (Preserve Maintenance District). CFD 97-2 was originally divided into two Improvement Areas: "A"and"B." Improvement Area "A" funds the cost of the Resource Monitoring Program,as well as Preserve Operations and Maintenance within the boundaries of the Otay Ranch Preserve. Improvement Area "B" only funds the Resource Monitoring Program within that same area. Improvement Area "C" was formed in 20�03, in conjunction with the annexation of Brookfield Shea Otay Ranch Village Eleven into CFD No. 97-2, and funds both the Resource Monitoring Program and Preserve Operations and Maintenance, consistent with the requirements of the Otay Ranch Resource Management Plan Phases I and 111,and includes the pro-rata share of administrative expenses of CF'D No.97-2. Proposed Speci'al Tax The rate and method of apportionment of the special taxes authorized to be levied within the existing boundaries of CFD No.97-,2 has four categories of taxation,as follows: • All developed single family and multi-family residences for which a building permit has been issued are taxed based on the square footage of the structure. Developed industrial and commercial parcels are taxed on the acreage of the parcel. • All final mapped residential, industrial and commercial parcels for which a building permit has not been issued are taxed based on the acreage of the parcel. • Property not categorized as Developed or Final Mapped Property is taxed based on the acreage of the parcel. • Exempt property includes all publicly owned parcels and Homeowner's Association parcels. These are not sub�ject to the special tax. The proposed maximum special tax rates in the rate and method of apportionment were determined at the time of formation of CFD No. 9�7-2 in 1998. Collection of Taxes At the beginning o�f'each fiscal year,the City shall determine the amount of Special Tax Liability(budget plus reserve) of each Improvement Area. Then, the special taxes will first be levied within each of the P �3ge 12 2020-1.1-0,3 Agenda Packet Page 394 of 5019 Improvement Areas on the Developed Parcels therein to fund the Special Tax Liability for such Improvement Area. If this pool of funds is not enough to fund the Special Tax Liability for such Improvement Area,as may be the case in the early years of development,CFD No.97-2 will levy the special tax on the vacant land within such Improvement Area,starting with Final Mapped Property.The special taxes on vacant land covering any portion of the Special Tax Liability not funded from special taxes on Developed Parcels within an Improvement Area will cease once the Improvement Area has been fully developed. If the Special Tax Liability for any fiscal year for an Improvement Area is less than the maximum special tax authorized to be levied on the Developed Parcels within such Improvement Area, the actual rate of the special taxes to be levied on such Developed Property in that specific year will be reduced accordingaly. Following is a brief discussion of some key issues relating to the"Rate and Method of Apportionment(RMA) of Special Taxes" proposed to be estab�lished for the Annexation No. 11 to be annexed to Improvement Area T" of CFD No. 97-2 (See Attachment 2 for the full RMA document): • The Maximum Special'Tax rates increase each year by a factor equal to the annual percentage change in the San Diego Consumer Price Index. • The RMA provides that the annual budget for any year may include an amount deemed necessary to maintain an adequate level of the operating reserve fund. • The maximum special tax rates are based on the original RMA established for CFD No. 97-2 when it was formed. If the actual square footage of residential development and/or the acreage of non- residential(industrial and commercial)development within Improvement Area"C"meets or exceeds the estimates on which the special tax rates were based, the actual special tax rate levied annually within Improvement Area"C"to fund the Special Tax Liability for Improvement Area"C"may be less than the authorized maximum special tax. Approved Maximum Special Taxes The approved maximum special tax rates for Fiscal Year 2020/2021 for Improvement Area"C" of CFD No. 97-,2 are as follows: Table 1. Maximum Special Tax for Monitoring Special Tax Category Maximum Special Tax (Monitoring) '-Category I-Residential (per square fo�ot) $0.0084 Category I-Non-,Residential (per acre) $136.67 Category 11-Final Mapped Property(per acre) $136�-67 -C�ategory III -Undeveloped Property(per acre) $88.21 Table 2. Maximum Special Tax for Operations&Maintenance Special Tax Category Maximum Special Tax (Operations&Maintenancej Category I-Residential (per square foot) $0.0134 -Category I-Non-Residential (per acre) $216�-97 Category 11-Final Mapped Property(per acre) $216�-97 P �3ge 3 2020-1.1-0,3 Agenda Packet Page 395 of 5019 Category III -Undeveloped Property(per acre) $140.04 DECISION-MAKER CONFLICT Staff has reviewed the property holdings of the City Council members and has found no property holdings within 1,000 feet of the boundaries of the property which is the subject of this action. Consequently, this item does not present a disqualifying real pro�perty-related financial conflict of interest under California Code of Regulations Title 1,section 18702.2(a)(7) or (8),for purposes of the Political Reform Act(Cal., Gov't Code §87100,etseq.). CURRENT-YEAR FISCAL IMPACT All costs of annexation of Annexation No�. 11 are being borne by the developer and the on-go�ing administration will be funded entirely by CFD No. 97-2,. The City will recover the full cost of staff time expended in CFD No. 97-2 formation and administration activities in perpetuity. ONGOING FISCAL IMPACT There is no ongoing fiscal impact to the General Fund as a result of this action.All o�ngoing costs will be paid by CFD No. 97-2. ATTACHMENTS 1.Annexation Map 2. Rate and Method of Apportionment Staff Contact:Kimberly Vander Bie P �3ge 4 2020-11-03 Agenda Packet Page 396 of 5019 VICINITY MAP ANNEXATION MAP NO. 11 OF SHEET 1 OF 1 COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) CITY OF CHULA VISTA COUNTY OF SAN DIEGO,STATE OF CALIFORNIA 10 &OAtir BONITA FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF CHULA VISTA THIS —DAY 20_. CITY CLERK CITY OF CHULA VISTA STATE OF CALIFORNIA SITE I HEREBY CERTIFY THAT THE WITHIN MAP SHOWING PROPOSED BOUNDARIES OF ANNEXATION MAP NO.11 TO COMMUNITY FACILITIES DISTRICT NO.97-2(PRESERVE MAINTENANCE DISTRICT)OF THE CITY OF CHULA VISTA,COUNTY OF SAN DIEGO, STATE OF CALIFORNIA,WAS APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA AT A REGULAR MEETING THEREOF,HELD ON THE DAY OF 20—,BY ITS RESOLUTION NO. CITY CLERK CITY OF CHULA VISTA STATE OF CALIFORNIA FILED THIS DAY OF 20-AT THE HOUR OF O'CLOCK-M. IN BOOK , PAGE OF MAPS OF ASSESSMENT AND COMMUNITY FACILITIES DISTRICTS IN THE OFFICE OF THE COUNTY RECORDER IN THE COUNTY OF SAN DIEGO,CALIFORNIA. COUNTY RECORDER COUNTY OF SAN DIEGO STATE OF CALIFORNIA THE LINES AND DIMENSIONS OF EACH LOT OR PARCEL ENCOMPASSED BY THIS MAP SHALL BE THOSE LINES AND DIMENSIONS AS SHOWN ON THE SAN DIEGO COUNTY ASSESSOR'S MAPS. THE SAN DIEGO COUNTY ASSESSOR'S MAPS SHALL GOVERN FOR ALL DETAILS CONCERNING THE LINES AND DIMENSIONS OF SUCH LOTS OR PARCELS. MAP REFERENCE ASSESSORS G) ............ N UMBER PARCEL NUMBER 1 5701311100 .............. ---------- 2 5701404000 ----------- ......... 3 5701404800 4 5701405100 ------- 5 5701405400 Legend ANNEXATION BOUNDARY MAP REFERENCE NUMBER Financial Services 2020-11-03 Agenda Packet Page 397 of 509 Ralte and Method of Apport'i'loininrient of Spec'ilczifl "rax R 1111111111 cilty 011111111 Chula Vista I a a ij� a c ii I il,t i le s U�st�rict �I'qo. 97-2 (RIIESERVE MAINTENX1114CE DISTRICT) A�rea C No,. A Sp�ecia�l Tax of Com�mun�ity Facilities District No. 97-2 (Preserve Maintenance District) of the, City of Chula Vista ("CFD") shall be levied on a�l�l Assessor's Parcels in Annexation No. 11 of Improvement Area C of the CFD and collected each Fiscal Year commencing with Fiscal Year 2021-2022 in an amount determined through the application of the rate, and method of ap�portionmen�t of the Special Tax set forth below. All of the rea�l property with�in Annexation No. 11 of Improvement Area C of the CFD, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meanings: "Acre or Acreage" means the land a�rea of an Assessor's Pa�rcel as shown on an Assessor's Parcel Map�, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicab,le Final Subdivision Map, other final map, other parcel map, other condominium plan, or functionally equivalent map or, instrument recorded in the Office of the County Recorder. The square footage of an Assessor"s Parcel is equal to the Acreage multiplied by 43,560. "'Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2 of Title 5 of the Government Code of the State of California. "'Administrative Expenses"' means the actual or estimated costs incurred by the City, acting for and on behalf of the CFD1 as the administrator thereof, to determine, levy and collect the Special Taxes, including salaries of City employees and a proportionate, amount of the City's general administrative, overhead related thereto, and the fees of consultants and legal counsel providing services related to the, administration of the CFD; the, costs of collecting installments 2020-1.1-0,3 Agenda Packet Page 398 of 5019 of the Special Taxes; and any other costs required to admi'ni'ster Area C of the CFD as determined by the City. "Assessor's Parcel" or "'Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned assessor's parcel number. "'Assessor's Parcel Map" means an official map of the Assessor of the County designating parcels by assessor's parcel number. "'Building Square, Foot or Square Footage" means the sq�uare footage as shown on an Assessor's Parcel's building permit of Residential Property excluding garages or other structures not used as living space., "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy a�nd collection of the Special Taxes. "CFD" means Commu�nity Facilities District No. 97-2 (Preserve Maintenance District) of the City of Chula Vista. "City" means the City of Chula Vista., "City CII&V means the City Clerk for the City of Chula Vista or his or her designee. "City Manager"' means the City Manager for the City of Chula Vista or his or her designee. "Community Purpose Facility Property" or "C,PF Property" means all Assessor's Parcels which are classified as com�mun�ity purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2883. "Council" means the City Council of the C,ity of Chu�la Vista, acting as, the legislative body of the CFD. "'County" means the County of San Diego, California. "'Developed Property" means all Taxable Property for which a building permit was i'ssued prior to the March 1st preceding the Fiscal Year in which the Special Tax is being levied. "'Final Map, Property" means any residential lot or non-residential lot created by a Final Subdivision Map, but which is not c,lassified as Developed Property. "'Final Subdivision Map" means a subdivision of property creating residential or non-residenti'al buildable lots by recordation of a final subdivision map or parcel map pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.), or recordation of a condominium plan pursuant to California C,ivil Code 1352, that creates individual lots for which 2 2020-1.1-0,3 Agenda Packet Page 399 of 5019 building permits may be issued without further subdivision and i's recorded prior to March 1 preceding the Fiscal Year in which the Special Tax is being levied. "'Fiscal Year"' means the period starting July 1 and ending on the following June 30. "Improvement Area C" or "Area C" means Improvement Area C of the CF'D, as identified on the boundary map for the CFD as amended from time to time., "'Land Use Class" means any of the classes listed in Table 1, Table 2, or Table 3. "'Maximum Special Ta�x" means the maximum Special Tax, determined in accordance with Section C below that may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residentiall Property" means all Assessor's Parcels of Developed Property for which a building permit(s,) has been issued for a structure or structures,for non-residential use. "Operating Fund�" means a fu�nd that shall be maintained within the CFD for each Fiscal Year to pay for Resource Monitoring a�nd/or Preserve Operations and Maintenance activities and Administrative Expenses. "Operating Fund Balance" means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. "Operating Fund Requirement" means for any Fiscal Year an amount equa�l to the Resource, Monitoring Fund Requirement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in which Special Taxes are levied. "Preserve Operations and Maintenance" means those activities described in Attachment A hereto which is incorporated herein by th�is reference. "Preserve Operations and Maintenance Fund Requirement" means for any Fiscal Year an amount equal to the budgeted costs for Preserve Operations and Maintenance plus a pro-rata share of the budgeted Administrative, Expenses of the District for the current Fiscal Year in which Special Taxes are levied. "'Property Owner Association Property"' means any property within the boundaries of Area C of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument recorded with the County Recorder to, a property owner association, including any master or sub-association. "'Public Property" means any property within the boundaries of Area C of the, CFD that is, at the time of the CFD formation, expected to be used for any pub,lic, purpose and is owned by or dedicated to the federal government, the State, the County, the City or any other pub,lic agency. "Reserve Fund"' means a fund that shall be maintained for the CFD each Fiscal Year to provide necessary cash flow for the first six months of each Fiscal Year, working capital to cover monitor�ing, maintenance and repair cost overruns and delinquencies i'n the payment of Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax levies. "'Reserve Fund Balance" means the amount of funds in the Reserve Fund at the end of the preceding Fiscal Year. 3 2020-1.1-0,3 Agenda Packet Page 400 of 5019 "'Reserve Fund Requirement" means an amount equal to up to 100% of the Operating Fund Requirement for any Fiscal Year. "'Residential Property"' means all Assessor's Parcels of Developed Property for which a b�uilding permit(s) has been issued for purposes of'constructing one or more residential dwelling unit. "'Resource Management Plan" means the Otay Ranch Phase 1 Resource Management Plan also referred to as "The Otay Ranch Resource Management Plan" dated October 28, 1993., and the Otay Ranch Phase 2,, Resource Management Plan dated June 4, 19916,, as both such plans may be amended from time to time. "Resource Monitoring Program" means those described in Attachment B hereto which is incorporated herein by this reference. "Resource Monitoring Fund Requirement" means for any Fiscal Year an amount for each Improvement Area equal to the Im�provement Area's fair share of the bu�dgeted costs of the Resource Monitoring Program pl�us a pro rata share of the budgeted Administrative Expenses of the CFD for the current Fiscal Year in which Special Taxes are levied. Improvement Area C's ""fair share," shall be based on Improvement Area C"s percentage of the total acreage within the Otay Ranch General Development Plan Planning Area for wh�ich a Resource Monitoring Program funding mechanism h�a�s been established. "Special Tax" means the Special Tax levied pursuant to the provisions of s,ection�s C and D below in each Fiscal Year on each Assessor's Parcel of Developed Property and Undeveloped Property in Area C to fu�nd the Special Tax Requirement. "Special Tax Requirement" means that amou�nt required in any Fiscal Year for Area C to: (i) pay the Resource M�on�itoring Fund Requirement, and Preserve Operations and Maintenance Fund Requirement, less the Operating Fund Balance, and (ii) pay any amounts required to establish or replenish the Reserve Fund to the Reserve Fund Requirement; (iii) pay for reasonably anticipated delinque,nt Special Taxes based on the delinquency rate for Special Taxes levied in the previous Fiscal Year., "'State" means the State of California. "'Taxable Property"' means all of the Assessor's Parcels within the boundaries of Area C of the CFD that are not exempt from the Special Tax pursuant to law or as defined below. "'Undeveloped Property" means, for each Fiscal Year, all Taxab,le, Property not classified as Developed Property. B. ASSIGNMEINITTO CATEGORIES OF SPECIAL TAX Each Fiscal Year u�sin�g the definitions above, all Taxable Property within Annexation No., 11 of Improvement Area C of the CFD shall be classified as Category 1,, Category 11, Category 111 or Exempt as defined in Section C. The Taxable Property shall further be classified as Developed Property, Final Map Property or Undeveloped Property and shall be subject to Special Taxes pursuant to Sections C and D below. Developed Property shall be further assigned to a Land Use Class as specified in Table 1. 4 2020-11-03 Agenda Packet Page 401 of 5019 C, MAXI�MUM SPECIAL TAX RATE CATEGORY I Category I includes Developed Property within the District ("Category 1"). The Maximum Special Tax for the Resource Monitoring Program and Preserve Operations and Maintenance for Fiscal Year 2020-2021 on Developed Property are the rates set forth in Table 1 below. For Residential Property,, the Special Tax shall be, levied based upon Building Square Footage and for Non-Residential Property shall be levied based on Acreage. TABLE 1 Maximum Special Tax for Category I Community Facilities District No. 97-2 Improvement Area C (Fiscal Year 2020-2021) Description Resource Operation & T'ota I Monitoring Maintenance Residential $0.008,4/sq ft $0.0134/sq ft $0.0218/scI ft Non-Resi'dential $136.67/acre $216.97/acre $353.64/acre CATEGORY 11 Category 11 includes each Assessor's Parcel of Taxable Property within the District for which a Final Map has been recorded, but which is not classified as a Developed Parcel ("'Category 11"). The Maximum Special Tax for the Resource Monitoring Program, and Preserve Operations and Maintenance approved for Fiscal Year 2020-2021 on each Assessor's Parcel in Category 11 is the rate set forth in Table 2 below (said amount to be levied pro rata for any portion of an Acre). TABLE 2, Maximum Special Tax for Category 11 Community Facilities District No. 97-2 Improvement Area C (Fiscal Year 202,0-2021) Resource Operation & Tota I Monitoring Maintenance $136.67/acre $216.,97/acre $353.64/acre CATEGORY I I I Category III includes each Assessor's Parcel of Taxable Property within the District not subject to Special Tax unde,r,any other category ("Category 111"). 2020-1.1-0,3 Agenda Packet Page 402 of 5019 The Maximum Special Tax approved for Fiscal Year 20�20-2021 on Taxable Property withi'n Category III is the rate set forth in Table 3 below (said amount to be levied pro rata for any portion of an Acre). TABLE 3 Maximum Special Tax for Category 111111 Community Facilities District No. 97-2 Improvement Area C (Fi's,cal Year 2020-2021) Resource Operation & Total Monitoring Maintenance $88.21/acre $140.04/acre $228.25/acre EXEMPT CATEGORY The Exempt Category includes each property owned, conveyed or irrevocab�ly offered for dedication to a public agency, or, land which is in the pub,lic, r�ight-of-way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impractical, common areas, pr�ivate streets and parks, and open space lots ("Exempt Category"'). SPECIAL CASES In some, instances,, an Assessor's Parcel of Developed Property may contain more th�an one Land Use Class and be considered "Special Case". The Maximum Special Tax that may be levied on an Assessor's Parcel identified as Special Case shall be the sum of the Maximum Special Tax levies that may be levied on all Land Use Classes located on that Assessor's Parcel. The CFD Administrator shall determine the allocation to each Land Use Class. ANNUAL ESCALATION OF MAXIMUM SPECIAL TAX The Maximum Special Tax as shown in the tables above that may be levied on each Assessor's Parcel in Improvement Area C, Annexation No. 11, shall be increased each Fiscal Year beginn�ing in Fiscal Year 2020-2021 and thereafter by a factor equal to the annual percentage change in the San Diego Metropolitan Area Consumer Price Index for Al�l Urban Consumers (CPI-U, All Items) or zero percent (01%), whichever is greater. Di., METHOD OF APPO�RTIONMENT' OF THE S�PE,CIAL TAX Commencing with Fiscal Year 2021-2022, and for each following Fiscal Year, the Council shall levy the Improvement Area C, Annexation No. 11, Special Tax at the, rates established pursuant to ste�ps 1 through 4 below so that the amount of the Special Tax levied equals the Special Tax Requirement. The Special Tax shall be levied each Fi'scal Year as follows: Step 1: Determine the revenue which could be generated by Parcels assigned to Category I by multiplying the Building Square, Footage for Parcels classified as Residential Parcels by the Maximum Special Tax per Building Square Foot for the Resource Monitoring Program, and 6 2020-1.1-0,3 Agenda Packet Page 403 of 5019 Preserve Operations and Maintenance for Parcels and adding to that the maximum revenue which could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special Tax per Acre for the Resource Monitoring Program, and Preserve Operations and Maintenance. Step 2: If' the total revenue as calculated in Step 1 is greater than the estimated Special Tax Liability for Improvement Area C., reduce the Special Tax for, each Parcel proportionately so that the Special Tax levy for the Fiscal Year is equal to the Special Tax Liability for the Fiscal Year., Step 3: If' the total revenue as calculated in Step 1 is less than the Special Tax Liability for Improvement Area C, a Special Tax shall be levied upon each Parcel within Improvement Area C, classified as Category 11. The Special Tax for Parcels assigned to Category 11 shall be calculated as the lesser of: The Special Tax Liability for Improvement Area C as cletermined by the City, less the total revenue generated for all �Pa�rcel�s under Step 1 above, divided by the total Acres for al�l Parcels within Improvement Area C assigned to Category 111 0 R The Maximum Special Tax rate for Parcels assigned to Category 11. Step 4: If the total reven�ue a�s calculated in Step 1 and 3 is less, than the Special Tax Liability, for Improvement Area C, a Specia�l Tax shall be levied upon each Parcel within Improvement Area C classified as Category 111. The Special Tax for Parcels assigned the Category III shall be calculated as the lesser of: The Special Tax Liability for Improvement Area C as determined by the City, less the total revenue generated for all Parcels under Step 1 and 3 above, divided by the total Acres for all Parcels within Improvement Area C assigned to Category 111, OR The Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area C. However, in the event it is cletermined that the Special Tax Liability for Improvement Area C includes delinquent Special Taxes from Parcel in Category III from the prior Fiscal Year, the City shall determine the amount of delinquent taxes that arose from such Parcels and i'dentify the owner(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owner(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the, preceding paragrap�h., Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy permit for private residential use has been issued be increased by more than ten percent (10%) 7 2020-1.1-0,3 Agenda Packet Page 404 of 5019 annually up to the Maximum Special Tax as a consequence of delinquency or default by the owner of any other Assessor's Parcel within Area C of'the CFD. E. APPEALS Any landowner or resident who pays the Special Tax and believes that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD1 Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any, by the CFD Administrator, the landowner or resident believes such error still exists; such person may file a wr�itten notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of a�ny such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of the CFID, a special three-member Review/Ap�p�eal Committee. The Review/Appeal Committee may esta�bl�ish such procedures, as it deems necessary to undertake the review of a�ny such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportionment and make determinations relative to the a�nnual adm�inistration of the Special Tax a�nd any landowner or resident appeal�s, a�s herein specified. The decision of the Review/Appeal Committee sh�al�l be final and binding as to all persons. F., MANNER O,F COLLECTION Special Taxes levied pursuant to Section D above shall be collected in the, same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the CFD Administrator may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet the financial obligations of Area C of the CFD or as otherwise determined appropriate by the CFD Administrator. G'�. TERM OF' SPECIAL TAX Taxable Property in Improvement Area C of the CFD shall remain subject to the Special Tax in perpetuity. 8 2020-1.1-0,3 Agenda Packet Page 405 of 5019 Attachment A Description of Preserve Operations and Maintenance Preserve Operations and Maintenance includes the maintenance,, operation and management of the public or private property withi'n boundaries of the Otay Ranch Preserve, as such boundaries may be modified from time to time, required by the Resource Management Plan to be maintained as open space or habitat preservation land or both. Such maintenance, operations and management shall include, but not be limited to, the following: W Preserve Maintenance. Development, implementation and ongoing provision of programs to maintain, operate and manage preserve habitat values through: cultivation, irrigation, trimming, spraying, fertilizing, and/or treatment of disease or inju�ry; removal of trimmings, rubbish, debris and other solid waste; ma�intenance of trails; removal and control of exotic plant species (weeds); and control of cowbird�s through trapping. (i i) Security. Development, implementation and ongoing provision of secu�rity programs to: enforce "no trespassing" rules; curtail activities, that degrade resources, such a�s grazing, shooting, and il�legal dumping; remove trash, litter, and other debris; control access; prohibit off-road traffic; and maintain fences and trails. (i i'i) Preserve improvements: Acquire equipment and/or i'nstall improvements necessary to maintain�, operate and manage the open space and habitat preservation land described above. The above descr�iptio�n of the Preserve Operations and Maintenance is general in nature. The actual maintenance, operations and management of the open space and habitat preservation land within the Otay Ranch Preserve may be modified from time to time as necessary in order to effectively provide such services in compliance with the requirements of the Resource Management Plan. 9 2020-11-03 Agenda Packet Page 406 of 5019 Attachment B Description of Resource Monitoring Implement the annual biota monitor,ing and reporting program consistent with the Resource Management Plan to identify changes in the quality and quantity of preserve resources including wildlife species,, sensitive plants and sensitive habitat types. The above, description of the Resource Monitoring is general in nature. The actual monitoring and reporting program may be modified from time to time as necessary in order to effectively provide such services consiste,nt with the requirements of the Resource Management Plan. 10 2020-11-03 Agenda Packet Page 407 of 5019 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), MAKING CERTAIN DETERMINATIONS AND AUTHORIZING SUBMITTAL OF LEVY OF SPECIAL TAXES TO THE QUALIFIED ELECTORS OF CERTAIN TERRITORY PROPOSED TO BE ANNEXED TO COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) AND IMPROVEMENT AREA "C" THERETO WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA, ("City Council"), formed a Community Facilities District and designated certain improvement areas therein pursuant to the terms and provisions of the "Mello-Roos, Community Facilities Act of 1982", being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act"), and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). The Community Facilities District has been designated as COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) (the "District"') and the Improvement Areas were designated as IMPROVEMENT AREA "A," IMPROVEMENT AREA "B" and IMPROVEMENT AREA "C" of such District; and, WHEREAS, the City Council, at the request of the owner of that property known as Bonita Glen located within the Otay Ranch, initiated proceedings pursuant to the Community Facilities District Law to annex such territory to the District and Improvement Area "C"' thereto; and, WHEREAS, notice of a public hearing relating to the annexation of such territory to the District and Improvement Area "C," the extent of the territory to be annexed, the furnishing of certain public services and all other related matters has been given; and, WHEREAS, the territory proposed to be annexed is known and designated as Community Facilities District No. 97-2 (Preserve Maintenance District), Improvement Area "C,"' Annexation No. I I (the "Territory"); and, WHEREAS, it has now been determined that written protests have not been received by 50% or more of the registered voters residing either within the Territory or Improvement Area "C" and/or property owners representing more than one-�half (1/2) or more of the area of land within.the Territory or within Improvement Area"'C"; and, WHEREAS, inasmuch as there have been less than twelve (12)persons registered to vote within. the Territory for each of the 9�O preceding days, this legislative body desires to submit the levy of the required special tax to the landowners of the Territory, such landowners being the qualified electors as authorized by law. 1 2020-1.1-0,3 Agenda Packet Page 408 of 50�9 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, AS FOLLOWS: SECTION 1. Recitals. The above recitals are all true and correct. SECTION 2. Determinations. It is determined by this City Council that: 0 (a) all proceedings _prior hereto were valid and taken in conformity with the requirements of law, and specifically the provisions of the Community Facilities District Law, and this finding is made pursuant to the provisions and authorization of Section 53325.1 of the Government Code of the State of California; (b) the annexation of the Territory to Improvement Area "C" as proposed confo�n-ns with the City of Chula Vista Statement of Goals, and Policies Regarding the Establishment of Community Facilities Districts; (c) less than twelve (12) registered voters have resided within the Territory for each of the ninety (90) days preceding the close of the public hearing and, consequently, the qualified electors shall be the landowners of the Territory and each landowner who is the owner of record as of the close of the public bearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre of land that she or he owns within the Territory; (d) the time limit specified by the Community Facilities District Law for conducting an election to submit the levy of the special taxes to the qualified electors of the Territory and the requirements for impartial analysis and ballot arguments have been waived with the unanimous consent of the qualified electors of the Territory; (e) the City Clerk, acting as the election official, has consented to conducting any required election on a date which is less than 125 days following the adoption of any resolution annexing the Territory to the District and Improvement Area"C"thereto; and (f) the public services described in Section 4, herein proposed to be financed from the proceeds of special taxes to be levied within the Territory are necessary to meet increased demands placed upon the City as a result of development and/or rehabilitation occurring in the Territory. SECTION 3. Boundaries of the Territ The boundaries and parcels of land the Territory and in which the public services are to be provided and on which special taxes will be levied in order to pay the costs and expenses for such public services are generally described as follows: All that Territory proposed to be annexed to the District and Improvement Area "C" thereto, as such property is shown on a map as previously approvedby this legislative body, such 2 2020-1.1-0,3 Agenda Packet Page 409 of 50�9 map entitled "Annexation Map No. I I of Community Facilities District No. 9�7-2 (Preserve Maintenance District), City Of Chula Vista, County Of San Diego, State Of California" (the "Annexation Map"), a copy of which is on file in the Office of the City Clerk and shall remain open for public inspection. The Annexation Map was filed in the Office of the! San Diego County Recorder on October 7, 2020 in Book 49, Page I of Maps of Assessment and Community Facilities Districts and as Document No. 2020-7000335. SECTION 4. Description of Services. The services that are authorized to be financed by the District from the proceeds of special taxes levied within Improvement Area "C" are certain services which are in addition to those services that were provided in or required for Improvement Area "C" prior to the formation of the District and the designation of Improvement Area "C" and did not replace services already available in the District or Improvement Area "C" at the time of formation of the District and the designation of Improvement Area "C". A general description of the services authorized to be financed by the District within Improvement Area "C" is as follows: The monitoring, maintenance, operation and management of public property in which the City has a property interest and which conforms to the requirements of the Ordinance or private property within the Otay Ranch Preserve which is required by the Preserve Owner/Manager to be maintained as open space or for habitat maintenance or both. Such property may be located outside the boundaries of the District and outside the jurisdictional boundaries of the City of Chula Vista. Such services shall not include the maintenance, operation and/or management of any property owned, maintained, operated and/or managed by the federal and/or state government as open space, habitat maintenance and/or for any other purpose. The District shall finance all direct, administrative and incidental annual costs and expenses necessary to provide such monitoring, maintenance, operation and management of such public property. The same types of services which are authorized to be financed by the District from the proceeds of special, taxes levied within Improvement Area "C" are the types of services to be financed from the proceeds of special taxes levied within the Territory. If and to the extent possible such services shall be provided in common within the District and the Territory. SECTION 5. Special Tax. Except where funds are otherwise available, a special tax sufficient to pay for such services and related incidental expenses authorized by the Community Facilities District Law, secured by recordation of a continuing lien against all non-exempt real property in the Territory, will be levied annually within the boundaries of such Territory. For further particulars as to the rate and method of apportionment of the proposed special tax, reference is made to the attached and incorporated Exhibit"A" (the "Improvement Area *C' Rate and Method"), which sets forth in sufficient detail the method of apportionment to allow each landowner or resident within the proposed Territory to clearly estimate the maximum amount that such person will have to pay. The special tax proposed to be levied within the Territory shall be equal to the special, tax levied to pay for the same services in Improvement Area "C," except that a higher or lower X V special tax may be levied within the Territory to the extent that the actual cost of providing the 3 2020-1.1-0,3 Agenda Packet Page 41.0 of 50�9 services in the Territory is higher or lower than the cost of providing those services in Improvement Area "C." Notwithstanding the foregoing, the special tax may not be levied at a rate which is higher than the maximum special tax authorized to be levied pursuant to the Improvement Area"C" Rate and Method. The special taxes herein authorized, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes. Any special taxes that may not be collected on the County tax roll shall be collected through a direct billing procedure by the Treasurer. The maximum special tax rate in Improvement Area "C" shall not be increased as a result of the annexation of the Territory to Improvement Area"Ic," SECTION 6. Election. The proposition related to the levy of the special tax shall be submitted to the qualified electors, of the Territory, such electors,being the landowners, with each landowner having one (1) vote for each acre or portion thereof of land which he or she owns within such annexed territory. The special election shall be held on November 3, 2020 immediately following the adoption of this Resolution, and such election shall be a special election to be conducted by the City Clerk (hereinafter "Election Official"). If the proposition for the levy of the special tax receives the approval of more than two-thirds (2/3) of the votes cast on the proposition, the special tax may be levied as provided for in this Resolution. SECTION 7. Ballot. The ballot proposal to be submitted to the qualified electors at the election shall generally be as follows.- PROPOSITION A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO�, 97-2� IMPROVEMENT AREA "C" ANNEXATION NO. 11 AUTHORIZATION FOR SPECIAL TAX LEVY Shall Community Facilities District No. 97-2 (Preserve Maintenance District) of the City of Chula Vista be authorized to levy special taxes, within the territory identified as Annexation No. I I to Improvement Area "C" of such District pursuant to the rate and method of apportionment of special taxes (the "Improvement Area 'C' Rate and Method") attached to this ballot to finance the authorized services and administrative expenses and to fund and replenish a reserve fund, all. as provided for in the Improvement Area 'C' Rate and Method. SECTION 8. Vote.. The appropriate mark placed in box adjacent to the word "YES'" shall be counted in favor of the adoption of the proposition, and the appropriate mark placed in the box adjacent to the word "NO" in the manner as authorized, shall be counted against the adoption of such proposition. SECTION 9. Election Procedure. This City Council hereby authorizes the Election Official to take any and all steps necessary for the holding of such election and ratifies any such 4 2020-1.1-0,3 Agenda Packet Page 41.1 of 50�9 steps previously taken by such Election Official which were necessary for the holding of such election. Such Election Official shall perform and render all services and proceedings incidental to and connected with the conduct of such election, and such services shall include, but not be limited to the following: (a) Prepare and furnish to the election officers necessary election supplies for the conduct of the election. (b) Cause to be printed the requisite number of official ballots, tally sheets and other necessary forms. (c) Furnish and address official ballots for the qualified electors of the Territory. (d) Cause the official ballots to be mailed and/or delivered, as required by law. (e) Receive the returns of the election. (f) Sort and assemble the election material and supplies in preparation for the canvassing of the returns. (g) Canvass the returns of the election. (h) Furnish a tabulation of the number of votes, given in the election. (i) Make all arrangements and take the necessary steps to pay all costs of the election incurred as a result of services performed for the District and pay costs and expenses of all election officials. Conduct and handle all other matters relating to the proceedings and conduct of the election in the manner and form as requiredby law. BE IF FURTHER RESOLVED by the City Council of the City of Chula Vista, that it is acting as the legislative body of Community Facilities D�istrict No. 97-2 (Preserve Maintenance District), making certain determinations and authorizing submittal of levy of special taxes to the qualified electors of certain territory proposed to be annexed to Community Facilities District No. 97-2 (Preserve Maintenance District) and Improvement Area"C" thereto. PREPARED BY: APPROVED AS TO FORM BY: Tiffany Allen Glen R. Googins Director of Development Services City Attorney 5 2020-1.1-0,3 Agenda Packet Page 41.2 of 50�9 CITY OF CHULA VISTA ANNEXATION NO. 11 TO COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) IMPROVEMENT AREA 66C�1� EXHIBIT "A" A Special Tax of Community Facilities District No. 97-2 (Preserve Maintenance District), of the City of Chula Vista ("CFD") shall be levied on all Assessor's Parcels in Annexation No. 11 of Improvement Area "C" of the CFD and collected each Fiscal Year commencing with Fiscal Year 2021-2022 in an amount determined through the application of the rate and method of apportionment of the Special Tax set forth below. All of the real property within Annexation No. 11 of Improvement Area "C," of the, CFD, u�nless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFII�NIITIIGNS The terms hereinafter set forth have the following meanings: "'Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Pa�rcel M�ap, the land area shown on the applicable Final Subdivision Map, other final m�ap, other p�arce,l map, other condominium plan, or functionally equivalent map or instrument recorded in the Office of the County Recorder. The square footage of an Assessor's Parcel is equal to the Acreage multiplied by 43,560. "Act" means th�e M�ello-Roos Commu�nity Facilities Act of 1982, as amended, being Chapter 2.5, Part 1, Division 2 of Title 5 of the Government Code, of the State of California., "Administrative Expenses" means the, actual or estimated costs incurred by the City, acting for and on behalf of the CFD as the administrator thereof, to determine, levy and collect the Special Taxes,, including salaries of City employees a�nd a proportionate amount of the City's general administrative overhead related thereto, and the fees of consultants and legal counsel providing services related to the administration of the C,FD; the costs of collecting installments of the Special Taxes; and any other costs required to admin�ister Area "'C" of the CFD as determined by the City. "Assessor's Parcel" or "Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned assessor"s parcel number. "'Assessor's Parcel Map" means an official map of the Assessor of the County designating parcels by assessor's parcel number., "Building Square Foot or Square Footage" means the square footage as shown on an Assessor's Parcel's building permit of Residential Property excluding garages or other structures not used as living space. Exhibit A-1 2020-1.1-0,3 Agenda Packet Page 41.3 of 5019 "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD" means Community Facilities District No. 97-2 (Preserve Maintenance District) of the City of Chula Vista. "'City"' means the City of'Chula Vista., "'City Clerk" means the City Clerk for the City of Chula Vista or his or her designee. "'City Manager"' means the City Manager for the City of Chula Vista or his or her designee. "Community Purpose Facility Property" or "CPF Property" means all Assessor's Parcels which are classified as com�mun�ity purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2883,. "'Council" means the City Council of the City of Chula Vista, acting as the legislative body of the CFD. "'County" means the County of San Diego, California. "Developed Property" means all Taxable Property for which a building permit was issued prior to the March 1st preceding the Fiscal Year i'n which the Special Tax i's being levied. "'Final Map Property" means any residential lot or non-residential lot created by a Final Subdivision Map, but which is not classified as Developed Property. "'Final Subdivision Map" means a subdivision of property creating residential or non-r�esidential buildable lots by recordation of a final subdivision map or parcel map pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.)�, or recordation of a condominium plan pursuant to California Civil Code 1352, that creates individual lots for which building permits may be issued without further subdivision and is recorded prior to M�arch 1 preceding,the Fiscal Year in which the Special Tax is being levied. "Fiscall Year" means the period starting July I and ending on the following June 30. "Improvement, Area C" or "Area C" means Improvement Area "C" of the CFD,, as identified on the bound�ary map for the CFD, as amended from time to time. "'Land Use Class" means any of the cl�asses l�isted in Table 1, Table 2., or Table 3. "'Maximum Special Tax" means the maximum Special Tax, determined in accordance with Section C below that may be levied in any Fiscal Year on any Assessor's Parcel of' Taxable Property. "'Non-Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been issued for a structure or structures for non-residential use. Exhibit A-�2 2020-1.1-0,3 Agenda Packet Page 41.4 of 5019 "Operating Fund" means a fund that shall be, maintained within the CFD for each Fiscal Year to pay for, Resource Monitoring and/or Preserve Operations and Maintenance activities and Administrative Expenses. "Operating Fund Balance" means the amount of funds in the Operating Fund at the end of the preceding Fiscal Year. "Operating Fund Requirement" means for any Fiscal Year an amount equal to the Resource Monitoring Fund Requirement and the Preserve Operations and Maintenance Fund Requirement for the current Fiscal Year in which Special Taxes are levied. "Preserve Operations and Maintenance" means those activities described in Attachment A hereto which is i'ncorporated herein by this reference. "Preserve Operations and Maintenance Fund Requirement" mea�n�s for any Fiscal Year an amount equal to the budgeted costs for Preserve Operations and Maintenance plus a �pro-rata share, of the budgeted Administrative Expenses of the District for the current Fiscal Year in which Special Taxes are levied. "Property Owner Association Property" mea�ns any property within the boundaries of Area "C" of the CFD that is owned by, or irrevocably dedicated as indicated in an instrument recorded with the, County Recorder tol a property owner association, including any master or sub-association. "Public Property" m�eans any property within the bounclaries of Area "C" of th�e CFD1 that is, at the time of the CFD, formation, expected to be used for any publ�ic purpose and is owned by or dedicated to the federal government, the State,, the County, the City or any other public agency. "'Reserve Fund"' means a fund that shall be mai'ntained for the CFD each Fiscal Year to provide necessary cash flow for the first six months of each Fiscal Year, working capital to cover monitor�ing, maintenance and repair cost overruns and delinquencies i'n the payment of Special Taxes and a reasonable buffer to prevent large variations in annual Special Tax �levies. "'Reserve Fund Balance"' means the amount of funds in the Reserve Fund at the end of the preceding, Fiscal Year. "Reserve Fund Requirement" means an amount equa�l to up to 100% of the Operating Fu�nd Requirement for any Fiscal Year. "'Residential Property" means all Assessor's Parcels of Developed Property for which a building permit(s) has been i'ssu�ed for purposes of con�structing one or more residential dwelling unit. "'Resource Management Plan" means the Otay Ranch Phase 1 Resource Management Plan also referred to as "The Otay Ranch Resource Management Plan" dated October 28, 1993, and the Otay Ranch Phase 2, Resource Management Plan dated June 22, 2018, as both such p�lans may be amencled from time to time., "'Resource Monitoring Program" means those, described in Attachment B hereto which is incorporated herein by this reference. Exhibit A-�3 2020-11-03 Agenda Packet Page 41.5 of 5019 "Resource Monitoring Fund Requirement" means for any Fiscal Year an amount for each Improvement Area equal to the Improvement Area's fair share of the budgeted costs of the Resource Monitoring Program plus a pro �rata share of the budgeted Administrative Expenses of the CFD for the current Fiscal Year in which Special Taxes are levied. Improvement Area "C's" "fair share" shall be based on Improvement Area "C's" percentage of the total acreage within the Otay Ranch General Development Plan Planning Area for which a Resource Monitoring Program funding mechanism has been established. "Special Tax" means the, Special Tax levied pursuant to the provisions of sections C and D below in each Fiscal Year on each Assessor's Parcel of Developed Property and Undeveloped Property in Area "C" to fund the Special Tax Requirement. "Special Tax Requirement" means that amount �required in any Fiscal Year for Area "C" to: (i) pay the Resource, Monitoring Fund Requirement, a�nd Preserve O�peration�s and Maintenance Fund Requirement, less the Operating Fu�nd Ba�l�a�nce, and (ii), pay any amounts required to establish or replenish the Reserve Fund to the Reserve Fund Requirement; (iii) pay for reasonably anticipated delinquent Special Taxes based on the delinquency rate for Special Taxes levied in the previous Fiscal Year. "'State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the bounclaries of Area "C" of the CFD that are not exempt from the Special Tax pursuant to law or as defined below. "Undeveloped Property" means, for each Fiscal Year, a�ll Taxable Property not classified as Developed Property. B. ASSIGNMENT TO CATEGORIES OF SPECIAL TAX Each Fiscal Year u�sin�g the definitions above, all Taxable Property with�in Annexation No. 11 of Improvement Area "C" of the CFD, shall be classified as Category 1, Category 11, Category III or Exempt as, defined in Section C. The Taxable Property shall further be classified as Developed Property,, Final Map Property or Undeveloped Property and shall be subject to Special Taxes pursuant to Sections C and D below. Developed Property shall be further assigned to a Land Use Class as specified in Table 1. C. MAXIMUM SPECIAL TAX RATE CATEGORY I Category I inc,ludes Developed Property within the District ("Category I")�. The Maximum Special Tax for the Resource Monitoring Program and Preserve Operations and Maintenance for Fiscal Year 2020-2021 on Developed Property are the rates set forth in Table 1, below., For Residential Property,, the Special Tax shall be levied based upon Building Square Footage and for Non-Residential Property shall be levied based on Acreage. Exhibit A-�4 2020-1.1-0,3 Agenda Packet Page 41.6 of 5019 TABLE 1 Maximum Special Tax for Category I Com�mu�nity Facilities District No. 97-2 Improvement Area "C"' (Fiscal Year 2,020-2021) Description Resource Operation & Tota I Monitoring Maintenance Residential $,0.0084/sq ft $0.0�134/sq ft $0.0218/sq ft Non-Residential $136.67/a-cre $216.97/acre $353.64/acre CATEGORY 11 Category 11 includes each Assessor's Parce,l of Taxable Property within the District for which a Final Map has been recorded, but which is not classified as a Developed Parcel ("'Category 11"). The Maximum Special Tax for the Resource Monitoring Program,, and Preserve Operations and Maintenance approved for Fiscal Yea�r 2020-2021 on each Assessor's Parcel in Category 11 is the rate set forth in Ta�bl�e 2 below (said amount to be levied pro rata for any portion of an Acre). TABLE 2, Maximum Special Tax for Category 11 Community Facilities District No. 97-2 Improvement Area "C" (Fiscal Year 20,20-2021) Resource Operation & Tota I Monitoring Maintenance $136.67/acre $216.97/acre $353.64/acre CATEGORY III Category III includes each Assessor's Parcel of Taxable Property within the District not,subject to Special Tax under any other category ("Category Ill"). The Maximum Special Tax approved for Fiscal Year 2020-2021 on Taxable Property within Category III is the rate set forth i'n Table 3 below (said amount to be levied pro rata for any portion of an Acre). Exhibit A-�5 2020-1.1-0,3 Agenda Packet Page 41.7 of 5019 TABLE 3 Maximurn Special Tax for Category III Community Facilities District No. 97-2 Improvement Area "C" (Fiscal Year 2020-202,1) Resource Operation & Tota I Monitoring Maintenance $88.21/a�cre $140.04/acre $,228.25/acre EXEMPT CATEGORY The Exempt Category inc,ludes each property owned, conveyed or irrevocably offered for dedication to a public agency, or land which is in the public right-of-�way, unmanned utility easements which make utilization for other than the purpose set forth in the easement impract,ical, common areas, private streets and parks, and open space lots ("Exempt Category"'). SPECIAL CASES In some, instances, an Assessor's Parce,l of Developed Property may contain more than one Land Use Class and be considered "Specia�l Case". The Maximum Special Tax that may be levied on an Assessor's Parcel identified as Special Case shall be the sum of the Maximum Special Tax levies that may be levied on all Land Use Classes located on that Assessor"s Parcel. The CFD Administrator shall determine the allocation to each Land Use Class. Exhibit A-�6 2020-11-03 Agenda Packet Page 41.8 of 5019 ANNUAL ESCALATION OF MAXIMUM SPECIAL TAX The Maximum Special Tax as shown in the tables above that may be levied on each Assessor's Parcel in Improvement Area "C", Annexation No. 11, shall be increased each Fiscal Year beginning in Fiscal Year 2020-2021 and thereafter by a factor equal to the annual percentage change in the San Diego Metropolitan Area Consumer Price Index for All Urban Consumers (CPI-U,, All Items) or zero percent(0%), whichever is greater. Di., METHOD OF APPORTIONMENT OF THE SPECIAL TAX Commencing with Fiscal Year 2021-2022, and for each followi'ng Fiscal Year, the Council shall levy the Improvement Area "C", Annexation No. 11, Special Tax at the rates established pursuant to steps 1 through 4 below so that the amount of the Special Tax levied equals the Special Tax Requirement.The Special Tax shall be levied each Fiscal Year as follows: Step 1: Determine the revenue which could be generated by Parcels assigned to Category I by multiplying the Building Square Footage for Parcels cla�ssified as Residential Parcels by the Maximum Special Tax per Buildi'n�g Square Foot for th�e Resource Monitoring Program, and Preserve Operations and Maintenance for Parcels an�d adding to that the maximum revenue which could be generated by multiplying the total acres for Parcels classified as Non-Residential Parcels by the Maximum Special Tax per Acre for the Resource Monitoring Program, and Preserve Operations and Maintenance. Step 2: If th�e total revenue, as calculated in Step 1 is greater than the estim�ated Special Tax Liability for Improvement Area "C", reduce th�e Special Tax for each Parcel proportionately so that the Special Tax levy for the Fiscal Yea�r is equal to the Special Tax Liability for the Fiscal Year. Step 3: If the total revenue, as calculated in Step 1 is less than the Special Tax Liability for Improvement Area "C", a Special Tax shall be levied upon each Parcel within Improvement Area "C". classified as Category 11. The Special Tax for Parcels assigned to Category 11 shall be calculated as the lesser of: The Special Tax Liability for Improvement Area "C" as determined by the City, less the total revenue generated for all Parcels under Step 1 above, divided by the total Acres for all Parcels within Improvement Area "C" assigned to Category 11, 01 R The Maximum Special Tax rate for Parcels assigned to Category 11. Step 4: If the,total revenue as calculated in Step 1 and 3 is less than the Special Tax Liability, for Im�provem�ent Area "C,", a Special Tax shall be levied upon each Parcel within Improvement Area "C" classified as Category 111. The Special Tax for Parcels assigned the Category III shall be calculated as the lesser of: Exhibit A-�7 2020-1.1-0,3 Agenda Packet Page 41.9 of 5019 The Special Tax Liability for Improvement Area "C," as determined by the City, less the total revenue generated for all Parcels under Step 1 and 3 above, divided by the total Acres for all Parcels within Improvement Area "C" assigned to Category III., or The Maximum Special Tax rate for Parcels assigned to Category III and within Improvement Area "C." However, in the event it is, determined that the Special Tax Liability for Improvement Area "C" includes delinquent Special Taxes from Parcel in Category III from the prior Fiscal Ye�ar, the City shall determine the amount of delinquent taxes that arose from such Parcels and identify the owne�r(s). The amount of delinquent Special Taxes, if any, that arose from the applicable owne�r(s) shall first be divided by the total Category III Acres owned by such owner(s) and collected from the applicable owner(s) with the remaining portion of the Special Tax Liability not related to delinquent,Special Taxes to be collected from all Parcels in Category III according to the procedure set forth in the preceding paragraph., Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Residential Property or Multi-Family Property for which an occupancy permit for private residential use has been issued be increased by more tha�n ten percent (10%) annually up to the Maximum Special Tax as a consequence of delinquency or default by the owner of any other Assessor's Parcel within Area "C" of the CFD. E. APPEALS Any landowner or resident who pays the Special Tax and believes that the amount of the Special Tax levied on the,ir Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error., If following such consultation, the CFD Administrator determines that an error has occu�rred; the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Pa�rcel. If following such consultation and action, if any, by the CFD Administrator, the landowner or resident believes such error still exists, such person may file a written notice with the City Clerk of the City appealing the amount of'the Special Tax levied on such Assessor's Parcel. Upon the receipt of' any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of the CFID, a special three-member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems �nec,essary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret, this Rate and Method of Apportionment and make cleterminations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The clecision of the Review/Appeal Committee shall �be final and binding as to all persons. Exhibit A-�8 2020-1.1-0,3 Agenda Packet Page 420 of 5019 F., MANNER OF COLLECTION Special Taxes levied pursuant to Section D above shall be collected in the same manner and at the same time as ordinary ad valo�rem property taxes; provided, however, that the CFD Administrator may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet the financial obligations of Area "C"' of the CFD or as otherwise determined appropriate by the CFD Administrator. G. TERM OF SPECIAL TAX Taxable Property in Improvement Area "C" of the CFD shall remain subject to the Special Tax in perpetuity. Exhibit A-�9 2020-11-03 Agenda Packet Page 421 of 5019 Attachment A Description of Preserve Operations and Maintenance Preserve Operations and Maintenance includes the maintenance,, operation and management of the public or private property within boundaries of the Otay Ranch Preserve, as such boundaries may be modified from time to time, required by the Resource Management Plan to be maintained as open space or habitat preservation land or both. Such maintenance., operations and management shall include, but not be limited to, the following: W Preserve Maintenance. Development, implementation and ongoing provision of programs to maintain, operate and manage preserve hab�itat va�lues, throu�gh: cultivation, irrigation, trimming, spraying, fertilizing, and/or treatment of disease or inju�ry; removal of trimmings, ru�bbish, debris and other solid wa�ste; maintenance of tra�ils; removal and control of exotic plant species (weeds); and control of cowbirds through trapping. (i i) Security. Development, implementation and ongoing provision of secu�rity programs to: enforce "'no trespassing" rules; curtail activities that degrade resources, such a�s grazing, shooting, and il�legal dumping; remove trash, litter, and other debris; control access; prohibit off-road traffic; and maintain fences and trails. (i i'i) Preserve improvements: Acquire equipment an�d/or i'nstall improvements necessary to maintain, operate and manage the open space and habitat preservation land described above. The above descr�iptio�n of the Preserve Operations and Maintenance is general in natur�e. The actual maintenance, operations and management of the open space and habitat preservation land within the Oltay Ranch Preserve may be modified from time to time as necessary in order to effectively provide such services in compliance with the requirements of the Resource Management Plan. Attachment A 2020-11-03 Agenda Packet Page 422 of 5019 Attachment B Description of Resource Monitoring Implement the annual biota monitor�ing and reporting program consistent with the Resource Management Plan to identify changes in the quality and quantity of preserve resources including wildlife species, sensitive plants and sensitive habitat types. The above description of the Resource Monitoring is general in nature. The actual monitoring and reporting program may be modified from time to time as necessary in order to effectively provide such services consistent with the requirements of the Resource Management Plan. Attachment B 2020-11-03 Agenda Packet Page 423 of 5019 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), DECLARING THE RESULTS OF A SPECIAL ELECTION IN THAT TERRITORY DESIGNATED AS COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT), IMPROVEMENT AREA 44C " ANNEXATION NO. I I AND ADDING SUCH TERRITORY TO SUCH IMPROVEMENT AREA WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council")�,, has previously undertaken proceedings to annex that territory known as Bonita Glen located within the Otay Ranch to an existing Community Facilities District and an Improvement Area designated therein pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982," being Chapter 2.51, Part 1, Division 2, Title 51 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District and the Improvement Area are referred to as COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) (the "District") and IMPROVEMENT AREA "C," respectively, and such territory proposed to be annexed is referred to as ANNEXATION NO. I I (the "Territory"); and, WHEREAS, this City Council, did call for and order to be held an election to submit to the qualified electors of the Territory a proposition relating to the levy of special taxes within the Territory; and, WHEREAS, at this time said election has been held and the measure voted upon and such measure did receive the favorable 2/3"s vote of the qualified electors, and this City Council desires to declare the results of the election in accordance with the provisions of the Elections Code of the State of California and to order that the Territory be added to the District and Improvement Area"C" thereof. NOW, THEREFORE, be it resolved by the City Council of the City of Chula Vista, AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This City Council hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election Official, said Statement setting forth the number of votes cast in the election, the measure voted upon, and the number of votes given for and/or against the 60297.00056\3 3 3 5 8 5 80.1 2020-1.1-0,3 Agenda Packet Page 424 of 50�9 measure voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit"A."referenced and so incorporated. SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set forth in said STATEMENT OF VOTES CAST. SECTION 4. This City Council does hereby determine and declare that the Territory is now added to and becomes a part of the District and Improvement Area "C" thereof The City Council hereby further determines that the City Council is now authorized to levy the special taxes within the Territory as approved and authorized by the qualified electors of the Territory. BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista, acting in its capacity as the legislative body of Community Facilities District No. 97-2 (Preserve Maintenance District), declares the results of a special election in that territory designated as Community Facilities District No. 97-2 (Preserve Maintenance District) Improvement Area "C,"' Annexation No. I I and adding such territory to such Improvement Area. PREPARED BY: APPROVED AS TO FORM BY: Tiffany Allen Glen R. Googins Director of Developmental Services City Attorney 2 60297.00056\3 3 3 5 8 5 80.1 2020-1.1-0,3 Agenda Packet Page 425 of 50�9 EXHIBIT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss. CITY OFCHULA VISTA The undersigned, ELECTION OFFICIAL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DOES HEREBY CERTIFY that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code! of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 97-2 (PRESERVE MAINTENANCE DISTRICT) IMPROVEMENT AREA 44C�i ANNEXATION AREA NO. I I SPECIAL ELECTION in said City, held November 3, 2020. 1 FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in the Territory of the District in said City, and the whole number of votes cast for the Measure in the Territory of the District in said City, and the totals as shown for the Measure are full, true and correct. 1. TOTAL NUMBER OF VOTES CAST: 11. VOTES CAST ON PROPOSITION A: YES NO WITNESS my hand and O�fficial Seal this day of 2020. CITY CLERK ELECTION OFFICIAL CITY OF CHULA VISTA STATE OF CALIFORNIA A-1, 60297.00056\3335 8580.1 2020-1.1-0,3 Agenda Packet Page 426 of 50�9 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2020 File,ID: 20-0433 'TITLE RESOLUTION OF THE CITY COUNCIL OF 'THE CITY OF CHULA VISTA APPROVING THE APPOINTMENT OF JOHN CRES,SLER, CANEISHA FORTNER, AND MICHAEL JUAN 'TO 'THE 2020 REDISTRICTING COMMISSION, PURSUANT TO CHARTER SECTION 300.5.1) RECOMMENDED ACTION Council adopt the resolution. SUMMARY The City's Charter requires that the City Council approve the selection of the final three 2020 Redistricting Commission members, as selected by the initial Redistricting Commission, consisting of four members. The Redistricting Commission has selected the final three members and their selection is presented to the City Council for final approval. 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 is not a "Project)p as defined under Section 15378(b)(5) of the State CEQA Guidelines because it involves only approval of the appointment of three individuals to the Redistricting Commission and, therefore, is an organizational or administrative activity of government that will not result in a direct or indirect physical change in the environment. Accordingly, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus,no environmental review is necessary. BOARD/COMMISSION/COMMITTEE,RECOMMENDATION The 2020 Redistricting Commission recommends that the City Council approve the appointment of the three recommended individuals to the Redistricting Commission. DISCUSSION The City Charter was amended in 2012 to provide that the City Council members would be elected by- district, rather than at-large, beginning with the 2016 election cycle,. In 2014,, the initial Districting Commission was selected and in 2015�, the City Council approved the recommended Districting Plan to establish the four Council Districts. Charter Section 300.5, mandates future Redistricting Commissions recommend a Districting Plan for adjusting the boundaries of the four Council Districts within one year of receipt by the City of the final Federal Decennial Census information. In an effort to have the Council 1111. 0 0 1 PIi3ge 1 1 2020-1.1-0,3 Agenda Packet Page 427 of 5019 district boundaries adjusted sufficiently in advance of the, 2022, elections,City staff has begun the process of establishing the 2020 Redistricting Commission. The selection process for the Redistricting Commission members began with the solicitation of applications. The City received 4,5 applications that met the minimum qualifications. Pursuant to the Charter,the Charter Review Commission ("CRU) then undertook the task of selecting the 10 most qualified applicants. To select the 10 most qualified app�licants, the CRE reviewed the applications, considered input from the City's Human Resources staff regarding the City's ethnic and racial make-up, based on the most recent census data, and received public comment. It then invited 16 applicants to submit a three-minute video candidate statement. From those, the CRC selected the final pool of ten candidates, at the CRC meeting on October 14, 2020. Pursuant to the procedures set forth in Section 30�0.5 and Chula Vista Municipal Code section 2.51, the City Clerk then randomly selected four of the candidates: Stelle Andrade, Elidia Dostal, Gloria Hurtado�, and Robert Moreno. Those four candidates were sworn-in as the first 2020 Redistricting Commission members. The initial Redistricting Commission of four members is tasked with selecting the final three members from among the six remaining candidates in the pool of ten. After selection by the Redistricting Commission, those final three members shall then be approved by the City Council. Specifically, Section 300.5.,D.3. provides: ""Three Commission Members shall be selected by the randomly selected Commission Membersfrom the pool of eligible applicants, subject to approval by the City Council. The qoal o such selections shall be to ensure f that, to the extent possible and as permitted by law, the Commission includes: a. Women and men who reflect the racial, ethnic, and geographic diversity of the City; b, Persons who have relevant knowledge andlor demonstrated analytical abilities that would allow the Commission to carry out its responsibilities with a high degree of competence; c. Persons who have demonstrated the ability to serve impartially in a nonpartisan role; d. Persons who have experience in the areas of public communication andlor public outreach in the City; and e. Persons who have experience in civic andlor volunteer activities in the City. The City Council shall approve nominees for selection to the Commission unless the City Council finds by at leastfour(4) affirmative votes that the approval of one or more of the nominees would be inconsistent with this goal. In such case, the City Council shall approve for selection to the Commission one or more persons from the remaining pool of eligible applicants."' Appointment of the recommended candidates will be accomplished by a majority vote of the City Council. If, for some reason, four members of the City Council determine that appointment of any one of the nominees would be inconsistent with the Charter's enumerated goals, the Council must approve one of the remaining candidates. This would be done at the next City Council meeting, after the City Council members P �3ge 12 2020-1.1-0,3 Agenda Packet Page 428 of 5019 have had an opportunity to review the applications of' the remaining three candidates., (Chula Vista Municipal Code section 2.51.060(L)) In accordance with the Charter and the Municipal Code,the 2020 Redistricting Commission met on October 21, 2020, at a public meeting. The Commission reviewed the applications of the remaining six candidates, received input from the City staff regarding the City's census data, and the ethnic, racial, gender and geographic information of the candidates, and considered public comment. The Commission then selected the following three candidates: John Cressler, Caneisha Fortner,and Michael Juan.Attachment 1 to this staff report contains the app�lications for the three nominees, Attachment 2 contains the applications of the four initial Redistricting Commission members. The Redistricting Commission submits the three selected candidates to the City Council for approval. Once the three candidates are approved for appointment, the full Commission can begin its task of identifying proposed district boundary adjustments for recommendation to the City Council. DIECISIOM-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in California Code of Regulations section 18704.2(a)(1), is not applicable to this decision. Staff is not independently aware and has not 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 IMPACT There is no fiscal impact as a result of this action. ONGOING FISCAL IMPAC oil There is no fiscal impact as a result of this action. Al"TACHMENTS Attachment 1:Applications of Redistricting Commission Nominees Attachment 2:Applications of Initial Redistricting Commission Members Staff Contact.-Kerry Bigelow, City Clerk P �3ge 3 2020-11-03 Agenda Packet Page 429 of 5019 RESOLUTION NO. 2020- RESOLUTION O�F' THE CITY COUNCIL OF THE CITY OF' CHULA VISTA APPROVING THE APPOINTMENT OF J014N CRESSLER, CANEISHA FORTNER, AND MICHAEL JUAN TO THE 2020 REDISTRICTING COMMISSION, PURSUANT TO CHARTER SECTION 300.5.1) WHEREAS, the City Charter was amended in 2012 to provide that the City Council members would be elected by-district, rather than at-large, beginning with the 2016 election cycle; and WHEREASI in 2014, the Districting Commission was selected in accordance with Charter Section 300.5 to recommend for City Council approval of a Dis,tricting Plan estab�lishing four Council districts; and WHEREASI in 2015, the D�istricting Plan was approved by the City Council; and WHEREASI Charter Section 300.5 mandates future Redistricting Commissions recommend a Districting Plan for adjusting the boundaries of the four Council Districts within one year of receipt by the City of the final Federal Decennial Census infon-nation; and WHEREAS, in an effo�rt to have the Council district boundaries adjusted sufficiently in advance of the 2022 elections, City staff has begun the process of establishing the 2020 Redistricting Commission; and WHEREAS, the selection process for the Redistricting Commission members began with the solicitation of applications; and WHEREAS, the City received 45 applications that met the minimum qualifications; and WHEREAS, pursuant to the Charter, the Charter Review Commission ("CRC") then undertook the task of selecting the ten most qualified applicants; and WHEREAS, to select the ten most qualified candidates, the CRC reviewed the applications, considered input from City Human Resources staff on the City's most recent census data regarding the City's ethnic, racial and gender diversity, received information from GIS staff regarding the applicants' geographic area of residence and received public comment; and 2020-1.1-0,3 Agenda Packet Page 430 of 50�9 Resolution No. Page 2 WHEREAS, due to the COVID-19 pandemic and in the interest of public health and safety, pursuant to the Governor of the State of California's Executive Order N-29- 20, the meetings of the CRC were held virtually via teleconference and in-person interviews were not feasible-, and WHEREAS, the CRC invited 16 applicants to submit a three-minute video candidate statement in lieu of holding in-p�erson interviews; and WHEREAS, from those, the CRC selected the final pool of ten candidates, at the CRC meeting on October 14, 2020; and WHEREAS, pursuant to the procedures set forth in Section 300.5 and Chula Vista Municipal Code section 2.5 1, the City Clerk then randomly selected four of the candidates: Stelle Andradel Elidia Dostal, Gloria Hurtado, and Robert Moreno; and WHEREASI those four candidates were sworn-in as the first 2020 Redistricting Commission members; and WHEREAS, the initial Redistricting Commission of four members was tasked with selecting the final three members from among the six remaining candidates in the pool of ten; and WHEREAS, after selection by the Redistricting Commission, those final three members shall then be approved by the City Council, unless the City Council finds by at least four (4,) affirmative votes that the approval of one or more of the nominees would be inconsistent with the goals enumerated in the Charter; and WHEREAS,, appointment of the recommended candidates will be accomplished by a majority vote of the City Council; and WHEREAS, if, for some reason, four members of the City Council determine that appointment of any one of the nominees would be inconsistent with the Charter's enumerated goals, the Council must approve one of the remaining candidates at its next meeting, after reviewing the applications of the remaining three candidates- and WHEREAS, in accordance with the Charter and the Municipal Code, the Redistricting Commission met on October 21, 2020, at a public meeting; and WHEREAS, they reviewed the applications of the remaining six candidates, received input from the City staff regarding the City's census data, and the ethnic, racial, gender and geographic information of the candidates, and considered public comment; and WHEREAS, they then selected the following three candidates: John Cressler, Caneisba, Fortner, and Michael. Juan; and 2020-1.1-0,3 Agenda Packet Page 431 of 50�9 Resolution No. Page 3 WHEREAS the Redistricting Commission has submitted the three selected candidates to the City Council for approval; and WHEREAS, once the three candidates are approved for appointment, the full Commission can begin its task of identifying proposed district boundary adjustments for recommendation to the City Council. NOW, THEREFOREI BE IT RESOLVED by the City Council of the City of Chula Vista, that it does hereby approve the appointment of John Cressler, Caneisha Fortner, and Michael Juan to the 2020 Redistricting Commission. Presented by: Approved as to form by: Kerry K. Bigelow, MMC Glen R. Googins City Clerk City Attorney 2020-1.1-0,3 Agenda Packet Page 432 of 50�9 Julia Sanchez From: Leah Larrarte Sent: Friday, July 17, 2020 5:08 PM To: Julia Sanchez Subject: Fwd: City of Chula Vista: Redistricting Commission Application - Web form Please process Sent from my iPhone Begin forwarded message: From: "webmaster@chulavistaca.gov" <webmaster@chulavistaca.gov> Date:July 17, 2020 at 4:56:19 PM PDT To: CityClerk<CityClerk@chulavistaca.gov>, Cristina Hernandez<chernandez@chulavistaca.gov>, Leah Larrarte<LLarrarte@chulavistaca.gov> Subject: City of Chula Vista: Redistricting Commission Application-Web form Warning: External Email A new entry to a form/survey has been submitted. Form Name: Redistricting Commission Application Date&Time: 07/17/2020 10:45 AM Response#: 21 Submitter ID: 79673 IP address: Time to complete: 26 min.,34 sec. Survey Details ...................................................................................................................................................................................................................................................................................................................................................................................... Page I Application for membership on the Redistricting Commission. When used in this Application,the term ""City""refers to the City of Chula Vista. 1. Prefix (o) Mr. 2. First and Last Name John Cressler ...................................................................................................................................................................................................................................................................................................................................................................................... 2020-1.1-0,3 Agenda Packet Page 433 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 3. E-mail 4. Home Address S. City Chula Vista 6. ZIP code 91910 7. Primary Phone 8. Secondary Phone Not answered 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 5 Years 12. Present Employer UC San Diego Health 13. Occupation Director,Strategic Affiliations 14. Relevant educational background: Bachelors Degree in Business Administration w/a concentration in Finance. IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: N/A 19. Are you,,or have you been,involved in any local,civic or community groups? ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 434 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... (o)Yes 20. If yes,please list them: Third Avenue Village Association/Big Brother Big Sister Program/Voice of San Diego 21. Per Chula Vista Municipal Code Section 2.25.030,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300.5(E)( , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 435 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... (o) No 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: Currently oversee the partnerships and affiliations of UC San Diego Health in an effort to expand community based services in areas where there are gaps in coverage for specialties.We work locally with health systems and internally across multiple departments,, service lines and w/in the health system/school of medicine.This role requires an ability to collaborate and compromise with physicians,, division chiefs,,administrators and executives to achieve a larger goal and push for better public access to health. I believe those skill sets will cross the aisle into the redistricting commission. 31. Please describe any experience you have with public communications or public outreach in the City Currently a member of the Voice of San Diego and used to attend the TAVA meetings here in Chula Vista. Looking to become more involved in making an actual difference to policy vs being an observer. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: As stated above I currently operate in what feels like a role that requires working across the aisle in a nonpartisan capacity to achieve a greater good. 33. Please describe any other relevant experience you have that is not described above: Lean Six Sigma Certified-Well versed in continuous improvement. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) My goal here would be to accomplish and continue a fair and equitable commission to ensure all individuals are heard and districts are zoned accordingly to echo the voice of its constituents. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). CV—CRESSLER—DI RECTOR-2020.docx 37. Please upload a letter of reference in addition to your application(required). Referral Letter.pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-1.1-0,3 Agenda Packet Page 436 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: John Cressler Today's date 07/17/2020 (MM/DD/YYYY): "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Male 42. Ethnicity: (o) Not of Hispanic Origin 43. Race: (o)White(Not Hispanic or Latino) 44. How did you hear about the Chula Vista Redistricting Commission? [x] Social Media [x] City of Chula Vista Website [x] Friend or Relative ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 5 2020-1.1-0,3 Agenda Packet Page 437 of 50�9 John Christopher Cressler Chula Vista, CA 91910 A seasoned lean focused healthcare executive with over 10 years of experience in operational and project management, client services and process improvement. Well versed in Lean Six Sigma, telehealth, revenue cycle, CMS, Risk Adjustment, and multiple technology platforms. Earned a Bachelor's of Business Administration in Finance from the University of North Carolina at Wilmington in 2005. Career Profile: UC San Diego Health, San Diego, CA(May 2017 to Present) April 2018 to Present Director, Strategic Affiliations&Sports Partnerships • Oversee implementation for any service line that opens in an affiliate hospital and/or clinic on behalf of UC San Diego Health • Responsible for operational maintenance and performance reviews for all affiliations in El Centro,Temecula, Murrieta and Hemet, &Oceanside • Support in the creation the Track, drive, and monitor milestones for timely implementation process.This includes Pro-Forma creation, agreement execution, departmental requirements, onboarding, credentialing, building/facilities planning, and establishing the flow of revenue cycle for the operation • Review, propose and implement beneficial cost saving analysis around our performance measures • Collaborate with our physician team on tools, training and equipment needed for a better patient experience • Generating reports and oversee performance review for our affiliate lines of service • Monthly reconciliation and processing of salary disbursements &expenditures • Assist w/ Decision Support in the creation of financials • Responsible for procuring business related licenses and permits May 2017 to April 2018 Program Manager, Critical Care& Telemedicine • Oversee and partner with UCSD Physician Group to lead the provider resource transition for telemedicine in the Critical Care (Pulmonology) Depts. of surrounding community facilities • Handle all divisional requirements for UCSD"s Critical Care Physician Team • Lead & produce budgetary departmental analysis • CPO Ambulatory Policy& Procedure Committee Board Member • Manage resources and staffing for all affiliate facilities under the UCSD umbrella • Liaison between affiliate Medical Staff Departments and UCSD Critical Care Division 2020-1.1-0,3 Agenda Packet Page 438 of 5019 CenseoHealth, Dallas,TX July 2016 to May 2017 Director, Strategic Accounts • Led the implementation and transition of five major health plans from Altegra to go-live with CenseoHealth • Responsible for tracking, monitoring, reporting, and driving production to meet or exceed the benchmarks set forth by our clients • Traveled in person for onsite client meetings and collaboration as well as lead daily and weekly calls on production and operations for our clients • Collaborated and consult daily on metrics, quality, and production with our Case Management, Scheduling and Staffing Departments • Discussed and agree upon approved quality measures to be closed, benchmarks and education/training of our provider staff • Adjusted accordingly for training and education to clients need for a more production oriented project or a more member care facing project • Adapted and transparently report any hurdles faced in the field with members and providers • Utilized proprietary systems at CenseoHealth to generate baseline reporting. Modified and designed baseline reports to pivot on more important data Altegra Health Connections, Miami, FL—A Change Healthcare Organization September 2014 to July 2016 Director, Clinical Operations • Helped achieve 1000%growth in our provider network and production capacity within the first year at Altegra • Led resource planning efforts and built a network of over 150 providers in a 90 day period • Serve in a client facing capacity both onsite and via phone for reporting and collaboration allowing for successful execution of agreements with our health plan partners • Accountable for developing and executing strategic plans through the coordination of multiple internal and external functional areas and manipulating project activity towards project goals • Oversee and drive the orientation, credentialing and implementation of our Provider network as well as consistently revising the internal work flow process for more efficiency • Staying abreast of CMS/Risk Adjustment/Medicare Advantage regulations and payment changes in order to provide provider training and present industry changes and guidance • Maintain a thorough understanding of company software and reports and assist in promoting new products and expanding current relationships • Interact with multiple functional areas and lead and/or coordinate projects among those areas on behalf of Provider Operations • Track and monitor client issues through analyzing data, reporting, and recommending and/or implementing process and procedure improvements • Responsible for effectively communicating and documenting detailed technical report specifications and data processing protocols through various levels of the organization to ensure client needs are met • Manage the expectations of our field of Physicians, Nurse Practitioners and Physician Assistants. • Oversee the efficiency and optimization of Provider Consultations while generating data and analysis to deliver to our Executive Team 2020-1.1-0,3 Agenda Packet Page 439 of 5019 Episource LLC, La Palma, CA September 2013 to September 2014 Director of Provider and Business Development 0 Oversee the operations and development of our Medicare Risk Adjustment Services Division. My primary role is to maximize the organization's growth by managing and collaborating with several key departments, such as client relations, recruiting, product development, and project management 0 In addition serve as a project manager in the implementation to completion of Risk Adjustment, Medical Record Chart Retrieval, Chart Auditing, and ACO client relations. Ensure all projections and milestones are met in an effort to increase the profitability, performance measures, and quality of care for our clients 0 Supervising the client relations and ensuring all projections and milestones are met in an effort to increase the risk adjustment score and overall quality of care for patients of our clients 0 Keep abreast of CMS/Risk Adjustment/Medicare Advantage regulations and payment changes in order to provide provider training and present industry changes and guidance 0 Track and monitor client issues through analyzing data, reporting, and recommending and/or implementing process and procedure improvements 0 Oversee the product development and deployment of our user application and workflow system for our internal and external staff 0 Oversee the efficiency and optimization of Provider Consultations while generating data and analysis to deliver to our ownership team Peak Health Solutions, San Diego, CA July 2011 to September 2013 Director of Provider Operations 0 Promoted from the Director of Recruiting position to lead and assist our clinical team in our newly minted Prospective In-home assessment business 0 Partnered with Coding, QA, Recruiting, and provider network to exceed production, resource needs and execution of client expectations 0 Oversaw the orientation, credentialing and implementation of our Provider Network. 0 Maintained a thorough understanding of company software and reports and assist in promoting new products and expanding current relationships 0 Tracked and monitored client issues through analyzing data, reporting, and recommending and/or implementing process and procedure improvements 0 Managed the expectations of our field of Physicians, Nurse Practitioners and Physician Assistants August 2009 to July 2011 Director of Recruiting Manage over 100 employees on a daily basis, reporting on expectations and keeping track of productivity and time requirements Directed internal team of recruiters to meet and exceed deadlines for current and potential clients Worked directly w/ Hospitals, Health Systems, Health Plans and other Healthcare Entities to identify and locate professionals. Work closely with sales team and the clients to ensure the proper completion of projects 2020-1.1-0,3 Agenda Packet Page 440 of 5019 July 2006 to August 2009 A cco un t Execu tive 0 Sold and managed relationships with Health Plans nationally in an effort to assist in optimizing reimbursement for the Risk Adjustment Program for Medicare Advantage 0 Contact and work with Acute Care Health Facilities, DoD and Veterans Affairs Hospitals to sell and manage a solution to challenges that lie within the Medical Record department and more specifically the Coding Department 0 Work directly with C-Level Managers and Directors of HIM to coordinate IT and workflow adjusting to coding related issues 0 Manage daily productivity of employees working an account 0 Make sure the operations and functionality of an account are maintained along with client satisfaction Specialties: Process Improvement, Client Services, Project Management, Program Management, Client Services, Medicare, Risk Adjustment, Home Health Operations, Provider Resource Planning,Team Management, Microsoft Office, Salesforce,Tableau, Force.com, Asana,Trello, Digital Health,Telehealth. Education: University of North Carolina at Wilm Cameron School of Business (AACSB Accredited) Bachelor of Science in Business Administration -2004 Concentration: Finance 2020-1.1-0,3 Agenda Packet Page 441 of 5019 July �17, 20.20 �o n City Charter Review Commissi Redistricting Selection 276 4th.Ave, Chula Vista, CA 91910 Dear City Charter Review Commission: I have known John Cress,ler well for the past 4 years due to our involvement and volunteer activities, nd '.thin our children's school'. I have always known him as an efficient, professional, organized, a. wl, fantastilc team leader. Combine this with his: heart and passion for engaging with the com. .munity to truly make a difference make him uniquely qualified to serve on-the City's Redistricting Commission. These,qualities are exernplified within hi's professional fife as a seasoned executive with over 10 years of experience in operational and project management., chent services and process improvement; as well as being versed in, Lean Six Sigma, risk adjuistment, and multiple tech nology platforms. With my 15 years of experience in executive management Mthin the City of San Nego I think these exceptional skill sets along with his ability to analyze, ad'apt, and learn quickly would make him an excellent asset to such a y, as part of a culturaIlly Wended demanding position, such as Redistricting Comm issioner.Mclitionall' faimily he brings a unique perspective that reflects and understands the community of Chula Vista. I -wholeheartedly endorse io:hn's ski.11s:and commitment.,, and he woulld. serve Chula Vista well on the Redistrictling Commission. Y,F Sincerel' Dian Fuentes, 2020-1.1-0,3 Agenda Packet Page 442 of 5019 Julia Sanchez From: Webmaster Sent Sunday, July 26' 2O2O5:52PM To: [itv[|erk; [hstinaHernandez; Leah Larnsrte Subject: City of Chula Vista: Redistricting Commission Application Web form External Email Anew entry toaform/survey has been submitted. Form Name: Redistricting Commission Application Date&Time: 07/26/20205:52PM Response#. 31 Submitter ID: 81024 IP address: Time to complete: 33 min.,26 sec. Survey Details ---------------------------------------------------------------------------------------------------------------------- .................. Page 1 Application for membership on ;he Redistricting Commission. When used/nthis Application,the term "City""refers tmthe City qfChula Vista. 1. prefix (o) Mrs. 2. First and Last Name Caneisha Fortner 3. E-mail 4 Home Address S. City Chula Vista 6. ZIP code 91915 7. Primary Phone ----------------------------------------------------------------------------------------------------------------------------' ...................................................................................................................................................................................................................................................................................................................................................................................... 8. Secondary Phone Not answered 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 5 years 12. Present Employer United States Navy 13. Occupation Paralegal 14. Relevant educational background: Master of Public Administration I University of Southern California, Los Angeles, CA—Student—Class of 2023; Bachelor of Science, Criminal Justice Administration I Excelsior College,Albany, NY—2017; Associates of Science, Paralegal Studies I Roger Williams University, Providence, RI—2013; Housing Policy Leadership Academy Graduate; and City of San Diego—Citizens Water Academy Graduate IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? N/A 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: N/A 19. Are you,,or have you been,involved in any local,civic or community groups? (o)Yes 20. If yes,please list them: Earl B.Gilliam Bar Foundation; Delta Sigma Theta Sorority Incorporated; National Association for the Advancement of Colored People(NAACP); Black Women"s Institute for Leadership Development(BWILD) 21. Per Chula Vista Municipal Code Section 2.25.030,,, 1 understand: ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 444 of 5019 ...................................................................................................................................................................................................................................................................................................................................................................................... -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300. , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? (o) No 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 445 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: For 13 years I have served in the United States Navy. During this time I have been given the opportunity to work with various legal experts as a legal manager for domestic and global operations.Through these experiences I have developed excellent administrative, interpersonal,organizational, and technical competences. In researching the The Redistricting Commission, I have found that these are skills that are needed for any Commisioner to be able to undertake its duties effectively.The Commission was created to make unbiased,equal, and fair recommendations to the city council on how best to modify the existing district boundaries and while I do not have any previous districting or redistricting experience, I do believe that the proficiencies that I possess will greatly assist the Commission in making sound recommendations to the City Council on the required district boundaries" modifications. 31. Please describe any experience you have with public communications or public outreach in the City Outside of my legal and naval experiences,for the past three years, I have had an opportunity to interact and work with the Chula Vista Community through local nonprofit Daring, Reshaping, Empowering,and Mentoring(D.R.E.A.M).As its executive director, I led my team members in training San Diego County residents on practical skills,financial matters,,and other socioeconomic aspects.Throughout the past three years that I worked with the surrounding community,, I afforded the opportunity to learn a lot about the various groups of interest in the area,,as well as the cultural,,ethnic,,socioeconomic,and geographic factors that bind them.Therefore,, my knowledge of such populations of interest in Chula Vista will enable me to guide the Commission on the interested parties who need to be involved in the formulation of its redistricting proposals. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: As a member of the uniformed services, I have learned to discharge my duties in a nonpartisan and impartial manner. Every memeber is expected to distance themselves from active politics and refrain from supporting any political party. In my case,, I set the bar for nonpartisanship and impartiality even higher as I have had more than decade of practice in being independent in my decision-making.This experience will be helpful to the Redistricting Commission since it is required to make nonpartisan and fair recommendations.The Commission also has to desist from making endorsements that favor political office incumbents,their challengers,, or any particular party.Therefore,,my ability to discharge my duties objectively and make decisions without being swayed politically will help the Commission to achieve and maintain impartiality and nonpartisanship as it executes its mandate. 33. Please describe any other relevant experience you have that is not described above: None. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) As a member of the Redistricting Commission I would hope to impartially and fairly discharge my duties,,while ensuring that there is balance and that constituents continue to yield the power that our democracy was created for them to hold. It is important that members appointed to the Redistricting Commission are able to remain focused in order to ensure that fair and unbiased political lines are drawn without special interests,, politics or political influence. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). Caneisha Fortner—Resume docx 37. Please upload a letter of reference in addition to your application(required). 2020-0725LORCFortner.pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-1.1-0,3 Agenda Packet Page 446 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Caneisha S. Fortner Today's date 07/26/2020 (MM/DD/YYYY): "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Female 42. Ethnicity: (o) Not of Hispanic Origin 43. Race: (o) Black or African (Not Hispanic or Latino) 44. How did you hear about the Chula Vista Redistricting Commission? [x] Outside Organization ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 5 2020-1.1-0,3 Agenda Packet Page 447 of 50�9 CANEISHA S. FORTNER Chula Vistal CA 91915 PROFESSIONAL SUMMARY Experienced Legal Manager and Military Veteran with a Secret Security Clearance and 12 years of proven experience in the United States Navy. Accomplished measurable results while leading teams in dynamic, fast - paced environments. Possess a comprehensive background in legal and administrative processes derived from conducting domestic and global operations. Motivated and personable professional with a successful track record of serving as a leader 'in victim advocacy, the military justice system, investigations and public service activities. Possess extensive knowledge in interpersonal skills while providing a broad range of technical proficiencies,the ability to handle multiple tasks efficiently, accurately and timely. Displays excellent organizational skills while displaying a high level of occupational knowledge. Career supported by a Bachelor of Science, Criminal justice Administration. • Law and Government 0 Criminal justice 0 Administrative Services • Leadership 0 Training and Development 0 Communication • Document Management 0 Policy Implementation 0 Microsoft Office Suite EDUCATION Master of Public Administration I University of Southern California, Los Angeles, CA—Student—Class of 2023 Bachelor of Science, Criminal justice Administration I Excelsior College,Albany, NY—2017 Associates of Science, Paralegal Studies I Roger Williams University, Providence,RI—2013 PROFESSIONAL EXPERIENCE United States Navy—Various Locations 2010—Present Senior Legal Manager Oversaw the legal and administrative processes of a large organization for over 13 United States Navy legal offices worldwide. Provided excellent legal and administrative support while effectively managing 15 legal assistants and clerks. • Collaborated with coworkers to routinely draft and update improvements to the Navy's Paralegal training program,improved)ob productivity by 25% • Prepared daily affidavits,legal correspondence, and organized all legal documentation in paper and electronic format', ensured attorneys were accurately prepared for trial • Performed online and offline research to assist military attorneys 'in related casework • Managed and directed 10 legal assistants; ensured all legal correspondence and documentation were in accordance with military regulations • Orchestrated and coordinated a senior leadership coursel successfully prepared over 35 officers to lead in the legal field • Provided excellent customer service and legal support to over 13 legal offices with a 100% customer satisfaction rating Trial Paralegal Coordinated all the paralegal management responsibilities of over 550 commands within the Region Legal Office including courthouse security,,legal correspondence, affidavits and promotions. • Provided legal documents in courts-martials 1,Article 15 actions and reviewed separation board proceedings and other administrative and military justice issues • Effectively managed the legal processing, documentation and correspondence of over 20 court martial cases and over 75 records of trials', ensured 100% compliance with deadlines • Researched investigated and interviewed personnel for over 100 sexual assault cases,informed victims of ictin Assistance Program and ensured 100% completion 2020- -0)yAgQa Packet Page 448 of 5019 CANEISHA S. FORTNER, PG. 2 Trial Paralegal • Maintained the Region Legal Office's customer service help desk and ensured 100% customer satisfaction • Managed and directed 10 legal assistants and performed quality assurance of legal work • Provided excellent mentorship to over 35 Naval Legal assistants',increased the number of promoted employees by 30% and increased the retention rate of legal assistants by 40% Legal Assistant Served as a legal assistant providing excellent legal and administrative support for over 2000 personnel. • Assisted over 300 employees in family law including power of attorney,wills and separation decrees • Prepared over 50 official accounts of hearings,investigations, courts-martial and courts of inquiry and processed appeals in an effective and efficient manner • Managed and oversaw the proper processing of over 31 administrative separation packages, 2 separation boards', 32 nonjudicial punishments trials and 121 legal documents • Displayed a high level of professionalism and customer service in daily interactions with personnel • Prepared and disseminated over 300 official legal forms,letters and requests with 100% efficiency for over 4 administrative boards',25 appeals, and several NElitary Protective and Liberty Risk orders • Assisted attorneys in researching and preparing for over 75 Civilian Administrative Forum hearings,, improved the overall efficacy of the trials by 30% PROFESSIONAL ASSOCIATIONS Earl B. Gilliam Bar Association Delta Sigma Theta Sorority Incorporated National Association for the Advancement of Colored People (NAACP) Black Women's Institute for Leadership Development NOTABLE AWARDS Employee of The Year for The Year—2017 1 Navy Good Conduct Medal Navy and Marine Corps Achievement Medal Housing Policy Leadership Academy Graduate City of San Diego —Citizens Water Academy Graduate TECHNICAL SKILLS Software: Microsoft Officel SharePoint Operating Systems: Microsoft Windows 2020-1.1-0,3 Agenda Packet Page 449 of 5019 ....... ... Califor'nia Corn rniss�or"i aN. "rti,iiE ON, WIWI -A Immifid . ........ ......... ..... ............... ................. ............... ......................................................... ............. ............... ALISHA WI LKI NS,Ph.D. Chair July 25, 2020 KATIE BUCKLAND First Vice Chair CE LI N DA VAZQU EZ Chula Vista Redistricting Commission Second Vice Chair City of Chula Vista Lauren Babb 276 Fourth Avenue Member at Large Chula Vista, CA 91910 ASSEMBLYMEMBER SHIRLEY WEBER Member at Large To Whom it May Concern: ASSEMBLYMEMBER RECECCA BAUER-KAHAN RE: Letter of Support for Caneisha Fortner Commissioner Erica Courtney It is a pleasure to recommend Ms. Caneisha Fortner to the Chula Vista Redistricting Commissioner Commission. Quinn Delaney Caneisha has served as an active duty member of the United States Navy for 13 years. Commissioner She continues to further illustrate her dedication to her country through active Lilia Garcia-Brower engagement in Delta Sigma Theta Sorority, Inc. (DST), a private, not for profit Commissioner organization committed to public service. Through DST, she planned and executed Joelle Gomez five voter registration drives in FY 19/20 reaching over 500 San Diego residents. Commissioner ASSEMBLYMEMBER ELOISE GOMEZ Caneisha also founded D.R.E.A.M. Inc., (Daring, Reshaping, Empowering, and REYES Mentoring), a 501(c)3 organization that helps high school graduates with developing Commissioner life skills, financial literacy, and acquiring and granting academic scholarships. SENATOR HANNAH-BETH JACKSON Participants in her training have received over $75,000 in federal grants. Commissioner SENATOR CONNIE LEYVA Caneisha is also a graduate of Black Women's Institute for Leadership Development Commissioner (BWILD)) a program founded by Assemblywoman Dr. Shirley Weber. BWILD was SENATOR HOLLY MITCHELL created to grow an alliance of women from the African diaspora and provide them Commissioner with guidance and support for a career in public service leading to elected office Executive Director and/or leadership positions on boards and commissions. LaKenyaJordan In summary, I fervently support Caneisha for consideration to the Chula Vista Redistricting Commission. Best regards, Dr. Alisha Wilkins, Chair CA Commission on the Status of Women & Girls Sacramento, California 9S814 www.women.ca.gov 202OF FgaenlaW,ace Page 450 of 5019 Julia Sanchez From: Leah Larrarte on behalf of CityClerk Sent: Friday, July 24, 2020 3:13 PM To: Julia Sanchez Subject: FW: City of Chula Vista: Redistricting Commission Application - Web form Please process. From:webmaster@chulavistaca.gov<webmaster@chulavistaca.gov> Sent: Friday,July 24, 2020 2:33 PIVI To: CityClerk<CityClerk@chulavistaca.gov>; Cristina Hernandez<chernandez@chulavistaca.gov>; Leah Larrarte <LLarrarte@chulavistaca.gov> Subject: City of Chula Vista: Redistricting Commission Application -Web form Warning: External A new entry to a form/survey has been submitted. Email I Form Name: Redistricting Commission Application Date&Time: 07/24/2020 2:33 PM Response#: 29 Submitter ID: 80955 IP address: Time to complete: 39 min.,53 sec. Survey Details .................. Page I Application for membership on the Redistricting Commission. When used in this Application,the term ""City""refers to the City of Chula Vista. 1. Prefix (o) D r. 2. First and Last Name Michael Juan 3. E-mail 4. Home Address ...................................................................................................................................................................................................................................................................................................................................................................................... 2020-1.1-0,3 Agenda Packet Page 451 of 50�9 .......... S. city Chula Vista 6. ZIP code 91911 7. Primary Phone n Ph 8. iihim 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 3 years 12. Present Employer San Diego State University 13. Occupation Clinical Psychologist 14. Relevant educational background: Bachelor's of Science in Psychology, UCSD(2001) Master's of Arts in Clinical Psychology, California School for Professional Psychology,Alliant International University(2005) Ph.D. in Clinical Psychology, California School for Professional Psychology,Alliant International University(2009) IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: Not answered 19. Are you,,or have you been,involved in any local,civic or community groups? (o)Yes ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 452 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 20. If yes,please list them: Kalusugan Community Services(BOD), Interactions 4 Peace(BOD), Bayview Clubhouse(BOA) 21. Per Chula Vista Municipal Code Section 2-25-030,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300. , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? (o) No ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 453 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: I have experience in program management and development,clinical research, and healthcare. In each role I've had to collect, analyze,and make informed decisions based on data.As a clinical psychologist I've completed a dissertation where I designed and conducted a large research study to make determinations on relationships between variables. I also work as a therapist where I am required to practice impartiality,critical thinking,and confidentiality. Remaining objective is an inherent part of most of the roles and spaces I occupy. 31. Please describe any experience you have with public communications or public outreach in the City Most of my experience in public communications and public outreach has been in the leadership and management roles I've held.As the former program director of Chula Vista's large,county-contracted,, outpatient mental health facility, I interfaced with the public and county at large. In my work at SDSU,, I've taken on leadership roles(e.g.Chair of the Bayanihan Filipino American Faculty and Staff Association,, member of the SDSU University Senate,, Faculty Adviser for Student Health Advisory Committee)where I've outreached to the larger campus community for numerous initiatives.As a lecturer at several universities(SDSU,,Alliant,, National University),, I've developed comfort in speaking in front of large audiences, including current work with the SDSU College of Education,, in a class of over 180 students. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: Impartiality is a significant and crucial part of my work as a clinical psychologist. I am expected to be present with clients as an objective voice.As stated,,in my leadership roles,, I've had to make impactful decisions using large data sets and critical thinking skills. Related,, I've also sat on 2 full jury duty assignments. In the early 2000's I sat on jury for a medical malpractice civil case. In 2018 1 complete my duty with a jury on a criminal attempted murder case here at the Chula Vista Municipal Court. In both cases,my capacity for impartiality was key in successfully completing my civic duty. 33. Please describe any other relevant experience you have that is not described above: Working with underserved and underrepresented populations is important to me. I am a trainer for the county where I've designed and implemented curriculum focused on diversity,, inclusion,,and multicultural understandings.This theme is present in my role providing therapy,, outreach,,and advocacy to these communities. I am also a business owner with my small private practice in the City of San Diego,,which helps me understand the plight of small businesses. Lastly, I believe that growing up in Chula Vista has helped me forge a deeper understanding of this community that will benefit my work with the redistricting commission. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) I grew up in what is now known as Chula Vista's District 3.As a current resident in District 4,, 1 have made intentional decisions to become familiar with all parts of our city.The spirit of our South Bay community is seared into me. I have deepest deference and concern for all of this city's residents. Simply,, I hope to give back. CV has given so much to me that I believe it is my duty to return what I was provided.The privileges I've received and have earned afford me the capacity and duty to make certain that our districts are representative of the needs of the community at large. I hope to provide a voice of a locally-grown professional who cares and is invested in the direction of our local governance. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). M.Juan CV 07.2020.docx 37. Please upload a letter of reference in addition to your application(required). Michael Juan Recommendation Letter from R. Monzon 7-24-2020.pdf ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-1.1-0,3 Agenda Packet Page 454 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Michael Juan Today's date 07/24/2020 (MM/DD/YYYY): "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Male 42. Ethnicity: (o) Not of Hispanic Origin 43. Race: (o)Asian 44. How did you hear about the Chula Vista Redistricting Commission? [x] Social Media [x] City of Chula Vista Website ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 13 5 2020-1.1-0,3 Agenda Packet Page 455 of 50�9 CURRICULUM VITAE Name: Michael Anthony Juan Address: Phone: Fax: E-mail: LicenseP:-. a i oWrnia"icen=sePlinoiclaksychologist- April 2013) CAQH ID#: Education: Ph.D. Clinical Psychology, California School of Professional Psychology(CSPP) at Alliant International University(AIU), San Diego,August 2009. M.A. Clinical Psychology, California School of Professional Psychology(CSPP) at Alliant International University(AIU), San Diego,June 2004 B.S. Psychology,University of California San Diego,June 2001 Experience: Clin ica llCo u nseling Th erap ist- Ten u red Fa cu lty(Studen t Services Profession a 1 A ca dem ic Related III), San Diego State University: Counseling and Psychological Services November 2014 - Present Duties: Provide psychotherapeutic services to the university community,including: screening,assessment,individual/group therapy,crisis intervention,and referral.Also provide consultation to other staff and faculty as needed as well as outreach to the university community.Work within a short-term therapy model focused on young adults and college students. Participate in new-hire search committees,intern training program, clinical supervision,and collaborate with other university departments on special programs. Course instructor in the Bounce Back program and in the College of Education (CSP 300). Implement Guardian Scholars collaborative services, Healthy Emotional Living group (based on DBT),and SDSU Athletics collaboration. Licensed Clinical Psychologist in Private Practice Michael A.Juan, Ph.D. October 2013 - Present Duties: Small part-time business focused on providing a myriad of psychological services, including: individual and group therapy,clinical supervision,and consultation.Working with insurance panels,private-pay individuals,and organizations. Part Time Clinical/Counseling Therapist San Diego State University: Counseling and Psychological Services October 2013 - November 2014 Duties: Provide psychotherapeutic services to the university community,including: screening,assessment,individual/group therapy,crisis intervention.Also provided consultation to other staff as needed.Worked within a short term,therapy model focused on young adults and college students. 2020-1.1-0,3 Agenda Packet Page 456 of 50�9 Clinical Supervisor Douglas Young Biopsychosocial Rehabilitation Center January 2014- December 2014 Duties: Providing individual and group clinical supervision to interns/trainees in a community behavioral health outpatient program in Mira Mesa. Provide oversight to intern/trainee's clinical work,training,and consultation to program staff. Behavioral health services provided to individuals with severe and persistent mental illness in the North Central region of San Diego County in accordance with Psychosocial Rehabilitation principles and the Recovery model. Specialized services within DBT, Co-occurring model, multicultural counseling, CBT,and mindfulness-based treatment models provided. Regional Coordinator-South RegionISBGWRC Program Director Community Research Foundation: South Region, San Diego. Supervisor: Diego Rogers, PsyD September 2012 -January 2014 Duties: In addition to and concurrently with duties listed below under Program Director, provide oversight,direction,and management of CRF South Region Adult outpatient programs including: South Bay Guidance Wellness and Recovery Center, Maria Sardifias Wellness and Recovery Center,and the CRF Imperial Beach Health Center Mental Health Program. Serve on CRF Senior Management Team providing input on company-wide decision making and representing South Region adult outpatient programs to company executives. Other primary responsibilities include program design and implementation, contract monitoring and achievement,as well as staffing,training,and supervision of program management. Oversight of multiple,multimillion-dollar county contracts for mental health services. Program Director South Bay Guidance Center (SBGWRC): Chula Vista, CA. Supervisor: Juan Camarena, LMFT January 2008 - March 2010; September 2010 - September 2012 Duties: Provide administrative oversight and direction to a South Region Mental Health clinic focused on recovery-o ri ented services to those in recovery from mental illness. Manage staffing,budgets,reports,and all clinic-related issues. Report directly to CRF management team and the County of San Diego. Structured management of clinical and non-clinical staff including:therapists,case managers,psychiatrists,nurses,peer support staff,and front office personnel. Provide program design,development and implementation. Manage multiple budgets and contract compliance in accordance with county and state contract guidelines. Provide direct clinical services to clients through individual and group therapy. Liaison and outreach coordination with other community providers of health and social services. Participation in multiple CRF committees. Assisted in proposal writing for CRF's 2009 bid for reprocurement of San Diego county mental health services in the south region. Subsequently,the multimillion-dollar contracts for two large outpatient facilities and two peer-operated clubhouses was awarded to CRF for a five-year period. Clinical Services Specialist Community Research Foundation: San Diego, CA. Supervisor: Diego Rogers, Psy.D. June 2010 -August 2010 Duties: Under the direction of the Vice President of Clinical Services,assist in the research, development,implementation,and oversight of CRF clinical services&program operations. Also assists the VP of Clinical Services in providing leadership and facilitating integration and standardization across all programs. Represents CRF in the community and establishes 2020-1.1-0,3 Agenda Packet Page 457 of 50�9 and maintains linkages with other organizations. Responsible for direct client services administrative tasks,management duties,and quality improvement tasks. Program Coordinator Serenity Behavioral Health and Wellness Center: San Diego, CA. January 2010 - November 2010 Duties: Design,development,and implementation of a new program for the provision of mental health and wellness services. Manage staffing,policy and procedure writing, development of specific processes,business planning,and ma rketin g/recruitment. Establishing culture of new program in the direction of holistic care,preventative interventions,and wellness strategies. Liaison with other providers and the community in building the programs caseload and practice. Assist in securing funding streams through insurance panels,private pay,and public funding streams through proposal writing for grants and contracts. Providing individual and group therapy services under the supervision of a licensed clinical psychologist. Assistant Program Director South Bay Guidance Center: Chula Vista, CA. Supervisor: Regina Pinto, Ph.D. August 2007 -January 2008 Duties:Assist Program Director in administrative duties necessary to the functioning of the clinic. Assist in developing internship training program. Provide individual and group rehabilitative counseling to individuals with severe mental illness and co-occurring substance abuse disorders. Provide oversight to the clinic when program director was not present. ASPIRE Counselor San Diego State University Counseling and Psychological Services: San Diego, CA. Supervisor: Leslie Wilson, Ph.D. July 2007 -January 2008 Duties: Provide screening,assessment,and short term 1:1 counseling to the university student population identified to have a potential substance abuse issue. Counseling in the ASPIRE program was provided for mandated students based on the motivational interviewing model. Psychology Intern San Diego State University Counseling and Psychological Services: San Diego, CA. Supervisor: Jennifer Rikard, PhD. Predoctoral Intern:August 2006 -July 2007 Duties: Provide screening and assessment, 1:1 psychotherapy,group therapy,and crisis intervention to the university student population. Treatment planning,implementation, short term therapy provided along with case management. Group experiences included anger management group for mandated students as well as the Bounce Back program-a one-unit credit/no credit class based on academic retention for students on academic probation. Developed and co-facilitated a modified Dialectical Behavioral Therapy group for the university student population. Also provided substance abuse counseling in the ASPIRE program for mandated students based on motivational interviewing. Psychosocial Rehabilitation Counselor South Bay Guidance Center: Chula Vista, CA. Supervisor: Ken Dellefield PhD. Internship: September 2004-July 2005 2020-1.1-0,3 Agenda Packet Page 458 of 50�9 Staff Member:August 2005 -August 2007 Duties: Provide assessment, 1:1 psychotherapy,group therapy,and crisis intervention to clients with severe mental health issues on an outpatient basis. Long term and short term therapy provided. Dialectical Behavior Therapy groups and individual coaching experience. Treatment planning and implementation comprised primary role in addition to care coordination and case management duties. Group experience include: Dialectical Behavior Therapy(DBT),Wellness Recovery Action Plan (WRAP), Stress Management, Depression/Coping Skills, Socialization,psychoeducational,and process. Also,currently developing a substance abuse group for clients in the contemplative and pre-contemplative stages of change (Acceptance, Change and Transformation;ACT). Psychosocial Rehabilitation Specialist New Vistas Crisis Center; San Diego, CA. Supervisor: Mark Marvin PhD. Practicum: June 2003 - May 2004 Staff Member: May 2004- September 2004;August 2005 - October 2006 Duties: Providing 1:1,group and milieu therapy to clients with acute mental illness at a short-term residential treatment facility. Participation in crisis intervention,intake assessment,testing,treatment planning,and implementation. Training in Motivational Interviewing. Supervisor/Trainer/Educational Consultant:April 2002 - December 2005 Tutor/Behavioral Therapist:June 2000-April 2002 ACES Comprehensive Educational Services; San Diego, CA. Supervisor: Kristin Farmer, MA. Duties: Participation in behavioral interventions for children with autism including one-on- one tutoring,social facilitation,inclusion (shadow aide),parent/staff training,case management,clinical meetings, Individual Education Programs,training development,staff training,employee hiring,supervision,and program design All duties performed in home, school,office,and social settings. Training development and implementation experience in the following methodologies: Structured Teaching,Discrete Trial Training, Pivotal Response Training, Behavior Modification, Picture Exchange Communication System (PECS), Socialization techniques (e.g. Social Stories),and DIR model. Development and implementation of hiring procedures for new employees including applicant screening, interview process,hiring,and orientation. Training and Teaching Experience: San Diego State University(2019-Present) Instructor for Counseling and School Psychology (CSP) 300 undergraduate course in the College of Education.This large course (185 students) provides a basic understanding of the principles of holistic stress management through the presentation of goal setting skills,the study of the mind-body relationship in stress management,and techniques to deal with environmental and personal stressors. Utilizing Blackboard and other methods to enhance learning. San Diego State University(2014-Present;AY 06-07) Faculty member in Bounce Back Academic Retention Program (General Studies 2 5 0).Weekly undergraduate course with curriculum geared towards retention of university students on academic probation. Utilizing Blackboard and other methods to enhance learning. A llia n t In tern a tion a 1 Un iversity(2 0 12-p res ent)Adj un ct fa culty i n the P h.D./P sy.D C I i n i ca I Psychology program and Master of Arts in Family Therapy program. Design,development, and implementation of the Community Mental Health course and Pre-Practicum Course. 2020-1.1-0,3 Agenda Packet Page 459 of 50�9 National University(2012-present)Adjunct faculty in the Master of Arts in Counseling Psychology and Bachelor's of Arts in Psychology. Courses taught include: Law and Ethics, Case Management. Trainings Provided in SDSU Internship/Trainee Program (2011-Present): • Cultural Self-Awareness • Solution Focused Brief Therapy • Community Resources and Referrals • Microaggressions • Community Mental Health SDSU Responsive Integrated Health Solutions(2012-Present), Lecturer/trainer for the Cultural Competency Academy series and Leaders In Action program.Assisted with curriculum development,training design,and lecturing. Full day trainings in a series based on building cultural competency in community mental health settings regarding specific populations: Latinos,African Americans,Asian American/Pacific Islanders,and LGBTQ communities. Cultural Self-Awareness(2017- Present),4-8 hours variations of self-awareness and cultural assessment training provided to County of San Diego and Academy for Professional Excellence. Filipino Americans and Men tal Health (2 0 10-Present), Provided to the County of San Diego and Community Research Foundation on multiple occasions.4-hour Cultural Competency Training geared for direct service providers. Microaggressions(2016-Present),4-hour Cultural Competency Training provided to the County of San Diego staff geared for direct service providers. Com m un ity Men ta 1 Hea lth Certifii ca te:Psych osocia 1 Reh a b ili ta tion a n d Recovery(2 0 12- 2015), San Diego State University, MFT Program.4-8 hour training based on the Recovery and Psychosocial Rehabilitation models applied in community mental health intended for SDSU MFT trainees. Cu ltura 1 Comp e ten cy 101:A Modelfor Un dersta n ding a n d App recia ting Diversi ty(2 0 11),4- hour training provided to Community Research Foundation based upon theories,research, and guidelines for the provision of culturally competent mental health services. Working with Filipino Americans(2011), San Diego State University. Counseling and Psychological Services Center; 2-hour guest lecture. Com m un ity Men ta 1 Hea lth Certifii ca te(2 0 11), S a n D i ego State U n iversity, M F T P ro gra m.9- hour Training with 3 modules based on County of San Diego Mental Health System basics (Orientation to the System and Services, Dialectical Behavioral Therapy,and the Recovery/Psychosocial Rehabilitation Models). Top ics in Filipin o A m erican Men ta 1 Hea lth (2 0 10), S an D i ego State U n ivers ity.As ia n Studi es Course; guest lecture. 2020-1.1-0,3 Agenda Packet Page 460 of 50�9 Introduction to Dialectical Behavior Therapy(2005-Present), Presented to the County of San Diego and Community Research Foundation on multiple occasions. Provided in both 4 and 8-hour formats. A dva n ced Dia lectica 1 Beh a vior Th erapy(2 0 0 5-P res ent), C o unty o f Sa n D i ego an d C o mmun ity Research Foundation. Provided in 4-hour format. Teaching Assistant, Biological Aspects of Psychology, Rustin Berlow PhD,AIU, Fall 2005. Grading,individual tutoring,office hours,and review sections. Teaching Assistant, Impulse Control Disorders, George F. Koob PhD,UCSD, Spring 2001.Test production,test administration,grading,and held office hours for tutoring. Tea ch ing Assista n t, B ehavi o ra I P sycho I o gy,Theres a J a cob, P h D,U C S D,Wi nter 2 0 0 1.Test production,test administration,grading,office hours for tutoring,taught separate discussion/section class. Research Experience: Research Practicumf Alliant International University; San Diego, CA; Irwin Rosenfarb, PhD; January 2003 to May 2003. Duties: performing literature review,assisting in study design, and participating in meetings on a schizophrenia study. Research Assistant,Autism Research Lab-UCSD; La Jolla, CA; Laura Schreibman, PhD; Fall, 2000 and Winter Quarter, 2001. Duties: performing Pivotal Response Training therapy with children with autism. Study involved testing the efficacy of PRT on joint attention behaviors. Participated in therapy implementation,data recording,and videotape scoring. Research Assistant, The Scripps Research Institute; La Jolla, CA; George F. Koob PhD; Spring Quarter, 2000. Duties: Testing effects on eating behavior from Serotonin 1B agonist, conducting animal experimentation,and data recording. Publications/Presentations: Patacsil,J., Maramba, D., Pescadera, M.,and Juan, M.A. Beyond Silent Sacrifices: Voices within the FilAm Community.Asian American Psychological Association:Division on Filipinx Americans Biennial Conference,January 2020: San Diego, California. Juan, M.A., Nishi, K., Spencer, B.,&Hidds-Narcisse, S.Augmentative Mental Health Services for Former Foster Youth:A Collaborative Effort Between SDSU C&PS and Guardian Scholars. American College Counseling Association National Conference, February 2019: San Diego, California. Juan, M.A., Nishi, K., Spencer, B.,&Hidds-Narcisse, S.Augmentative Mental Health Services for Former Foster Youth:A Collaborative Effort Between SDSU C&PS and Guardian Scholars. Na tion a 1 Associa tion ofStu den t Person n el A dm in istra tors, M a rch 2 0 19: L o s An gel es, California. Juan, M.A., Rodriguez, B.,&Weathersby, D. Making an Impact with U nderrep resented Student Populations in our Current Social and Political Climate.Association for University and College Counseling Center Directors National Conference, October 2018: New Orleans, Louisiana. 2020-1.1-0,3 Agenda Packet Page 461 of 50�9 David, E.J.R., Catipon, C.,Juan, M., Maramba, D.,&Nadal, K. Filipino American Psychology: Microagressions, Colonial Mentality&Mental Health. Filipino American National Historical Societ Annual Conference, 2014: San Diego, California. y Juan, M.A., Rosenfarb, I.S., Breitborde, N., Lopez, S.R.,Weisman,A.G.,&Kopelowicz,A. Implementing cultural ly-s ens itive interventions for Latinos with schizophrenia. Symposium Number 93. Association for Behavioral and Cognitive Therapies 45thAnnual Convention, 2011: Toronto, Canada. Juan, M.A.,&Rosenfarb, I.S. (2011). Psychosocial stress,social support,and the escalation of schizotypal symptoms in Latino and White individuals.Schizophrenia Bulletin, 37 (Suppl.1), 269 (abstract). Rosenfarb, I.S.,&Juan, M.A. (2006). Schizotypal personality disorder. In J.E. Fisher&W. O'Donahue (Eds.),Practitioner's Guide to Evidence Based Psychotherapy. New York: Kluwer Academic Publications. Published Videos: Juan, M.A. (Counselor). (2016).Mood disorders:a clinical psychology session [Streaming video]. Retrieved from SAGE Video. Juan, M.A. (Counselor). (2016).Psychosis:a clinical psychology session [Streaming video]. Retrieved from SAGE Video. Dissertation: The Effects of Stress and Social Support on the Exacerbation of Schizotypal Symptoms (2009) Awards/Distinctions: SDSU Presidential Staff Excellence Award: Collaboration (Team member recipient), San Diego State University,July 2019. Harriett Copher Haynes Diversity Leadership Award,Association for University and College Counseling Center Directors National Conference, October 2018. f'" Outstanding Student Support Program for Single Servings(r I eam member recipient), San Diego State University Student Affairs Staff Awards, May 2017. Exceptional New Professional Award, San Diego State University Student Affairs Staff Awards, May 2016. Other Clinical/Professional Development Experience: SDSU University Senate Member(August 2 019 - Present) Representative for University Services,representing Student Services Professionals (Academic Related) faculty at the senate level. Advisory Board(January 2013 - Present) Board of Directors(January 2010 -January 2013) Kalusugan Community Services 2020-1.1-0,3 Agenda Packet Page 462 of 50�9 501(c)3 Non-Profit Organization providing health promotion,dissemination of information, and referral services to the Filipino American community in San Diego, CA. Co-Chair for the Grant Writing Committee. Board of Directors Interactions 4 Peace January 2010 -January 2013 501(c)3 Non-Profit Organization promoting peace through student,teacher,and parent trainings on conflict resolution; organization and implementation of Peace Patrol/Primary Peacemakers/Bullies Beware programs in schools around the world; and consultation with international organizations on peace promotion activities. Co-Chair for the City Heights Building Healthy Communities Committee. Advisory Board Member Bayview Clubhouse January 2010 -August 2010 H osp ital-affiliated organization run by mental health services consumers in the South Region of San Diego County; provision of socialization,vocational services,and empowerment to and from peers. DBT Co-trainer County of San Diego (Health and Human Services) and Community Research Foundation June 2005 -January 2010 Co-trainers: Ken Dellefield, PhD,Yi Chuang Cheng, PsyD Assisted in the development and presentation of trainings on Dialectical Behavioral Therapy for both the county of San Diego and Community Research Foundation. Co- facilitator of four and eight-hour trainings for both Introductory to DBT and Advanced DBT workshops. Assisted in curriculum development,presentation,and implementation. Community Outreach Program South Bay Guidance Center September 2004-July 2005 Program Director: Roberto Weiss MFT Assisted in development and implementation of mental health outreach program for the Filipino community in National City, California. Program created through collaboration between Community Research Foundation/South Bay Guidance Center and the County of San Diego. Duties included advertising,referring to proper providers,providing education and resources to community,speaking at local meetings,and weekly group activities. Presenter/Group Facilitator Kalasugan Community Services: Parent Youth Workshop February 2005 - March 2005 Assisted in the facilitation of small,discussion groups on topics presented by weekly speakers and presentation on mental health issues including: symptomatology,risks, warnings signs,resources,and service providers. References: Available upon request. 2020-1.1-0,3 Agenda Packet Page 463 of 50�9 Student Testirig,Assessment, and Research i 'D ion of Shiclep-it Affairs v is San.Diego State Univerc;ify .5500 Campanile DrIVIC San Diego CA 92182-7449 SAN DIEGO STATE lel:62-9,594-321.6 UNIVERSITY July 2.4, 2020 Dear Selection Committee, It is, with great pleasure that I write this letter recommending Dr. Michael Juan to serve as a ver Commissioner on the Chula Vista 2020 Redistricting Commission, I have known Dr. Juan for o seven years. We are bothi colleagues at San Diego: State University (SDSU) where he serves: as a Clinical Psychologist and Professor in the Counseling and Psychological Services Department, As the former Vice Chair of the Chula Vista 2:016 Districting Commission,: I strongly believe Dr. Juan has the relevant knowledge and abilities to effectively serve: on the Redistricting Commission.,,. For example, in addition to his role at SDSU, Dr. Juan is a. seasoned educational. researcher who has demonstrated the requisite conceptual and data analytical skills through the many studies and analyses he has written and published both professionally and forthe university community. Dr. Michael Juan also. has proven. experience with public, communications:. Over the past year, he. has served as the Chair of the Bayani.han Filipino American Faculty and Staff Association at S,DSU. As chair, Dr. Juan has repiresented the organization by serving as a speaker at various campus: and community events and has provided numerous written communications advocating for the organization to university leadership and the campus community. In addition, Dr. Juan has presented at a number of professional conferences,. Finally, given the nature of his work as a Clinical,! Psychologist, Dr, Juan is not only trained to build tru. 1 -tener, This skill and confidentiality with his patients, but it is critical that he be an impartial I"s set has transcended beyond his counseling sessions to everything that he does, In other words, through my experience in working with Dr, Juan, I have found hilm to be a person of high integrity, objectivity and fairness. He relates well to peop11e at all levels and shows a sincere commitment and fty� ng our,communi understanding of the complex issues faci In closing, I Personally consider Dr. Juan to be trustworthy and acutely sensitive to the needs and concerns of those around him, On the professional �eveli, he is extremely competent:and willing: to share his knowledge. and expertise, Above al.1, he is refiable, consistent., and accountable.: I feel Dr. Juan is an excellent candidate for the Chula Vista ,2020 Redistricting Comm'ssion. He has my utmost. respect and strongest recommendation! If you should have any further questions, please feel free to contact. me at Sincerely, Reynaldo 1. Monzon, Ph.:D., Director Analytic Studies and Institutional Research San Diego State University THE CALWORNIA. STATE UNWERSITY - B.AK1.-.-,RSF1EL-D - C14ANNEL ISLANDS - CHICO - DONIINGUEZ 1-111 LS FRE,SNO , FULI-EicrON - HAYTYARD - HUr.V1130LE)T � LONC, BEACH LOS ANGF.11_5 NK)NI�Rl",Y BM''NORTHRIDGE.[IMRDNA.-SAC1Z1.%.%,1 F-VIX)-.SAN'BlIqN'ARDINO-SAN SAN FRANCISCO-SAN K)SE.'�SAN'LUISOBTS110,SAN MARCOS 2020-1.1-0,3 Ag'en a Packet' P a g e 4\4`8�5 0 Julia Sanchez From: Webmaster Sent Friday, July 1O, 2O2OS:51 PM To: [itv[|erk; [hstinaHernandez; Leah Larnsrte Subject: City of Chula Vista: Redistricting Commission Application Web form External Email Anew entry toaform/survey has been submitted. Form Name: Redistricting Commission Application Date&Time: 07y10/20203:51PM Response#. 14 Submitter ID: 79380 IP address: Time to complete: 7 min.,4 sec. Survey Details ---------------------------------------------------------------------------------------------------------------------- .................. Page 1 Application for membership on ;he Redistricting Commission. When used/nthis Application,the term "City""refers tmthe City qfChula Vista. 1. Prefix (0) MS. 2. First and Last Name SteUeAndrade 3. E-mail 4 Home Address S. city Chula Vista 6. ZIP code 91910 7. Primary Phone ----------------------------------------------------------------------------------------------------------------------------' ...................................................................................................................................................................................................................................................................................................................................................................................... 8. Secondary Phone Not answered 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 25 years 12. Present Employer Institute for Public Strategies 13. Occupation Community/Youth Organizer 14. Relevant educational background: Review my resume. IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: Not answered 19. Are you,,or have you been,involved in any local,civic or community groups? (o)Yes 20. If yes,please list them: San Diego Delta Gamma Alumnae 21. Per Chula Vista Municipal Code Section 2-25-030,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 466 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 22. Per Chula Vista Charter Section 300. 1 understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? (o) No 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: I interned with Congresswoman Susan Davis and saw the ways congressional districts impacted policy. I would love to make sure that the City of Chula Vista is transparent in its redistricting efforts,and also make sure that BIPOC are properly represented. 31. Please describe any experience you have with public communications or public outreach in the City ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 467 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... I grew up in Chula Vista,and thus have a passion for educating not only my friends, and family but my community as a whole.As a current community organizer, I am a big fan of the use of social media and marketing to educate the public on numerous topics. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: In my collegiate years I was Vice President Social Standards in my women's fraternity and I had to exercise impartiality on a weekly basis as I served as the chair to our executive board,,that oversaw more than 130 individuals. 33. Please describe any other relevant experience you have that is not described above: Reference Resume 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) I would like to bring a youthful perspective to the redistricting commission. I read an article saying that there is a lack of latinx representation in these types of commissions,,and as a latina myself, I would like to make sure that our city is open and transparent on their policies and procedures to make sure it's equitable for all Chula Vistans. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). SAResume2019(1).pdf 37. Please upload a letter of reference in addition to your application(required). Stelle Andrade LoR 7-27-14.pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Stelle Andrade Today's date 07/10/2020 (MM/DD/YYYY): "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-11-03 Agenda Packet Page 468 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Female 42. Ethnicity: (o) Hispanic Origin 43. Race: (o) Hispanic or Latino 44. How did you hear about the Chula Vista Redistricting Commission? [x] Social Media [x] City of Chula Vista Website ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 5 2020-1.1-0,3 Agenda Packet Page 469 of 50�9 RESUME Personal Profile Work Experience Experienced Community Community/Youth Organizer Coordinator with a demonstrated Institute for Public Strategies (South/East County).- history of working in Public August 2018 - Present Speaking,Teamwork, Leadership, Event Planning,and Customer Organizes and facilitates youth and adult coalitions Service.Strong community and Meets with elected officials,community leaders,-school faculty and staff social services professional with a to advance policies relating to public health Serves on multiple strategic teams that plan and execute events Bachelor's degree focused in ranging from candidate forums,community forums,graffiti clean-ups, Political Science and International and other presentations. Affairs from the University of Assistant Site Coordinator California, Riverside. Awards &Achievements Knox Middle School-August 2017- March 2018 • First Aid/CPP/AED: Expires * Assisted with reviewing lesson plans for enrichment and spearheaded new programs August 2021 0 Developed and maintained relationships with school and district • Friday Night Live:Outstanding administrators on site. Ad u It Al ly&Youth Advocate Worked with Site Coordinator to complete necessary paperwork: • Department of Alcohol Created student rosters,recruited for new student enrollment Processed timesheets and evaluated staff members. Beverage and Control: Licensee Education on Alcohol and Congressional Intern Drugs Office of Congresswoman Susan Davis. • San Diego Police Department: November 2017- May 2018 Crime Free Multi-Housing Program Helped manage the constituent database. • Chula Vista Police Department: Responded to requests for information and recorded constituent National Night Out concerns. participation Assisted constituent services staff with projects,research,and advocacy/casework. Performed general office duties such as filing,faxing,transferring calls, Skills and creating certificates and other formal documents. Computer proficient:word Clerical/Administrative Assistant processing formats,excel, All of God's Children Group Home- powerpoint,outlook, PC/Mac February 2017-June 2017 computers. Public speaking. Leading large Filed,faxed,and typed documents related to each child in the facility. groups. Friendly and works well Contacted the client's Social Worker,government and medical offices with others. to ensure the client's documentation was up to date. Event management.Social Worked with different licensing forms to make sure facility was up to date. Media Marketing.Video. Contact Details Academic Background Number: University of California,Riverside Email: Linkedln-. linkedin.com/in/�telle- B.A in Political Science/International Affairs andrade-908377141 Bonita Vista High School Add ress: High School Diploma Chula Vista,CA 91910 2020-1.1-0,3 Agenda Packet Page 470 of 5019 To Whom it May Concern, It is my pleasure to provide a letter of recommendation in support of Stelle Andrade. As the former candidate for Riverside County Board of Supervisors, District 5 in California, I had the privilege of getting to know Stelle as a result of her excellent work on my election campaign in 2014.As an intern, Stelle devoted her time, effort, and energy to the campaign. The lifeblood of a successful grassroots campaign is often the contribution of its interns. Stelle demonstrated her passion for community outreach by dedicating many hours proficiently phone banking and canvassing to reach the people in District S. She has outstanding communication skills, is organized, punctual, and determined to make a difference in the community. Stelle's abilities were an asset to the campaign and she successfully completed all her duties throughout her duration as an intern. Moreover, Stelle maintained a highly positive attitude,which is often difficult to do during a grueling campaign. The hours required on a campaign are long and arduous, especially on interns who have full schedules of demanding classes and extra-curricular activities. In her role as an intern, Stelle displayed great teamwork skills and, in collaboration with other interns, tackled new challenges that were thrown at her. During Election Week, Stelle took initiative and worked with new interns to canvass large areas of the District. She made an impression on the entire staff by being such a steady, reliable member of the campaign team. I highly recommend this committed and responsible young woman for any position she may seek. I have confidence that Stelle will make a unique contribution as a part of any organization. I thank you for your time and consideration for my support of Stelle Andrade. If you have further questions, please feel free to contact me Sincerely, Mark Orozco Former Candidate for Riverside County Board of Supervisors 07/27/14 2020-11-03 Agenda Packet Page 471 of 50�9 Julia Sanchez From: Leah Larrarte Sent: Tuesday, July 28, 2020 12:55 PM To: Julia Sanchez Subject: FW: City of Chula Vista: Redistricting Commission Application - Web form Follow Up Flag: Follow up Flag Status: Flagged Please process. From:webmaster@chulavistaca.gov<webmaster@chulavistaca.gov> Sent:Tuesday,July 28, 2020 12:51 PM To: CityClerk<CityClerk@chulavistaca.gov>; Cristina Hernandez<chernandez@chulavistaca.gov>; Leah Larrarte <LLarrarte@chulavistaca.gov> Subject: City of Chula Vista: Redistricting Commission Application -Web form Warning: External A new entry to a form/survey has been submitted. Email I Form Name: Redistricting Commission Application Date&Time: 07/28/2020 12:51 PM Response M 33 Submitter ID: 81098 IP address: Time to complete: 10 min.,41 sec. Survey Details .................. Page I Application for membership on the Redistricting Commission. When used in this Application,the term ""City""refers to the City of Chula Vista. 1. Prefix (0) MS. 2. First and Last Name Elidia Dostal 3. E-mail ...................................................................................................................................................................................................................................................................................................................................................................................... 2020-1.1-0,3 Agenda Packet Page 472 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 4. Home Address S. City Chula Vista 6. ZIP code 91913 7. Primary Phone 8. Secondary Phone 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 17 years 12. Present Employer Vanst Law LLP 13. Occupation Attorney 14. Relevant educational background: Yale Law School,J. D.2002 California State University,Stanislaus, B.S. Business Administration/Accounting 15. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: Not answered 19. Are you,or have you been,involved in any local,civic or community groups? ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 473 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... (o)Yes 20. If yes,please list them: Lawyers Club, Rotary Club, La Raza Lawyers Association, Pan Asian Lawyers of San Diego 21. Per Chula Vista Municipal Code Section 2-25-030,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300. , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 474 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... (o) No 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: I graduated from Yale Law School in 2002 and practiced law as an associate at the San Diego office of Latham&Watkins from 2002-2009.At Latham, I gained significant experience in complex transactional and litigation matters before federal and state courts and administrative agencies. My pro bono work included analysis of criminal files for factual innocence, formation of non-profit organizations, preparation of Holocaust Reparation applications, legal assistance for wildfire victims, and immigration bond hearings. I drafted briefs filed in federal and state courts and worked closely with technical experts in administrative and litigation matters to draft agency submissions, expert reports,, and declarations that clearly convey complex technical issues,, meet regulatory and legal requirements,,and are sensitive to tribal and other community stakeholders"concerns. I opened my solo practice,,the Law Offices of Elidia C. Dostal in 2010,,then became a partner in the boutique law firm Vanst Law LLP in 2018,where I continue to practice law as a transactional and regulatory compliance attorney. Prior to law school, I was a California Franchise Tax Board income tax auditor and protest hearing officer from 1996 to 1999. As a field auditor, I analyzed C-corporation and personal income tax returns for compliance issues.As a hearing officer,, I resolved protested tax audits through oral hearings with taxpayers and their representatives,,and researching and summarizing the facts,, law,,analysis,,and resolution in written opinions provided to the taxpayer and auditor. I also provided assistance to the Legal Department for cases on appeal to the State Board of Equalization. 31. Please describe any experience you have with public communications or public outreach in the City I was a member of the Toastmasters Club in Chula Vista.Otherwise, my community involvement has been elsewhere in the County. I have been a member of, and/or participated in,, diverse bar associations in San Diego County,, including: Lawyers Club,, including the Diverse Women Committee San Diego La Raza Lawyers Association Pan Asian Lawyers of San Diego South Asian Bar Association I have volunteered at San Diego County schools serving diverse communities, including: KIPP Adelante Preparatory Academy Board Member 2005-2009; President of the Board 2007-2008 1 was a volunteer tutor and board KIPP Adelante,a public charter school serving Barrio Logan students in grades 5-8. KIPP Adelante's student population is over 90% Hispanic or Latino,, and over 90%eligible for free or reduced price lunch. During my tenure on the board,, KIPP Adelante was a California Distinguished School,,and the only California school to receive the National Title I Distinguished School Award in 2007,,for closing the achievement gap. Crawford High School: Crawford Academy of Law Mentor 2018-present I serve as a mentor to students in the Crawford Academy of Law program,, in which attorneys meet monthly(pre-COVID 19) with students during the school day.We work with students on researching and applying to colleges,, interview skills,,and goal-setting. Minority enrollment at Crawford High School is 98%of the student body(majority Hispanic and Black),,and 96%are eligible for free or reduced price lunch. Most of the students I work with are children of immigrants or immigrants themselves,from Mexico and from various countries in Africa,and many are English language learners. Oak Park Elementary School ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-1.1-0,3 Agenda Packet Page 475 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... Rolling Readers 2014 1 volunteered weekly as a reader in first and second grade classrooms. Minority enrollment at Oak Park is 98%of the student body(majority Hispanic and Asian), and 85%are eligible for free or reduced price lunch. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: As a Protest Hearing Officer at the California Franchise Tax Board, I was in a quasi-judicial position in which I was required to hold a hearing with the taxpayer to resolve the taxpayer's protest of the auditor"s proposed assessment.Although I was an e m pl oyee of th e Fra nc h i se Tax Boa rd, my j o b wa s n ot to aff i rm th e p roposed a ssessm e nt, b ut to i m pa rtia I ly a n a lyze the audit file and the law to determine whether to affirm,withdraw,or revise the auditor's proposed assessment. As an attorney providing regulatory counsel to my clients,, I must impartially analyze the law to ensure that my clients are in compliance to avoid potential liability. 33. Please describe any other relevant experience you have that is not described above: The rich diversity of our City is reflected within the microcosm of my own family. I am the youngest of six siblings,, comprising both Democrats and Republicans.Our father was a naturalized U.S.citizen who emigrated from Mexico in the 1950s, and our mother was born in New Mexico,of Navajo descent.Our extended family of in-laws includes persons of Filipino descent,, Mexican descent,,German descent,,and Czech descent. I was raised in a low-income family,and am now fortunate enough to be a part of the upper middle-class. My family,,friends,, and colleagues represent a broad range of economic levels,education levels, and ethnic and racial demographics. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) I want to ensure that districts are fairly drawn in compliance with the law. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). 2020 Dostal Chula Vista Resume.pdf 37. Please upload a letter of reference in addition to your application(required). Dostal Letter of Reference 2020-07-28—Final.pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Elidia C. Dostal Today's date 07/28/2020 (MM/DD/YYYY): ...................................................................................................................................................................................................................................................................................................................................................................................... 5 2020-1.1-0,3 Agenda Packet Page 476 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Female 42. Ethnicity: (o) Hispanic Origin 43. Race: (o) Hispanic or Latino 44. How did you hear about the Chula Vista Redistricting Commission? [x] Friend or Relative ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 13 6 2020-1.1-0,3 Agenda Packet Page 477 of 50�9 Law v,ans, www.VanstLawFirm.com I Telephone: ELIDIA C, DoSTAL EDUCATION YALE LAw SCHOOL,New Haven, CT JD., May 2002 Yale Journal of Law and Feminism, Editor CALIFORNIA STATE UNIVERSITY,STANISLAUS, Turlock., CA B.S.-, Business Administration, Emphasis in Accounting May 1996. CERTIFIED PUBLIC ACCOUNTANTS'EXAMINATION Successfully completed allfour parts of the Uniform CPA Exam, May 1996 PROFESSIONAL EXPERIENCE VANST LAW,San Diego, CA:Partner,November 2018—Present LAw OFFICES OF ELIDIA C.DOSTAL,San Diego, CA:Founder, 2010—October 2018 Provide outside general counsel services and advice on business and legal decisions to California companies. Assist business and individual clients in business formations and contract negotiation and drafting. Advise clients on compliance with Federal and California law, including environmental transactional,regulatory and compliance matters, employment law,real estate matters,real property transactions, and site remediation issues. Serve as outside crencral counsel for San Diego operations of biotechnology company. ZD tD LATHAM&WATKINS LLP, San Diego, CA Associate, 2002-2009 Significant experience in complex transactional and litigation matters before federal and state courts and administrative agencies, including environmental compliance, site cleanup,real estate transactions., toxic tort litigation, land use litigation, insurance litigation, and health care fraud investigations. Draft briefs filed in federal and state courts and work closely with technical experts in administrative and litigation matters to draft agency submissions, expert reports, and declarations that clearly convey complex technical issues,meet regulatory and legal requirements, and are sensitive to tribal and other community stakeholders' concerns. CALIFORNIA FRANCHISE TAx BOARD Tax Auditor and Protest Unit Hearing Officer, Sacramento, CA, 1996-1999 Resolved protested tax audits through oral hearings with taxpayers and their representatives, and written opinions provided to taxpayer and auditor. Provided assistance to the Legal Department for cases on appeal to the State Board of Equalization. Provided analysis of proposed tax legislation. Accompanied and trained new auditors on field visits. Prepared and taught C-corporation training for new auditors. BOARD EXPERIENCE KIPP ADELANTE PREPARATORY ACADEMY Al/einher, Board oj'Dii-ectors, Octoher 2005—2010, President oj'Board 2007-2008 Volunteer tutor and board member of California Distinguished School, the only California school to receive the National Title I Distinguished School Award in 2007, for closing the achievement gap. As President, led school through its principal transition in 2007-2008, and drafting of strategic plan to maintain the high level of achievement, discipline, and school culture established by the founding principal. 2020-1.1-0,3 Agenda Packet Page 478 of 50�9 July 281,2020 40 I am wn,"fing,tJu,*,s lefterin,support of Elidia,Dostal's applu I cafion Wmveon the City of Chtl a Vista Redistn*cting,Com, nu, *ssIIOIn.' Ihave,known EfidiaDostal, for,almost 20 years. I M' itialty, close, worked with h,er,at, the law firm &Wa*, jm,, , in the early,2000s,and have remained personal, fn, ,ends,with,,her., Eli'dia is,lu',ghlyintelligent,and given,her background as,an attorney,for almost 20 years, she has the sb"Ils needed, to,underst—and�the complexity of redRstficting and accurately Vply the law. As, *'V'M' 0 an.atto miey and beforethat,as a tax auditor,Eli=is ased to performing work,ffiat rNuires M iW attmtion to,&W"',meficulousnes�%And pmeision. In addifion,Elidia,1*s d Higent,and, hardworkiingand,Mill,take:her responsibili u"es senously. She cares,about her commumky and',About falim. ess M- thle,p6liticalprocess. While of course,she bas ,ha o"polifical, views,I have nodo6W dig she,has,the ability to be iMpartud and,to follow y a,thoughtftil human, ruIes andregulations. Finally,I would note that,,Eh"dia is ffindmentalI a 4, � I . W being.. She,i,,,s Conegtal and wUl be respecffW of the other members on the Commission,i selected. In sum,Elidia,would semeffie RedistriefiM,Commission with integrity,sefioum m of, purpose, and objectivity., Lei,gh Bradberry.,Ph,.,D,,.,.,, J.D. San D*I!Cgo 202041-03 Agenda Packet Page 479 of 50�9 Julia Sanchez From: Leah Larrarte Sent: Monday, July 20, 2020 3:07 PM To: Julia Sanchez Subject: FW: City of Chula Vista: Redistricting Commission Application - Web form Please process. From:webmaster@chulavistaca.gov<webmaster@chulavistaca.gov> Sent: Monday,July 20, 2020 2:58 PMI To: CityClerk<CityClerk@chulavistaca.gov>; Cristina Hernandez<chernandez@chulavistaca.gov>; Leah Larrarte <LLarrarte@chulavistaca.gov> Subject: City of Chula Vista: Redistricting Commission Application -Web form Warning: External A new entry to a form/survey has been submitted. Email i Form Name: Redistricting Commission Application Date&Time: 07/20/2020 2:57 PM Response#: 23 Submitter ID: 79782 IP address: Time to complete: 36 min., 13 sec. Survey Details .................. Page I Application for membership on the Redistricting Commission. When used in this Application,the term ""City""refers to the City of Chula Vista. 1. Prefix (0) MS. 2. First and Last Name Gloria Hurtado 3. E-mail 4. Home Address ...................................................................................................................................................................................................................................................................................................................................................................................... 2020-1.1-0,3 Agenda Packet Page 480 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... S. city Chula Vista 6. ZIP code 91915 7. Primary Phone 8. Secondary Phone Not answered 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 11/2 years 12. Present Employer Retired 13. Occupation Prior-city government 14. Relevant educational background: I hold a B.A. in Political Science and a Masters Degree in Business Administration IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: Not answered 19. Are you,,or have you been,involved in any local,civic or community groups? (o) No 20. If yes,please list them: Not answered ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 481 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 21. Per Chula Vista Municipal Code Section 2.25.030,,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300. , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? (o) No 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 482 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: I spent most of my career working in local government, I am very knowledgeable of how government works. I was involved in the establishment of council districts in the city of Santa Rosa,which was a response to a lawsuit. I coordinated our efforts with the demographer and the final map/district selection process by the council. 31. Please describe any experience you have with public communications or public outreach in the City My prior positions required that I communicate with the public on a regular basis. I have facilitated communication on city budgets and programs regularly. I have facilitated public input on a variety of topics including senior services, homelessness issues and other city programs. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: I led the procurement process to select a new garbage hauler for the city of Santa Rosa. It was critical that I was impartial throughout the process to prevent any appeals or legal action on the results.The final franchise agreement worth$50 million,was approved unanimously by council with no appeals or lawsuits. I have previously been responsible for fund allocation processes, in each instance I have demonstrated impartiality and acted with integrity. 33. Please describe any other relevant experience you have that is not described above: Although I have not served on a city board or commission,which my employment did not allow, I have served on nonprofit boards and committees. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) I would like to serve the community by volunteering my time, helping to create a redistricting plan which fairly represents and serves the entire community. 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). ghresume 2020.doc 37. Please upload a letter of reference in addition to your application(required). Letter of rec.pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Gloria Hurtado ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-11-03 Agenda Packet Page 483 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... Today's date 07/20/2020 (MM/DD/YYYY): "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Female 42. Ethnicity: (o) Hispanic Origin 43. Race: (o) Hispanic or Latino 44. How did you hear about the Chula Vista Redistricting Commission? [x] Other: Tribune ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 13 5 2020-1.1-0,3 Agenda Packet Page 484 of 50�9 GLORIA A. HURTADO hula Vista, CA 91915 PROFESSIONAL EXPERIENCE: City of Santa Rosa June 2015 to July 2019 Deputy City Manager Served as Chief of Operations for the City of Santa Rosa, the organization has an annual budget of$385 million and over 1200 employees. Responsibilities included oversight for both internal services and operating departments. • Internal operations responsibilities included management and oversight for Finance, Information Technology and Human Resources for the City organization. • Operating department responsibilities included oversight for Transportation and Public Works, Recreation and Parks and Housing and Community Services departments. • Management and oversight of the franchise agreement for the solid waste hauler and other citywide contracts. • Other responsibilities included managing the City Manager Fellow program and special projects. City of San Antonio November 2012 to May 2015 Assistant City Manager Serve as a member of the Executive Leadership Team for the seventh largest city in the country. Responsible for the management and oversight of the Parks and Recreation, Library, Human Services and Animal Care Services departments. The four departments represent combined budgets of over$217 million and a workforce of over 1500 employees. • Parks and Recreation maintains and operates 244 parks, an extended greenways trail system,recreation centers,20 public swimming pools and the botanical gardens. The department provides recreational, fitness and educational programming for all ages throughout the city. Budget: $54 million; 529 FTE's • Library operates 27 branch libraries throughout the community providing access to an extensive collection of print and digital materials. The Library also provides specialized programming for children,teens and adults and access to technology for all residents. Budget: $34 million; 519 FTE's. • Human Services acts as the social services system for the city providing direct services to children(Head Start and Child Care Services), families(family assistance and financial empowerment), and Seniors (65 Senior Centers including meals and transportation). The department manages contracts for services with over 50 agencies for $22 million. Budget: $118 million; 327 FTE's. • Animal Care Services (ACS) is responsible for protecting the health and safety of residents and pets. ACS activities focus on three priority areas — 1) enhanced enforcement of existing laws and codes; 2) controlling the stray population; 3) increasing the department's live release rate. Budget: $11.6 million; 127 FTE's. 2020-1.1-0,3 Agenda Packet Page 485 of 50�9 City of San Antonio—Department of Human Services March 2011 to November 2012 Director (DHS) Responsible for the management and operations of the Department of Human Services, which serves as the municipal social service system for the City of San Antonio. Funding inc ludes a General Fund budget of over$3 0 m i I I i on and over$10 0 m i I I i on in F ederal grants. The DHS provides services directly (300 employees) and also contracts with over 50 nonprofit agencies for the delivery of services throughout the community. The DHS operates through five (5) major program areas, including: • Child Care Services —providing child care subsidies to over 9400 children. • Head Start — Providing comprehensive early childhood development and family support services to 6789 children and their families. • Family Assistance — Providing case management and financial assistance to over 40,000 families annually. • Community Learning Centers — Facilitating Adult Education for 6000 students annually. • Senior Centers — Providing nutritious meals to 3500 seniors daily at 68 sites; and comprehensive services at 16 city operated sites. As director, I worked directly with the city manager's office; the Mayor and City Council offices; city departments; and external partners and agencies. City of Phoenix -Human Services Department October 199 8 to February 2011 Human Services Director Responsible for the management and operations of the City of Phoenix Human Services Department,which included implementing a comprehensive social service delivery system; managing a $70 million annual budget; directing 400 staff-, providing leadership and staff support to a network of citizen advisory groups; working directly with the Mayor and City Council offices; and providing leadership on issues such as "fair share" of federal funding, homelessness, and faith based initiatives which impacted the Phoenix community. The Human Services Department implemented programs through three program divisions and one support division. These include: • Education Division - Provides Early Head Start and Head Start programs, serving over 3,300 children and their families. • Community Services Division—Provides family assistance to over 25,000 families annually through four Family Services Centers; coordinating homeless services through contracts with over 30 non-profit service providers. • Senior Services Division - Operates 15 Senior Centers providing comprehensive services including meals and transportation. City of Phoenix-Human Services Department February 1996 to September 1998 Deputy Human Services Director / Community Services Division Responsible for planning, developing and managing the multiple programs and activities of the Community Services Division within the City of Phoenix Human Services Department. Duties included: administering a client services delivery system; managing a $12 million annual budget; directing 130 full time staff-, directing and providing staff support to the 2 2020-1.1-0,3 Agenda Packet Page 486 of 50�9 Community Services Committee and five Center Advisory Boards; conducting research and analysis and providing policy recommendations;preparing reports and presentations to City Council Subcommittees and other groups; and representing the City on committees and boards. City of Phoenix—Human Services Department October 1993 to February 1996 Assistant to the Director Responsible for assisting the Director in the overall management and operation of the Human Services Department. Duties included providing staff support to the City Council Family and Youth Subcommittee and the City of Phoenix Human Services Commission; preparing reports for submission to the City Manager's Office and the City Council; and assisting the Director in maintaining positive community relationships through involvement in various forums, task forces and meetings. EDUCATION: M.B.A., University of Phoenix B.A., Whittier College Phoenix, Arizona Whittier, CA COMMUNITY INVOLVEMENT: Arizona Community Action Association Board—Member, past President Haven for Hope - Board Member Hispanic Women's Conference - Committee Chairperson National Urban Coalition - Steering Committee Phoenix Museum of History—Board of Trustees San Antonio Educational Partnership —Board Member San Antonio Youth Literacy —Reading Buddy United Way - Loaned Executive, Allocations Panel and Women's Leadership Council Valley Big Sisters - Volunteer Big Sister YMCA - Board Member References furnished upon request. 3 2020-1.1-0,3 Agenda Packet Page 487 of 50�9 July 17, 2020 To Whom It May Concern: It is my plea5ure to write-this letter of recommendation for Ms. Gloria Hurtado to serve on-the City of Chula Vista Redistricting Commission. Ms., Hurtado has extensive experience work-ing in local government. Overthe.last thirty years,she has served in leadership piositions for: the City of'S,anta Rosa,CA-City of San Antonio,TX; and.City of Phoenix AZ. Ms. Hurtado was responsible for managhg muftiple city departments, implementing organizational improvements, managing complex budgets,and developing and managing-staff., Throu. g-hout her career she set high standards for herself and her tearn whichi led to significant organizational improvements and improved services to the communIty. Gloria was recognized in 2018 with an 1CMA Career Excelilence Award. (1CMA- International City- Management Associatibn, is a professiona]organization and resource for I ocal government managers -t of and executives.) The award acknowledges,her significant contribution to the career developmen new talent in professional local government management. Ms. Hurtado has a long.history-of community involvement.. She has served;as a Board nn ern be r-for United Way(including-the'Women's Leadership Council/Women United):j YMCA,, Haven for H. .ope, and the San.Antonio Educational Partnership, She:has also served as a "reading buddy"for second,grade 5tudents and served as a volunteer Big Sister. Gloria retired from public service and relocated to Chula Vista, she is eager to get involved in the Chula Vista,community. It i s witho ut reservatio n that I recom me n d th e a ppoi ntment of Ms. H u rta d o to the Red istricti ng I Commission. Sincerely, orma 5257eis 2020-1.1-0,3 Agenda Packet Page 488 of 50�9 Julia Sanchez From: Leah Larrarte Sent: Wednesday, July 1, 2020 9:03 AM To: Julia Sanchez Subject: FW: City of Chula Vista: Redistricting Commission Application - Web form Please process From:webmaster@chulavistaca.gov<webmaster@chulavistaca.gov> Sent:Tuesday,June 30, 2020 10:12 PMI To: CityClerk<CityClerk@chulavistaca.gov>; Cristina Hernandez<chernandez@chulavistaca.gov>; Leah Larrarte <LLarrarte@chulavistaca.gov> Subject: City of Chula Vista: Redistricting Commission Application -Web form Warning: External A new entry to a form/survey has been submitted. Email i Form Name: Redistricting Commission Application Date&Time: 06/30/2020 10:11 PM Response#: 6 Submitter ID: 78963 IP address: Time to complete: 53 min., 11 sec. Survey Details .................. Page I Application for membership on the Redistricting Commission. When used in this Application,the term ""City""refers to the City of Chula Vista. 1. Prefix (o) Mr. 2. First and Last Name Robert Moreno 3. E-mail 4. Home Address ................... .............................................................................................................................................................................................................................................................................................................. 2020-1.1-0,3 Agenda Packet Page 489 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... S. city Chula Vista 6. ZIP code 91910 7. Primary Phone 8. Secondary Phone Not answered 9. Are you registered to vote in the City? (o)Yes 10. Do you live in the City? (o)Yes 11. If yes,how long? 1 year 12. Present Employer The Better Business Bureau 13. Occupation Complaint Officer 14. Relevant educational background: I hold a Bachelor of Arts degree in Journalism from San Diego State University,with a concentration in print media. I am also a graduate of the San Diego County Water Citizen"s Water Academy(class of Spring 2019), and I am an alum of Southwestern Community College. IS. Are you currently serving on any board or commission for the City or any other governmental agency? (o) No 16. If yes,which one(s)? Not answered 17. 17. Have you previously served on any board or commission for the City or any other governmental agency? (o) No 18. If yes,please list which one(s)and dates served: Not answered 19. Are you,,or have you been,involved in any local,civic or community groups? (o) No 20. If yes,please list them: ...................................................................................................................................................................................................................................................................................................................................................................................... 2 2020-1.1-0,3 Agenda Packet Page 490 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... Not answered 21. Per Chula Vista Municipal Code Section 2-25-030,, 1 understand: -if I am currently serving on a board or commission,I must resign from my current board or commission if I am appointed. -1 must have served at least 12 months on my current board or commission in order to be appointed to another board or commission. (o) I have read,acknowledged, and agree to the above statement. 22. Per Chula Vista Charter Section 300. , I understand: If I am appointed to serve on this Commission,I will be ineligible to serve on,and shall not seek election to,,the City Council in any district whose boundaries were drawn or adjusted by the Commission for a period of four(4)years immediately following the end of my service on the Commission. (o) I have read,acknowledged, and agree to the above statement. Eligibility to Serve on the Redistricting Commission City Charter Section 300.5(C)(2)identifies certain persons who are ineligible to apply for and serve on the Redistricting Commission. Accordingly,please answer the following questions. 23. Are you an elected City official,or a member of the City Charter Review Commission? (o) No 24. Are you a relative by blood or marriage within the second degree,or a domestic partner,,of an elected City official? (o) No 25. Have you,,at any time within the last four years served as an elected City official? (o) No 26. Are you a current employee of the City or a current employee of any organization representing any employee bargaining unit for employees of the City? (o) No 27. Have you,,at any time within the last four years,worked as a lobbyist? For purposes of this question,the term ""lobbyist""means a person who,for compensation,has direct communication with a City official,including the Mayor,a Councilmember,or any elected City official,for purposes of influencing a municipal decision (o) No 28. Are you currently an officer in any local political party organization,including,but not limited to,,officers of a political party county central committee? (o) No ...................................................................................................................................................................................................................................................................................................................................................................................... 3 2020-1.1-0,3 Agenda Packet Page 491 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 29. Have you,within the last four years,served as a paid campaign worker or paid campaign or political consultant for an elected City official? (o) No 30. Please describe any relevant knowledge or abilities you can bring to the Redistricting Commission that you believe would help the Commission carry out its responsibilities,such as prior experience with districting or redistricting efforts: As a former reporter for the Star-News,a weekly newspaper in Chula Vista, I covered the newly formed Chula Vista Districting Commission in-depth in 2015,from its very beginnings to its conclusion. I witnessed the commissioners deliberate as new district map lines were drawn,and ultimately, I saw the commissioners unanimously agree on the Chula Vista City Council's newly drawn district map that is still in use today. Observing how the Chula Vista Districting Commission operated live in-person as a journalist allowed me to become intimately familiar with our local districting process. I wrote about every step of this process, including the selection of Chula Vista"s seven commissioners. I attended every public workshop, heard public testimony from various interest groups and community members,and I watched the commissioners randomly determine which council districts would be up first for election after the new 2015 district lines were finalized. As a reporter, I had a keen interest in the local political process and I am familiar with district and city-wide elected officials. My overall reporting"beat"for the Star-News was local politics,so in addition to covering the Chula Vista Districting Commission, I continually studied local politics and reported the facts on every aspect of the local government. In doing so, I've become highly skilled at looking at how political decisions are made and how public policy is implemented and shaped. With this in mind as a Chula Vista resident, I see a need for redistricting,and I would like to contribute my expertise to the commission.Our city has changed drastically since 2015 when the district lines were first drawn. For example, east Chula Vista will continue to grow both in population and in land development.A potential four-year university and a slew of housing projects are expected to bring in more people to the city and attract future residents,which will be recorded in the next Census count. Furthermore,west Chula Vista will see sustainable progress with the Bayfront Development and the F Street Promenade Master Plan.These projects are expected to attract future residents,,which in turn,,will increase the city's population within the next decade. I am prepared to help the Chula Vista Redistricting Commission fulfill its duty to redraw our district map in response to these developments and others. 31. Please describe any experience you have with public communications or public outreach in the City My public communications experience comes from my 10+years of working in the media industry,,writing for newspapers and blogs,,and appearing as a guest on various public radio broadcasts and podcasts. Covering the districting commission as a journalist contributed to the public education efforts to raise awareness and engagement in Chula Vista's first historic districting process. I've also conducted public outreach measures as a volunteer Board Member for the Copley-Price Family YMCA.We conduct public outreach measures for our annual fundraising campaign to showcase our events and to highlight new programs. 32. Please describe experience you have had serving in a nonpartisan role in which you have had to exercise impartiality: As a reporter,, I had to be unbiased and fair in each news story I covered,, presenting all sides and giving a voice to everyone involved.Additionally,, in my current role as a complaint officer for the Better Business Bureau (a nonpartisan nonprofit organization),, I regularly exercise impartiality. The BBB proudly serves as the protector of marketplace transactions and business practices and procedures by establishing an ethical marketplace where buyers and sellers can trust each other. In serving such a marketplace,, I must be impartial when it comes to dealing with consumer complaints against small businesses and corporations. I cannot have any prejudgments or biases when handling a case. I must make a fair judgement based on the information provided by both parties. (Sometimes I side with businesses and other times with consumers. Businesses pay us membership fees for accreditation, but we cannot treat those businesses any different from those who do not pay.) ...................................................................................................................................................................................................................................................................................................................................................................................... 4 2020-1.1-0,3 Agenda Packet Page 492 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... 33. Please describe any other relevant experience you have that is not described above: At the Better Business Bureau, I serve on the Diversity and Inclusion Committee.This committee is tasked with creating diversity and inclusion measures across the organization.We look at ways to facilitate dialogue and engagement concerning systematic social disparities and while addressing inequalities that may have impacted members of our workforce as well as creating system-wide policies and initiatives for all employees. My experience in this committee will significantly add to my capacity and ability to serve as a member for the Chula Vista Redistricting Commission,engaging and addressing the diverse population of communities in an inclusive and communicative way. Each district has their own social makeup, and my understanding of each community will help in the redistricting process as a commissioner. 34. What would you hope to accomplish in the role of a Member of the Redistricting Commission?(250 words or less) Using the current U.S.Census data,following the legal framework set forth in our City Charter as well as the Voter Rights Act of California and the U.S.-as well as public engagement and input, I hope to provide a fair and inclusive process in the city's redistricting process. I am driven by my commitment to the public and duty bound to our laws,as well as the data provided, both quantitative and qualitative,to enable residents in each district fair and equal representation of their communities of interests. Due to the nature of the sensitive position that redistricting commissioners are in, I will abide by the laws that govern the objectivity of my interactions and engagement with the public. I hope to work closely with the other members of the commission to draw district lines that balances the legal framework,the data provided, and the public engagement that will be utilized to accurately reflect the electorate for each neighborhood 35. 1 understand that to be considered,I must submit a resume and one letter of reference along with this application. (o) I have read and acknowledge the above statement. 36. Please upload a resume in addition to your application (required). Resume(UPDATED).doc 37. Please upload a letter of reference in addition to your application(required). RM-Ltr(1).pdf 38. The City understands that applicants'schedules and availability may change.In an effort to have the districts drawn by August 2021,,the goal is to seat the Redistricting Commission by August 2020,giving the members one year to complete the task.We ask that you review the previous Districting Commission's meeting frequency and final report in order to gain an understanding of the requested level of commitment. (o) I have reviewed the previous Districting Commission's meeting frequency and final report and can commit to the suggested level of participation. 39. 1 understand if I am selected to serve on the Redistricting Commission I will need to disclose certain economic interests (Form 700)in accordance with the City of Chula Vista's'Conflict of Interest Code. (o) I have reviewed the City of Chula Vista's Conflict of Interest Code. 40. In lieu of signature,,please type your name,and type today's date below before submitting this form. I understand and agree that typing my name below carries the same force and effect as if I had signed my name in my own handwriting. I hereby certify under penalty of perjury under the laws of the State of California that the information I have provided in this application is true and correct. Applicant's Name: Robert Moreno Today's date 06/30/2020 (MM/DD/YYYY): ...................................................................................................................................................................................................................................................................................................................................................................................... 2020-1.1-0,3 Agenda Packet Page 493 of 50�9 ...................................................................................................................................................................................................................................................................................................................................................................................... "Please review your application before submitting to ensure that all requested information has been provided,all required information reviewed,and all attachments included. If any of this information is lacking,the application will be deemed incomplete and will not be considered." OPTIONAL:One of the City's goals in selecting Redistricting Commission members is to form a Commission that includes individuals who reflect the racial and ethnic diversity of the City(City Charter Section 300-5-D-3-a). In an effort to meet that goal,,the City requests that applicants voluntarily provide the following information. You are not required to provide this information. Responding to the questions below is optional. Any information provided will be used only in accordance with applicable law. 41. GENDER: (o) Male 42. Ethnicity: (o) Hispanic Origin 43. Race: (o) Hispanic or Latino 44. How did you hear about the Chula Vista Redistricting Commission? [x] Social Media [x] Community Connection Newsletter [x] City of Chula Vista Website ...................................................................................................................................................................................................................................................................................................................................................................................... Thank you, City of Chula Vista This is an automated message generated by the Vision Content Management System"'.Please do not reply directly to this email. 13 6 2020-1.1-0,3 Agenda Packet Page 494 of 50�9 ....... .. .................. ...... .. .......... ............. .... .......... .......... ........................ ........ .. .. .. . .. .. . ............ Professional Resume' EDUCATION: San Diego State University Bachelor of Arts in Journalism (with emphasis in Print Media) May 2011 Southwestern Community College 0 Transfer Studies, May 2006 Working for nonprofits Building and maintaining positive working relationships with small businesses, corporations and sponsors. Performing related duties as assigned. Strong editorial judgment through my experience as a j ournalist throughout San Diego County. Extensive experience working under tight deadlines Experienced in complaint handling and mediation skills. Exceptional ability to learn new skills combined with a passion for technology The Better Business Bureau 07/19 —Present City of Chula Vista 12/18 to 06/18 Senior Council Assistant(Office of Councilmember Jill Galvez) The Star-News 03/13 to 12/18 General Assignment Reporter Imperial Beach Patch 12/10 to 3/13 Staff Writer (News and obituary wrtiter) • Received the Southwestern College Sun's Achievement Alumni Award in 2016. • Second Place certificate from the San Diego Pro Chapter of Society of Professional Journalists for nondaily reporting and writing in political/government story in July 2018. • Certificate of Completion for the Citizens Water Academy 2020-1.1-0,3 Agenda Packet Page 495 of 5019 Employee of the Month, Better Business Bureau, Jan. 2020 IN Available upon request 2020-1.1-0,3 Agenda Packet Page 496 of 50�9 JEROME 0. TORRES ������Chula Vista, California 91911 June 27, 2020 Mayor and City Council c/o Office of the City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Subject: Appointment to 2020 Districting Commission Honorable Mayor and Members of the City Council: Please accept my letter of reference on behalf of Robert Moreno, who is applying for the 2020 Redistricting Commission that will reconfigure the four City Council districts for future elections beginning in 2022. 1 have known Robert in a professional and personal capacity for several years. I strongly believe that Robert brings a unique qualification to his candidacy from, among other things, his employment with the Chula Vista Star News. As a repo rter, he became intimately familiar with the communities that comprise our beloved City. Additionally, Robert was assigned to report on the proceedings of the initial Districting Commission. As a result, Robert is eminently qualified to understand and discuss the complexities of the political process inherent in the deliberations of the Commission. At all times I have found Robert to be intelligent, hard-working, conscientious and honest. Robert possesses the experience and skills to be an invaluable asset to the 2020 Redistricting Commission. I would be happy to provide further information to assist you in your evaluation of his candidacy, if required. If you have any questions or concerns regarding this matter, please contact me via email a Thank you. Sincerely, 2020-1.1-0,3 Agenda Packet Page 497 of 5019 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0385 'TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE PENSION & OPEB RESERVE FUND POLICY;AMENDING THE GENERAL FUND RESERVE POLICY- FISCAL HEALTH PLAN'-AND DELEGATING PENSION &OPEB RESERVE FUND ACTIVITY TO THE DIRECTOR OF FINANCE/TREASURER. RECOMMENDED ACTION Council adopt the resolution. SUMMARY On September 15, 2020, the City Of Chula Vista City Council authorized the issuance of bonds to refund certain Pension Obligations of the City,approved the form and authorized the executio�n of a'Trust Agreement and Purchase Contract,authorizing the judicial Validation Proceedings related to the Issuance of such Bonds and approved additional actions related thereto., One of'the objectives related to the issuance of'Pension Obligation Bonds is to set aside a portion of the future savings into a Section 115 Trust to mitigate future pension cost increases.The establishment of the proposed draft policy will help set the guidelines to follow in the management of the Section 115 Trust and other Pension&OPEB Reserves. ENVIRONMENTAL REVIEW The Development Services Director has reviewed the proposed activity for compliance with the California Environmental Quality Act(CEQA) State Guidelines and has determined that the activity is not a"Project 11 as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required. BOARD/COMMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUSSION On March 22, 1994,the City of Chula Vista Council approved the sale of bonds to refinance the outstanding obligations of the City to the California Pub�lic Employees' Retirement System through Resolution No. 17433.'The bond proceeds paid the City's unfunded pension obligations ($16,049,201 Unfunded Accrued Liability [UAL] balance for all City Employees as of June 301, 1992).While this bond issuance helped relieve part of the liability burden,pension costs continue to increase year over year and are still the largest financial challenge for the City. 1111. 0 0 1 PIi3ge 1 2020-1.1-0,3 Agenda Packet Page 498 of 5019 On September 15, 2020,the City of'Chula Vista City Council authorized the issuance of bonds to once agai,n refinance Pension Obligations of the City.This time,to cover the unfunded actuarial liability through 06/30/21 ($356.5 million 06/30/21 projected valuation). The City recognizes that issuing bonds to pay the current UAL is only part of the solution and that additional measures are needed to help with long-term Fiscal Sustainability.,The Finance Department of the City of Chula Vista has drafted and is requesting the approval of the Pension&OPEB Reserve Fund Policy to help mitigate increasing pension costs.The establishment of this policy will help set the guidelines to follow in the management of a pension reserve fund such as the Section 115 Pension Trust Fund, currently set to go to City Council for approval on 12/08/2,0.With the Pension&OPEB Reserve Fund policy in place,the City of Chula Vista Finance D�irector/Treasurer will be able to make Pension&OPEB Reserve management decisions while following City Council approved guidelines. DIECISIOM-MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site-specific and consequently, the real property holdings of the City Council members do not create a disqualifying real property-related financial conflict of interest under the Political Reform Act(Ca.Gov't Code§8710�0,et seq.)i. Staff is not independently aware, and has not 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 IMPACT There is no fiscal impact by this action. ONGOING FISCAL IMPAC oil There is no ongoing fiscal impact by this actio�n. ATTACHMENTS 1. Pension&OPEB Reserve Fund Policy 2. General Fund Reserve Policy-Fiscal Health Plan Staff Contact:David Bilby,Director of FinancelTreasurer P �3ge 2 2020-1.1-0,3 Agenda Packet Page 499 of 5019 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE PENSION & OPEB, (OTHER PENSION EMPLOYMENT BENEFITS) RESERVE FUND POLICY; AMENDING THE GENERAL FUND RESERVE POLICY — FISCAL HEALTH PLAN; AND DELEGATING PENSION AND OPEB RESERVE FUND ACTIVITY TO THE DIRECTOR OF FINANCE/TREASURER WHEREAS, the City of Chula Vista has the need to establish a formal City Pension & OPEB Reserve Fund Policy; and WHEREAS, the goal of this Policy is to help mitigate future pension cost increases; and WHEREAS,, this policy amends the General Fund Reserve Policy — Fiscal Health Plan; and WHEREAS. ,, pursuant to California Government Code Section 53607, the City Council may delegate the authority to conduct pension & OPEB Reserve Fund activities of the City to the Director of Finance/Treasurer on an annual basis. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it adopts the City of Chula Vista Pension & OPEB Reserve Fund Policy and Guidelines, and amends the existing General Fund Reserve Policy — Fiscal Health Plan (Policy No. 220-03), each in the form presented, with such minor changes as may be required or approved by the City Attorney; BE IT FURTHER RESOLVED that the City Council delegates the authority to conduct and supervise the Pension & OPEB Reserve Fund Activities of the City to the Director of Finance/Treasurer, pursuant to the Pension & OPEB Reserve Fund Policy. Presented by Approved as, to form by David Bilby Glen R. Googins Director of Finance/Treasurer City Attorney 2020-1.1-0,3 Agenda Packet Page 500 of 50�9 CITY OF CHULA VISTA SUBJECT: Pension & OPEB Reserve Fund Policy POLICY EFFECTIVE NUMBER DATE PAGE I of 2 ADOPTED BY: Resolution No. DATED: November 3, 2020 AMENDED BY: BACKGROUND The following policy has been developed in response to large annual pension cost increases as a result of current and retired employees living longer, lower than anticipated investment returns by CalPERS over the last several years, and CalPERS policies adopted that require all cities to payback all unfunded pension liability over the next thirty years for existing unfunded liability and over twenty years for any new unfunded liability. This policy will formalize a funding mechanism for the establishment of a Pension Reserve Fund (PRF) to be used at the City's discretion to help offset future pension cost increases. As of June 30, 2020 the total Miscellaneous plan Unfunded Actuarial Liability (UAL) was $190,478,272 and the total Safety plan UAL was $163,766,889. The City also provides certain Other Pension Employment Benefits (OPEB) in the form of subsidized health care rates for tier I retirees. As of June 30�, 2019 the total OPEB liability for the City is $15,938,213. The City budgets the implied subsidy amounts on an annual basis. PURPOSE. To establish a formal City Pension Reserve Fund Policy and OPEB Reserve Fund Policy. POLICY Allocation Methodolol!y This policy amends the General Fund Reserve Policy—Fiscal Health Plan, all allocations for the PRF will, only occur after the full funding of the 15% General Fund Operating Reserves. Upon meeting the 15% General Fund Operating Reserves 75% (seventy-five percent) of all future surplus funds shall be transferred to the PRF for the purposes of that fund while the remaining 25% (twenty-five percent) is allocated to the Economic Contingency Reserves and Catastrophic Event Reserves in accordance with the General Fund Reserve Policy-Fiscal Health Plan. In the event all three General fund reserve accounts are fully funded at the stated policy percentage, 100% of surplus funds will be transferred to the PRF until it reaches 15% of General Fund Expenses (excluding Measure A & P. identical dollar amount to the General Fund Operating Reserves). Ongoing surplus funds are determined upon the close of the fiscal year if revenues exceed actual expenditures within the General Fund. Special consideration shall be made by the Finance Director each year when determining potential Surplus Funds so as not to leave any General Fund supported funds (Workers Compensation, Public Liability, Insurance Fund) with a negative fund balance. In addition, if Pension Obligation Bonds are issued, the City shallbudget a minimum of 75% of the net annual savings(determined at bond issuance for years I-10,not adjusted annually for any new unfunded II.Lability or change in actuarial assumptions) for bond fiscal years I through 10 to be transferred to the 2020-1.1-0,3 Agenda Packet Page 501 of 50�9 CITY OF CHULA VISTA SUBJECT: Pension & OPEB Reserve Fund Policy POLICY EFFECTIVE NUMBER DATE PAGE 2 of 2 ADOPTED BY: Resolution No. DATED: November 3, 2020 AMENDED BY: Pension Reserve Fund on an annual basis. This fund will take the form of a Section 115 Trust and will replace the Pension Reserve Fund described above. Upon full funding of the 15% Pension Reserve Fund in the 115 Trust, all surplus funds will be allocated 50% to an OPEB Reserve Fund and 50% to an POB Bond Call Fund. Once 75% funding of outstanding OPEB liability is achieved, all remaining surplus funds will be deposited into the POB Bond Call Fund. The!Finance Department shall provide a comprehensive reserve fund status report, including five-year reserve fund balance projections, annually to the City Council along with the Comprehensive Annual Financial Report. In the event of an economic hardship, or other unanticipated fiscal emergency, the City Council may make an emergency declaration to reduce the annual transfer to the PRF, only if all funds in the Emergency Reserve and Economic Contingency Reserve have been depleted. This declaration will only apply to the fiscal year in which it was made. Ongoing fiscal challenges will require a second or third emergency declaration. Other Provisions PRF funds may be used towards: repayment of future CalPERS unfunded liability in part or whole; the issuance of debt for the purposes of refinancing or issuing pension obligation bonds or other similar debt instruments; establishment of an OPEB reserve fund; to pay off any outstanding POB's; and any other unanticipated pension related cost or charge. The Finance Department shall create the PRF in the fiscal, year in which the first scheduled transfer is to occur. It is anticipated that pension fund contributions will eventually stabilize around the year 2030 and will slowly be reduced until the outstanding unfunded pension liability is paid in full by the year 2045. Pension Obligation Bonds may be considered to smooth the impacts over that twenty-four-year period. This PRF will remain in place until such time pension contributions have stabilized and the City has no remaining unfunded hability or projected liability in the future. If any part of this Policy conflicts with Federal or State laws, or the City of Chula Vista Municipal Code, or Charter, those laws will take precedence over this Pension Reserve Fund Policy. 0 Definitions, Surplus 17unds—Actual revenues exceeding expenditures,if applicable,for each fiscal year. The surplus funds determination is typically made around October of each year for the prior fiscal year. Bond Fiscal Year—Begins the first fiscal year immediately following the issuance of pension obligation bonds. 2020-1.1-0,3 Agenda Packet Page 502 of 5019 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: General Fund Reserves — Fiscal Health POLICY EFFECTIVE Plan NUMBER DATE PAGE 1 220-03 1 11/05/09 1 1 of 4 ADOPTED BY: Resolution 18358 DATED: 07/09/96 AMENDED BY: Resolution No. November 3, 2020 AMENDED BY: Resolution No. 2009-264 ,November 5, 2009 The City Council specifically amended this policy on November 3, 2020 with the adoption of Pension & OPEB Reserve Fund Policy No. which provides, in relevant part, that-, G) Allocations for the Pension Reserve Fund ("PRF') will only occur after the full funding of the 15% General Fund Operating Reserves; and (ii) Upon meeting the 15% General Fund Operating Reserves, 75% of all future surplus funds will be transferred to the PRF, and the remaining 25% will be allocated to the Economic Contingency Reserves and Catastrophic Event Reserves in accordance with this Policy; and (iii) In the event all three General fund reserve accounts are fully funded at the stated policy percentage, 100% of surplus funds will be transferred to the PRF until it reaches 15% of General Fund Expenses (excluding Measure A & P, identical dollar amount to the General Fund Operating Reserves).. The City Council amended this policy on November 5, 2009 with the acknowledgement that the reserve level established by this policy is a long-term goal. PURPOSE: Public entities purposely accumulate and then maintain adequate reserves to help ensure both financial stability and the continued ability to provide core services in difficult times. Sufficient reserves create financial stability resulting in increased credit quality and allows the public entity to 'better weather downturns in the economy and the impacts of negative events, both major and minor. Properly funded reserves allow for the continued maintenance of property, the replenishment of vehicles and equipment, and payment of expenses beyond the amount of the funds available for a single fiscal year. BACKGROUND: The General Fund Reserve policy is established to ensure that the City's finances are managed in a manner which will (1) continue to provide for the delivery of quality services, (2) maintain and enhance service delivery as the community grows in accordance with the General Plan, (3) minimize or eliminate the need to raise taxes and fees because of temporary revenue shortfalls, and (4) establish the reserves necessary to meet known and unknown future obligations and ability to respond to unexpected opportunities. 2020-1.1-0,3 Agenda Packet Page 503 of 5019 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: General Fund Reserves — Fiscal Health POLICY EFFECTIVE Plan NUMBER DATE PAGE 220-03 11/05/09 2 of 4 ADOPTED BY: Resolution 18358 DATED: 017/09/96 AMENDED BY: Resolution No. November 3. 2020 AMENDED BY: Resolution No. 2009-264 ,November 5, 2009 Fiscal stability is an important factor in operating a City. Establishing certain financial reserves would protect the City against unexpected interruptions in revenues, vulnerability to Federal or State actions, adverse economic conditions, unpredictable one-time costs, and exposure to natural disasters and emergencies. There are additional benefits to establishing a minimum General Fund reserve. Credit rating agencies carefully monitor levels of reserves in a government's General Fund to evaluate a government's continued creditworthiness. A higher credit rating results in savings to the taxpayer when the City issues debt or participates in short-term borrowing. Finally, reserve levels are a crucial consideration in long-term financial planning. The Government Finance Officers Association (GFOA), an international organization that promotes the professional financial management of governments for the public interest, recommends maintaining a minimum unreserved fund balance (reserves) in the General Fund of no less than 5% to 15% of general fund operating revenues, or no less than one to two months of regular general fund operating expenditures. A government's particular situation may require levels of unreserved fund balance in the general fund significantly in excess of these recommended minimum levels. Cities with higher reserve levels are better positioned to protect public services during economic downturns. GFOA recommends that in establishing a policy governing the level of unreserved fund balance in the general fund, a government should consider a variety of factors, including: • The predictability of its revenues and the volatility of its expenditures (i.e. higher levels of unreserved fund balance may be needed if significant revenue sources are subject to unpredictable fluctuations or if operating expenditures are highly volatile.) • The availability of resources in other funds as well as the potential drain upon general fund resources from other funds (i.e. the availability of resources in other funds may reduce the amount of reserves needed in the general fund,just as deficits in other funds may require that a higher level of reserves be maintained in the general fund). • Liquidity(i.e., a disparity between when financial resources actually become available to make payments and the average maturity of related liabilities may require that a higher level of resources be maintained). • Designations (i.e. governments may wish to maintain higher levels of unreserved fund balance to compensate for any portion of unreserved fund balance already designated for a specific purpose). ILLOLICY: 2020-1.1-0,3 Agenda Packet Page 504 of 50�9 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: General Fund Reserves — Fiscal Health POLICY EFFECTIVE Plan NUMBER DATE PAGE 1 220-03 1 11/05/09 1 3 of 4 ADOPTED BY: Resolution 18358 DATED: 07/09/96 AMENDED BY: Resolution No. November 3, 2020 AMENDED BY: Resolution No. 2009-264 ,November 5, 2009 This Policy establishes three (3) distinct General Fund Reserves: 1. General Fund Operating Reserves—minimum 15% 2. Economic Contingency Reserves—minimum 5% 3. Catastrophic Event Reserves—3% The total recommended minimum reserve level for the three categories combined is 23%. General Fund Operatiniz Reserves The General Fund Operating Reserves represent unrestricted resources available for appropriations by the City Council to address extraordinary needs of an emergency nature. The City shall maintain General Fund Operating Reserve levels of no less than 15% of the annual operating budget. This level of reserves represents approximately 1.8 months of General Fund operating expenditures. The reserves may be used to provide temporary financing for unanticipated extraordinary needs of an emergency nature, such as major storm drain repairs, litigation or settlement costs or an unexpected liability created by Federal or State legislative action. If funds are appropriated (spent) from the operating reserves due to unanticipated needs, the funds should be replenished in the budget process during the subsequent fiscal year to maintain the minimum reserve balance. If the magnitude of the event caused the General Fund Operating Reserves to be deeply reduced, the City Manager and Finance Director shall provide the City Council with a plan to incrementally replenish the reserves to the minimum 15% level. Authorized use (mid-year appropriations) of the General Fund Operating Reserves will require approval by fo�ur/fifths (4/5) vote of the City Council. Economic Contin 7111'% ,g,e,n,c,y,,,,,,,,,Reserv%, The Economic Contingency Reserve represents monies set aside to mitigate service impacts during a significant downturn in the economy which impacts City revenues such as sales tax, property tax, business license tax etc. The City shall maintain General Fund Economic Contingency Reserve levels of no less than 5% of the annual operating budget to provide for unexpected financial impacts related to a significant economic ILLowdown. 2020-1.1-0,3 Agenda Packet Page 505 of 5019 COUNCIL POLICY CITY OF CHULA VISTA SUBJECT: General Fund Reserves — Fiscal Health POLICY EFFECTIVE Plan NUMBER DATE PAGE 220-03 11/05/09 4 of 4 ADOPTED BY: Resolution 18358 DATED: 017/09/96 AMENDED BY: Resolution No. November 3. 2020 AMENDED BY: Resolution No. 2009-264 ,November 5, 2009 Funds may be appropriated from the Economic Contingency Reserves only after the City Manager and the Finance Director have prepared an analysis providing sufficient evidence that the remaining reserves are adequate to offset potential downturns in revenue sources and provide sufficient cash balance for the daily financial needs of the City for the remainder of the fiscal year. Once the analysis has been presented to the City Council, action to appropriate from the reserves will require a declaration that a fiscal emergency or extraordinary need exists through an affirmative vote by�4/5ths of the City Council. If the Economic Contingency Reserves should ever drop below the minimum reserve level, the City Manager and Finance Director will develop a plan to replenish the reserves. The plan will be included in the adoption of the City's annual operating budget and Long-Term Financial Plan. Catastr,ophic Event Reserves The Catastrophic Event Reserves are monies set aside to fund unanticipated expenses related to a maj or natural disaster in the City. A reserve level of 3% of the General Fund operating budget should be maintained as Catastrophic Event Reserves. These funds are associated with the City's Disaster Preparedness Program. The City is susceptible to earthquakes, fires, floods and terrorist threats. In the event that the City Council proclaims a local emergency, the Catastrophic Event Reserves can be utilized to fund recovery costs until reimbursements from federal and/or state agencies can be recovered. Authorized use of the Catastrophic Event Reserves will require a Proclamation of a Local Emergency by the City Council or Director of Emergency Services. In addition, authorized use (mid-year appropriations), of the Catastrophic Event Reserves will require approval by four/fifths (4/5) vote of the City Council. Calculation of Reserves The reserves will be calculated using the following year's Adopted General Fundbudgeted operating expenditures. Reserves will be evaluated annually in conjunction with the development of the City's 10 Year Financial Forecast and Annual Operating Budget process. There is no maximum reserve level as any additional reserves would provide a greater level of fiscal security. 2020-1.1-0,3 Agenda Packet Page 506 of 5019 C1TY' C,0UNC'1L A,GEN' DA S,TIA, "nEMENT CITY, OF ..................................... CHUIAVISTA November 3,2 02 0 File,ID: 20-0442 TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE NAME "GREG COX PARK" FOR THE 3.2-ACRE BIKE SKILLS PARK FACILITY LOCATED IN THE OTAY VALLEY REGIONAL PARK, RECREATION AREA 6 AND AUTHORIZING AND DIRECTING STAFF TO UNDERTAKE ADDITIONAL ACTIONS AND SEEK ADDITIONAL APPROVALS AS MAY BE NECESSARY FOR SUCH NAMING RECOMMENDED ACTION Council adopt the resolution. SUMMARY On May 5,2020,the City Council approved a 12-acre bike skills park facility in the Otay Valley Regional Park (OVRP), Recreation Area 6. Naming this facility "Greg Cox Park" in recognition of' Supervisor Cox's contributions to the City of Chula Vista as a City Councilmember, two-term Mayor, and County Board of Supervisors representative is recommended. ENVIRONMENTAL REVIEW The proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA)and it has been determined that the activity,naming a park,is not a"Project 11 as defined under Section 15378, of the State CEQA Guidelines because it will not result in a physical change in the environment; therefore,pursuant to Section 1,5060(c)(3) of the State CEQA Guidelines,the activity is not subject to, CEQA. Thus,no environmental review is required. BOARD/CONIMISSION/COMMITTEE RECOMMENDATION Not applicable. DISCUSSION On May 5, 20120,the City Council approved Resolution 20,201-095, approving a new 3.2-acre bike skills park facility in the OVRP,Recreation Area 6 (the"P�ark Facility"). The OVRP is a multi-j uris dicti onal joint planning effort by the County of San Diego and the cities of San Diego and Chula Vista.'The Park Facility will deliver a new active recreation amenity that allows visitors o�f'all ages and ab�ilities to learn, practice, and improve their off-road biking skills. 1111. 0 0 1 PIi3ge 1 2020-1.1-0,3 Agenda Packet Page 507 of 5019 In addition to being located within the OVRP,the site is on land owned by the City of Chula Vista, located in the City of San Diego. A conceptual site plan has been developed, reflecting various areas to be dedicated to different bike skill facilities,including a Kids Park,Pump Track,Jump Park,Skills Trail,and Access Trails and Roads. All costs associated with development of the Park Facility will be borne by the County of San Diego. The City of Chula Vista will fund ongoing operations and maintenance. Naming the Park Facility"Greg Cox Park" in recognition of Supervisor Cox's many contributions to the City of Chula Vista and all of the south bay is recommended. Supervisor Cox served on the Chula Vista City Council from 1976 to 1981 and went on to serve as Mayor from 1981 to 1990. For the last twenty-five years, Supervisor Cox has represented the First District on the San Diego County Board of'Supervisors. In his role at the County, Supervisor Cox has continued to support the City of Chula Vista and was instrumental in securing funding for the development of the Park Facility. DECISION-MAKER CONFLICT" Staff has reviewed the property holdings of the City Council members and has found no property holdings within 1,00�O feet of the boundaries of the property which is the subject of this action.Consequently,this item does not present a disqualifying real pr�oper�ty-r�elated financial conflict of interest under California Code of Regulations Title 2, section 187022(a)(7) or (8), for purposes of the Political Reform Act (Cal. Go�v't Code §87100,etseq.). Staff is not independently aware, and has not 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 IMPACT There is no current year fiscal impact associated with naming a park. ONWING FISCAL IMPACT There is no ongoing fiscal impact associated with naming a park. X'"I'TACHMENTS None. Staff Contact: Tiffany Allen, Development Services Department P �3ge 2 2020-1.1-0,3 Agenda Packet Page 508 of 5019 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE NAME"GREG COX PARK" FOR THE 3.2-ACRE BIKE SKILLS PARK FACILITY LOCATED IN THE OTAY VALLEY REGIONAL PARKI RECREATION AREA 6 AND AUTHORIZING AND DIRECTING STAFF TO UNDERTAKE ADDITIONAL ACTIONS AND SEEK ADDITIONAL APPROVALS AS MAY BE NECESSARY FOR SUCH NAMING WHEREAS, on May 5, 2020, the City Council approved Resolution 20�2O�-095 approving a new 3.2-acre bike skills park facility in the Otay Valley Regional Park(OVRP),Recreation Area 6 (the "Park Facility")�; and WHEREASI Greg Cox served as a Chula Vista City Councilmember from 1976 to 198 1; and WHEREAS, Greg Cox served as Mayor of Chula Vista from 1981 to 1990; and WHEREAS, Greg Cox has represented the City of Chula Vista and the rest of the First District on the San Diego Board of Supervisors for the last twenty-five years; and WHEREASI Greg Cox has championed outdoor activities and facilities for the South Bay and has been a driving force behind the Bayshore Bikeway; and WHEREAS, Greg Cox has been a strong advocate for the Chula Vista Bayfront Redevelopment, the establishment of the Olympic Training Center(now Chula Vista Elite Athlete Training Center), and the continued operation of the Living Coast Discovery Center; and WHEREAS, the City Council, desires to recognize the lifetime contributions of Greg Cox to the City of Chula Vistaby naming the Park Facility"Greg Cox Park." NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista, that it hereby approves the park name "Greg Cox Park" for the 3.2-acre bike skills park facility located in Otay Valley Regional Park, Recreation Area 6. BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it authorizes and directs staff to undertake additional actions and seek additional approvals as may be necessary for such naming. Presented b�y: Approved as to form by.- Maria Kachadoorian Glen R. Googins City Manager City Attorney 2020-1.1-0,3 Agenda Packet Page 509 of 50�9