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HomeMy WebLinkAbout2021-09-27 CVBFFA Agenda PacketChula Vista Bayfront Facilities Financing Authority San Diego Unified Port District Meeting Agenda 3165 Pacific Hwy. San Diego, CA 92101 Virtual3:00 PMMonday, September 27, 2021 ****Pursuant to Governor Newsom’s Executive Order N-29-20 pertaining to the convening of public meetings in response to the COVID-19 pandemic, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE AUTHORITY (BOARD). The BOARD will attend the meeting and participate remotely to the same extent as if they were present. Due to Governor Newsom's Executive Order, the Board Chambers will remain closed to the public. MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at: https://portofsandiego.legistar.com/Calendar.aspx REMOTE PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE FOLLOWING NO LATER THAN 2:00 PM on Monday, September 27, 2021: 1. Call 619-736-2155 and leave a brief voicemail message (no longer than 2 minutes) that will be played during the meeting. 2. Email a request to provide live comment to PublicRecords@portofsandiego.org to receive a link to participate in the meeting to provide live comments. * 3. Submit written comments to PublicRecords@portofsandiego.org which will be forwarded to the Board and included in the agenda-related materials record for the meeting. * Neither the San Diego Unified Port District nor the Authority are responsible for the member of the public’s internet connections or technical ability to participate in the meeting. It is highly recommended that you use voicemail rather than provide live comment. Page 1 San Diego Unified Port District Printed on 9/23/2021 September 27, 2021Chula Vista Bayfront Facilities Financing Authority Meeting Agenda In keeping with the Americans with Disabilities Act (ADA), the Authority and San Diego Unified Port District will make every reasonable effort to encourage participation in all its public meetings. If you require assistance or auxiliary aids in order to participate at this public meeting, please contact the Office of the District Clerk at publicrecords@portofsandiego.org or (619) 686-6206 at least 48 hours prior to the meeting. Board of Directors Honorable City of Chula Vista Mayor Mary Casillas Salas City of Chula Vista Councilman Stephen Padilla Port Commissioner Ann Moore Port Commissioner Rafael Castellanos Port Commissioner Dan Malcolm A.Call to Order B.Roll Call C.Non-Agenda Public Comment Each individual speaker is limited to two (2) minutes D.Consent Items 1. RESOLUTION OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) AUTHORIZING THE CO-COUNSELS OF THE AUTHORITY TO EXECUTE A FIRST AMENDMENT TO THE LEGAL SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON AND RAUTH FOR BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES IN THE MAXIMUM AMOUNT OF $1.5 MILLION E.Action Items None. F.Staff Comments G.Board Comment H.Adjournment Page 2 San Diego Unified Port District Printed on 9/23/2021 DATE: September 27, 2021 SUBJECT: ..Title RESOLUTION OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) AUTHORIZING THE CO-COUNSELS OF THE AUTHORITY TO EXECUTE A FIRST AMENDMENT TO THE LEGAL SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH FOR BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES IN THE MAXIMUM AMOUNT OF $1.5 MILLION ..Body EXECUTIVE SUMMARY: This agenda item seeks the Authority Board’s authorization for the Co-Counsels of the Authority to execute a first amendment to the original agreement for legal services with Stradling Yocca Carlson & Rauth, a professional corporation (Stradling) to perform bond counsel and disclosure counsel legal services on an hourly fee basis in an amount not to exceed $1.5 million. The ultimate legal services fee owed would be paid through the proceeds of the bonds that the Authority anticipates issuing to finance certain public infrastructure improvements and the convention center on the Chula Vista Bayfront (Public Financing). The original legal services agreement with Stradling approved by the Authority Board on April 1, 2020, provided for a not to exceed amount of $450,000. Since then, a number of factors have contributed to the significant increase in the projected total legal fees. These factors, described in more detail below, primarily relate to the substantial increase in the complexity of the deal structure and the corresponding increase in the amount of negotiation, analysis, and document production time required to produce final versions of the many lease, project development, and public financing documents required for the project. Authority business and legal staff believe that the increased maximum amount of $1.5 million is justified under the circumstances and are comfortable recommending that the Authority Board approve the contract amendment. RECOMMENDATION: ..Recommendation Adopt a Resolution Authorizing the Co-Counsels of the Authority to Execute a First Amendment to the Legal Services Agreement with Stradling for Bond Counsel and Disclosure Counsel Services in the Maximum Amount of $1.5 Million. ..Body FISCAL IMPACT: The proposed legal services agreement with Stradling authorizes expenditure of funds not to exceed $450,000, inclusive of out-of-pocket costs. If this first amendment is approved, the $450,000 will be increased to $1.5 million. Adequate funds to pay the $1.5 million are currently available in the Authority account. If the Public Financing should occur, the $1.5 million would be paid through the closing of the Public Financing. If the Public Financing should not occur, the Authority will be obligated to pay for the legal services performed by Stradling within thirty (30) days after the date on which the Authority determines that it will not issue the bonds for the Public Financing. Should the closing of the Public Financing not occur, the District and the City will treat the legal fees under the legal services agreement as a deductible expense under Section 3.2 of the Third Amended and Restated Revenue Sharing Agreement, with the District and the City sharing equally in the legal fees (subject to any negotiated adjustments between the District and City). To the extent necessary, the District and the City will enter into an operating memorandum under Section 3.2 of the Third Amended and Restated Revenue Sharing Agreement to implement this understanding. DISCUSSION: In the Amended and Restated Joint Exercise of Powers Agreement between the City and the District for the Authority recorded as Document No. 70245 in the Office of the District Clerk (A&R JEPA Agreement), the General Counsel of the District and the City Attorney of the City were appointed to act as Co-Counsel to the Authority provided that the Board of Port Commissioners (BPC) and the Council of the City (City Council) respectively consented to their appointments. On June 18, 2019, the BPC consented to the appointment of the General Counsel, or his designees, to serve as co-counsel to the Authority with the City Attorney of the City, or his designees, and on June 18, 2019, the City Council consented to the appointment of the City Attorney, or his designees, to serve as Co-Counsel to the Authority with the General Counsel, or his designees. Pursuant to Section 4(D)(4) of the A&R JEPA Agreement, the Authority Board may retain or engage such advisors, consultants, experts, and counsel on such terms and at such rates of compensation as the Authority Board may determine, for the performance of Authority business and affairs, provided that adequate sources of funds are identified for the payment of such advisors, consultants, experts, and counsel. At the April 1, 2020 Authority Board meeting, the Authority Board considered and adopted the “Chula Vista Bayfront Facilities Financing Authority Policy for Procurement of Professional and Legal Services” (Services Policy), which sets forth a process for the Co-Counsels to procure legal services. At the same meeting, the Authority Board authorized Co-Counsels to execute the original legal services agreement with Stradling, a copy of which is attached as Attachment A. A copy of the first amendment to the agreement for legal services is attached as Attachment B. This agenda item seeks the Authority Board’s authorization for the Co-Counsels of the Authority to execute a first amendment to the original agreement for legal services with Stradling to perform bond counsel and disclosure counsel legal services for the Authority in an amount not to exceed $1.5 million, which amount would be paid through the proceeds of the bonds that the Authority anticipates issuing to finance the Public Financing. To provide some context for this item, Section 2A of the original agreement provides for Stradling to be paid on an hourly basis for services rendered up to a maximum of $450,000. The original agreement provides further that Stradling will not be paid for any work that they do in excess of that amount unless the original agreement is amended and that any work that they do in excess of the maximum is at their own risk. In accordance with Section 2A of the original agreement, Stradling advised staff as to when they achieved 60% and 80% of the original agreement total. In March 2021 Stradling notified staff that there was still an extended amount of time to go on completing the financing for the project and further informed staff that, to date, Stradling has incurred $948,000 in fees with respect to the engagement with the Authority. There are a number of factors that have contributed to the significant increase in total fees to date. First, when Stradling entered into the original agreement, the expectation was that the financing would be completed sooner than currently projected. Second, the financing proved to be far more complex than was originally anticipated due to several factors which required the involvement of additional lawyers on many telephone calls and extended negotiation with RIDA. In addition, the Project Implementation Agreement proved to be more complex and lengthier than anticipated in order to address distinct issues and the interests of all participants. Given the complexity of this transaction and the somewhat uncertain timeline for issuance, it is difficult to predict with a high level of certainty what the final total for Stradling’s services might be. However, assuming that all actions are finalized to allow for a closing by January/February 2022, staff recommends that a new maximum fee amount under the original agreement should be $1.5 million. Section 11(A) of the A&R JEPA Agreement permits the use of bond proceeds to pay for legal services. Specifically, Section 11(A) provides that: “Expenses for the services of bond counsel, financial consultants and other advisors and for accounting or other services determined necessary for the successful development of a public capital project may be paid from the proceeds of the Bonds to the extent permissible under applicable law.” Therefore, the fees and costs for the legal services agreement with Stradling could be paid from the bond proceeds from the Public Financing and staff for the Authority has accounted for such fees in its current financial model. Authority staff recommended Stradling be hired by the Authority based upon their extensive experience with complex public financings throughout California and the City’s favorable experience with Stradling serving as bond and disclosure counsel for multiple public finance transactions. Authority business and legal staff believe that the increased maximum amount of $1.5 million is justified under the circumstances and are comfortable recommending that the Authority Board approve the contract amendment. Accordingly, Staff recommends that the Authority Board authorize the Co-Counsels of the Authority to execute this first amendment with Stradling in the maximum amount of $1.5 million. General Counsel’s Comments: Each of the Authority’s Co-Counsels have reviewed this agenda sheet and Attachment B (Bond Counsel and Disclosure Counsel First Amendment - Chula Vista Bayfront Facilities Financing Authority Bayfront Project) as presented to them and approve each as to form and legality. Environmental Review: The proposed action by the Authority Board, approving this first amendment for legal services with Stradling, is not a separate “project” for CEQA purposes but is a subsequent discretionary approval related to a previously approved project. (CEQA Guidelines § 15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles Comm. College Dist. (2012) 206 Cal.App.4th 1036). Accordingly, the proposed Authority Board action is merely a step-in furtherance of the original project for which environmental review was performed and no supplemental or subsequent CEQA has been triggered, and no further environmental review is required. In addition, the proposed Authority Board action would not conflict with the Port Act of the District or the Public Trust Doctrine. The proposed Authority Board direction or action does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit (CDP) Regulations because they will not result in, without limitation, a physical change, change in use or increase the intensity of uses. Therefore, issuance of a Coastal Development Permit or exclusion is not required. However, development within the District requires processing under the District’s CDP Regulations. Future development, as defined in Section 30106 of the Coastal Act, will remain subject to its own independent review pursuant to the District’s certified CDP Regulations, Port Master Plan, and Chapters 3 and 8 of the Coastal Act. The Authority’s direction or action in no way limits the exercise of the District’s discretion under the District’s CDP Regulations. Therefore, issuance of a CDP or exclusion is not required at this time. Equal Opportunity Program: Not applicable. PREPARED BY: Michael Shirey Assistant City Attorney Attachments: Attachment A: Bond Counsel and Disclosure Counsel Agreement - Chula Vista Bayfront Facilities Financing Authority Bayfront Project Attachment B: Bond Counsel and Disclosure Counsel First Amendment - Chula Vista Bayfront Facilities Financing Authority Bayfront Project BOND COUNSEL AND DISCLOSURE COUNSEL AGREEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BAYFRONT PROJECT THIS AGREEMENT, is made as of this 1st day of April, 2020 (“Effective Date”), by and between the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint powers authority organized and existing under the laws of the State of California (herein “Authority”) and STRADLING YOCCA CARLSON & RAUTH, a Professional Corporation (herein “Stradling”). The Authority and Stradling shall collectively be referred to as, the “Parties”. R E C I T A L S : A. The Authority was formed by the City of Chula Vista (the “City”) and the San Diego Unified Port District (the “Port”) in order to assist in the financing of certain capital improvements related to the proposed Bayfront hotel and convention center project (the “Hotel Project”), including the convention center and various public infrastructure improvements (the “Financed Improvements”); and B. The Authority desires to issue one or more series of bonds (the “Authority Bonds”) to provide funds necessary for the acquisition and construction of the Financed Improvements; and C. The Authority desires to retain Stradling to do the necessary legal work hereinafter outlined, upon the terms and conditions hereinafter set forth, related to the Authority Bonds; and D. Stradling represents that it is ready, willing and able to perform said legal work. NOW, THEREFORE, in consideration of the promises, and the mutual covenants, terms and conditions herein contained, the Parties agree as follows: 1. SCOPE OF SERVICES A. The Authority retains Stradling to provide, and Stradling agrees to provide, legal services in connection with the issuance by the Authority of the Authority Bonds. The Co-General Counsels of the Authority, or their respective designees, together shall direct the services to be performed by Stradling under this Agreement. Such services shall include, but not be limited to, the rendering of a legal opinion (hereinafter called the “approving opinion”) pertaining to the issuance of Authority Bonds to the effect that: 1. The Authority Bonds have been properly authorized and issued and are valid and binding obligations; and 2. The Indenture for the Authority Bonds is a valid and binding agreement enforceable against the Authority in accordance with its terms; and 3. Interest on Authority Bonds is exempt from California personal income taxation and as to any Authority Bonds not being issued as taxable bonds, that the interest is excluded from gross income for federal income tax purposes; and Attachment A 2 4. Such other matters typically or reasonably required in connection with the issuance of the Authority Bonds. Stradling’s services will also include: i. Researching applicable laws and ordinances relating to the issuance of the Authority Bonds; ii. Attending conferences and consulting with City and Port staff and counsel to the Authority regarding such laws, and the need for amendments thereto, or additional legislation; iii. Participating in meetings, conferences or discussions with any municipal advisors, underwriters or other experts retained by the Authority, the City or the Port with respect to the issuance of the Authority Bonds; iv. Reviewing and commenting on and assisting in the preparation of all documents related to validation proceedings to be conducted with respect to the Authority Bonds and related matters; v. Supervising and preparing documentation of the steps to be taken with respect to the issuance of the Authority Bonds, including: a. Drafting all resolutions, notices, rules and regulations and other legal documents required for the issuance of the Authority Bonds (other than agreements between the Port and RIDA which will be drafted by counsel to the Port and will be reviewed by Stradling), including all financing leases and other documents relating to the security for the Authority Bonds, all in consultation with the Authority, its counsel, counsel for the Port, counsel for the City, municipal advisor, underwriters and other experts; b. Preparing the record of proceedings for the authorization, sale and issuance of the Authority Bonds; c. Assisting in the preparation of the official statement for the sale of the Authority Bonds (the “Official Statement”); d. Reviewing the purchase contracts, placement agreements or bidding documents relating to the sale of the Authority Bonds and participating in the related negotiations with the underwriters or other purchasers of the Authority Bonds; e. Participating in meetings and other conferences scheduled by the Authority, the City, the Port, or the Authority’s municipal advisor; 3 f. Consulting with prospective purchasers of the Authority Bonds, their legal counsel and rating agencies; g. Consulting with each Co-General Counsel to the Authority, the General Counsel to the Port and the City Attorney of the City concerning any legislation or litigation which may affect the Authority Bonds, the security for the Authority Bonds, or any other matter related to the issuance of the Authority Bonds; h. Consulting with the trustee for the Authority Bonds and its counsel; i. Preparing the forms of the Authority Bonds, and supervising their production or printing, signing, authentication and delivery; j. Rendering the final approving opinion described above as to the validity of the Authority Bonds and other opinions related to the validity of any lease to be entered into by the City and the Authority and the validity of any community facilities district bonds to be purchased by the Authority to secure the repayment of the Authority Bonds; and k. Rendering a legal opinion to the underwriters or purchasers of the Authority Bonds as to the applicability of the registration requirements of federal securities laws and the fair and accurate nature of those portions of the Official Statement related to the description of the Authority Bonds, the financing documents and Stradling’s approving opinion. l. Delivering a letter to the underwriters or purchasers of the Authority Bonds to the effect that the Official Statement for each series of the Authority Bonds, excluding information therein related to or provided by the developer of the Hotel Project and any financial, numerical, economic, demographic or statistical data or assessed or appraised valuations or projections therein, does not contain any untrue statement of a material fact or omit any material fact. B. Special Services. “Special Services” are defined for purposes of this Agreement as services in addition to the services outlined in Section A above. Special Services will include, but not be limited to, any work after a bond closing related to the amendment of bond documents or agreements and special studies or analyses. Special Services must be authorized in writing by the Executive Director of the Authority or his or her designee. C. Nature of Services. Stradling is retained as an independent contractor and the Authority does not intend for Stradling to be a public official of the Authority within the meaning of Government Code Section 1090. Stradling is being engaged primarily to deliver its approving opinion with respect to the Authority Bonds and to provide the other scope of services described 4 herein. However, Stradling is not being retained, and has no duty, to advise the Authority as to whether or not it should issue the Authority Bonds or whether or not it should enter into any contracts related to the possible issuance of the Authority Bonds; nor is Stradling being retained, and it has no duty, to provide financial advice of any kind to the Authority in connection with or relating to the Authority Bonds or any contracts related thereto. The Authority, through its Board, will be exercising its independent judgment regarding the decisions of (a) whether or not to issue the Authority Bonds, (b) whether or not to enter into any contracts related to the Authority Bonds, or (c) the financial terms to be included in the Authority Bonds and/or any such contracts. Accordingly, the Parties agree that Stradling’s role is not one where it will be exerting influence over the decision by the Authority to proceed or not to proceed to issue the Authority Bonds or to enter into any contracts related to the Authority Bonds. 2. COMPENSATION The Authority agrees to pay Stradling, but only from the sources of funds specified below, the following amounts as compensation for services rendered by Stradling under this Agreement: A. For the services to be rendered under this Agreement relating to the issuance of the Authority Bonds, it is agreed that Stradling will be paid fees at the hourly rates set forth in Exhibit A not-to-exceed a total of $450,000, inclusive of out-of-pocket costs, which fees and costs will be payable on the earlier of the date of issuance of the Authority Bonds or thirty (30) days after the date on which the Authority determines that it will not issue the Authority Bonds. Stradling will not be compensated for services provided once the maximum expenditure stated above is reached without amendment to this Agreement. Stradling shall not be required to perform further services after the maximum compensation has been reached. However, Stradling shall monitor total expenditures under this Agreement and shall give both of the Co-General Counsel prompt written notice when 60% of the maximum is reached, and again when 80% of the maximum is reached, and any other time that Stradling anticipates the need for services in excess of the maximum amount. Whether or not notice is given by Stradling, if Stradling performs work in excess of the maximum amount authorized by this Agreement, it does so at its own risk. Only a written amendment to this Agreement, executed by both of the Co-General Counsel, increasing the amount of compensation can obligate the Authority to pay for such services, and any such amendment is the sole and absolute discretion of each of the Co-General Counsel. B. In the event Stradling is requested to perform Special Services as set forth in Section 1.B above, Stradling will be paid fees at the hourly rates set forth in Exhibit A, or in such other manner as is mutually acceptable to the Authority and Stradling. Such fees will be billed monthly and shall be payable exclusively from funds of the Authority within thirty (30) days following the receipt of each invoice. C. In addition to the fees described in Section 1.B above, Stradling shall be reimbursed for the actual cost of any out-of-pocket expenses reasonably incurred by Stradling in the course of performing the Special Services described in Section 1.B above that are pre-approved in writing by both of the Co-General Counsel in accordance with Exhibit B attached hereto. Expenses related to the services described in Section 1.B above will be billed monthly. D. The Authority shall make payment(s) for services rendered under this Agreement based on itemized billing statement(s) Stradling submits to both of the Co-General Counsel, which shall be submitted on a monthly basis in the case of the Special Services described in Section 1.B. and in a 5 single itemized statement ten (10) days prior to the closing of the Authority Bonds in the case of services that are not Special Services. The Authority shall review all billing statements in accordance with the terms of this Agreement. For Special Services under Section 1.B., the Authority shall make its best effort to process payments promptly after receiving Stradling’s monthly billing statement. The Authority shall not pay interest or finance charges on any outstanding balance(s). The Authority shall pay Stradling based on Stradling’s submission of invoices consistent with the provisions of this Agreement. Even though the Authority makes payment pursuant to invoices, the Authority shall have the right to demand reimbursement any time the Authority determines that previously paid amounts were not properly billed by Stradling; provided, however, that, in the case of reimbursements involving services to be paid as part of the closing of the Authority Bonds, any such demand must be made within sixty (60) days following the issuance of the Authority Bonds. Stradling shall promptly reimburse the Authority for any such amounts previously paid by, or on behalf of, the Authority. Authority’s payment of an invoice shall not be a waiver of any rights under this Agreement. 3. PERSONNEL AND CONTRACT ADMINISTRATION Authority agrees to accept and Stradling agrees to provide the aforementioned services primarily through Robert J. Whalen, Carol L. Lew and Vanessa S. Legbandt and other attorneys in the firm working under the direction of Mr. Whalen or Ms. Lew. If any of the above attorneys is unable to provide such services due to death, disability or similar event, Stradling reserves the right to substitute another of its attorneys, upon approval by the Executive Director, or his or her designee, to provide such services; and such substitution shall not alter or affect in any way Stradling’s or the Authority’s other obligations under this Agreement. This Agreement will be administered by the Executive Director, or his or her designee. 4. CONFLICTS OF INTEREST The Authority recognizes that Stradling may have clients that, from time to time, may have interests adverse to the Authority. Any such representation shall be in accordance with the ethical duties of members of the State Bar of California, including, without limitation, those established by the State Bar’s Rules of Professional Conduct. Stradling shall send written notice to both of the Co- General Counsel of any actual or potential conflict of interest that exists during Stradling’s engagement under this Agreement and request a waiver of the conflict. The request for waiver shall describe in detail the nature of the proposed engagement by Stradling, the nature of the conflict, and why Stradling believes that a waiver is appropriate. The consent of the Authority, the City and the Port to Stradling’s simultaneous representation of the Authority and the City and of Stradling’s representation of J.P. Morgan Securities LLC on Other Matters ( as defined in Exhibit C) is attached as Exhibit C to this Agreement. 5. TERMINATION A. This Agreement may be terminated without cause by the Authority or Stradling upon thirty (30) days’ advance written notice to the other party. Such notification shall state the effective date of the termination of this Agreement. B. Stradling reserves the absolute right to withdraw from representing the Authority if, among other things, the Authority fails to honor the terms of this Agreement, the Authority fails to cooperate fully or follow Stradling’s advice on a material matter, or any fact or circumstance occurs 6 that would, in Stradling’s view, render its continuing representation unlawful or unethical. A good faith dispute over fees shall not be considered a failure of the Authority to honor the terms of this Agreement for purposes of this Section. If Stradling elects to withdraw, without compromising or waiving any rights of the Authority, which shall be expressly reserved, the Authority will take all reasonable steps necessary to free Stradling of any obligation to perform further services, including the execution of any documents reasonably necessary to complete such withdrawal, and Stradling will be entitled to be paid at the time of withdrawal for all services rendered and not disputed and costs and expenses paid or incurred on the Authority’s behalf in accordance with the payment terms set forth in Section 2 above. If necessary in connection with litigation, Stradling would request leave of court to withdraw. C. Stradling’s representation of the Authority will be considered terminated at the earlier of (i) the Authority’s termination of its representation, (ii) Stradling’s withdrawal from its representation of the Authority, or (iii) the substantial completion by Stradling of its substantive work for the Authority under this Agreement. Unless Stradling has been specifically engaged to perform Special Services related to the Authority Bonds after their execution and delivery, Stradling’s representation of Authority with respect to a series of the Authority Bonds shall terminate on the date of execution and delivery of such series of Authority Bonds. 6. NON-BINDING MEDIATION IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, EXPENSES, AMOUNTS OR ANY OTHER MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO STRADLING’S OR THE AUTHORITY’S PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES WHICH STRADLING RENDERS, THE PARTIES AGREE TO MEET AND CONFER IN GOOD FAITH IN ORDER TO RESOLVE SUCH DISPUTE. IF THE PARTIES ARE UNABLE TO RESOLVE THE DISPUTE, UPON MUTUAL AGREEMENT OF THE PARTIES, THE DISPUTE MAY BE SUBMITTED TO NON-BINDING MEDIATION. 7. MISCELLANEOUS A. Stradling and the employees of Stradling, in performance of the Agreement, shall act in an independent capacity and not as officers or agents of the Authority. B. Without the written consent of the Authority, this Agreement is not assignable by Stradling in whole or in part. C. No alteration or variation of the terms of this Agreement shall be valid unless in writing and signed by the Parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the Parties hereto. D. This Agreement contains the entire Agreement between the Parties and supersedes all prior negotiations, discussion, obligations and rights of the Parties in respect of each other regarding the subject matter of this Agreement. There is no other written or oral understanding between the Parties. No modifications, amendment or alteration of this Agreement shall be valid unless it is in writing and signed by the Parties hereto. 7 E. Should any part, term, condition or provision of this Agreement be declared or determined by any court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law, public policy, or city charter, the validity of the remaining parts, terms, conditions or provisions of this Agreement shall not be affected thereby. F. As to any matter arising from or related to this Agreement, all parties hereby consent to the jurisdiction of the state and federal courts in the State of California, and to venue within San Diego County. G. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California. 8. MEDIA INQUIRIES AND COMMENTS A. Inquiries regarding any matters being handled by Stradling should be forwarded to both of the Co-General Counsel. Stradling should not comment on any matter without the Co-General Counsel’s prior approval. B. This Agreement does not authorize Stradling to waive the attorney-client privilege, or any other privilege, on behalf of the Authority as to any matter, issue, communication, document or otherwise. Any such authority given to Stradling, if any, shall be made by both of the Co-General Counsel, in his/her sole and absolute discretion, in writing separately from this Agreement. Absent such authority, Stradling will not waive any such privilege or take actions which waive any such privilege. 9. NOTICES A. Notices delivered under this Agreement may be sent electronically followed by written notice delivered by overnight delivery or regular mail as follows: To the Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney General Counsel San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To Stradling: Stradling Yocca Carlson & Rauth, a Professional Corporation 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660 Attention: Robert J. Whalen 10. RECORDS AND AUDIT A. Stradling shall maintain full and complete records of the cost of services performed under this Agreement as well as all project files, documents, research, and work in progress 8 (collectively “billing and project documents”). Such billing and project documents shall be open to inspection by the Authority at all reasonable times in the City of San Diego and such records shall be kept for at least three (3) years after the termination of this Agreement or until all disputes, appeals, litigation or claims arising from this Agreement have been resolved, whichever is later. B. The Authority shall also have the right to audit billing and project documents, whether or not final, which Stradling or anyone else associated with the work has prepared or which relate to the work which Stradling is performing for the Authority pursuant to this Agreement regardless of whether such records have previously been provided to the Authority. Stradling shall provide the Authority, at Stradling’s expense, a copy of all such records within ten (10) working days of a written request by the Authority. The Authority’s right shall also include inspection at reasonable times of Stradling’s office or facilities which are engaged in the performance of services pursuant to this Agreement. Stradling shall, at no cost to the Authority, furnish reasonable facilities and assistance for such review and audit. Stradling’s failure to provide the records within the time requested shall preclude Stradling from receiving any compensation due under this Agreement until such documents are provided. C. Stradling’s obligations under this Section 10, Records and Audit, shall survive termination of this Agreement for a period of three years. 11. INDEMNIFY AND HOLD HARMLESS a. Stradling agrees to indemnify and hold harmless the Authority, its agents, officers or employees, from and against any claim, demand, action, proceeding, suit, liability, damage, cost (including reasonable attorneys’ fees actually incurred) or expense (“Claim”), caused by, arising out of, or related to the negligent performance of services by Stradling, including its, officers, agents, subcontractors and employees, as provided for in this Agreement, or negligent failure to act by Stradling, its officers, agents, subcontractors and employees. Stradling’s duty to indemnify and hold harmless shall not include any Claim arising from the active negligence, sole negligence or willful misconduct of the Authority, its agents, officers, or employees. b. The Authority may, at its own election, conduct its defense, or participate in the defense of any Claim related in any way to this Agreement. If the Authority elects to conduct its own defense, participate in its own defense or obtain independent legal counsel in defense of any Claim caused by, arising out of, or related to the negligent performance of services by Stradling, including its officers, agents, subcontractors and employees, as provided for in this Agreement, or negligent failure to act by Stradling, its officers, agents, subcontractors and employees, Stradling agrees to pay all reasonable attorneys’ fees and all costs actually incurred by the Authority. 12. INSURANCE REQUIREMENTS A. Stradling shall at all times during the term of this Agreement maintain, at its expense, the following minimum levels and types of insurance: (1) Professional Liability insurance in the amount of $1,000,000 per claim and $1,000,000 aggregate. 9 (a) At the end of the agreement period, Stradling shall maintain, at its own expense, continued Professional Liability insurance of not less than three (3) years, in an amount no less than the amount required pursuant to this Agreement. (b) Alternately, if the existing Professional Liability is terminated during the above referenced three-year period, Stradling shall maintain at its own expense, “tail” coverage in the same minimum amount as set forth in this paragraph. (c) All coverages under this section shall be effective as of the effective date of this Agreement or provide for a retroactive date of placement that coincides with the effective date of this Agreement. (2) Commercial Automobile Liability (Non-Owned or Hired Automobiles) written at least as broad as Insurance Services Office Form Number CA 0001 with limits of no less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. (3) Workers’ Compensation, statutory limits, is required of Stradling and all sub- consultants (or be a qualified self-insured) under the applicable laws and in accordance with “Workers’ Compensation and Insurance Act”, Division IV of the Labor Code of the State of California and any Acts amendatory thereof. Employer’s Liability, in an amount of not less than one million dollars ($1,000,000) each accident, $1,000,000 disease policy limit and $1,000,000 disease each employee. This policy shall be endorsed to include a waiver of subrogation endorsement, where permitted by law. (4) Umbrella or Excess Liability insurance with limits no less than one million dollars ($1,000,000) per occurrence and aggregate. This policy must provide excess insurance over the same terms and conditions required above for the Automobile Liability and Employer’s Liability policies. B. Stradling shall furnish the Authority with certificates of insurance coverage for all the policies described above upon execution of this Agreement and upon renewal of any of these policies. A Certificate of Insurance in a form acceptable to Authority, an exemplar Certificate of Insurance is attached as Exhibit D and made a part hereof, evidencing the existence of the necessary insurance policies and endorsements required shall be kept on file with Authority. Notwithstanding the foregoing, the Professional Liability insurance policy required by Section 12A.(1) above need not name any parties as additional insureds. Except in the event of cancellation for non-payment of premium, in which case notice shall be 10 days, all such policies must be endorsed so that the insurer(s) must notify the Authority in writing at least 30 days in advance of policy cancellation. Stradling shall also provide notice to the Authority prior to cancellation of, or any change in, the stated coverages of insurance. C. The Certificate of Insurance must delineate the name of the insurance company affording coverage and the policy number(s) specifically referenced to each type of insurance, either on the face of the certificate or on an attachment thereto. D. Furnishing insurance specified herein by the Authority will in no way relieve or limit any responsibility or obligation imposed by the Agreement or otherwise on Stradling or Stradling’s sub-contractors or any tier of Stradling’s sub-contractors. Authority shall reserve the right to obtain complete copies of any of the insurance policies required herein. A-1 EXHIBIT A Shareholders $550 Associates $350 Paralegals $140 B-1 EXHIBIT B RULES FOR HOURLY BILLING AND REIMBURSABLE EXPENSES Invoiced items that do not comply with these rules will not be paid. 1. Invoices shall contain the Authority’s short matter title (see Attachment A) and a file number when one has been assigned and shall set forth the date of each service, an understandable description of the service and the time spent on each entry. Invoices shall contain a “code” for initials used in the billing, plus the title (“partner”, “paralegal”, etc.) and billing rate of each person. 2. Billings under this Agreement shall not be made in more than one-tenth of an hour (six minutes) increments, and shall represent the devotion of a full six minutes before such an increment is billed. Under no circumstances shall Stradling use “block billing”, wherein a list of series of activities is done with only an aggregate amount of time specified. Instead, Stradling shall provide a detailed specific entry for each separate task and sub-task reflecting the time for such task or subtask. All tasks set forth in Stradling’s billing documentation shall be highly specific and highly detailed. Overly generalized listings of task descriptions such as “review contract” or “prepare for negotiations” will not be acceptable. Stradling shall provide a detailed description of each action as described below. 3. For services where a monthly invoice is to be submitted, Stradling shall submit its billing statement monthly in arrears, no later than the fifteenth of the month following the month service was rendered. 4. Stradling agrees to assign the person with the lowest hourly rate who is fully competent to provide the services required. If Stradling finds it necessary to have work, which would usually be performed by personnel with a lower rate, performed by personnel paid at the higher hourly rate, Stradling shall nevertheless, bill at the lower rate. 5. Use of paralegals is encouraged providing they meet the requirements set forth herein. Assignment of work to paralegals should not result in duplicative activity between attorneys and paralegals, or the reworking or rewriting of paralegals’ work product by attorneys. Authority will not pay for paralegal time (nor any person’s time) spent performing clerical/secretarial work (e.g., filing, indexing, sorting, organizing, photocopying and bates stamping documents) unless Authority has given its prior written approval. Authority expects paralegals to perform true paralegal work, e.g., research, document productions, preparing documents, etc. 6. Stradling shall bill only for the actual time spent performing the legal services under this Agreement. 7. Stradling shall not bill for clerical, secretarial, administrative or word processing time, nor bill for standard file opening or closing charges. 8. Conferences between Stradling staff must be demonstratively necessary and occasional. B-2 9. Stradling shall not bill for an associate’s or any person’s apprenticeship or training time. Apprenticeship and training time is that which does not directly contribute to Stradling’s representation of the Authority in the assigned matter. 10. Stradling shall not bill for file preparation and/or reviews by anyone undertaken when files are transferred within the firm from one attorney to another, or to a new attorney or other staff. 11. Stradling shall not bill for time preparing for or discussing the terms of this agreement, or budgeting or billing issues or disputes. 12. Stradling shall not bill for educational programs or other overhead expenses. 13. Stradling shall not bill for generalized legal research time, which is considered to be educational in nature, however, legal research time in connection with a specific legal matter may be billed at the normal rate. 14. Stradling shall not use part-time or summer clerks unless specifically approved by in advance. 15. Stradling shall not bill for travel time within the County of San Diego. Extraordinary travel out of the County in connection with the engagement may be billed only if pre-approved at the sole and absolute discretion of both of the Co-General Counsel. 16. Stradling shall not bill for costs incurred for items such as routine telephone, facsimile, transcriptions, computerized legal research, routine printing or photocopying and routine postage. 17. Expenses such as specialized printing, charts, expert fees, microfilming, computerized document retrieval, consultant services, investigative services, computer litigation support services, videotaping of depositions, temporary office help, travel expenses, meals as well as other expenses, must be preapproved by both of the Co-General Counsel. Any such expense exceeding $1000 must be preapproved in writing by both of the Co-General Counsel. Travel- related expenses must comply with the Authority policies regarding travel reimbursement. 18. All invoices for expenses shall include supporting documentation. 19. Stradling shall not bill for commissions, mark-ups, overhead or other non-direct costs from outside consultants or experts. C-1 EXHIBIT C ROBERT J. WHALEN 949.725.4166 RWHALEN@SYCR.COM STRADLING YOCCA CARLSON & RAUTH, P.C. 660 NEWPORT CENTER DRIVE, SUITE 1600 NEWPORT BEACH, CA 92660-6422 SYCR.COM CALIFORNIA NEWPORT BEACH SACRAMENTO SAN DIEGO SAN FRANCISCO SANTA BARBARA SANTA MONICA COLORADO DENVER NEVADA LAS VEGAS RENO WASHINGTON SEATTLE April 1, 2020 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY Attention: Thomas Russell, Co-General Counsel and Glen Googins, Co-General Counsel CITY OF CHULA VISTA Attention: Glen Googins, City Attorney Re: Disclosure and Waiver of Potential Conflicts of Interest re Representation of the Chula Vista Bayfront Facilities Financing Authority and the City of Chula Vista Dear Tom and Glen: This letter is to disclose to you and confirm your waiver on behalf of the Chula Vista Bayfront Facilities Financing Authority (the “JEPA”) and the City of Chula Vista (the “City”) of potential and actual conflicts of interest based upon the representation by Stradling Yocca Carlson & Rauth (“SYCR”) of the JEPA and the City in connection with the Chula Vista Bayfront Resort Hotel and Convention Center project (the “Project”), including the provision of bond counsel and disclosure counsel legal services to the JEPA and legal services to the City in connection with the financing of certain public capital facilities relating to the Project. SYCR also provides legal services, including serving as bond counsel and disclosure counsel, to the City and entities affiliated with the City in connection with various matters from time to time. In addition, SYCR provides legal services to J.P. Morgan Securities LLC (“JPMorgan”), in connection with various matters from time to time. The City, JPMorgan and JEPA are referred to collectively herein as the “Parties.” As we understand the Project, the JEPA will enter into various agreements and issue bonds (collectively, the “JEPA Financing”) to finance certain components of the Project constituting public capital improvements, including the Convention Center to be constructed as part of the Project. C-2 JPMorgan or an affiliate of JPMorgan is anticipated to be the underwriter of the JEPA Financing. The JEPA Financing will be payable from several sources of revenue, including among other things payments to be made by the City as lease payments pursuant to a lease agreement between the City and the JEPA (the “City Lease”). The City’s obligation to make lease payments will be limited by reference to certain tax revenues generated by the Project and the Chula Vista Bayfront Master Plan area surrounding the Project and other specified amounts to be received by the City in connection with the Project. The City will have no obligation to make lease payments from any source of moneys, including the City’s general fund, except to the extent expressly set forth in the City Lease. SYCR is responsible for drafting and negotiating the terms of the City Lease, in consultation with City staff and advisors, representatives of the San Diego Unified Port District (the “Port District”), representatives of the JEPA, and others. In addition, SYCR will continue to represent the City in relation to the JEPA Financing, while it concurrently represents the JEPA. JEPA has been formed by the City and the Port District for the purpose of issuing the JEPA Financing; representatives of the City and the Port District provide for the governance and administration of the JEPA. SYCR does not represent the Port District; the Port District is represented by its own in-house and outside legal counsel in connection with the Project. SYCR will also represent the City and JPMorgan in current and future matters not related to the JEPA Financing, City Lease, the Project, or the Port District (“Other Matters”). Under Rule 1.7 of the California Rules of Professional Conduct (a copy of which is attached to this letter), an attorney may not “represent a client if the representation is directly adverse to another client in the same or a separate matter” unless the attorney has the informed written consent of each client. Based upon SYCR’s current understanding of the factual circumstances, if SYCR represents the JEPA and the City in connection with the City Lease and JEPA Financing, an actual conflict of interest will exist, requiring informed written consent of both parties. Similarly, if SYCR represents the City in the Other Matters, a potential conflict of interest will exist, requiring informed written consent of both parties. Accordingly, the purposes of this letter are: (1) to inform you of the actual conflict of interests that exists due to SYCR’s concurrent representation of the City and the JEPA; with relation to the City Lease and JEPA Financing; (2) to inform you of the potential conflict of interest that exists due to SYCR’s representation of the City in Other Matters; (3) suggest that each of the Parties retain independent counsel to assist you in your analysis and evaluation of the conflict issues and the effect of the requested waiver; and (4) to seek your waiver of these conflicts. SYCR is required to request a written confirmation from the City and the JEPA that: (1) the facts set forth in this letter have been disclosed; (2) you have been advised to seek independent counsel concerning the actual conflict of interest; (3) you have knowingly and voluntarily waived the actual conflict of interest in or relating to SYCR’s representation of the JEPA and the City in conjunction with the City Lease and JEPA Financing; (4) you have knowingly and voluntarily waived the potential conflict of interest in or relating to SYCR’s representation of the City or JPMorgan in Other Matters; (5) you consent to SYCR’s representation of the City and the JEPA in connection with the City Lease, the JEPA Financing, and the Other Matters; and (6) you consent to SYCR’s representation of JPMorgan in connection with the Other Matters. C-3 Should you have any questions concerning this letter or the attached consent form, please discuss them with your independent counsel before signing. Very truly yours, Robert J. Whalen STRADLING YOCCA CARLSON & RAUTH, P.C. C-4 CONSENT The undersigned hereby waives the actual conflict of interest that may arise from (1) the representation by Stradling Yocca Carlson & Rauth (“SYCR”) of the Chula Vista Bayfront Facilities Financing Authority (the “JEPA”) and the City of Chula Vista (the “City”) in connection with the (a) the concurrent provision of bond counsel and disclosure counsel legal services to the JEPA and legal services to the City in connection with the financing of certain public capital facilities relating to the Project (“JEPA Financing”), and (b) the negotiation of a lease between the JEPA and City for the use of the convention center component of the Project (“City Lease”), and (2) representation by SYCR of (a) the City and entities affiliated with the City from time to time, including as bond counsel and/or disclosure counsel, in connection with various matters that are not related to the City Lease, Project or JEPA Financing and do not involve the San Diego Unified Port District (“Port District”) (collectively, the “Other Matters”), and (b) JPMorgan from time to time on Other Matters. The City, JPMorgan, and the JEPA are referred to collectively herein as the “Parties.” SYCR has advised the undersigned of Rule 1.7 of the California Rules of Professional Conduct, enclosed a copy of Rule 1.7 for the undersigned to review, and explained to the undersigned that in the future there may exist conflicting interests in, arising out of or related to the above-described continued representation of the Parties which might have serious adverse consequences to the undersigned. The undersigned acknowledge having received a copy of the foregoing letter and have read and understand its contents. Furthermore, the undersigned acknowledge that they have been informed and hereby consent to the following: (1) that SYCR continues to represent the City, or entities affiliated with the City, as bond counsel and disclosure counsel from time to time on the Other Matters; (2) that SYCR continues to represent JPMorgan from time to time on the Other Matters; (3) that SYCR will represent the JEPA and the City in connection with the JEPA Financing and the City Lease; and (4) as a result of the foregoing representations, the Parties may obtain confidential information from the City, JPMorgan and/or the JEPA that may be adverse to the interests of the other. In all representations of the City or JPMorgan, SYCR agrees not to initiate, participate in, or defend litigation in which the JEPA is an adverse party to the City and/or JPMorgan. The undersigned have had an opportunity to consult with independent counsel regarding this matter and any and all actual and potential conflicts of interest. The Parties’ signatures below are freely and voluntarily given, and are based upon the informed consent of the City and the JEPA. This constitutes our informed written consent pursuant to Rule 1.7, but is subject to the conditions of this consent, including, without limitation, SYCR’s agreement not to initiate, participate in, or defend litigation in which the JEPA is an adverse party to the City and/or JPMorgan. Capitalized words not defined in this Consent shall have the meaning set forth in the accompanying letter dated April 1, 2020 from SYCR to the undersigned. C-5 CITY OF CHULA VISTA By: Glen Googins, City Attorney Dated: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By:____________________________________ Thomas Russell, Co- General Counsel Dated: By:____________________________________ Glen Googins, Co-General Counsel Dated: DocuSign Envelope ID: 8E4D8EC5-BF5D-4D4E-91AD-031DC0DFC6F1 Apr 27, 2020Apr 30, 2020 Apr 30, 2020 D-1 EXHIBIT D D-2 D-3 D-4 D-5 D-6 D-7 D-8 D-9 1 FIRST AMENDMENT TO BOND COUNSEL AND DISCLOSURE COUNSEL AGREEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BAYFRONT PROJECT This FIRST AMENDMENT (“First Amendment”) is entered into effective as of this _____ day of ____________, 2021 (the “Effective Date”) by and between the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (“Authority”) and STRADLING, YOCCUM, CARLSON & RAUTH, a Professional Corporation (“Stradling”) with reference to the following facts: RECITALS WHEREAS, Authority and Stradling previously entered into a Bond Counsel and Disclosure Counsel Agreement (the “Original Agreement”) on April 1, 2020; and WHEREAS, the Original Agreement provided for a not to exceed legal services fee amount of $450,000; WHEREAS, since then, the substantial increase in the complexity of the deal structure and the corresponding increase in the amount of negotiations, analysis and document production time required to produce final versions of the many lease, project development, and public financing documents required for the project, have contributed to a significant increase in the projected total legal fees; and WHEREAS, Authority business and legal staff believe that the increased maximum amount of $1.5 million is justified under the circumstances, and were comfortable recommending that the Authority Board approve the contract amendment reflecting such increase. WHEREAS, the Board of Directors of the Authority (“Authority Board”) considered and approved this First Amendment at their meeting on September 27, 2021 and authorized the Co- Counsels of the Authority to execute this First Amendment on its behalf. NOW, THEREFORE, in consideration of the above recitals and the mutual obligations of the parties set forth herein, Authority and Stradling agree as follows: 1. Section 2A of the Original Agreement is hereby amended as follows: The not-to-exceed total amount of the Original Agreement is amended from $450,000 to $1.5 million. 2. Except as expressly provided herein, all other terms and conditions of the Original Agreement shall remain in full force and effect. Attachment B 2 3. Each party represents that it has full right, power and authority to execute this First Amendment and to perform its obligations hereunder, without the need for any further action under its governing instruments, and the parties executing this First Amendment on the behalf of such party are duly authorized agents with authority to do so. 4. This First Amendment may be executed in any number of counterparts, each of which shall be the original and all of which shall constitute one and the same document. The words “execution”, “execute”, “signed”, “signature”, and words of like import in or related to any document signed or to be signed in connection with this First Amendment and the transaction contemplated hereby shall be deemed to include electronic signatures, contract formations on electronic platforms approved by the parties, or the keeping of such electronic signatures and electronic contracts in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act. 3 SIGNATURE PAGE TO FIRST AMENDMENT TO BOND COUNSEL AND DISCLOSURE COUNSEL AGREEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BAYFRONT PROJECT STRADLING, YOCCUM, CARLSON & RAUTH, A PROFESSIONAL CORPORATION CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BY:________________________________ BY: ________________________________ Robert J. Whalen Thomas A. Russell Shareholder Co-Counsel BY:________________________________ Glen R. Googins Co-Counsel Resolution 20xx-xxx RESOLUTION OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) AUTHORIZING THE CO-COUNSELS OF THE AUTHORITY TO EXECUTE A FIRST AMENDMENT TO THE LEGAL SERVICES AGREEMENT WITH STRADLING YOCCA CARLSON & RAUTH FOR BOND COUNSEL AND DISCLOSURE COUNSEL SERVICES IN THE MAXIMUM AMOUNT OF $1.5 MILLION WHEREAS, in the Amended and Restated Joint Exercise of Powers Agreement between the City of Chula Vista (“City”) and the San Diego Unified Port District (“District”) for the Chula Vista Bayfront Facilities Financing Authority (“Authority”) recorded as Document No. 70245 in the Office of the District Clerk (“A&R JEPA Agreement”), the General Counsel of the District and the City Attorney of the City were appointed to act as Co-Counsel to the Authority provided that the Board of Port Commissioners (“BPC”) and the Council of the City (“City Council”) respectively consented to their appointments; and WHEREAS, on June 18, 2019, the BPC consented to the appointment of the General Counsel, or his designees, to serve as Co-Counsel to the Authority with the City Attorney of the City, or his designees, and on June 18, 2019, the City Council consented to the appointment of the City Attorney, or his designees, to serve as Co- Counsel to the Authority with the General Counsel, or his designees; and WHEREAS, pursuant to Section 4(D)(4) of the A&R JEPA Agreement, the Board of the Directors of the Authority (“Authority Board”) may retain or engage such advisors, consultants, experts, and counsel on such terms and at such rates of compensation as the Authority Board may determine, for the performance of Authority business and affairs, provided that adequate sources of funds are identified for the payment of such advisors, consultants, experts, and counsel; and WHEREAS, at the April 1, 2020 Authority Board meeting, the Authority Board considered and adopted a “Chula Vista Bayfront Facilities Financing Authority Policy for Procurement of Professional and Legal Services” (“Services Policy”), which sets forth the process for the Co-Counsels of the Authority to jointly procure legal services; and WHEREAS, at the same meeting, the Authority Board authorized Co-Counsels to execute the original legal services agreement with Stradling Yocca Carlson & Rauth, a professional corporation (“Stradling”) to perform bond counsel and disclosure counsel legal services in an amount not to exceed $450,000; and WHEREAS, since then, the substantial increase in the complexity of the deal structure and the corresponding increase in the amount of negotiations, analysis, and document production time required to produce final versions of the many lease, project development, and public 2 Resolution No. Page 2 financing documents required for the project, have contributed to a significant increase in the projected total legal fees; and WHEREAS, Section 11(A) of the A&R JEPA Agreement provides that: “Expenses for the services of bond counsel, financial consultants and other advisors and for accounting or other services determined necessary for the successful development of a public capital project may be paid from the proceeds of the Bonds to the extent permissible under applicable law”; and WHEREAS, staff seeks the Authority Board’s authorization for the Co-Counsels of the Authority to execute a first amendment to the original agreement for legal services with Stradling to perform bond counsel and disclosure counsel legal services in an amount not to exceed $1.5 million, which amount would be paid through the proceeds of the bonds that the Authority anticipates issuing to finance certain public infrastructure improvements and the convention center in the Chula Vista Bayfront (“Public Financing”); and WHEREAS, Authority business and legal staff believe that the increased maximum amount of $1.5 million is justified under the circumstances, and are comfortable recommending that the Authority Board approve the contract amendment reflecting such increase. NOW, THEREFORE, BE IT RESOLVED that the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority (“Authority”) does hereby authorize the Co- Counsels of the Authority to execute a First Amendment to the original Legal Services Agreement with Stradling Yocca Carlson & Rauth for Bond Counsel and Disclosure Counsel services to reflect a revised maximum legal services payment amount of $1.5 million, in substantially the form presented to it and attached hereto as Exhibit A. APPROVED AS TO FORM AND LEGALITY: Co-Counsel Co-Counsel PASSED AND ADOPTED by the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority, this _____ day of ____________, 2021, by the following vote: