HomeMy WebLinkAbout2019/09/10 Item 04 CITY COUNCIL
AGENDA STATEMENT
CITY OF
CHULA VISTA
September 10,2019 File ID: 19-0414
TITLE
A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA (1) APPROVING A
REIMBURSEMENT AGREEMENT BETWEEN THE CITY AND RIDA CHULA VISTA,LLC ("DEVELOPER")TO
CONSTRUCT SPECIFIED SEWER IMPROVEMENTS; (2) FINDING THE DEVELOPER'S PROPOSED SOLE
SOURCE AWARD TO ITS GENERAL CONTRACTOR TO CONSTRUCT SUCH IMPROVEMENTS TO BE IN THE
BEST INTEREST OF THE PUBLIC, PURSUANT TO CHULA VISTA MUNICIPAL CODE SUBSECTION
2.56.160(H), "DEVELOPER-PERFORMED PUBLIC WORKS"; (3) DELEGATING TO THE CITY MANAGER
AUTHORITY TO ASSURE COMPLIANCE WITH APPLICABLE PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS;AND (4)APPROPRIATING FUNDS THEREFOR(4/5 VOTE REQUIRED)
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA VISTA, LLC TO DESIGN SPECIFIED BAYFRONT
INFRASTRUCTURE IMPROVEMENTS AND APPROPRIATING FUNDS THEREFOR(4/5 VOTE REQUIRED)
C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA FINDING RIDA CHULA VISTA,LLC'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL CONTRACTOR TO CONSTRUCT BAYFRONT
DEVELOPMENT IMPACT FEE TRANSPORTATION FACILITIES TO BE IN THE BEST INTEREST OF THE
PUBLIC, PURSUANT TO CHULA VISTA MUNICIPAL CODE SUBSECTION 2.56.160(H), "DEVELOPER-
PERFORMED PUBLIC WORKS," AND DELEGATING TO THE CITY MANAGER AUTHORITY TO ASSURE
COMPLIANCE WITH APPLICABLE PROCUREMENT REQUIREMENTS FOR SUBCONTRACTORS
RECOMMENDED ACTION
Council adopt the resolutions.
SUMMARY
On April 24, 2018,the City of Chula Vista and the San Diego Unified Port District (the "District") approved a
Disposition and Development Agreement(DDA)with RIDA Chula Vista,LLC ("RIDA") for the development of
a large-scale destination resort and convention center project on parcel H-3 of the Chula Vista Bayfront
Master Plan (also known as the "CVBMP", "Chula Vista Bayfront", or "CVB"). The DDA obligates RIDA to
design and construct certain public improvements (the "Developer's Phase 1A Infrastructure
Improvements"), subject to a combination of reimbursements and Bayfront Development Impact Fee
(BFDIF) credits. The proposed reimbursement agreements and resolutions are recommended in order to
implement commitments made in the DDA and to facilitate related procurement and credit award processes.
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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 was covered in previously adopted
Environmental Impact Report UPD#83356-EIR-65B/SCH#2005081077.The Development Services Director
has also reviewed the proposed activity for additional compliance with CEQA and has determined that there
is no possibility that the activity may have a significant effect on the environment; therefore, pursuant to
Section 15061(b)(3)of the State CEQA Guidelines the activity is not subject to CEQA. Thus,no environmental
review is required.
BOARD/COMMISSION/COMMITTEE RECOMMENDATION
Not applicable.
DISCUSSION
In 2002, the City of Chula Vista and the District began a collaborative planning process to create a master
plan (CVBMP) for the approximately 535-acre Chula Vista Bayfront area. The master plan was designed to
transform Chula Vista's underutilized industrial Bayfront landscape into a thriving residential and world-
class waterfront resort destination. The CVBMP represents the last significant waterfront development
opportunity in Southern California and is the result of a decade-long joint planning effort by a broad coalition
of stakeholders,the District,the City,and Pacifica Companies.
The CVBMP will create thousands of new jobs, create new public parks, protect natural coastal resources,
provide conference and visitor-serving amenities and build an important asset for the San Diego region,the
South Bay,Chula Vista residents,and coastal visitors. At buildout,more than 40%of the CVBMP project area
will be dedicated to parks,open space,and habitat restoration/preservation. Anticipated economic benefits
include the creation of more than 4,400 permanent jobs, nearly 7,000 temporary construction jobs, and
numerous indirect jobs in the regional economy.
The CVBMP will be implemented jointly by the City and the District in four major phases over a 24-year
period. Phase one of implementation includes the development of the previously described resort hotel and
convention center project, the creation of public parks and open space, the restoration of habitat areas, a
mixed-use residential development,and ancillary public infrastructure.
CVBMP Financing Agreement
In furtherance of developing the CVBMP, the City and the District entered into a Bayfront Master Plan
Financing Agreement(the"Financing Agreement")on May 8,2012. The Financing Agreement identified the
rights and obligations of each agency,with respect to the financing,development,and construction of public
improvements, infrastructure,and the planned convention center in the CVBMP. The Financing Agreement
was subsequently amended and restated to recognize additional rights and obligations of the respective
agencies,effective June 20, 2017 (the"Amended and Restated Financing Agreement").
The Financing Agreement established that the City and the District would form a Joint Exercise of Powers
Authority (JEPA) to provide for or facilitate the financing of the convention center and other CVBMP public 1J
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improvements. Pursuant to authority granted by Article 1 (commencing with§6500)of Chapter 5 of Division
7 of Title 1 of the Government Code of the State of California (the "JPA Act"), the City entered into a JEPA
Agreement with the District, effective May 1, 2014 (the "Original JEPA Agreement"). The Original JEPA
Agreement established the Chula Vista Bayfront Facilities Financing Authority(the"Authority").
The Authority was formed for the sole purpose of assisting in the financing and refinancing of, and
procurement and contracting for capital improvement projects of the CVBMP, as contemplated by the
Financing Agreement. The anticipated sources of funds to secure debt issued by the Authority are addressed
in the Amended and Restated Financing Agreement, and include, but are not limited to: RIDA ground lease
payments to the District,lease payments payable from public funds,City sales taxes,City transient occupancy
taxes (TOT),and additional occupancy-based revenues. Pursuant to California law and the JEPA Agreement,
the Authority will be a public entity separate and apart from the City and District. The debts, liabilities, or
obligations of the Authority will not be the debts, liabilities, or obligations of the City, the District, or any
representative of the City or District serving on the Governing Board of the Authority.
An Amended and Restated Joint Exercise of Powers Agreement was drafted to further refine the proposed
jurisdiction, purpose, and structure of the Authority (the "Amended and Restated JEPA Agreement"). The
Council and the District's Board of Port Commissioners (the "District Board") approved the Amended and
Restated JEPA Agreement on June 18, 2019,including all necessary appointments to the Governing Board of
the Authority.
The Authority held its first meeting on July 25, 2019. At that meeting, the Authority took the following
actions:adopted Bylaws; elected Mayor Casillas Salas Chair of the Board; elected Port Commissioner Moore
Vice-Chair of the Board; confirmed appointment of the Authority's officers; established 3:00 pm on the last
Wednesday of each month, beginning August 28, 2019, as the regular time for meetings of the Board;
established that the place for regular meetings of the Board will rotate between the Port and City offices;
adopted Conflict of Interest Codes of the members;and authorized and ratified the taking of other actions.
RIDA Development
On May 6, 2014, the District issued a Request for Qualifications (RFQ) for development of a hotel and
convention center project located on an approximately 36-acre site (CVBMP parcel H-3), with potential
development opportunities on the adjacent parcel H-23. RIDA Development Corporation's highly-qualified
response was selected by the District Board in October of 2014 and initial negotiations with RIDA began soon
thereafter.
Following the 2014 RFQ, the District entered into an Exclusive Negotiating Agreement (ENA) with RIDA
Chula Vista, LLC,the entity formed by RIDA Development Corporation for this project. The ENA established
a timeline of deliverables during the term of the agreement,including programming the type and size of hotel
and convention center facilities. The ENA was subsequently extended via two amendments,dated August 9,
2016 and January 25, 2017. Beginning with initial approval of the ENA, the District and City worked
collaboratively in negotiating key deal terms with RIDA. These negotiations led to the approval of a non-
binding Letter of Intent (LOI) between the parties (approved June 20, 2017) and a Disposition and
Development Agreement(approved April 24, 2018).
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The DDA obligates RIDA to design and construct the following Phase 1A Infrastructure Improvements:
1. In-Road Sewer Improvements
a. E Street(from G Street to H Street)
b. The G Street Connection
c. H-3 Utility Corridor
2. Bayfront Development Impact Fee (BFDIF) Improvements
a. E Street(from G Street to H Street)
b. The G Street Connection
c. H Street(from Bay Boulevard to Street A)
d. H Street(from Marina Parkway to E Street)
e. Harbor Park Pedestrian Improvements
3. Other Improvements
a. E Street(from G Street to H Street)
b. The G Street Connection
c. H Street(from Bay Boulevard to Street A)
d. H Street(from Marina Parkway to E Street)
e. Harbor Park(Initial Phase of Park Improvements)
f. H-3 Site Preparation
g. H-3 Utility Corridor
In addition to obligating RIDA to construct the Phase 1A Infrastructure Improvements,the DDA also includes
related funding commitments of the public agencies. These include the City's obligation to fund the in-road
sewer improvements listed above and the joint obligation of the City and the District to reimburse RIDA in
cash for all funds expended prior to the DDA close of escrow in connection with the design of the Phase 1A
Infrastructure Improvements. In order to meet these obligations,the City has negotiated two reimbursement
agreements with RIDA (see Attachments 1 and 2). The proposed resolutions approve the negotiated
reimbursement agreements and take certain procurement related actions,as requested by RIDA.
Council Action Summary
Resolution A applies to the design and construction of the facilities designated as (1) In-Road Sewer
Improvements above. Resolution B applies only to the design of the facilities designated as (2) BFDIF
Improvements and (3) Other Improvements, above. Resolution C applies only to the construction of the
facilities designated as (2) BFDIF Improvements above. The construction of the facilities designated as (3)
Other Improvements and the planned convention center fall under the purview of the Authority and do not
require additional action by the Council. The following matrix summarizes the actions currently before the
Council and the anticipated future actions of the Authority.
Future Action of
Resolution A Resolution B Resolution C Authority
In-Road Sewer Design X
Improvements Construction X
BFDIFDesign _.................._........__...........----......__._.._...............__.._...._.__..__......_._._.___X__..._.____._.
Improvements Construction X
Page 4
Future Action of
Resolution A Resolution B Resolution C Authority
Other Design X
Improvements Construction X
Convention Design&
X
Center Construction
RIDA's proposed procurement process and the proposed agreements and resolutions are discussed in
further detail below.
RIDA's Proposed Procurement Process
Chula Vista Municipal Code(CVMC)Section 2.56.160(H)establishes procurement rules for public works that
are constructed,or designed and constructed,by or at the direction of a developer or private property owner
and subsequently accepted by, dedicated to, or acquired by the City ("developer-performed public works").
For those improvements that will be funded by the City, either in the form of cash reimbursement or
development impact fee credits, RIDA is subject to these procurement rules. For those improvements that
will be funded through the Authority (see (3) above, Other Improvements and the planned convention
center), RIDA will be subject to the procurement rules of the Authority. The Authority has not yet adopted
procurement rules; however, is anticipated that the Authority will adopt rules mirroring the provisions of
the City's ordinance at its next meeting. In addition,the Authority will grant approvals and waivers pursuant
to its procurement rules,if appropriate, for the Other Improvements and the convention center.
City Council Findings and Waivers
As authorized by CVMC Section 2.56.160(H)(1)(b), RIDA intends to sole source the construction of the
convention center and the hotel to MMJV, a joint venture comprised of M.A. Mortenson Company
("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"). RIDA has selected MMJV for this work
because Mortenson is an industry leader with a wealth of experience in similar large-scale projects,including
the recent construction of the Gaylord Rockies Resort and Convention Center project developed with a RIDA
affiliate. McCarthy provides a strong local presence, a positive reputation, relationships with the local
subcontractor community, and a resume of large-scale development projects. As previously described,the
approval of sole sourcing the convention center will be subject to future consideration by the Authority.
RIDA is requesting to also sole source the Phase 1A Infrastructure Improvements (including in-road sewer
facilities) to the same general contractor, MMJV. RIDA believes that the award of this contract to the same
entity constructing the convention center and hotel will provide for a compatible,streamlined,and successful
approach that will result in time and cost efficiencies and avoid logistical coordination issues that would
impede the overall schedule for the construction of the project. Staff concurs that the MMJV is highly
qualified to build all aspects of the project and concurs with RIDA's assessment that having one contractor
build both the public and private improvements will enhance project implementation quality and timeliness.
Accordingly, staff recommends that the City Council find that the sole source award of the general contract
to MMJV is in the"best interests"of the public.
For developer performed public improvements, CVMC Section 2.56.160(H)(2) also provides that all
subcontract solicitations must be sealed,competitive bids and may be awarded to the lowest responsive and
responsible bidder or the bidder that is determined by the developer to be the "best qualified contractor".
Page 15
The determination of "best qualified contractor" shall be based on the following: bidder's demonstrated
competence; qualifications; ability to achieve timely completion; capacity; skill; compliance with bid
documents; costs; and other relevant criteria. Per the same section of the CVMC, if the subcontracts are
awarded to a bidder other than the lowest responsive and responsible bidder, then all payments,
reimbursements, and credits against development impact fees are limited to the amount of the lowest
responsive and responsible bid for that individual line item or unit of work. This not-to-exceed limitation
can be waived,where: (1) the amount of the bid does not exceed the approved estimate for the developer-
performed work by more than 10%; and(2)the City approves the waiver.
RIDA has notified the City that the sealed bid provision is impractical for their subcontractor solicitation
process and is requesting a waiver of this requirement,pursuant to CVMC Section 2.56.160(H)(6). Staff has
reviewed this request and determined that the subcontractor selection process to be employed by RIDA
controls project costs and supports timely completion of the improvements, while including appropriate
safeguards to protect the public interest. Staff recommends City Council waiver of the requirement to solicit
subcontractors via sealed bids.
In addition, RIDA intends to award subcontracts to"best qualified contractors"and not to lowest responsive
and responsible bidders and may request a waiver of the not-to-exceed limitation previously described.
Because final bids are not in place for this work, it is recommended that the City Council direct the City
Manager,or designee,to oversee and implement the subcontractor solicitation and award process,including
making findings and approving the award of subcontracts to"best qualified contractors"and making findings
and waiving the above the above-described not-to-exceed limitation in accordance with Chula Vista
Municipal Code Section 2.56.160(H).
While not currently known, it is also possible that market conditions will require a limited number of sole
source awards to subcontractors. CVMC Section 2.56.160(H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved. These conditions/circumstances
include: (A) performance capabilities of the proposed entity or contractor; (B) project characteristics; (C)
manufacturing processes; (D) compatibility requirements; and (E) market or other
conditions/circumstances that render the award of a sole source contract to be in the best interest of the
public. Staff recommends that the City Council authorize and direct the City Manager, or their designee,to
make findings and waive the requirement to competitively bid subcontracts, subject to the sole source bid
award considerations prescribed in CVMC Section 2.56.160(H)(1)(b).
Sewer Reimbursement Agreement(Resolution A)
Per the DDA, in-road sewer improvements (the "Sewer Improvements") to be constructed by RIDA will be
funded by the City's Sewer Facility Contribution. RIDA's Sewer Improvements are estimated to cost a total
of$1,195,000,including design. Actual costs will be determined during the bidding and construction process.
The City has identified sufficient funds to reimburse RIDA for these expenses in the City's Sewer Income
Fund. Per Chula Vista Municipal Code (CVMC) Section 13.14.030,the Sewer Income Fund is a repository for
one-time fees collected from persons connecting, directly or indirectly, to the City's sewer system. CVMC
Chapter 3.16 provides that these funds may be used, in the discretion of the City Council and pursuant to
written contract,to reimburse any person who constructs sewer facilities that benefit other properties. The
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Sewer Improvements are qualifying facilities. An agreement to allow for the reimbursement of eligible Sewer
Improvement expenses has been negotiated with RIDA (the "Sewer Reimbursement Agreement", see
Attachment 1).
Adoption of Resolution A approves the proposed Sewer Reimbursement Agreement and implements the
City's related commitments in the DDA. The resolution also approves the award of a sole source prime
contract, waives the sealed bid requirement for subcontractors, and directs the City Manager, or their
designee to oversee and implement the subcontractor solicitation and award process, including without
limitation the following: (1) the authority to make findings and waive the requirement to competitively bid
subcontracts,after consideration of factors for sole source contracts; (2)the authority to make findings and
approve the award of subcontracts to"best qualified contractors"; and(3)the authority to make findings and
waive the not-to-exceed limitation for award of subcontracts for the Project. These actions are necessary in
order for RIDA to move forward with their preferred procurement process, ensuring efficient progression
and timely completion of the project. Sufficient safe guards are in place to protect the public interest.
Resolution A also includes an appropriation from the Sewer Income Fund in the amount of$1,195,000.
Bayfront Public Infrastructure Improvements Design Reimbursement Agreement(Resolution B)
Section 4.7(c) of the DDA provides that the District and the City will reimburse the Developer in cash for any
and all funds expended prior to the DDA close of escrow in connection with design, architectural work, and
engineering work for the Developer's Phase 1A Infrastructure Improvements. An agreement to allow for the
reimbursement of eligible pre-close professional services has been negotiated with RIDA (the "Design
Reimbursement Agreement", see Attachment 2). As design costs associated with RIDA's Sewer
Improvements will be reimbursed by the City pursuant to the Sewer Reimbursement Agreement discussed
above, they are excluded from the Design Reimbursement Agreement. Adoption of Resolution B approves
the Proposed Design Reimbursement Agreement and implements the City's related commitments in the DDA.
The City estimates that the total reimbursement amount will not exceed$715,000 and has identified and set
aside funds generated by the Bayfront project for this purpose. The City may be reimbursed from bond
proceeds and the BFDIF for this expense in the future.
Resolution Delegating Waiver Authority Relating to BFDIF Facilities (Resolution Q
The DDA also obligates RIDA to construct certain BFDIF eligible improvements, as listed above. Per the
BFDIF Ordinance,any developer that constructs a BFDIF facility is eligible for credits against the BFDIF fees
that would otherwise be due with their building permits. The BFDIF Ordinance requires that developers
follow the provisions of CVMC Section 2.56.160(H) (Developer-Performed Public Works).
As with the Developer's Sewer Improvements, the Developer is requesting approval of a sole source prime
contract, waiver of the sealed bid requirement for subcontractors, waiver of the requirement to
competitively bid subcontracts, and waiver of the not-to-exceed provision of CVMC 2.56.160(H)(2)(d). If
approved, Resolution C approves the award of a sole source prime contract, waives the sealed bid
requirement for subcontractors, and directs the City Manager, or their designee,to oversee and implement
the subcontractor solicitation and award process, including without limitation the following: (1) the
authority to make findings and waive the requirement to competitively bid subcontracts,after consideration
of factors for sole source contracts; (2)the authority to make findings and approve the award of subcontracts
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to"best qualified contractors";and(3)the authority to make findings and waive the not-to-exceed limitation
for award of subcontracts for the Project. These actions are necessary in order for RIDA to move forward
with their preferred procurement process, ensuring efficient progression and timely completion of the
project. Sufficient safe guards are in place to protect the public interest.
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 property-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(Cal. Gov't 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-maker conflict of interest in this matter.
CURRENT-YEAR FISCAL IMPACT
All costs associated with the preparation of this report and associated agreements are included in the
operating budget for the Development Services Fund. There is no current fiscal year impact to the General
Fund as a result of this action. Approval of Resolution A authorizes the City to enter into a Reimbursement
Agreement with RIDA for construction of specified sewer improvements in the CVBMP and appropriates
$1,195,000 from the Sewer Income Fund for this purpose. Approval of Resolution B authorizes the City to
enter into a Reimbursement Agreement with RIDA for design of CVBMP infrastructure improvements and
appropriates $715,000 from the Bayfront reserve set aside in the General Fund for this purpose, subject to
future reimbursement from the BFDIF Fund and bond proceeds. Approval of Resolution C has no fiscal
impact.
ONGOING FISCAL IMPACT
All funds are anticipated to be expended in the current fiscal year. There is no ongoing fiscal impact as a
result of this action.
ATTACHMENTS
1. Reimbursement Agreement with RIDA Chula Vista, LLC to Construct Specified Bayfront Sewer
Improvements
2. Reimbursement Agreement with RIDA Chula Vista, LLC to Design Specified Bayfront Infrastructure
Improvements
Staff Contact: Tiffany Allen,Assistant Director of Development Services
Page 18
RESOLUTION NO.
(W
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA (1) APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA
VISTA, LLC ("DEVELOPER") TO CONSTRUCT SPECIFIED
SEWER IMPROVEMENTS; (2) FINDING THE DEVELOPER'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL
CONTRACTOR TO CONSTRUCT SUCH IMPROVEMENTS TO
BE IN THE BEST INTEREST OF THE PUBLIC, PURSUANT TO
CHULA VISTA MUNICIPAL CODE SUBSECTION 2.56.160(H),
"DEVELOPER-PERFORMED PUBLIC WORKS"; (3)
DELEGATING TO THE CITY MANAGER AUTHORITY TO
ASSURE COMPLIANCE WITH APPLICABLE
PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS; AND (4) APPROPRIATING FUNDS
THEREFOR(4/5 VOTE REQUIRED)
WHEREAS, the City, RIDA Chula Vista, LLC ("Developer"), and the San Diego Unified
Port District ("District") entered into a Disposition and Development Agreement for the Resort
Hotel Convention Center Project(Chula Vista Bayfront Master Plan Parcel H-3), effective May 7,
2018 (the DDA); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
err 1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort-level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan Area(the
"Developer's Phase 1A Infrastructure Improvements"); and
WHEREAS, the Scope of Development attached to the DDA provides that the Developer
shall construct certain in-road sewer improvements included in the Developer's Phase IA
Infrastructure Improvements, consisting of. E Street (from G Street to H Street), the G Street
Connection, and the H-3 Utility Corridor(collectively,the"Developer's Sewer Improvements"or
"Project"), to be funded by the City's Sewer Facility Contribution, as defined in the DDA; and
WHEREAS, pursuant to Chula Vista Municipal Code (CVMC) Section 13.14.030(B)
(Connection to Public Sewer — Fee), any person desiring to connect, directly or indirectly, any
parcel or any building thereon to any public sewer which has been constructed at no cost to the
parcel to be connected shall pay the one-time required fee for sewer connection to the City, with
all revenue derived from such fees to be deposited into the Sewer Income Fund; and
WHEREAS,pursuant to CVMC Chapter 3.16(Sewer Income Fund),all revenues collected
under CVMC Section 13.14.030(B) shall be deposited into the"Sewer Income Fund" and may be
used, in the discretion of the City Council and pursuant to a written contract, to reimburse any
C-Users`:shereek''Desktop.Reso A(Cleanl.docs�"n_....:,..,
Resolution No.
Page 2
person who has constructed sewer facilities,to the extent, as determined by the City Council, that
such sewer facilities have benefited other properties; and
WHEREAS, construction of the Developer's Sewer Improvements will provide a public
benefit to other property owners within the Chula Vista Bayfront Master Plan area; and
WHEREAS, the Developer's Sewer Improvements are estimated to total $1,195,000 and
are eligible for reimbursement from the Sewer Income Fund; and
WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse
Developer for the design and construction of the Developer's Sewer Improvements; and
WHEREAS, Developer desires to enter into a Reimbursement Agreement with the City in
the form presented in Exhibit 1 to this resolution, so that it may obtain reimbursement for the
eligible costs of designing and constructing Developer's Sewer Improvements; and
WHEREAS, CVMC Section 2.56.160(H) (Developer-Performed Public Works) regulates
the procurement of developer-performed public works within the City; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b) provides that a developer may award a
contract for a developer-performed public work on a sole source basis where, in addition to
compliance with all applicable requirements of CVMC Section 2.56.160(H), the City makes
findings that an award of a sole source contract is in the best interest of the public because of the
particular (A) performance capabilities of the proposed entity or contractor, (B) project
characteristics, (C)manufacturing processes, (D) compatibility requirements, and/or(E)market or
other conditions/circumstances that render the award of a sole source contract to be in the best
interest of the public and the entity or contractor awarded a sole source contract for a developer-
performed public work competitively bids all subcontracts for the developer-performed public
work; and
WHEREAS, Developer intends to combine into one bid solicitation the construction of the
Developer's Phase 1A Infrastructure Improvements, including the Developer's Sewer
Improvements (the "Phase IA Project"); and
WHEREAS,Developer has selected MMJV,a joint venture comprised of M.A. Mortenson
Company ("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"), (the "General
Contractor") for construction of the Developer's Private Improvements; and
WHEREAS,Developer has selected MMJV for the construction of the Developer's Private
Improvements on the following basis: Mortenson is an industry leader with a wealth of experience
in similar large-scale projects,including the recent construction of the Gaylord Rockies Resort and
Convention Center project developed by a RIDA affiliate which makes it uniquely qualified to
develop the Developer's Private Improvements; and McCarthy provides a strong local presence,
positive reputation, relationships with the local subcontractor community, and a resume of large-
scale development projects; and
Resolution No.
Page 3
WHEREAS, as authorized by CVMC Section 2.56.160(H)(1)(b), Developer is seeking
City acceptance of MMJV as the sole source General Contractor for the Phase IA Project
improvements based on their belief that hiring MMJV as General Contractor for both the
Developer's Private Improvements and the Phase 1A Project will provide for a compatible,
streamlined, and successful approach that will result in time and cost efficiencies, and avoid
logistical coordination issues that would otherwise and impede the overall schedule for the
construction of the Developer's Private Improvements and the Phase I Project; and
WHEREAS, staff concurs that the MMJV is highly qualified to build all aspects of the
project and concurs with RIDA's assessment that having one contractor build both the public and
private improvements will enhance project implementation quality and timeliness. Accordingly,
staff recommends that the City Council find that the sole source award of the general contract to
MMJV is in the"best interests" of the public; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b)(ii) requires the competitive bidding of all
subcontracts for developer-performed public works, if the prime contract is awarded on a sole
source basis; and
WHEREAS, CVMC Section 2.56.160(H)(2)(c) requires the solicitation of sealed
competitive bids for subcontracts for developer-performed public works; and
WHEREAS, CVMC Section 2.56.160(H)(2)(d) states that "Developer shall award
contracts (except for contracts awarded pursuant to subsection(H)(1)(b) of this section), and shall
award, or shall cause the applicable entity or contractor to award, subcontracts for developer-
performed public work to the lowest responsive and responsible bidder, or the bidder that is
determined by developer to be the "best qualified contractor," subject to City approval. When
determining the"best qualified contractor,"developer shall consider,without limitation,a bidder's
demonstrated competence, qualifications, ability to achieve timely completion, capacity, skill,
compliance with bid documents, costs, and other relevant criteria; and
WHEREAS, Developer intends to award subcontracts for the Project to "best qualified
contractors" to ensure that the Project is constructed in a timely manner by subcontracting teams
that are best qualified to perform the work; and
WHEREAS, Developer has presented City staff with an outline of their process for
selecting the"best qualified"subcontractor based upon a variety of factors including: past relevant
/ similar project experience, customer feedback from those projects, current backlog, available
trades personnel resources, proposed supervisory / management personnel, financial capability,
design capabilities (for design-build subcontracts), schedule management plan, quality
management plan, and pricing; and
WHEREAS, the subcontractor selection process outlined by Developer does not include
the solicitation of sealed bids; and
WHEREAS, certain conditions and circumstances may arise in the subcontractor selection
process that require sole source subcontract awards; and
Resolution No.
Page 4
WHEREAS, staff is satisfied that Developer's proposed process meets the intent of the
City's competitive bidding requirements and will result in the selection of the "best qualified"
subcontractors consistent with City interests in high quality and timely construction per City
standards and the agreements between the parties under the DDA; and
WHEREAS, final subcontractor bids for the Project will not be received or awarded until
after the approval of this resolution; and
WHEREAS, as subcontracts for the Project have not yet been awarded, staff recommends
authorizing the City Manager, or designee, to make findings and to waive the competitive bid
requirement for subcontractors and to approve subcontract awards for the Project to "best
qualified" subcontractors; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved, including: performance
capabilities of the proposed entity or contractor; project characteristics; manufacturing processes;
compatibility requirements; and market or other conditions/circumstances that render the award of
a sole source contract to be in the best interest of the public; and
WHEREAS, staff recommends that the considerations prescribed in CVMC Section
2.56.160(H)(1)(b) be employed in any decision of the City Manager, or designee, to waive the
competitive bid requirement for subcontractors to allow for a sole source subcontract award; and
WHEREAS,CVMC Section 2.56.160(H)(2)(d) states that"[i]f a developer awards a prime
contract or subcontract to a bidder other than the lowest responsive and responsible bidder for an
item or unit of work,then all payments,reimbursements, and credits against developer impact fees
or other developer fees or obligations ("development credits") shall not exceed the amount of the
lowest responsive bidder for that item or unit of work. This not-to-exceed limitation may be
waived where: (i)The amount of the bid does not exceed the engineer's estimate or other approved
estimate for the developer-performed public work by more than 10 percent; and(ii) City approves
the waiver in accordance with subsection(H)(6) of this section."; and
WHEREAS, CVMC Section 2.56.160(H)(6)provides that all or portions of the developer-
performed public work ordinance may be waived where "the waiver is in the best interest of the
public after consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safeguards are in place to protect the
public interest"; and
WHEREAS, Developer may request a waiver of the not-to-exceed limitation pursuant to
2.56.160(H)(2)(d)prior to award of subcontracts; and
WHEREAS, appropriate safeguards are in place to protect the public interest,including the
previously described 10 percent not-to-exceed limit; and
IJ
Resolution No.
Page 5
WHEREAS, as subcontracts have not yet been awarded, staff recommends authorizing the
City Manager, or designee, to make findings and waive the not-to-exceed limitation in accordance
with CVMC Section 2.56.160(H)(2); and
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
1. After consideration of CVMC 3.16.010 and the Recitals above, the City Council has
determined that the construction of the Project will provide a public benefit to other
properties within the Chula Vista Bayfront Master Plan area.
2. The City Council approves the Reimbursement Agreement, between the City and
RIDA Chula Vista, LLC to Construct Specified Sewer Improvements, in the form
presented, with such minor modifications as may be required or approved by 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.
3. After consideration of factors in CVMC 2.56.160(H)(1)(b)(i), staff's report on this
item, and the Recitals above, the City Council finds that the award of a sole source
contract to MMJV for the design and construction of the Project is in the best interest
of the public.
4. After consideration of the facts stated in staff's report on this item and the Recitals
above, the City Council finds that the waiver of the sealed bid requirement for
subcontractors is in the best interest of the public and appropriate safeguards are in
place to protect the public interest.
5. The City Council authorizes and directs the City Manager, or his/her designee, to
oversee and implement the subcontractor solicitation and award process provided in
CVMC 2.56.160(H), including, without limitation the following:
a. The authority, pursuant to CVMC Section 2.56.160(H)(6), after
consideration of factors for sole source contracts as provided in CMVC
Section 2.56.160(H)(1)(b), to make findings and approve the waiver of the
competitive bid requirements for subcontractors as provided in CVMC
2.56.160(H)(2)(b).
b. The authority, pursuant to CMVC Section 2.56.160(H)(2)(d), to make
findings and approve the award of subcontracts for the Project to "best
qualified contractors".
c. The authority, pursuant to CVMC Section 2.56.160(H)(2)(d), to make
findings and waive the not-to-exceed limitation for award of subcontracts
for the Project.
Where necessary or appropriate for purposes of implementing this action, the City
Council delegates its authority to the City Manager, or his/her designee, to waive
requirements and make findings as required by CVMC Section 2.56.160(H).
6. BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
appropriates funds from the Sewer Income Fund to reimburse Developer pursuant to
the Reimbursement Agreement between the City and RIDA Chula Vista, LLC to
Construct Specified Sewer Improvements.
Resolution No.
Page 6
Presented by Approved as to form by
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
RESOLUTION NO.
(W
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REIMBURSEMENT
AGREEMENT BETWEEN THE CITY AND RIDA CHULA
VISTA, LLC TO DESIGN SPECIFIED BAYFRONT
INFRASTRUCTURE IMPROVEMENTS AND
APPROPRIATING FUNDS THEREFOR(4/5 VOTE REQUIRED)
WHEREAS, the City, RIDA Chula Vista, LLC ("Developer"), and the San Diego Unified
Port District ("District") entered into a Disposition and Development Agreement for the Resort
Hotel Convention Center Project(Chula Vista Bayfront Master Plan Parcel H-3), effective May 7,
2018 (the DDA); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort-level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan,
consisting of: E Street (from G Street to H Street), the G Street Connection, H Street (Bay
Boulevard to Street A), H Street (Marina Parkway to E Street), Harbor Park (Initial), H-3 Site
Prep,and the H-3 Utility Corridor(the"Developer's Phase I Infrastructure Improvements"); and
WHEREAS, Section 4.7(c) of the DDA provides that the District and the City shall
reimburse the Developer in cash for any and all funds expended prior to the DDA close of escrow
by the Developer in connection with design, architectural work, and engineering work for the
Developer's Phase 1 A Infrastructure Improvements as set forth in the Scope of Development,other
than the amounts that have been paid to Developer pursuant to Section 4.8(e) of the DDA, from
the first disbursement of the public fund contribution pursuant to the construction loan account
instructions (the"Project"); and
WHEREAS, the City estimates a total Project cost of$715,000 and has identified and set
aside funds generated by the Bayfront project sufficient for this project; and
WHEREAS, Developer desires to enter into a Reimbursement Agreement with the City in
the form presented in Exhibit 1 to this resolution, so that it may obtain reimbursement for the
eligible costs of designing Developer's Phase IA Infrastructure Improvements incurred prior to
DDA close of escrow.
NOW,THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista,
that it approves the Reimbursement Agreement, between the City and RIDA Chula Vista, LLC to
Design Specified Bayfront Infrastructure Improvements, in the form presented, with such minor
modifications as may be required or approved by 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.
Resolution No.
Page 2
BE IT FURTHER RESOLVED by the City Council of the City of Chula Vista, that it
appropriates funds from the Bayfront reserve of the General Fund to reimburse Developer pursuant
to the Reimbursement Agreement between the City and RIDA Chula Vista, LLC to Design
Specified Bayfront Infrastructure Improvements.
Presented by Approved as to form by
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA FINDING RIDA CHULA VISTA, LLC'S
PROPOSED SOLE SOURCE AWARD TO ITS GENERAL
CONTRACTOR TO CONSTRUCT BAYFRONT
DEVELOPMENT IMPACT FEE TRANSPORTATION
FACILITIES TO BE IN THE BEST INTEREST OF THE PUBLIC,
PURSUANT TO CHULA VISTA MUNICIPAL CODE
SUBSECTION 2.56.160(H), "DEVELOPER-PERFORMED
PUBLIC WORKS," AND DELEGATING TO THE CITY
MANAGER AUTHORITY TO ASSURE COMPLIANCE WITH
APPLICABLE PROCUREMENT REQUIREMENTS FOR
SUBCONTRACTORS
WHEREAS, the City of Chula Vista, RIDA Chula Vista, LLC ("Developer"), and the San
Diego Unified Port District ("District") entered into a Disposition and Development Agreement
for the Resort Hotel Convention Center Project (Chula Vista Bayfront Master Plan Parcel H-3)
(the"Project"), effective May 7, 2018 (the"DDA"); and
WHEREAS, pursuant to the DDA, in addition to a resort hotel, consisting of no less than
1,570 rooms and no more than 1,600 rooms (the "Hotel") and related resort-level amenities as
more fully described in the Scope of Development attached to the DDA (collectively, the
"Developer's Private Improvements") the Developer shall construct a portion of the substantial
public improvements required for development of the Chula Vista Bayfront Master Plan Area(the
"Developer's PhaselA Infrastructure Improvements"); and
WHEREAS, the Scope of Development attached to the DDA provides that the Developer
shall construct certain Bayfront Development Impact Fee (BFDIF) transportation and pedestrian
improvements included in the Developer's Phase 1 A Infrastructure Improvements, consisting of
E Street (from G Street to H Street), the G Street Connection, H Street (from Bay Boulevard to
Street A), H Street (from Marina Parkway to E Street), and the initial phase of Harbor Park
(collectively, the"Developer's BFDIF Improvements"); and
WHEREAS, Chula Vista Municipal Code (CVMC) Chapter 3.54 establishes a series of
transportation development impact fee programs, including the BFDIF; and
WHEREAS,pursuant to CVMC Section 3.54.140,developers of development projects that
are required, or that propose, to construct BFDIF transportation facilities are eligible for credit
against their BFDIF fee obligation; and
WHEREAS, pursuant to CVMC Section 3.54.150(A), a developer constructing BFDIF
transportation facilities shall comply with the procedures set forth in CVMC 2.56.160(H), except
that City Council approval to proceed shall not be required for developer-constructed
transportation facilities to be constructed for fee credit; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b) provides that a developer may award a
contract for a developer-performed public work on a sole source basis where, in addition to
compliance with all applicable requirements of CVMC Section 2.56.160(H), the City makes
findings that an award of a sole source contract is in the best interest of the public because of the
particular (A) performance capabilities of the proposed entity or contractor, (B) project
characteristics, (C)manufacturing processes,(D) compatibility requirements,and/or(E)market or
other conditions/circumstances that render the award of a sole source contract to be in the best
interest of the public and the entity or contractor awarded a sole source contract for a developer-
performed public work competitively bids all subcontracts for the developer-performed public
work; and
WHEREAS, Developer intends to combine into one bid solicitation the construction of the
Developer's Phase IA Infrastructure Improvements, including the Developer's BFDIF
Improvements (the"Phase I Project"); and
WHEREAS,Developer has selected MMJV,a joint venture comprised of M.A. Mortenson
Company ("Mortenson") and McCarthy Building Companies, Inc. ("McCarthy"), (the "General
Contractor") for construction of the Developer's Private Improvements; and
WHEREAS,Developer has selected MMJV for the construction of the Developer's Private
Improvements on the following basis: Mortenson is an industry leader with a wealth of experience
in similar large-scale projects,including the recent construction of the Gaylord Rockies Resort and
Convention Center project developed by a RIDA affiliate which makes it uniquely qualified to
develop the Developer's Private Improvements, and McCarthy provides a strong local presence,
positive reputation, relationships with the local subcontractor community, and a resume of large-
scale development projects; and
WHEREAS, as authorized by CVMC Section 2.56.160(H)(1)(b), Developer is seeking
City acceptance of MMJV as the General Contractor for the Phase 1A Project improvements based
on their belief that hiring MMJV as General Contractor for both the Developer's Private
Improvements and the Phase 1 A Project will provide for a compatible, streamlined,and successful
approach that will result in time and cost efficiencies, and avoid logistical coordination issues that
would otherwise impede the overall schedule for the construction of the Developer's Private
Improvements and the Phase 1A Project; and
WHEREAS, staff concurs that the MMJV is highly qualified to build all aspects of the
project and concurs with RIDA's assessment that having one contractor build both the public and
private improvements will enhance project implementation quality and timelines. Accordingly,
staff recommends that the City Council find that the sole source award of the general contract to
MMJV is in the"best interests"of the public; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b)(ii) requires the competitive bidding of all
subcontracts for developer-performed public works, if the prime contract is awarded on a sole
source basis; and
1J
Resolution No.
Page 3
,• WHEREAS, CVMC Section 2.56.160(H)(2)(c) requires the solicitation of sealed
competitive bids for subcontracts for developer-performed public works; and
WHEREAS, CVMC Section 2.56.160(H)(2)(d) states that "Developer shall award
contracts (except for contracts awarded pursuant to subsection(H)(1)(b) of this section), and shall
award, or shall cause the applicable entity or contractor to award, subcontracts for developer-
performed public work to the lowest responsive and responsible bidder, or the bidder that is
determined by developer to be the "best qualified contractor," subject to City approval. When
determining the"best qualified contractor,"developer shall consider,without limitation, a bidder's
demonstrated competence, qualifications, ability to achieve timely completion, capacity, skill,
compliance with bid documents, costs, and other relevant criteria; and
WHEREAS, Developer intends to award subcontracts for the Project to "best qualified
contractors" to ensure that the Project is constructed in a timely manner by subcontracting teams
that are best qualified to perform the work; and
WHEREAS, Developer has presented City staff with an outline of their process for
selecting the"best qualified"subcontractor based upon a variety of factors including: past relevant
/ similar project experience, customer feedback from those projects, current backlog, available
trades personnel resources, proposed supervisory / management personnel, financial capability,
design capabilities (for design-build subcontracts), schedule management plan, quality
management plan, and pricing; and
WHEREAS, the subcontractor selection process outlined by Developer does not include
the solicitation of sealed bids; and
WHEREAS, certain conditions and circumstances may arise in the subcontractor selection
process that require sole source subcontract awards; and
WHEREAS, staff is satisfied that Developer's proposed process meets the intent of the
City's competitive bidding requirements and will result in the selection of the "best qualified"
subcontractors consistent with City interests in high quality and timely construction per City
standards and the agreements between the parties under the DDA; and
WHEREAS, final subcontractor bids for the Project will not be received or awarded until
after the approval of this resolution; and
WHEREAS, as subcontracts for the Project have not yet been awarded, staff recommends
authorizing the City Manager, or designee, to make findings and to waive the competitive bid
requirement for subcontractors and to approve subcontract awards for the Project to "best
qualified" subcontractors; and
WHEREAS, CVMC Section 2.56.160(H)(1)(b) establishes the conditions and
circumstances under which a sole source contract may be approved, including: performance
capabilities of the proposed entity or contractor; project characteristics; manufacturing processes;
compatibility requirements; and market or other conditions/circumstances that render the award of
a sole source contract to be in the best interest of the public; and
WHEREAS, staff recommends that the considerations prescribed in CVMC Section
2.56.160(H)(1)(b) be employed in any decision of the City Manager, or designee, to waive the
competitive bid requirement for subcontractors to allow for a sole source subcontract award; and
WHEREAS,CVMC Section 2.56.160(H)(2)(d)states that"[i]f a developer awards a prime
contract or subcontract to a bidder other than the lowest responsive and responsible bidder for an
item or unit of work,then all payments,reimbursements, and credits against developer impact fees
or other developer fees or obligations ("development credits") shall not exceed the amount of the
lowest responsive bidder for that item or unit of work. This not-to-exceed limitation may be
waived where: (i)The amount of the bid does not exceed the engineer's estimate or other approved
estimate for the developer-performed public work by more than 10 percent; and(ii) City approves
the waiver in accordance with subsection (H)(6) of this section."; and
WHEREAS, CVMC Section 2.56.160(H)(6)provides that all or portions of the developer-
performed public work ordinance may be waived where "the waiver is in the best interest of the
public after consideration of factors including, without limitation, project costs, time for
completion, and other relevant criteria, and (ii) appropriate safeguards are in place to protect the
public interest"; and
WHEREAS, Developer may request a waiver of the not-to-exceed limitation pursuant to
2.56.160(H)(2)(d)prior to award of subcontracts; and
WHEREAS,appropriate safeguards are in place to protect the public interest,including the
previously described 10 percent not-to-exceed limit; and
WHEREAS, as subcontracts have not yet been awarded, staff recommends authorizing the
City Manager, or designee,to make findings and waive the not-to-exceed limitation in accordance
with CVMC Section 2.56.160(H)(2).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista
as follows:
1. After consideration of factors in CVMC 2.56.160(H)(1)(b)(i) and the facts stated in
staff s report on this item and the Recitals above, that the award of a sole source
contract to MMJV for Developer's BFDIF Improvements is in the best interest of the
public.
2. After consideration of the facts stated in staff s report on this item and the Recitals
above, the City Council finds that the waiver of the sealed bid requirement for
subcontractors is in the best interest of the public and appropriate safeguards are in
place to protect the public interest.
3. The City Council authorizes and directs the City Manager, or his/her designee, to
oversee and implement the subcontractor solicitation and award process provided in
CVMC 2.56.160(H), including, without limitation the following:
Resolution No.
Page 5
a. The authority, pursuant to CVMC Section 2.56.160(H)(6), after
consideration of factors for sole source contracts as provided in CMVC
Section 2.56.160(H)(1)(b), to make findings and approve the waiver of the
competitive bid requirements for subcontractors as provided in CVMC
2.56.160(H)(2)(b).
b. The authority, pursuant to CMVC 2.56.160(H)(2)(d), to the City Manager,
or designee,to make findings and approve the award of subcontracts for the
Developer's BFDIF Improvements to "best qualified contractors".
c. The authority, pursuant to CVMC Section 2.56.160(H)(2)(d), to the City
Manager, or designee, to waive the not-to-exceed limitation for award of
subcontracts for the Developer's BFDIF Improvements.
Where necessary or appropriate for purposes of implementing this action, the City
Council delegates its authority to the City Manager, or his/her designee, to waive
requirements and make findings as required by CVMC Section 2.56.160(H).
Presented by Approved as to form by
Kelly G. Broughton, FASLA Glen R. Googins
Director of Development Services City Attorney
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this
day of , 20 (the "Execution Date") by and among the City of Chula Vista, a
chartered municipal corporation("City")and RIDA Chula Vista,LLC, a Delaware limited liability
company("Developer") (collectively,the"Parties"and,individually, a"Party"),with reference to
the following Recitals:
RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District ("District")
entered into a Disposition and Development Agreement for the Resort Hotel Convention Center
Project(Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the"DDA"); and
B. WHEREAS, the Scope of Development attached to the DDA provides that the
Developer shall in connection with the development of Developer's Private Improvements (as
defined in the DDA) construct certain in-road sewer improvements, consisting of E Street (from
G Street to H Street), the G Street Connection, and the H-3 Utility Corridor (collectively, the
"Developer's Sewer Improvements" or "Project"), to be funded by the City's Sewer Facility
Contribution; and
C. WHEREAS, pursuant to Chula Vista Municipal Code ("CVMC") Section
13.14.030(B) (Connection to Public Sewer — Fee), any person desiring to connect, directly or
indirectly, any parcel or any building thereon to any public sewer which has been constructed at
no cost to the parcel to be connected shall pay the one-time required fee for sewer connection to
the City,with all revenue derived from such fees to be deposited into the Sewer Income Fund; and
D. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues
collected under CVMC Section 13.14.030(B) shall be deposited into the "Sewer Income Fund"
and may be used,in the discretion of the City Council(as defined below) and pursuant to a written
contract,to reimburse any person who has constructed sewer facilities to the extent, as determined
by the City Council, that such sewer facilities have benefited other properties; and
E. WHEREAS, the Developer's Sewer Improvements are eligible for reimbursement
from the Sewer Income Fund; and
F. WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse
Developer for the design, development and construction of the Developer's Sewer Improvements;
and
US-DOCS\103150550.15
G. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing, developing and constructing
Developer's Sewer Improvements.
AGREEMENT
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 Developer agree as follows:
ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
1.1. Acceptance. "Acceptance"means Project acceptance pursuant to standard and customary
City practices.
1.2. Agreement. "Agreement"means this Reimbursement Agreement between the City and the
Developer. The term "Agreement" shall include any amendment to the Agreement
properly approved and executed pursuant to the terms of this Agreement.
1.3. Approved Drawings and Specifications. "Approved Drawings and Specifications"means
the drawings and specifications for the Developer's Sewer Improvements as approved and
permitted by the City.
1.4. BMP. "BMP"has the meaning given to such term in Section 8.1.3.
1.5. City. "City" means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.6. City Attorney. "City Attorney" means that position established pursuant to and in
accordance with CVMC Chapter 2.11.
1.7. City Council. "City Council"means the governing body of the City.
1.8. City Engineer. "City Engineer" means that position established pursuant to and in
accordance with CVMC Chapter 2.06.
1.9. City Manager. "City Manager"means the City Manager of City or his or her designee.
1.10. Competitive Bid or Solicitation Process. "Competitive Bid or Solicitation Process"has the
meaning given to such term in Section 6.1.
1J
US-DOCS\103150550.15
1.11. Contested Charge. "Contested Charge" has the meaning given to such term in Section
9.1.5.3.
1.12. Contract Documents. "Contract Documents" includes, but is not limited to: the prime
construction contract(s), prime construction contract(s) exhibits and addenda,
subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice
inviting bids, instructions to bidders,bid (including documentation accompanying bid and
any post-bid documentation submitted prior to notice of award), the bonds, the general
conditions, permits from City or other agencies, the special provisions, the plans, standard
plans, standard specifications, reference specifications, the Approved Drawings and
Specifications, and all modifications issued after the execution of the subcontract(s), in
each case, in connection with the Project.
1.13. Cutoff Date. "Cutoff Date"means one(1) year from the date of Acceptance of the Project.
1.14. CVMC. "CVMC"has the meaning given to such term in the Recitals.
1.15. DDA. "DDA"has the meaning given to such term in the Recitals.
1.16. DDA Close of Escrow. "DDA Close of Escrow" means Close of Escrow as such term is
defined in the DDA.
1.17. Defective Work. "Defective Work" means all work, material, or equipment that is
unsatisfactory, faulty, incomplete, or does not substantially conform to the Contract
Documents.
1.18. Design and Construction Standards. "Design and Construction Standards" means the
edition of the City-adopted Design and Construction Standards for public works projects
that is in effect when the Approved Drawings and Specifications are approved by the City
for purposes of the bids and which is available in the City's Department of Engineering
and Capital Projects and on the City's website.
1.19. Developer. "Developer"has the meaning given to such term in the preamble.
1.20. Developer's Sewer Improvements. "Developer's Sewer Improvements" has the meaning
given to such term in the Recitals.
1.21. Director of Development Services. "Director of Development Services" means the
Director of Development Services of City or his or her designee.
1.22. District. "District"has the meaning given to such term in the Recitals.
US-DOCS\103150550.15
1.23. Estimated Cost. "Estimated Cost" means the total cost of the design, development and
construction of the Developer's Sewer Improvements, as estimated by preliminary
engineering studies to total $1,195,000, as shown in Exhibit A attached hereto. As
Estimated Cost is not initially the result of competitive bids for the actual design,
development and construction, it is subject to change during the competitive bid process as
well as during the design and construction phases, subject to approval of the Parties.
1.24. Execution Date. "Execution Date"has the meaning given to such term in the preamble.
1.25. Final Accounting. "Final Accounting"has the meaning given to such term in Section 9.1.7.
1.26. General Contractor. "General Contractor"means a party or parties under any contract with
the Developer to perform the work or provide supplies for the Developer's Sewer
Improvements.
1.27. Greenbook. "Greenbook"means the 2012 edition of the Standard Specifications for Public
Works Construction.
1.28. Ground Lease. "Ground Lease"means that certain San Diego Unified Port District Lease
to RIDA Chula Vista, LLC of Property Located at Chula Vista, California to be executed
by the Developer and the District pursuant to the DDA.
1.29. Hazardous Materials. "Hazardous Materials" means hazardous waste or hazardous
substances as defined in any federal, state, or local statue, ordinance, rule, or regulation
applicable to the Property,including,without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States
Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united
States Code sections 6901-6992k), the Carpenter Presley-Tanner Hazardous Substance
Account Act(Health and Safety Code sections 25300-25395.15),and the Hazardous Waste
Control Law (Health and Safety Code sections 25100-25250.25). "Hazardous Materials"
shall also include asbestos or asbestos containing materials, radon gas, and petroleum or
petroleum fractions, whether or not defined as hazardous waste or hazardous substance in
any such statute, ordinance, rule, or regulation.
1.30. Holiday. "Holiday" means the City-observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday are both
legal holidays):
Holiday Observed On
New Year's Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31 1J
US-DOCS\103150550.15
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran's Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
1.31. Illegal Discharge. "Illegal Discharge" has the meaning given to such term in Section
14.1.3.
1.32. Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the
lesser of the Estimated Cost, as may be amended from time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting(as defined below).
1.33. Non-Reimbursable Costs. "Non-Reimbursable Costs"means the following costs that shall
not be eligible for reimbursement under this Agreement: Loss During Delivery, Costs
Incurred Due to Negligence, Unapproved Costs, Excess Costs, Non-Project Shared Costs,
and Defective Work Costs each as further defined in Section 9.1.5.2.
1.34. Notice of Completion. "Notice of Completion"means the standard document recorded by
the City upon completion of a public works project in accordance with City's standard and
customary practices.
1.35. Party. "Party"has the meaning given to such term in the preamble.
1.36. Payment Date. "Payment Date" means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1.37. Pre-Existing Hazardous Material: "Pre-Existing Hazardous Material" means any
Hazardous Material located on or under the Project Site prior to the Execution Date,
whether known or unknown, or any Hazardous Material located outside the Project site
(including any premises owned by the City) prior to the Execution Date that migrates to
the Project site thereafter.
1.38. Proiect. "Project"has the meaning given to such term in the Recitals.
1.39. Project Improvements. "Project Improvements" or "Improvements" means the
Developer's Sewer Improvements.
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1.40. Project Site. "Project Site" means the location of the Project for purposes of pre-
construction services and construction.
1.41. Reimbursable Costs. "Reimbursable Costs" means costs of the design, development and
construction (including the premium cost of builder's risk insurance ,all other approved
premium insurance costs,and property insurance deductible or self-insured retention(SIR)
costs not-to-exceed $XxX [MMi])of the Developer's Sewer Improvements that have been
expended by Developer and approved by the City through approval procedures described
in the Agreement.
1.42. Reimbursement Request. "Reimbursement Request" means a reimbursement request
package submitted to the City containing the items listed in Section 9.1.3.1.
1.43. Sewer Facility Contribution. "Sewer Facility Contribution"means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements described in Exhibit A attached hereto and as may be more specifically
described in the Plan of Finance (as defined in the DDA).
1.44. Sewer Income Fund. "Sewer Income Fund" means the fund designated as the "sewer
income fund" with respect to the Developer's Sewer Improvements pursuant to and in
accordance with CVMC Section 3.16.010.
1.45. Sewer Income Fund Eligible le Expenses. "Sewer Income Fund Eligible Expenses" means
costs for which the City shall reimburse Developer from the Sewer Income Fund (or an
alternative source of funds identified by the City) for the design, development and
construction(including the cost of builder's risk insurance and all other insurance costs)of
the Developer's Sewer Improvements, not to exceed the Estimated Costs.
1.46. Sole Source Process. "Sole Source Process"has the meaning given to such term in Section
6.1.
1.47. Standard Specifications. "Standard Specifications" means the Greenbook, the local
standard special provisions referenced in the Approved Drawings and Specifications, and
any amendments thereto that are approved by the City.
1.48. Subcontractor. "Subcontractor" means a party or parties under any subcontract with the
General Contractor to perform the work or provide supplies for the Developer's Sewer
Improvements.
1.49. SWPPP. "SWPPP"has the meaning given to such term in Section 8.1.3.
1.50. WorkingDay(s). "Working Day(s)"means Monday through Friday, excluding Holidays. 1J
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ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above-listed Recitals are true and correct and are incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Developer's Sewer Improvements. Except as expressly provided in this Agreement,
Developer shall cause the design and development of the Project Improvements in
accordance with the Schematic Plans(as defined in the DDA)for the development of Phase
IA Infrastructure Improvements (as defined in the DDA) that the District shall submit to
Developer pursuant to Section 4.4(b) of the DDA, and Developer shall cause the Project
Improvements to be constructed so that the Project Improvements are in accordance with
the applicable Contract Documents within the timeframe described in Section 5.1, in each
case, in accordance with all the terms and conditions of this Agreement and for the
Maximum Reimbursement Amount; provided, however, that the Developer shall have no
obligation to develop or construct any of the Project Improvements unless and until DDA
Close of Escrow occurs in accordance with the DDA.
2.2. Complete and Functional Improvements. Developer shall provide complete and functional
Developer's Sewer Improvements that meet the Contract Documents and all other
applicable standards identified herein.
2.3. Maintain Until Acceptance. Following the completion of the Project Improvements,
Developer shall maintain the Project Improvements until the Acceptance.
2.4. City Payment. City shall reimburse Developer, in an amount not to exceed the Maximum
Reimbursement Amount and subject to the terms and conditions herein, for the Sewer
Income Fund Eligible Expenses of design, development, and construction of Developer's
Sewer Improvements. City acknowledges and agrees that all of the Estimated Costs
identified in Exhibit A are Sewer Income Fund Eligible Expenses. The City represents and
warrants to Developer that, as of the Execution Date, the aggregate amount of funds on
deposit in the Sewer Income Fund is equal to or greater than the Maximum Reimbursement
Amount and that the City will use its reasonable efforts to manage the Sewer Income Fund
in a manner so that the aggregate amount of funds on deposit in the Sewer Income Fund
during the term of this Agreement is sufficient to pay all Reimbursable Costs in accordance
with this Agreement. To the extent that the amount of funds in the Sewer Income Fund are
insufficient to pay all Reimbursable Costs, City shall identify alternative funds from which
to pay City's Sewer Facility Contribution obligation pursuant to the DDA.
ARTICLE III. DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall become effective on the Execution Date, and
the term of this Agreement shall extend until the earlier of(i) such time as all executory
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terms have been completed or (ii) earlier termination of this Agreement according to the
termination provisions herein.
ARTICLE IV. PROJECT COSTS
4.1. Estimated Cost. The Estimated Cost is one million dollars ($1,195,000), as shown in
Exhibit A attached hereto.
4.2. Adjustment to Estimated Cost. Estimated Cost is subject to change by the methods
identified below and those established elsewhere in this Agreement.
4.2.1. Revisions to the Estimated Cost. The City Manager or his/her designee shall review
complete sets of the drawings and specifications for the Developer's Sewer
Improvements promptly after Developer provides them to the City. In the event
that the City Manager or designee reviews the drawings and specifications for the
Developer's Sewer Improvements and determines that the cost of design,
development, and construction will exceed the then current Estimated Cost, the
Estimated Cost shall be increased to reflect the revised estimate in accordance with
subsection 4.2.2.
4.2.2. Adjustments Based on Other Cost Increases. The Estimated Cost may be increased
due to: (i) acts of God, acts of any governmental authority, the elements, war,
litigation, shortages of material, labor strikes, inflation, later commonly accepted
or adopted higher standards and specifications of construction, concealed or
unknown conditions encountered in the completion of Developer's Sewer
Improvements, or other cause beyond Developer's control; (ii) actual bids received
being greater than estimated; (iii) other factors not the result of unreasonable
conduct by Developer; or (iv) the presence of any Hazardous Material on the
Project Site (as defined in the DDA). Subject to the prior written approval by the
City Manager or his/her designee, which approval shall not be unreasonably
withheld, conditioned, or delayed, the Estimated Cost shall be increased by the
amount of the increase in the cost of the design, development, and construction of
the Developer's Sewer Improvements that are determined by the City Manager or
his/her designee (in such person's reasonable, good faith discretion) to be caused
by such events or circumstances.
4.2.3. Failure to Obtain Approval of Increase. In any case where City Manager's
approval is required for an increase in the Estimated Cost and such approval is not
obtained, Developer shall have no obligation to incur costs in excess of the
Estimated Cost. City Manager shall not unreasonably withhold, condition or delay
its approval of any deductive change to the Project Improvements such that the
Project Improvements, as revised, can be completed for the Estimated Cost. 1
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4.3. Notification of Increased Costs. If, at any time, Developer definitively establishes that the
amount expended on the Project Improvements will exceed the Estimated Cost,Developer
shall promptly, and in any case not more than ten (10) Working Days after the Developer
definitively establishes the amount of the increase, notify the City thereof in writing. This
written notification shall include an itemized cost estimate and a list of recommended
revisions (e.g., deductive changes) which Developer believes will bring the cost to within
the Estimated Costs. The City may either: (i)approve an increase in Estimated Cost(which
approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably
delineate a project which may be constructed for the Estimated Cost; provided that such
delineation does not have a material and adverse effect on the design, development, or
construction of the Developer's Private Improvements (as defined in the DDA) or the
Convention Center(as defined in the DDA); or(iii) any combination of(i) and (ii).
ARTICLE V. PROJECT SCHEDULE
5.1. Project Schedule. Developer shall complete the Project Improvements by sixty (60)
months and ten (10) days after the commencement date of the Ground Lease (such
deadline to be extended by one day for each day the applicable deadline is extended
pursuant to and in accordance with the Ground Lease, including pursuant to any
amendment to the Ground Lease). No delay in the completion of the Project
Improvements shall excuse any failure by Developer to timely complete the Resort Hotel
r and the Convention Center (as each such term is defined in the Ground Lease) in
accordance with the Ground Lease, except as set forth in the Ground Lease.
5.2. Unavoidable Delay. Each Party shall be entitled to an extension of the date of the
performance of any obligation required of such Party under this Agreement in the same
manner and to the same extent as provided in the Ground Lease.
ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY
6.1. Compliance. Developer shall bid and award contracts and subcontracts to complete Project
in accordance with all applicable public contract laws,rules, and regulations,including but
not limited to those set forth in the City of Chula Vista Charter and Municipal Code,
including CVMC §2.56.160(H) (Developer-Performed Public Works). Notwithstanding
anything to the contrary herein, the Parties agree that the Developer may (a) subject to
CVMC §2.56.160(H)(1)(b) (Developer-Performed Public Works), award the prime
contract for the Project to the General Contractor on a sole source basis pursuant to and in
accordance with CVMC §2.56.160(H)(1)(b) ("Sole Source Process") or, (b) subject to
CVMC §2.56.160(H) (Developer-Performed Public Works), award the prime contract for
the Project to the General Contractor by competitive bid or solicitation in accordance with
CVMC §2.56.160(H)(2)(d) (Developer-Performed Public Works) ("Competitive Bid or
,,. Solicitation Process"). The Parties further agree that, in the case of the Sole Source
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Process, the General Contractor for the Project shall award subcontracts for the Project to
Subcontractors by competitive bid or solicitation in accordance with CVMC
§2.56.160(H)(2)(d) (Developer-Performed Public Works) ("Competitive Bid or
Solicitation Process").
6.1.1. Proof of Advertising. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide the City with proof that the Developer or the General
Contractor, as applicable, solicited competitive bids from the General Contractor
and/or Subcontractors, as applicable, in accordance with CVMC
§2.56.160(H)(2)(c) (Developer-Performed Public Works).
6.1.2. Prevailing Wage. Developer shall advertise the Project as requiring the payment
of prevailing wage and include all provisions in the advertisement and Contract
Documents as required by the California Department of Industrial Relations.
6.2. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process,
Developer shall provide City with a copy of the tabulation of competitive bid results with
respect to each contract and subcontract, as applicable. In the event that the best qualified
General Contractor's bid or Subcontractor's bid,as applicable, combined with a reasonable
amount for contingencies, exceeds the Estimated Cost, the increase in the costs may be
approved by the City Manager pursuant to Section 4.2.2 prior to awarding the prime
contract or the subcontract, as applicable. In the event the City Manager does not approve ,
the increased cost, this Agreement, at the City's option but subject to the next sentence,
may be terminated upon prior written notice thereof to Developer of not less than twenty
(20) days and the Project may be rebid and/or redesigned. If the City notifies Developer
that it intends to exercise the termination option,then Developer shall have the right to pay
the amount in excess of the Estimated Cost ("Excess Cost"), in which case the City shall
no longer have the right to terminate this Agreement. Developer acknowledges and agrees
that payment of any Excess Cost shall not be a Reimbursable Cost under this Agreement.
In the event that the Agreement is terminated pursuant to this Section 6.2, the Developer's
design, development, and/or construction costs will be reimbursed to Developer from the
Sewer Income Fund for the actual Reimbursable Costs expended by Developer prior to
termination of this Agreement. Developer shall provide City with copies of all executed
contracts awarded in accordance with this Section 6.2.
6.3. Equal Employment Opportunities and Equal Opportunity Contracting
6.3.1. Equal Employment Opportunity Nondiscrimination. Developer shall not
discriminate against any employee or applicant for employment on any basis
prohibited by law. Developer shall provide equal opportunity in all employment
practices. Developer shall instruct its consultants, subconsultants, General
Contractor, and Subcontractors, to comply with this provision. Nothing in this
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subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory
practice of its General Contractor, Subcontractors or any other party.
6.3.2. Equal Employment Opportunity Certification. Developer shall require all bidders
to submit signed equal employment opportunity certifications', on forms approved
by the City, with their bid packages.
6.3.3. Equal Opportunity Contracting Nondiscrimination. Developer shall not
discriminate on the basis of race, gender,religion,national origin, ethnicity, sexual
orientation, age, or disability in the solicitation, selection, hiring, or treatment of
bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer
shall provide equal opportunity for bidders, contractors, the General Contractor,
and Subcontractors to participate in contracting and subcontracting opportunities.
Developer understands and agrees that violation of this subsection 6.3.3 shall be
considered a material breach of this Agreement and may result in termination of
this Agreement, debarment, or other sanctions. The language in this subsection
6.3.3 shall be inserted in contracts between Developer,the General Contractor, any
Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.
ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer agrees that it will require that the services provided as part
of this Agreement be performed in accordance with the standards customarily adhered to
by experienced and competent professional architectural, engineering, landscape
architecture, and construction firms (as applicable) using the degree of care and skill
ordinarily exercised by reputable professionals practicing in the same field of service in the
State of California.
7.1.1. Compliance with all Laws. Developer shall comply, and require compliance by
any of its General Contractor, Subcontractors, employees,and agents,with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
hazardous material permits, site safety, state and local building codes, stormwater
regulations, etc.
7.2. Compliance with Design and Construction Standards. Developer shall comply,and require
compliance by any of its General Contractor, Subcontractors, employees, and agents, with
the Design and Construction Standards.
1 NTD: City to provide standard certifications for Developer's review.
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7.2.1. Standard Specifications. Developer shall comply, and require compliance by any
of its General Contractor, Subcontractors, employees, and agents, with the editions
of the following reference specifications that are in effect as of the date of the
approval of the Approved Drawings and Specifications for purposes of the bids
when designing, developing, and constructing the Project: the Greenbook and the
regional and any local supplement amendments thereto that are listed on Exhibit B
attached hereto.
7.2.1.1.City Standards. Developer's professional services shall be provided in
conformance with the professional standards of practice established by City. This
includes amendments and revisions of these standards as adopted by City. The
professional standards of practice established by City include the Standard
Specifications and the Approved Drawings and Specifications.
7.3. Changes to Standards. Developer shall not be required to comply, nor to cause any of its
General Contractor, Subcontractors, employees, and agents to comply, with any design
standard or any construction standard or any amendment, update, supplement or other
modification to the Design and Construction Standards after the date of the approval of
the Approved Drawings and Specifications for purposes of the bids.
7.4. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager,or other representatives of City is required,it is understood to be general approval
only and does not relieve Developer of responsibility for complying with all applicable
laws,codes,and good consulting,design,or construction practices and is not an assumption
of liability by the City, except in the case of City's express waiver of the requirement to
comply with (a) any City requirement, to the extent such requirement is waivable, or (b)
any good consulting, design, or construction practice. Nor shall City, through approval,
become an insurer or surety of work associated with the approvals.
ARTICLE VIII. CONSTRUCTION
8.1. Site Safety, Security, and Com lip �ance. Developer shall be responsible for Project Site
safety, security, and compliance with all related laws and regulations.
8.1.1. Persons. As between the Developer and the City, and without expanding the
Developer's contractual obligations or duties to any person other than the City, the
Developer shall be fully responsible for the safety and security of its officers,
agents, and employees authorized by Developer to access the Project Site.
8.1.2. Other. Developer is responsible for Project Site,materials,equipment,and all other
incidentals on the Project Site until the completed Project has been accepted by the
City pursuant to Article X.
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8.1.3. Environment. Developer shall comply with all environmental laws and regulations,
including the Clean Air Act of 1970,the Clean Water Act,Executive Order number
11738, and the Stormwater Management and Discharge Control Ordinance No. 0-
17988 and any and all Best Management Practice(`BMP")guidelines and pollution
elimination requirements as may be established by an enforcement official.
Furthermore, Developer shall prepare and incorporate into the drawings and
specifications a Stormwater Pollution Prevention Plan ("SWPPP") to be
implemented by Developer during Project construction and, until Acceptance,
maintenance. Where applicable,the SWPPP shall comply with both the California
Regional Water Quality Control Board Statewide General Construction Storm
Water permit and National Pollution Discharge Elimination System permit
requirements and shall be in conformance with the City of Chula Vista BMP Design
Manual and CVMC Chapter 14.20 (Storm Water Management and Discharge
Control).
8.1.4. Access to Project Site. City officers, agents, and employees that have Project-
related business shall have the right to enter the Project Site at any time for Project
related purposes; provided that such person complies with all written applicable
security and safety procedures provided by Developer to City, written instructions
given by Developer to City and oral instructions given by Developer or the General
Contractor to such person on the Project Site, and uses commercially reasonable
efforts to minimize any interference with Developer's operation and use of the
Project Site while on the Project Site.
8.2. Public Ri t-of-Way. All work, including materials testing, special testing, and surveying
to be conducted in the public right-of-way shall be coordinated with the City.
8.2.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal
and State laws and regulations, and all written and publicly available City standards
and regulations while working in the public right-of-way,including,but not limited
to, utilizing proper traffic control and obtaining necessary permits.
8.3. Traffic Control. Developer shall comply with all written traffic control requirements for
Project, including, if applicable, all traffic control plans and/or notes.
8.4. Maintenance. Developer shall maintain and be responsible for the Project and the Project
Site until Acceptance,including ongoing erosion prevention measures. Upon Acceptance,
City shall be responsible for maintenance of the Project.
ARTICLE IX. REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES
` 9.1. Payment of Costs Associated with Project
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9.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Neither
Developer nor the General Contractor nor any Subcontractor, nor any combination
thereof, shall be entitled to payment in excess of the Maximum Reimbursement
Amount.
9.1.2. Funds for Payment of Costs/Expenses. The source of funds for the payment of
costs/expenses associated with Project shall be limited to that listed below. No
other City funds, or monies held by, owed to, or in trust for, the City, shall be used
by the City or sought to be collected by Developer, its employees, agents, the
General Contractor,or Subcontractors other than those identified in Section 9.1.2.1.
9.1.2.1. Funds for Project. Funds for payment of costs/expenses for Project shall
be limited to the City's Sewer Facility Contribution.
9.1.3. Prerequisites to Payment.
9.1.3.1. Reimbursement Request. Prior to reimbursement of any costs or expenses
for the Project, Developer shall provide the City with a Reimbursement
Request containing the following:
a. Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project,not previously paid by the City, within 30 days after receipt
thereof.
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
C. Lien Releases/Stop Payment Notices. Developer shall provide the
Director of Development Services with statutory lien/stop payment
notice releases associated with all work performed or supplies
provided in a form satisfactory to the City Attorney.
d. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all trade and
soft costs for which Developer is seeking reimbursement have been
paid.
e. Certification of Prevailing Wage Compliance. Developer shall
provide the Director of Development Services with a written
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certification of compliance with all applicable Prevailing Wage laws
and regulations.
f. Acknowledgement of General Contractor and Subcontractors.
Developer shall provide the Director of Development Services with
a letter from each firm (e.g. civil, survey, and geotechnical)
acknowledging that eligible soft costs included in the relevant
invoices have been paid.
g. Time sheets. Developer shall provide the Director of Development
Services with time sheets from Developer's construction manager
to justify the Project management costs.
h. Graphics. Developer shall provide the Director of Development
Services with a graphic depicting the areas within the Project for
which the Reimbursement Request is being submitted.
i. Other Documents. Developer shall provide the Director of
Development Services with any other documents that reasonably
may be needed to evaluate the eligibility of the cost/expense as
Reimbursable Costs as determined necessary by the Director of
Development Services in his/her sole discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
a Reimbursement Request containing all of the applicable items listed
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
9.1.3.2. Inspection. The Project shall be subject to City inspection as provided in
section 2-11 of the Greenbook. Developer shall ensure that all persons
and entities providing work or services for the Project comply with the
inspection requirements provided in section 2-11 of the Greenbook.
9.1.3.3. Prevailing Wage Compliance. Developer shall ensure that all persons and
entities providing work or services for the Project comply with Prevailing
Wage requirements, as established by the California Department of
Industrial Relations, as applicable, in accordance with applicable law.
9.1.3.4. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. If the
Director of Development Services finds that any such Reimbursement
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Request is incomplete, improper, or otherwise not suitable for
reimbursement, then the Director of Development Services shall so
inform Developer in writing within fifteen (15) Working Days after
receipt thereof, of the reasons for his/her finding. If the Director of
Development does not find that any such Reimbursement Request is
incomplete, improper, or otherwise not suitable for reimbursement, then
the Director of Development Services shall so inform Developer in
writing within fifteen (15) Working Days after receipt thereof and within
that time period approve the Reimbursement Request. Developer shall
have the right to respond to such finding by submitting further
documentation requested in such finding after receipt of said finding. The
Director of Development Services shall review any further documentation
received from Developer in support of the Reimbursement Request and
inform Developer of his/her approval or denial of the Reimbursement
Request within ten (10) Working Days after receipt of such further
documentation. If the Director of Development Services determines that
the Reimbursement Request is incomplete, but that sufficient and
complete information exists with respect to a portion of the
Reimbursement Request,then the Director of Development Services may
but is not obligated to approve the Reimbursement Request with respect
to such portion of the Reimbursement Request. The City shall cause the
Director of Development Services to carry out its duties under this Section
9.1.3.3 in a reasonable and good faith manner.
9.1.4. Time of Payment. After Developer has obtained City's approval pursuant to 9.1.3,
City shall reimburse Developer for the approved costs/expenses associated with
each Reimbursement Request by the Payment Date. If the Payment Date falls on a
weekend or holiday, the Payment Date shall be extended to the next Working Day.
9.1.4.1. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer's General Contractors, Subcontractors, or
suppliers as a result of the Developer's failure to provide a complete
Reimbursement Request, shall not be the obligation of the City if the City
has not received a complete Reimbursement Request. Such additional
costs shall be the obligation of the Developer and not eligible for
reimbursement.
9.1.5. Reimbursement Amountper Reimbursement Request. The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non-Reimbursable
Costs and Contested Charges(as defined below)on or before the Payment Date. If
the Payment Date falls on a weekend or holiday, the Payment Date shall be Ij
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extended to the next Working Day. Additional costs that result from the City's
failure to make payments when required by this Agreement will be the obligation
of the City.
9.1.5.1. Withholding. The prime contract and subcontracts for the Project may
provide for withholding from each payment to the General Contractor or
the Subcontractor, as applicable, until Acceptance. Except as otherwise
provided in this Agreement or at law, the City shall not withhold any
additional amounts from the Reimbursement Requests submitted by
Developer, beyond the actual General Contractor or Subcontractor
withholding amount.
a. Payment and Invoicing for Withholding. Developer shall not pay
the General Contractor and the Subcontractors the amounts withheld
until(1)forty-five(45)calendar days from recordation of the Notice
of Completion and (2) confirmation has been submitted to the
Director of Development Services by Developer that no stop
payment notices or mechanic's liens have been filed and not
released with respect to the Project and the following work has been
completed:
i. All Project improvements have been installed.
ii. As-builts have been submitted to the City.
iii. Form PWE1O6 is completed.
iv. The final punch list is complete.
Where a stop payment notice or mechanic's lien has been filed following
the recordation of the Notice of Completion, Developer shall continue to
withhold the amount in controversy until a fully executed release of stop
payment notice or mechanic's lien or a bond releasing the stop payment
notice or mechanic's lien has been filed and a conformed copy delivered
to the City. Notwithstanding anything in this Agreement to the contrary,
Developer shall not be required to withhold any funds from the General
Contractor or any Subcontractor to the extent doing so would violate any
applicable law.
9.1.5.2. Non-Reimbursable Costs. [MM21The following costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
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Developer, the General Contractor, or Subcontractors, or any of
their respective subcontractors, material suppliers, equipment
providers, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 9.1.3.3.
C. Excess Costs. Developer acknowledges and agrees that any Excess
Cost (as defined in section 6.2 of this Agreement) shall not be a
Reimbursable Cost.
d. Non-Project Shared Costs. The parties acknowledge that Developer
may share certain costs (e.g. mobilization, traffic control) for the
Project with other projects contemplated under the DDA. Developer
acknowledges and agrees that any shared project costs that are not
directly attributable to or reasonably apportioned to the Project, as
reasonably determined by the City, shall not be a Reimbursable
Cost.
e. Defective Work Costs. Developer acknowledges and agrees that
defective work costs as provided in Section 12.3 of this Agreement
shall not be a Reimbursable Cost.
9.1.5.3. Contested Charges. In the event that the City contests any costs/expenses
on an invoice received ("Contested Charge"), the City shall provide
Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City's
determination of any Contested Charges. The appeal must be
received within 30 days after the City notifies the Developer of such
Contested Charge. During the appeal period, and as long as any
Contested Charge remains disputed, Developer shall proceed with
the Project, and the City shall compensate Developer for the
undisputed amounts. If, following the appeal, the City Manager
determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment
to Developer.
9.1.6. Cutofffor Submission oflnvoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date. Any Reimbursement Requests submitted
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after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The
final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of
construction and completing the Improvements associated with that phase,
mechanic's lien free, stop payment notice free, in accordance with the Contract
Documents. Final inspection and sign-off by the City's inspectors with associated
mechanic's lien and stop payment notice releases (or bonds releasing contested
mechanic's liens or stop payment notices) shall be sufficient evidence of the
mechanic's lien or stop payment notice free completion of the Improvements.
9.1.7. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting("Final Accounting") to the City in order to determine the cost of
design, development, construction, and related work thereto to complete the
Improvements. Developer shall also submit all supporting information reasonably
necessary to document costs/expenses for the Improvements, including specific
details on the costs and work attributable to the Improvements, including, as
applicable, third-party invoices, billings, and receipts for construction surveying,
soil testing,blue printing, actual construction costs, and similar expenses.
9.1.7.1. True-up Payments. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to Developer equal the audited approved costs and expenses. In the event
that the amount of the approved costs and expenses exceeds the amount
of the actual payments, the City shall make a true-up payment to
Developer for the difference; however, in no event, shall the true-up
payment cause the total amount paid to exceed the Maximum
Reimbursement Amount. If the Final Accounting shows that the amount
of actual payments to Developer exceeds the amount of the approved costs
and expenses, Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION
10.1. No Waiver. Developer shall cause the work to be performed and completed in accordance
with the Contract Documents, as reasonably determined by the City Engineer and the
Director of Development Services. Neither recommendation of any progress payment or
acceptance of work,nor any payment by City to Developer under this Agreement, nor any
use or occupancy of the Improvements or any part thereof by the City, nor any act of
acceptance by the City, nor any failure to act, nor any review of a shop drawing or sample
US-DOCS\103150550.15
submittal, will constitute an acceptance of work, which is not substantially in accordance
with the Contract Documents.
ARTICLE XI. WARRANTIES
11.1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties
provided in the Contract Documents and any other implicit or explicit warranties or
guarantees required or implied by law.
11.1.1.Materials and Workmanship. Developer shall require the General Contractor and
Subcontractor(s) to guarantee all work on the Project against Defective Work for a
period of one (1) year from the date of Acceptance.
11.1.2.New Materials and Equipment. Developer shall require the General Contractor and
Subcontractor(s) to warrant and guarantee to City that all materials and equipment
incorporated into the Project are new unless otherwise specified.
11.1.3. Design, Construction, and Other Defects. Developer shall require the General
Contractor and Subcontractor(s)to warrant and guarantee to City that all work is in
accordance with the Contract Documents and is not Defective Work in any way in
design, construction, or otherwise.
11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall
extend for a term of one (1) year from the date of Acceptance.
ARTICLE XII. DEFECTIVE WORK
12.1. Correction, Removal, or Replacement. The Developer shall require that if, within the
designated warranty period, or such additional period as may be required by law or
regulation, the City determines the Project contains Defective Work, the General
Contractor or applicable Subcontractor, as applicable, shall promptly and in accordance
with the City's written instructions and within the reasonable time limits stated therein,
either correct, repair, or both remove and replace the Defective Work.
12.2. City's Right to Correct. If circumstances warrant, including but not limited to an
emergency or the Developer's failure, the General Contractor's failure, or such
Subcontractor's failure, as applicable,to adhere to Section 12.1, City may correct,remove,
or replace the Defective Work. In such circumstances, the Developer, the General
Contractor, and such Subcontractor(s), as applicable, shall not recover costs associated
with the Defective Work.
12.3. Non-Reimbursable Costs. Any costs incurred by Developer, the General Contractor,
Subcontractors or its agents to remedy defects are Non-Reimbursable Costs, unless the
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Contract Documents require the Developer to reimburse for such costs. Notwithstanding
. the foregoing, for the avoidance of doubt, the parties acknowledge and agree that the
following shall constitute Non-Reimbursable Costs: (i) costs to remedy defects due to the
negligence of the General Contractor, Subcontractors, or their agents; (ii) costs to remedy
defects due to the failure of General Contractor, Subcontractors, or their agents to comply
with the Contract Documents to the extent such costs exceed the guaranteed maximum
price contained in the Contract Documents, or (iii) costs to remedy defects where such
costs have been recovered from an alternate source (e.g. insurance or bond). If the City
has already reimbursed Developer,the General Contractor, Subcontractors or its agents, as
applicable, for the Defective Work, City is entitled to an appropriate decrease in
Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against
Developer's bond, if Developer, the General Contractor, Subcontractors or agents, as
applicable,have been paid in full,until the Defective Work is remedied unless the Contract
Documents require the Developer to reimburse for such costs.
12.4. Extension of Warranty. When Defective Work, or damage therefrom, has been corrected,
repaired, replaced or removed, as applicable, during the warranty period, the one (1) year
or another relevant warranty period, as applicable, will be extended for an additional time
period equal to that of the initial warranty period, from the date of the satisfactory
completion of the correction, repair, replacement or removal, as applicable, but, in no
event, beyond one (1) year from the date of the expiration of the initial warranty period.
12.5. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant
to this Article XII shall not limit the remedies City may pursue under this Agreement or at
law.
12.6. Disputes. If Developer and City are unable to reach agreement on disputed work,City may
direct Developer to proceed with the work and compensate Developer for undisputed
amounts. Payment of disputed amounts shall be as later determined in accordance with
9.1.5.3. Developer shall maintain and keep all records relating to disputed work for a
period of three(3) years in accordance with Article XIV.
ARTICLE XIII. SECURITY FOR CONSTRUCTION
13.1. Bond. The Contract Documents shall require the General Contractor or Subcontractors to
provide a payment bond and a performance bond, on forms acceptable to the City, for the
construction of the Project in an amount of no less than the Estimated Cost. Developer
shall cause the City to be named as a co-obligee of the payment bond and performance
bond. Developer shall deliver copies of the payment bond and performance bond to City
prior to commencement of construction for the Project. Developer shall ensure the
payment bond and performance bond are maintained until such time as the Project is
complete and Accepted by the City.
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13.2. Insolvency or Bankruptcy. If the surety on any of the above-mentioned bonds is declared
bankrupt or becomes insolvent or its right to do business is terminated in any state where
any part of the Project is located, Developer shall within five (5) Working Days after the
City notifies the Developer thereof substitute or require the substitution of another bond
and surety, reasonably acceptable to the City.
13.3. Calling the Bond. Developer acknowledges and agrees that if Developer's construction of
the Improvements has not been completed in accordance with Section 5.1, has not been
performed in accordance with the Contract Documents, or if the Developer has failed to
cure any Defective Work within the commercially reasonable time specified in a written
notice of defect,the City may use the security referenced in Section 13.1 above to complete
the Improvements. This remedy is not a limitation on remedies of the City and is in
addition to any other remedy that the City may have at law or in equity.
ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND
14.1. Defense, Indemnity, and Hold Harmless.
14.1.1. General Requirement. (a) Developer shall defend, indemnify, protect, and hold
harmless (collectively, "Indemnify") the City, its elected and appointed officers,
agents and employees (collectively, the "Indemnified Parties"), from and against
any and all claims, demands, causes of action, costs, expenses, liabilities, loss,
damages,and injuries(collectively,"Loss"),in law or equity,to property,including
takings claims, or persons, including wrongful death, to the extent and proportion
directly or indirectly caused by any negligent acts or negligent omissions, or
negligence or willful misconduct of Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees arising out of or in connection
with the performance of the Project or this Agreement; provided, however,
Developer shall have no obligation to Indemnify the Indemnified Parties for any
Loss that arises out of any design or other defect in connection with the Project
more than ten(10) years after Acceptance. I[MM3]
(b) This indemnity provision does not include any claims, damages, liability, costs
and expenses (including without limitations, attorneys' fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officials,
officers, agents or employees.
(c) Also covered by this provision is liability arising from, connected with, caused
by, or claimed to be caused by the active or passive negligent acts or negligent
omissions of the City, its agents, officers, officials or employees which may be in
combination with, and to the extent and proportion caused by, the active or passive
US-DOCS\103150550.15
negligent acts or negligent omissions of Developer or its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees.
14.1.1.1. Damage to Downstream or Adjacent Properties. Such indemnification
and agreement to hold harmless shall extend to damages to adjacent or
downstream properties or the taking of property from owners of such
adjacent or downstream properties as a result of and to the extent of and
proportion caused by the negligence by Developer, its officials, officers,
the General Contractor, Subcontractor(s), agents, or employees in the
construction of the Improvements in accordance with the Contract
Documents as provided herein. It shall also extend to damages resulting
from diversion of waters, change in the volume of flow, modification of
the velocity of the water, erosion or siltation, or the modification of the
point of discharge as the result of and to the extent of and proportion
caused by the negligence by Developer, its officials, officers, the General
Contractor, Subcontractor(s), agents, or employees in the construction of
the Improvements in accordance with the Contract Documents.
14.1.2.Hazardous Materials. (a) Developer agrees to defend, indemnify, and hold
harmless, the City, its agents, officers and employees from and against any and all
costs, damages, claims, and liabilities, including reasonable attorney fees,
,,, foreseeable or unforeseeable, directly or indirectly, arising from or related to the
release of Hazardous Materials by Developer, its officials, officers, the General
Contractor, Subcontractor(s), contractors, agents, or employees in association with
the construction,maintenance, or repair of the Project, or any act taken or omission
under the Agreement.
(b) Notwithstanding the foregoing, Developer shall have no obligation to
Indemnify any Indemnified Party for any Loss related to any Pre-Existing
Hazardous Material except to the extent Developer, any of its officials,officers,the
General Contractor, Subcontractor(s), contractors, agents, or employees, or any
combination thereof, is negligent in releasing, allowing a release, or causing a
release of such Pre-Existing Hazardous Material. Developer expressly preserves
its rights against other parties and does not release or waive its rights to contribution
against any other party.
14.1.3.Illegal Discharge to Storm Drains. Developer shall defend,indemnify,protect,and
hold harmless City, its agents, officers, and employees, from and against all claims
asserted, or liability established for damages or injuries to any person or property
resulting from a discharge to public storm drains in violation of applicable laws to
the extent arising out of the construction of the Improvements (an "Illegal
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Discharge") caused by any action or failure of Developer, its officials, officers, the
General Contractor, Subcontractor(s), agents, or employees to take reasonable
measures to prevent an Illegal Discharge or any Illegal Discharge by any such
persons or entities. Developer shall also be responsible for payment of any fines or
penalties assessed against City for an Illegal Discharge. Developer's duty to
indemnify and hold harmless shall not include any claims or liability arising from
the established sole negligence or willful misconduct of City, its officials, officers,
agents or employees.
14.1.4. Costs of Defense and Award. Developer shall immediately accept all tenders and
defend, at Developer's own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents and that
appear to be covered by the defense obligation defined in Section 14.1.1(a),
14.1.1(c), 14.1.1.1, 14.1.2(a), or 14.1.3. Developer acknowledges and agrees that
its obligation to accept tender and defend the City,its officials,officers, employees,
and/or agents as provided in this Section 14.1.4 is absolute and not subject to any
limitations in Sections 14.1.1(b) and 14.1.2(b) of this Agreement, or elsewhere.
Developer shall pay and satisfy any judgement, award, or decree that may be
rendered against City or its officials,officers, employees and/or agents, for any and
all related legal expense and costs incurred by each of them to the extent of
Developer's actual determined negligence, subject to the limitations in Sections
14.1.1 and 14.1.2 and only to the extent Section 14.1.1 or 14.1.2 requires Developer
to do so. The City may, in its reasonable discretion, participate in the defense of
any and all suits, actions, or other legal proceedings that may be brought or
instituted against the City, its officials, officers, employees and/or agents, and the
Developer shall have the obligation to reimburse the City for any costs of defense
incurred by the City, including, without limitation, reimbursement for attorneys'
fees,experts' fees and other costs. Prior to incurring any defense costs, City agrees
to notify Developer and offer to meet-and-confer with Developer to discuss
practicable measures to manage total defense costs. The City's participation shall
not relieve the Developer of any of its obligations under this Article XIV.
14.1.5.Insurance Proceeds. Developer's obligation to indemnify shall not be restricted to
insurance proceeds, if any, received by the City, its officials, officers, employees
and/or agents.
14.1.6. No Use of Security. The security identified in Article XIII shall not be used to
satisfy the obligations of Developer under this Article XIV.
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14.1.7.Declarations. Developer's obligations under Article XIV shall not be limited by
any prior or subsequent declaration by Developer.
14.1.8.Enforcement of Costs. Developer agrees to pay any and all costs, including
attorneys' fees,that the City incurs enforcing the indemnity and defense provisions
set forth in Article XIV.
14.1.9. Survival. Developer's obligations under Article XIV shall survive the expiration
and/or termination of this Agreement.
ARTICLE XV. INSURANCE REQUIREMENTS
14.1. Insurance Requirements. Developer shall,and shall require its architects,engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA. The parties agree to meet-
and-confer to try to identify insurance coverage to cover losses to Project supplies,
materials, and equipment prior to Acceptance.
ARTICLE XVI. RECORDS AND AUDITS
16.1. Retention of Records. Developer shall maintain data and records related to this Agreement
for a period of not less than three (3) years following receipt of final payment under this
Agreement.
16.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary, Developer, the General Contractor and any or all of Subcontractors shall make
available to the City for examination at reasonable locations within the City/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer, the General Contractor and Subcontractors will permit the City to make audits
of all invoices,materials,payrolls,records of personnel, and other data and media relating
to all matters covered by this Agreement. .If records are not made available within the
City/County of San Diego, then Developer shall pay all the City's travel related costs to
audit the records associated with this Agreement at the location where the records are
maintained. Such costs will not be Reimbursable Costs.
16.2.1. Costs. Developer and Developer's agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
and practices that City reasonably determines are necessary to discover and verify
all costs of whatever nature, which are claimed to have been incurred, anticipated
US-DOCS\103150550.15
to be incurred, or for which a claim for additional compensation or for extra work
have been submitted under this Agreement.
ARTICLE XVII. MISCELLANEOUS PROVISIONS
17.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They
shall be deemed served(i)immediately,upon personal delivery; (ii)the next Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next
Working Day; or (iii) three (3) Working Days after deposit in the United States mail,
certified or registered mail, return receipt requested, first-class postage prepaid. Until
notice of a change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Legal Department
With a copy to: Latham &Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
17.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
17.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the Parties unless expressly noted. However, all
US-DOCS\103150550.15
previous written agreements, remain in full force and effect except to the extent they
�W conflict with this Agreement.
17.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a Party's consideration materially fails as a result.
17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
17.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
17.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement.
17.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or
in part,except by written instrument duly executed and acknowledged by the Parties hereto,
their successors or assigns.
17.9. Governing Law and 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 the federal or state courts located in San Diego
County, State of California, and if applicable, the City of Chula Vista, or as close thereto
as possible. Venue for this Agreement shall be the City of San Diego.
17.10. Administrative Claims. No suit or arbitration shall be brought arising out of this
Agreement against the City unless a claim has first been presented in writing and filed with
the City and acted upon by the City in accordance with the procedures set forth in Chapter
1.34 of the CVMC, as same may from time to time be amended (the provisions'of which
are incorporated by this reference as if fully set forth herein), and such policies and
procedures used by City in the implementation of same.
17.11. Non-liability of Cites Officials and Employees. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default or
breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
17.12. Counterparts. This Agreement 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.
US-DOCS\103150550.15
Ij
[End of page. Signature page follows this page.]
US-DOCS\103150550.15
IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
�ow year first set forth above.
CITY DEVELOPER
CITY OF CHULA VISTA, a California RIDA CHULA VISTA, LLC, a Delaware
charter city and municipal corporation limited liability company
California Contractor License Number:
1039979
By:
Gary Halbert, City Manager
By:
ATTEST:
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Googins, City Attorney
* Signatories to provide signature authority
for signatory.
US-DOCS\103150550.15
Exhibit A
Estimated Cost
Sewer
Improvement Description Improvement Cost
Estimate2
E Street(G Street to H Street) 730,000
G Street Connection 85,000
H-3 Utility Corridor 380,000
Total 1,195,000
2 Cost estimates are in 2019 dollars. Estimates include hard costs, soft costs,and continencies.
US-DOCS\103150550.15
Exhibit B
Amendments to the Greenbook
US-DOCS\103150550.15
CITY OF CHULA VISTA
REIMBURSEMENT AGREEMENT
WITH RIDA CHULA VISTA, LLC
TO DESIGN SPECIFIED BAYFRONT INFRASTRUCTURE IMPROVEMENTS
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into as of this
day of , 20 (the "Execution Date") by and among the City of Chula Vista, a
chartered municipal corporation("City")and RIDA Chula Vista,LLC, a Delaware limited liability
company("Developer") (collectively,the"Parties"and,individually, a"Party"). with reference to
the following Recitals:
RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District ("District")
entered into a Disposition and Development Agreement for the Resort Hotel Convention Center
Project(Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 (the"DDA"); and
B. WHEREAS, the Scope of Development attached to the DDA provides that the
Developer shall construct certain infrastructure improvements, consisting of. E Street (from G
Street to H Street),the G Street Connection,H Street(Bay Boulevard to Street A),H Street(Marina
Parkway to E Street), Harbor Park (Initial), H-3 Site Prep, and the H-3 Utility Corridor (the
"Developer's Phase IA Infrastructure Improvements"); and
C. WHEREAS, Section 4.7(c)of the DDA provides that the District and the City shall
reimburse the Developer in cash for any and all funds expended prior to the DDA Close of Escrow
by the Developer in connection with design, architectural work, and engineering work for the
Developer's Phase 1 A Infrastructure Improvements as set forth in the Scope of Development,other
than the amounts that have been paid to Developer pursuant to Section 4.8(e) of the DDA, from
the first disbursement of the Public Fund Contribution pursuant to the construction loan account
instructions; and
D. WHEREAS, the Scope of Development attached to the DDA provides that the in-
road sewer facilities included in the Developer's Phase 1A Infrastructure Improvements (the
"Developer's Sewer Improvements") shall be funded by the City's Sewer Facility Contribution;
and
E. WHEREAS, the Developer and the City have negotiated and anticipate executing
the City of Chula Vista Reimbursement Agreement with RIDA Chula Vista, LLC to Construct
Specified Bayfront Sewer Improvements (the "Sewer Reimbursement Agreement") for this
purpose; and
F. WHEREAS, the Sewer Reimbursement Agreement provides a mechanism for the
City to reimburse the Developer in cash for any and all funds expended prior to the DDA Close of
1 I City of Chula Vista Agreement No.:19097
RIDA CHULA VISTA,LLC
1
Escrow by the Developer in connection with design, architectural work, and engineering work for
the Developer's Sewer Improvements; and
G. WHEREAS, the scope of this Agreement is therefore limited to the Developer's
Phase lA Infrastructure Improvements, excluding the Developer's Sewer Improvements (the
"Project"); and
H. WHEREAS, the City has identified and set aside funds generated by the Bayfront
project sufficient for this purpose; and
I. WHEREAS, Developer desires to enter into this Agreement with the City, so that
it may obtain reimbursement for the eligible costs of designing Developer's Phase lA
Infrastructure Improvements incurred prior to DDA Close of Escrow.
AGREEMENT
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 Developer agree as follows:
ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall
have the following meanings:
1.1. Agreement. "Agreement"means this Reimbursement Agreement between the City and the
Developer.The term"Agreement"shall include any amendment to the Agreement properly
approved and executed pursuant to the terms of this Agreement.
1.2. City. "City" means the City of Chula Vista. Unless specifically provided otherwise,
whenever this Agreement requires an action or approval by City, that action or approval
shall be performed by the City representative designated by the Agreement.
1.3. City Council. "City Council"means the governing body of the City.
1.4. Cit. M�ana_ger. "City Manager"means the City Manager of City or his or her designee.
1.5. Cutoff Date. "Cutoff Date"means ninety(90) days from the DDA Close of Escrow.
1.6. CVMC. "CVMC"has the meaning given to such term in the Recitals.
1.7. DDA. "DDA"has the meaning given to such term in the Recitals.
1.8. DDA Close of Escrow. "DDA Close of Escrow" means Close of Escrow as such term is
defined in the DDA.
1 1 City of Chula Vista Agreement No.: 19097
RIDA CHULA VISTA,LLC
2
1.9. Design Professional(s). "Design Professional(s)" means persons or entities providing
(W design,architecture,landscape architecture, survey,or engineering work or services for the
Developer's Phase I Infrastructure Improvements.
1.10. Developer. "Developer"has the meaning given to such term in the preamble.
1.11. Developer's Phase 1 A Infrastructure Improvements. "Developer's Phase 1 A Infrastructure
Improvements"has the meaning given to such term in the Recitals.
1.12. Developer's Sewer Improvements. "Developer's Sewer Improvements" has the meaning
given to such term in the Recitals.
1.13. Director of Development Services. "Director of Development Services" means the
Director of Development Services of City or his or her designee.
1.14. District. "District"has the meaning given to such term in the Recitals.
1.15. Eligible Expenses. "Eligible Expenses" means costs that the City shall reimburse
Developer for the Project, not to exceed the Estimated Cost.
1.16. Estimated Cost. "Estimated Cost"means the design cost of the Project to be incurred prior
to DDA Close of Escrow, estimated to total $715,000, as shown in Exhibit A, attached
hereto. As the Estimated Cost is not initially the result of contracts for the actual design,
it is subject to change during the contract negotiation process as well as during the design
phase, subject to approval of the Parties.
1.17. Execution Date. "Execution Date"has the meaning given to such term in the preamble.
1.18. Holiday. "Holiday" means the City-observed holidays listed below (if any holiday listed
falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If
the holiday should fall on a Sunday, then the Sunday and the following Monday are both
legal holidays):
Holiday Observed On
New Year's Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran's Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
1 City of Chula Vista Agreement No.: 19097
RIDA CHULA VISTA,LLC
3
1.19. Maximum Reimbursement Amount. "Maximum Reimbursement Amount" means the
lesser of the Estimated Cost, as may be amended from time to time, or the amount of
Reimbursable Costs that is calculated during the Final Accounting(as defined below).
1.20. Non-Reimbursable Costs. "Non-Reimbursable Costs"means the following costs that shall
not be eligible for reimbursement under this Agreement: Costs Incurred Due to Negligence
or Unapproved Costs, each as further defined in Section 6.1.4.1.
1.21. Party. "Party"has the meaning given to such term in the preamble.
1.22. Payment Date. "Payment Date" means twenty (20) days following the date on which
Developer submits a complete Reimbursement Request (as reasonably determined by the
Director of Development Services) or a Reimbursement Request that is complete with
respect to a portion of the requested reimbursement (as reasonably determined by the
Director of Development Services).
1.23. Project. "Project"has the meaning given to such term in the Recitals.
1.24. Project Improvements. "Project Improvements" or "Improvements" means the
Developer's Phase lA Infrastructure Improvements, excluding Developer's Sewer
Improvements.
1.25. Public Fund Contribution. "Public Fund Contribution"has the meaning given to such term
in the DDA.
1.26. Reimbursable Costs. "Reimbursable Costs"means costs of the design of the Developer's
Phase lA Infrastructure Improvements that have been expended by Developer and
approved by the City through approval procedures described in the Agreement.
1.27. Reimbursement Request. "Reimbursement Request" means a reimbursement request
package submitted to the City containing the items listed in Section 6.1.2.1.
1.28. Sewer Facility Contribution. "Sewer Facility Contribution"means the contribution by the
City to fund specific sewer facility improvements comprising part of the RHCC Public
Improvements as may be more specifically described in the Plan of Finance (as defined in
the DDA).
1.29. Sewer Reimbursement Agreement. "Sewer Reimbursement Agreement"has the meaning
given to such term in the Recitals.
1.30. Working Day(s). "Working Day(s)"means Monday through Friday, excluding Holidays.
1J
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ARTICLE II. SUBJECT OF THE AGREEMENT- GENERALLY
The above-listed Recitals are true and correct and are hereby incorporated by this reference. All
attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.
2.1. Developer's Design of Phase 1A Infrastructure Improvements. Except as expressly
provided in this Agreement, Developer shall cause the design of the Phase IA
Infrastructure Improvements, in accordance with all the terms and conditions of this
Agreement and for no more than Maximum Reimbursement Amount.
2.2. City Payment. City shall reimburse Developer, subject to the terms and conditions herein,
for the Eligible Expenses of design of Developer's Phase IA Infrastructure Improvements.
ARTICLE III. DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall become effective on the Effective Date
following City Council's approval, and the term of this Agreement shall extend until the
earlier of (i) such time as all executory terms have been completed and (ii) earlier
termination of this Agreement.
ARTICLE IV. PROJECT COSTS
4.1. Estimated Cost. The Estimated Cost of the Project is seven hundred and fifteen thousand
dollars ($715,000), as shown in Exhibit A, attached hereto.
4.2. Adjustment to Estimated Cost. The Estimated Cost is subject to change by the methods
identified in this Agreement.
4.3. Notification of Increased Costs. If, at any time, Developer definitely establishes that the
amount to be expended on the Project will exceed the Estimated Cost, Developer shall
promptly, and in any case not more than ten (10) Working Days after the Developer
definitely establishes the amount of the increase, notify the City thereof in writing. This
written notification shall include an itemized cost estimate and a list of recommended
revisions (e.g., deductive changes) which Developer believes will bring the design cost to
within the Estimated Cost. The City may either: (i) approve an increase in Estimated Cost
(which approval shall not be unreasonably withheld, conditioned, or delayed); or (ii)
reasonably delineate a project which may be designed for the Estimated Cost; or (iii) any
combination of(i) and (ii).
ARTICLE V. DESIGN STANDARDS
5.1. Standard of Care. Developer agrees that the services provided as part of this Agreement
shall be performed in accordance with the standards customarily adhered to by experienced
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and competent professional architectural, engineering, and landscape architecture firms(as
applicable) using the degree of care and skill ordinarily exercised by reputable
professionals practicing in the same field of service in the State of California.
5.1.1. Compliance with all Laws. Developer shall comply, and require compliance by
any and all of its Design Professionals, employees, and agents with all laws,
including but not limited to all local, City, San Diego County, State of California,
and federal laws, codes and regulations, ordinances and written publicly available
policies, including, but not limited to, Development Services Department permits,
state and local Building Codes, stormwater regulations, etc.
5.2. City Approval Not a Waiver of Obligations. Where approval by the City, the City
Manager, or other representative of City is required,it is understood to be general approval
only and does not relieve Developer of responsibility for complying with all applicable
laws, codes, and good consulting, design, and construction practices. and Any approval by
City not an assumption of liability by the City and shall not cause City to become an insurer
or surety of work associated with the approvals.
ARTICLE VI. REIMBURSEMENT/PAYMENT OF COSTS AND EXPENSES
6.1. Payment of Costs Associated with Project
6.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for
Project shall not exceed the Maximum Reimbursement Amount. Developer shall
not be entitled to payment in excess of the Maximum Reimbursement Amount.
6.1.2. Prerequisites to Payment.
6.1.2.1. Reimbursement Request. Prior to reimbursement of any costs or expenses
for the Project, Developer shall provide the City with a Reimbursement
Request containing the following:
a. Invoices. Developer shall provide the Director of Development
Services all invoices for Reimbursable Costs associated with
Project, not previously paid by the City, within 30 days after receipt
thereof.
b. Proof of Payment. Developer shall provide the Director of
Development Services with proof of payment of all invoices for
Reimbursable Costs submitted within 30 days after such payment.
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C. Certification of Payment. Developer shall provide the Director of
Development Services with a written certification that all costs for
which Developer is seeking reimbursement have been paid.
d. Acknowledgement of Subcontractors. Developer shall provide the
Director of Development Services with a letter from each firm(e.g.
civil, survey, and geotechnical) acknowledging that eligible soft
costs included in the relevant invoices have been paid.
e. Other Documents. Developer shall provide the Director of
Development Services with any other documents that may be
needed to evaluate the eligibility of the expense as determined
necessary by the Director of Development Services in his/her sole
discretion.
City shall not have an obligation to make payment to Developer unless
and until Developer provides the Director of Development Services with
a Reimbursement Request containing all of the applicable items listed
above and such Reimbursement Request is approved by the Director of
Development Services as provided below.
6.1.2.2. City Approval. The Director of Development Services shall review each
Reimbursement Request and the supporting documentation. If the
Director of Development Services finds that any such Reimbursement
Request is incomplete, improper, or otherwise not suitable for
reimbursement, the Director of Development Services shall inform
Developer in writing within fifteen (15) Working Days after receipt
thereof of the reasons for his/her finding. Developer shall have the right
to respond to such finding by submitting further documentation or
information to the City. The Director of Development Services shall
review any further documentation received from Developer in support of
the Reimbursement Request and inform Developer of his/her approval or
denial of the Reimbursement Request, in whole or in part,within ten(10)
Working Days after receipt of such further documentation. If the Director
of Development Services determines that the Reimbursement Request is
incomplete, but that sufficient and complete information exists with
respect to a portion of the Reimbursement Request, then the Director of
Development Services may but is not obligated to approve the
Reimbursement Request with respect to such portion of the
Reimbursement Request. The City shall cause the Director of
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Development Services to carry out its duties under this Section 6.1.2.2 in
a reasonable and good faith manner. Ij
6.1.3. Time of Payment. After Developer has obtained City's approval, in whole or in
part,of a Reimbursement Request pursuant to 6.1.2,City shall reimburse Developer
for the approved Reimbursable Costs by the Payment Date. If the Payment Date
falls on a weekend or holiday, the Payment Date shall be extended to the next
Working Day.
6.1.3.1. Additional Costs. Any costs that may accrue, such as interest on late
payments to Developer's Design Professionals as a result of the
Developer's failure to provide a complete Reimbursement Request, shall
not be the obligation of the City if the City has not received a complete
Reimbursement Request. Such additional costs shall be the obligation of
the Developer and not eligible for reimbursement.
6.1.4. Reimbursement Amount per Reimbursement Request.The City shall pay Developer
approved amounts in the Reimbursement Request, less any Non-Reimbursable
Costs and Contested Charges (as defined below).
6.1.4.1. Non-Reimbursable Costs. The following costs/expenses shall not be
eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled
to payment for any incremental cost or expense incurred due to
negligent acts, negligent omissions, or willful misconduct of
Developer or Developer's Design Professionals, or any of their
respective contractors, subcontractors, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to
reimbursement for any cost or expense that has not been approved
by the City pursuant to Section 6.1.2.2.
C. Additional Costs. Developer shall not be entitled to reimbursement
for additional costs pursuant to 6.1.3.1.
d. Requests After Cutoff Date. Developer shall not be entitled to
reimbursement for costs included in Reimbursement Requests
submitted after the Cutoff Date pursuant to 6.1.5.
6.1.4.2. Contested Charges. In the event that the City contests any cost/expense
on an invoice received ("Contested Charge"), the City shall provide Ij
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Developer a written statement of the Contested Charges, the reason why
the costs/expenses are contested, and a proposed resolution.
a. Appeal to City Manager. Developer may appeal the City's
determination of any Contested Charges. The appeal must be
received by the City within 30 days after the City notifies the
Developer of such Contested Charge. During the appeal period,and
as long as any Contested Charges remain disputed, Developer shall
proceed with the Project, and the City shall compensate Developer
for the undisputed amounts. If, following the appeal, the City
Manager determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment
to Developer.
6.1.5. Cutofffor Submission oflnvoices. Developer shall submit its final Reimbursement
Request not later than the Cutoff Date. Any Reimbursement Requests submitted
after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The
final payment by the City for the Project will be made only after Developer has
submitted all documentation reasonably necessary to substantiate the cost of the
Project.
6.1.6. Final Accounting. Following completion of the Project, Developer shall submit a
final accounting ("Final Accounting") to the City in order to determine the cost of
the Project. Developer shall also submit all supporting information reasonably
necessary to document costs/expenses for the Project, including specific details on
the costs and work attributable to the Project, including as applicable, third-party
invoices, billings, and receipts.
6.1.6.1. True-up Payments. Within 30 Working Days following a Final
Accounting, the City shall determine whether the actual payments made
to the Developer equal the audited approved costs and expenses. In the
event that the amount of the approved costs and expenses exceed the
amount of the actual payments, the City shall make a true-up payment to
Developer for the difference; however, in no event, shall the true-up
payment cause the total amount paid to exceed the Maximum
Reimbursement Amount. If the Final Accounting shows that the amount
of actual payments to Developer exceed the amount of the approved costs
and expenses, Developer shall remit or cause the remittance of the
difference to the City within twenty (20) Working Days of a notice of
deficiency.
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ARTICLE VII. INDEMNITY AND DUTY TO DEFEND
7.1. Defense, Indemnity, and Hold Harmless.
7.1.1. General Requirement. Developer shall defend, indemnify, protect, and hold
harmless the City, its elected and appointed officers, agents and employees, from
and against any and all claims, demands, causes of action, costs, expenses,
liabilities, loss, damages, and injuries, in law or equity, to property, including
takings claims, or persons, including wrongful death, to the extent and proportion
directly or indirectly caused by any negligent acts or negligent omissions, or
negligence or willful misconduct of Developer, its officials, officers, contractors,
Design Professional(s), agents, or employees arising out of or in connection with
the Project or this Agreement.
This indemnity provision does not include any claims, damages,liability, costs and
expenses (including without limitations, attorneys' fees) arising from the sole
negligence, active negligence or willful misconduct of the City, its officials,
officers, agents, or employees. Also covered by this provision is liability arising
from, connected with, caused by, or claimed to be caused by the active or passive
negligent acts or negligent omissions of the City, its agents, officers, officials or
employees which may be in combination with, and to the extent and proportion
caused by,the active or passive negligent acts or negligent omissions of Developer,
its officials, officers, contractors, Design Professional(s), agents, or employees.
7.1.2. Costs of Defense and Award. Developer shall immediately accept all tenders and
defend, at Developer's own cost, expense and risk, any and all claims, demands,
suits, actions, or other legal or administrative proceedings that may be brought or
instituted against the City, its officials, officers, employees, and/or agents.
Developer acknowledges and agrees that its obligation to accept tender and defend
the City, its officials, officers, employees, and/or agents as provided in this Section
7.1.2 is absolute and not subject to any limitations in Section 7.1.1 of this
Agreement, or elsewhere. Developer shall pay and satisfy any judgement, award,
or decree that may be rendered against City or its officials, officers, employees,
and/or agents, for any and all related legal expense and costs incurred by each of
them to the extent of Developer's actual determined negligence, subject to the
limitations in Section 7.1.1. The City may, in its sole and absolute discretion,
participate in the defense of any and all suits, actions, or other legal proceedings
that may be brought or instituted against the City, its officials, officers, employees,
and/or agents, and the Developer shall have the obligation to reimburse the City for
any costs of defense incurred by the City, including, without limitation,
reimbursement for attorneys' fees, experts' fees and other costs. The City's
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participation shall not relieve the Developer of any of its obligations under this
(OW Article VII.
7.1.3. Insurance Proceeds. Developer's obligations under Article VII shall not be
restricted to insurance proceeds, if any, received by the City, its officials, officers,
employees, and/or agents.
7.1.4. Declarations. Developer's obligations under Article VII shall not be limited by
any prior or subsequent declaration by Developer.
7.1.5. Enforcement of Costs. Developer agrees to pay any and all costs, including
attorneys' fees that the City incurs enforcing the indemnity and defense provisions
set forth in Article VII.
7.1.6. Survival. Developer's obligations under Article VII shall survive the expiration
and/or termination of this Agreement.
ARTICLE VIII. INSURANCE REQUIREMENTS
8.1. Insurance Requirements. Developer shall, and shall require its architects, engineers,
contractors, subcontractors, and other persons and entities providing services for or
performing work on the Project to purchase and maintain insurance in the same manner
and to the same extent as required by Section 4.10 of the DDA.
ARTICLE IX. RECORDS AND AUDITS
9.1. Retention of Records. Developer shall maintain data and records related to this Agreement
for a period of not less than three (3) years following receipt of final payment under this
Agreement.
9.2. Audit of Records. At any time during normal business hours and as often as the City deems
necessary, Developer and any or all of Developer's Design Professionals shall make
available to the City for examination at reasonable locations within the City/County of San
Diego all of the data and records with respect to all matters covered by this Agreement.
Developer and Developer's Design Professionals will permit the City to make audits of all
invoices,materials, payrolls, records of personnel, and other data and media relating to all
matters covered by this Agreement. If records are not made available within the
City/County of San Diego, then Developer shall pay all the City's travel related costs to
audit the records associated with this Agreement at the location where the records are
maintained. Such costs will not be Reimbursable Costs.
9.2.1. Costs. Developer and Developer's agents shall allow City to audit and examine
books, records, documents, and any and all evidence and accounting procedures
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and practices that City reasonably determines are necessary to discover and verify
all costs of whatever nature, which are claimed to have been incurred, anticipated
to be incurred, or for which a claim for additional compensation have been
submitted under this Agreement.
ARTICLE X. MISCELLANEOUS PROVISIONS
10.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They
shall be deemed served(i)immediately,upon personal delivery;(ii)the next Working Day,
if sent prepaid by recognized overnight service such as FedEx for delivery the next business
day; or (iii) three (3) business days after deposit in the United States mail, certified or
registered mail, return receipt requested, first-class postage prepaid. Until notice of a
change of address is properly given, notice shall be given:
If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
Attention: Legal Department
1777 Walker Street, Suite 501
Houston, Texas 77010
With a copy to: Latham&Watkins
Attn: Steven Levine
12670 High Bluff Drive
San Diego, CA 92130
10.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do
not define, describe or limit any term of this Agreement.
10.3. Entire Agreement. This Agreement embodies the entire agreement and understanding
between the Parties regarding the subject matter hereof. No prior or contemporaneous oral
or written representations, agreements, understandings and/or statements regarding its
subject matter shall have any force or effect. This Agreement is not intended to supersede
or amend any other agreement between the Parties unless expressly noted. However, all
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previous written agreements, remain in full force and effect except to the extent they
conflict with this Agreement.
10.4. Severability. If any provision of this Agreement or its particular application is held invalid
or unenforceable, the remaining provisions of this Agreement, and their application, shall
remain in full force and effect, unless a Party's consideration materially fails as a result.
10.5. Recordation. The City may record this Agreement in the Office of the County Recorder of
San Diego County, California.
10.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from
the fact that a Party or its attorney drafted this Agreement. It shall be conclusively
presumed that all Parties participated equally in drafting this Agreement.
10.7. Authority. Each Party warrants and represents that it has legal authority and capacity to
enter into this Agreement, and that it has taken all necessary action to authorize its entry
into this Agreement.
10.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or
in part,except by written instrument duly executed and acknowledged by the Parties hereto,
their successors or assigns.
(4br 10.9. Governing Law and 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 the federal or state courts located in San Diego
County, State of California, and if applicable, the City of Chula Vista, or as close thereto
as possible. Venue for this Agreement shall be the City of San Diego.
10.10. Administrative Claims.No suit or arbitration shall be brought arising out of this Agreement
against the City unless a claim has first been presented in writing and filed with the City
and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of
the CVMC, as same may from time to time be amended (the provisions of which are
incorporated by this reference as if fully set forth herein), and such policies and procedures
used by City in the implementation of same.
10.11. Non-liability of City Officials and Employ. No member, official, employee or
consultant of the City shall be personally liable to Developer in the event of any default or
breach by City, or for any amount which may become due to Developer, or on any
obligations under the terms of this Agreement.
10.12. Counterparts. This Agreement 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.
kw
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[End of page. Signature page follows this page.]
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IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and
year first set forth above.
CITY DEVELOPER
CITY OF CHULA VISTA, a California RIDA CHULA VISTA, LLC, a Delaware
charter city and municipal corporation limited liability company
By: By:
Gary Halbert, City Manager
ATTEST:
By:
Kerry Bigelow, City Clerk
APPROVED AS TO FORM:
By:
Glen R. Googins, City Attorney
* Signatories to provide signature authority
for signatory.
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EXHIBIT A
ESTIMATED COST
Improvement Description Design Col t
Estimate
E Street (G Street to H Street) 315,000
G Street Connection 35,000
H Street (Bay Blvd to Street A) 20,000
H Street(Marina Pkwy to E Street) 270,000
H-3 Utility Corridor 75,000
Total 715,000
' Costs are in 2019 dollars.
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