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HomeMy WebLinkAbout2020-05-20 CVBFFA Agenda PacketChula Vista Bayfront Facilities Financing Authority San Diego Unified Port District Meeting Agenda 3165 Pacific Hwy. San Diego, CA 92101 3:00 PMWednesday, May 20, 2020 ****Pursuant to Governor Newsom’s Executive Order N-29-20 pertaining to the convening of public meetings in response to the COVID-19 pandemic, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE AUTHORITY (BOARD). The BOARD will attend the meeting and participate remotely to the same extent as if they were present. Due to Governor Newsom's Executive Order, the Board Chambers will remain closed to the public. MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at: https://portofsandiego.legistar.com/Calendar.aspx REMOTE PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE FOLLOWING NO LATER THAN 2:00 PM on Wednesday, May 20, 2020: 1. Call 619-736-2155 and leave a brief voicemail message (no longer than 2 minutes) that will be played during the meeting. 2. Email a request to provide live comment to PublicRecords@portofsandiego.org to receive a link to participate in the meeting to provide live comments. * 3. Submit written comments to PublicRecords@portofsandiego.org which will be forwarded to the Board and included in the agenda-related materials record for the meeting. * Neither the Port of San Diego nor the Authority are responsible for the member of the public’s internet connections or technical ability to participate in the meeting. It is highly recommended that you use voicemail rather than provide live comment. In keeping with the Americans with Disabilities Act (ADA), the San Diego Unified Port District will make every reasonable effort to encourage participation in all its public meetings. If you require assistance or auxiliary aids in order to participate at this public meeting, please contact the Office of the District Clerk at publicrecords@portofsandiego.org or (619) 686-6206 at least 48hours prior to the meeting. Page 1 San Diego Unified Port District Printed on 5/15/2020 May 20, 2020Chula Vista Bayfront Facilities Financing Authority Meeting Agenda Board of Directors Honorable City of Chula Vista Mayor Mary Casillas Salas City of Chula Vista Councilman Stephen Padilla Port Commissioner Ann Moore Port Commissioner Rafael Castellanos Port Commissioner Dan Malcolm A. Call to Order B. Roll Call C. Non-Agenda Public Comment Each individual speaker is limited to two (2) minutes D. Consent Items 1. Resolution Ratifying the Final Form of the Chula Vista Bayfront Facilities Financing Authority (Authority) Procurement Policy for Developer -Performed Public Works and Resolution 2020-002 Implementing the Construction of Developer -Performed Public Works for and in Support of the Chula Vista Bayfront Resort Hotel and Convention Center Project E. Action Items None F. Staff Comments G. Board Comments H. Adjournment Page 2 San Diego Unified Port District Printed on 5/15/2020 DATE: May 20, 2020 SUBJECT: RESOLUTION RATIFYING THE FINAL FORM OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) PROCUREMENT POLICY FOR DEVELOPER-PERFORMED PUBLIC WORKS AND RESOLUTION 2020-002 IMPLEMENTING THE CONSTRUCTION OF DEVELOPER-PERFORMED PUBLIC WORKS FOR AND IN SUPPORT OF THE CHULA VISTA BAYFRONT RESORT HOTEL AND CONVENTION CENTER PROJECT EXECUTIVE SUMMARY: On January 8, 2020, the Board of Directors (“Authority Board”) of the Chula Vista Bayfront Facilities Financing Authority (the “Authority”) considered and adopted Resolution 2020- 001 adopting a procurement policy for developer-performed public works (the “Procurement Policy for Developer-Performed Public Works” or “Policy”) and Resolution 2020-002 applying the Policy to the construction of developer-performed public works for the Chula Vista Bayfront resort hotel and convention center by the project developer, RIDA Chula Vista, LLC (“RIDA”). At the January 8 meeting, the Authority Board directed staff to make certain modifications to the final form of the Policy, and to incorporate such changes in Resolution 2020-002 as well. The proposed resolution would ratify the changes made to the Policy and Resolution 2020-002. RECOMMENDATION: Adopt a Resolution ratifying the final form of the Authority’s Procurement Policy for Developer-Performed Public Works and Resolution 2020-002 implementing the construction of developer-performed public works for and in support of the Chula Vista Bayfront resort hotel and convention center project. FISCAL IMPACT: Adopting the proposed resolution will not immediately result in a direct fiscal impact to the Authority, as the action does not authorize the use of any public funds. The resolution ensures appropriate safeguards are in place to control general contractor fees for the construction of developer-performed public works for and in support of the Chula Vista Bayfront resort hotel and convention center project. DISCUSSION: On January 8, 2020, Authority staff presented the Authority Board with Resolution 2020- 001 to adopt the Procurement Policy for Developer-Performed Public Works. At the Authority Board meeting, the Authority Board raised concerns relating to cost controls for profit and overhead for sole source projects and directed staff to modify the Policy to incorporate a cap on general/prime contractor profit and overhead fees of fifteen percent (15%) on the hard construction costs of the subject developer-performed public work (the “GC Fee Cap”). The GC Fee Cap is in consistent with current industry standards. The Authority Board adopted the proposed resolution (Resolution 2020-001) but directed Authority staff to revise the proposed Policy to incorporate language implementing the GC Fee Cap. At the same meeting, the Authority Board considered a resolution applying and implementing the Policy with respect to RIDA’s construction of developer-performed public works for and in support of the Chula Vista Bayfront resort hotel and convention center. These developer-performed public works include Phase 1A infrastructure and the Convention Center. The Authority Board adopted the proposed resolution (Resolution 2020-002) but directed Authority staff to incorporate the same GC Fee Cap into the Policy with respect to the sole source of RIDA’s Phase 1A public improvement work. The revised Policy is provided as Exhibit A to the proposed ratifying resolution. The revised Resolution 2020-002 is provided as Exhibit B to the proposed ratifying resolution. The GC Fee Cap will specifically apply to the prime contractor’s “profit and overhead,” which means, cumulatively, with respect to any developer-performed public work, the prime contractor’s fee (which is compensation for profit and general overhead) and costs for general administration (internal overhead that is not project specific), as well as costs for supervision. The GC Fee Cap will only apply to compensation the prime contractor will receive in its role as prime contractor on the developer-performed public work, and will not apply to trade work that the prime contractor does not subcontract and that is performed on a fixed price basis. As noted in the January 8 staff report, the Board’s action would allow RIDA to sole source the Phase 1A infrastructure for and related to the resort hotel and convention center project to the prime contractor, Mortenson/McCarthy Chula Vista Resort, A Joint Venture (“MMJV”) because it is in the best interest of the public with appropriate safeguards. This GC Fee Cap is an example of one of those safeguards and would limit the amount of profit and overhead fees that MMJV could receive if it does not perform the work itself. Moreover, where MMJV is self-performing trade work in lieu of hiring a subcontractor, Authority staff will still be closely monitoring the fixed price amount of such construction contracts. The following is the new language that will be included in the Policy and implemented by Authority staff: The Authority Board shall be provided assurances that the amount that the developer will pay to the prime contractor for Profit and Overhead shall not exceed fifteen percent (15%) of the total amount of the hard construction costs of the developer-performed public work (“15% Requirement”); provided, however, the 15% Requirement does not apply to any compensation that is paid to the prime contractor for the performance, on a fixed-price basis, of trade work which the prime contractor does not subcontract, and such compensation will be excluded in determining whether the 15% Requirement has been satisfied. “Profit and Overhead” means, cumulatively, with respect to any developer- performed public work, the prime contractor’s fee (which is compensation for profit and general overhead) and costs for general administration (internal overhead that is not project specific) and supervision. At the January 8, 2020 meeting, the Authority Board also found the Convention Center to be a special purpose project and took action waiving certain requirements of the Policy as they apply to the Convention Center via Resolution 2020-002. In order to implement the direction of the Authority Board to limit the application of the GC Fee Cap to RIDA’s Phase 1A public improvements, and not the Convention Center, Section 4 of the proposed ratifying resolution includes the additional waiver of Section 1.b.iii of the Policy. In addition to the language provided in the revised documents, Authority staff will be developing administrative policies which will further refine the application of the GC Fee Cap and the Policy generally, as necessary, to ensure the necessary safeguards to ensure that sole source of the project is in the best interest of the public. Moreover, the Disposition and Development Agreement for the project by and among the City, District, and Authority, already requires RIDA to use a guaranteed maximum price construction contract or fixed price construction contract. Thus, in addition to the GC Fee Cap, prime contractor will not be able to increase the ultimate construction costs beyond the guaranteed maximum price. The Policy, as reflected in Exhibit A, and the requirements of Resolution 2020-002, including the GC Fee Cap, will be incorporated into future implementing agreements, including the Acquisition/Financing Agreement, which will be brought back to the Authority Board for approval at a future meeting, and will be used by Authority staff when implementing the Policy to various aspects of the Chula Vista Bayfront resort hotel and convention center project. General Counsel’s Comments: Both of the Authority Co-Counsel have reviewed this agenda sheet as presented to them and approve it as to form and legality. Environmental Review: The proposed Authority Board action approving a resolution ratifying the final form of the Authority Board’s modifications to the Authority’s Procurement Policy for Developer- Performed Public Works and Resolution 2020-002 implementing the construction of public improvements for the Chula Vista Bayfront resort hotel and convention center project was adequately covered in the Final Environmental Impact Report (FEIR) for the Chula Vista Bayfront Master Plan (CVBMP) (UPD #83356-EIR-658; SCH #2005081077; Clerk Document No. 56562), certified by the District on May 18, 2010 (Resolution No. 2010-78), the Addendum to the FEIR, which was adopted by the District on August 13, 2013 (Resolution No. 2013-138), and the Second Addendum to the FEIR, which was adopted by the District on April 10, 2018 (Resolution No. 2018-0069). The proposed Authority Board action is not a separate “project” for CEQA purposes but is a subsequent discretionary approval related to a previously approved project. (CEQA Guidelines § 15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles Comm. College Dist. (2012) 206 Cal.App.4th 1036.) Accordingly, the proposed Authority Board action is merely a step-in furtherance of the original project for which environmental review was performed and no supplemental or subsequent CEQA has been triggered, and no further environmental review is required. In addition, the proposed Authority Board actions would not conflict with the Port Act or Public Trust Doctrine. The proposed Authority direction or action does not allow for “development,” as defined in Section 30106 of the California Coastal Act, or “new development,” pursuant to Section 1.a. of the District’s Coastal Development Permit (CDP) Regulations because they will not result in, without limitation, a physical change, change in use or increase the intensity of uses. Therefore, issuance of a Coastal Development Permit or exclusion is not required. However, development within the District requires processing under the District’s CDP Regulations. Future development, as defined in Section 30106 of the Coastal Act, will remain subject to its own independent review pursuant to the District’s certified CDP Regulations, PMP, and Chapters 3 and 8 of the Coastal Act. The Authority’s direction or action in no way limits the exercise of the District’s discretion under the District’s CDP Regulations. Therefore, issuance of a CDP or exclusion is not required at this time. Equal Opportunity Program: Not applicable. PREPARED BY: Tiffany Allen Assistant Director of Development Services, City of Chula Vista Attachment(s): None. Chula Vista Bayfront Facilities Financing Authority Resolution 20xx-xxx RESOLUTION RATIFYING THE FINAL FORM OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) PROCUREMENT POLICY FOR DEVELOPER-PERFORMED PUBLIC WORKS AND RESOLUTION 2020-002 IMPLEMENTING THE CONSTRUCTION OF DEVELOPER-PERFORMED PUBLIC WORKS FOR AND IN SUPPORT OF THE CHULA VISTA BAYFRONT RESORT HOTEL AND CONVENTION CENTER PROJECT WHEREAS, on January 8, 2020, at a regular meeting of the Board of Directors (“Authority Board”) for the Chula Vista Bayfront Facilities Financing Authority (“Authority”), the Authority Board adopted Resolution 2020-001, which adopted a procurement policy for developer-performed public works for the Authority (“Procurement Policy”), but requested that Authority staff make minor modifications to the Procurement Policy to incorporate a cap on general/prime contractor profit and overhead fees of fifteen percent (15%) on the hard construction costs of the subject developer-performed public work (the “GC Fee Cap”); and WHEREAS, on January 8, 2020, at a regular meeting of the Authority Board, the Authority Board adopted Resolution 2020-002, which, among other things, included an Authority Board finding that RIDA Chula Vista, LLC’s proposed sole source award of the prime contract to construct the developer-performed public works for the Chula Vista Bayfront resort hotel and convention center was in the best interest of the public, but requested that Authority staff make minor modifications to incorporate the GC Fee Cap; and WHEREAS, staff has revised the Procurement Policy and Resolution 2020-002 in order to implement the minor modifications requested by the Authority Board; and WHEREAS, accordingly, Authority staff recommends the Authority Board ratify the final form of the Procurement Policy and Resolution 2020-002 in the forms presented. NOW, THEREFORE, BE IT RESOLVED by the Authority Board, as follows: Section 1. In accordance with the findings set forth above, the Procurement Policy in the form presented and attached hereto as Exhibit A is hereby ratified as the procurement policy for developer-performed public works for the Authority. Section 2. In accordance with the findings set forth above, Resolution 2020-002, in the form presented and attached hereto as Exhibit B is hereby ratified as the final form of Authority Board Resolution 2020-002. 2 Section 3. This Resolution is not a new action by the Authority Board with respect to the Procurement Policy or Resolution 2020-002 but merely a ratification of the final forms of the same as previously deliberated and approved by the Authority Board at its regular meeting duly held on January 8, 2020. Section 4. This Resolution shall take effect immediately upon its adoption. Approved As To Form and Legality: Co-Counsel ______________________________ Passed And Adopted by the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority this 20th day of May, 2020, by the following vote: Exhibit A AUTHORITY PROCUREMENT POLICY [To Be Attached] Chula Vista Bayfront Facilities Financing Authority Procurement Policy For Developer-Performed Public Works Introduction; General Terms This Chula Vista Bayfront Facilities Financing Authority Procurement Policy for Developer-Performed Public Works (“JEPA Procurement Policy” or “Policy”) was approved by the Chula Vista Bayfront Facilities Financing Authority (“Authority”) on January 8, 2020 pursuant to Resolution No. _____________. This Policy is based on the procurement policy for developer-performed public works utilized by the City of Chula Vista (“City”) set forth in Section 2.56.160(H) of the Chula Vista Municipal Code (“CVMC”). Except where the context otherwise requires, capitalized terms not expressly defined herein shall have the meanings ascribed thereto in the City Charter, CVMC Chapter 2.56 (Purchasing System), or elsewhere in the CVMC. Any provisions in the City Charter, or Sections of the CVMC, that are expressly cross- referenced by this Policy are hereby incorporated herein by such reference, substituting the terms “Authority” for “City”, “Authority Board” for “City Council” and “Executive Director” for “City Manager”, as appropriate. For ease of reference, these cross- referenced Sections from the City Charter and the CVMC are set forth in full in the attached Appendix A. Except as expressly provided herein, no other provisions of the City Charter or the CVMC shall govern the Authority in its implementation of this Policy. Specific Terms In General. This Policy shall apply to public works (as defined by Section 1009 of the Charter of the City of Chula Vista, as amended) that are to be 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 Authority, the City, or the San Diego Unified Port District, a public benefit corporation (“Port”), as appropriate (“developer-performed public work”). 1. Procurement. A developer-performed public work shall be procured pursuant to one of the following project contracting methods: a. Competitive Bid or Solicitation. A developer may award a contract for a developer-performed public work by competitive bid or solicitation in compliance with all applicable requirements of this Policy. b. Sole Source. 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 this Policy: i. The Authority Board finds that an award of a sole source contract is in the best interest of the public because of the particular (1) performance capabilities of the proposed entity or contractor, (2) project characteristics, (3) manufacturing processes, (4) compatibility requirements, and/or (5) market or other conditions/circumstances that render the award of a sole source contract to be in the best interest of the public; and ii. The entity or contractor awarded a contract for a developer- performed public work competitively bids all subcontracts for the developer-performed public work; and iii. The Authority Board has been provided assurances that the amount that the developer will pay to the prime contractor for Profit and Overhead shall not exceed fifteen percent (15%) of the total amount of the hard construction costs of the developer-performed public work (“15% Requirement”); provided, however, the 15% Requirement does not apply to any compensation that is paid to the prime contractor for the performance, on a fixed-price basis, of trade work which the prime contractor does not subcontract, and such compensation will be excluded in determining whether the 15% Requirement has been satisfied. “Profit and Overhead” means, cumulatively, with respect to any developer-performed public work, the prime contractor’s fee (which is compensation for profit and general overhead) and costs for general administration (internal overhead that is not project specific) and supervision. c. Developer as Design-Build Entity or Prime Contractor. A developer may act as a design-build entity or prime contractor for a developer-performed public work where, in addition to compliance with all applicable requirements of this Policy: i. Developer provides written notice to Authority of its intent to act as a design-build entity or prime contractor and provides information demonstrating its competence and qualifications to perform the developer-performed public work; ii. Authority determines, in Authority’s sole discretion, that the developer is competent and qualified to complete the developer- performed public work and authorizes the developer to proceed with the developer-performed public work; and iii. Developer competitively bids all subcontracts for the developer- performed public work. 2. Bid and Award. a. Authorization to Proceed. If a developer-performed public work is not otherwise authorized by means of an approved agreement with the Authority or other approved action of the Authority, a developer shall be required to: (i) obtain prior written approval of the Executive Director, or designee, to proceed with a developer-performed public work with an estimated maximum contract value of $2,000,000 or less; or (ii) obtain approval of the Authority Board, by resolution, to proceed with a developer- performed public work with an estimated maximum contract value of more than $2,000,000. Failure to comply with the procedures in this Policy may, in Authority’s discretion, result in a waiver of all claims for payments by Authority or bond drawdowns to developer in connection with a developer- performed public work. b. Bid and Contract Documents. Developer shall prepare, or cause to be prepared, bid documents (except with respect to prime contracts awarded pursuant to section A.1.b. of this Policy) and contract documents for a developer-performed public work in accordance with all local codes, City design guidelines, and project-specific design guidelines, subject to Authority approval. The bid and contract documents shall include, without limitation, detailed plans and technical specifications, bonding requirements, insurance requirements, prevailing wage requirements, mandates for timely completion, and remedies for untimely completion. c. Competitive Solicitation of Bids. Developer shall solicit, or cause to be solicited, sealed competitive bids for prime contracts (except for prime contracts awarded pursuant to section A.1.b. of this Policy) and subcontracts for a developer-performed public work on a guaranteed maximum price, lump sum price, or per unit, line item basis and in accordance with industry standard procurement practices as determined by Authority. A developer may combine into one bid solicitation the construction of a developer-performed public work and other development work, but the bid and contract documents must clearly separate the developer-performed public work from other development work to be performed, in a manner and form as approved by Authority. Any consultant retained by a developer to assist in the preparation of bid or contract documents (including without limitation preliminary/concept designs), or to assist in the solicitation of bids for a developer-performed public work, shall not be eligible to submit a bid for or be awarded a subsequent contract for that developer-performed public work. d. Award of Contract. Developer shall award contracts (except for contracts awarded pursuant to section A.1.b. of this Policy), and shall award, or shall cause the applicable entity or contractor to award, subcontracts for a 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 Authority 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. If 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 and reimbursements shall not exceed the amount of the lowest responsive bid 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. Authority approves the waiver in accordance with section A.6. of this Policy. e. Design-Build Contracts. Where a design-build contract is utilized to complete a developer-performed public work, a developer is not required to comply with section A.2.b. or A.2.c. of this Policy; provided, that developer complies with: i. All remaining requirements of this Policy; ii. The design-build procurement requirements set forth in CVMC 2.57.030; iii. The qualification and selection process set forth in CVMC 2.57.040; and iv. All other applicable administrative policies, procedures, and standards for design-build projects, which may be adopted or applied by the Authority. 3. Construction and Acceptance. a. Payments. Authority shall have the authority to audit and determine the acceptable amounts of all payments by Authority and bond drawdowns for a developer-performed public work. b. Change Orders. Any change to the contract documents or improvements for a developer-performed public work (“change order”) shall be subject to Authority’s prior written approval, except for change orders that: (i) result in no additional payment by Authority or bond drawdown; (ii) result in no additional maintenance or overhead costs to the Authority; (iii) result in no material delay to the completion date; and (iv) result in no material modifications to the design or construction. Authority shall have the sole discretion to determine whether sections A.3.b.(i), (ii), (iii), and (iv) of this Policy have been satisfied. All change order requests shall be submitted in writing in advance of performing any work or incurring any increased costs for a change order, and substantiated with supporting documentation justifying the request. Cumulative change orders resulting in a total project amount of less than $2,000,000 shall be considered by and subject to approval of the Executive Director, or designee. Cumulative change orders resulting in a total project amount of $2,000,000 or more shall be considered by and subject to approval of the Authority Board. Failure to comply with the procedures in this Policy may, in Authority’s discretion, result in a waiver of all claims for additional payments from Authority or bond drawdowns to developer in connection with a change order. c. Post-Construction. Authority shall have the discretion to accept a developer-performed public work based on Authority’s determination of compliance with local codes, Authority’s general design and construction standards, and project-specific design and construction standards. Authority shall have the discretion to release all bonds for a developer- performed public work. 4. Other Obligations. Nothing in this Policy shall limit or relieve a developer of other obligations or restrictions applicable to the performance of a developer- performed public work, including, without limitation, obligations or restrictions required by a funding source for the developer-performed public work. 5. Agreement. Where otherwise required or advisable, in Authority’s sole discretion, Authority may require a developer to enter into an agreement prior to commencement of a developer-performed public work to implement the developer- performed public work in accordance with the terms of this Policy and/or in accordance with other obligations or restrictions applicable to the developer- performed public work. Such agreement may: (a) clarify or modify the application of and/or waiver of the requirements of this Policy to a developer-performed public work, and/or (b) clarify, establish, or modify the procedures to be undertaken by developer and Authority in connection with this Policy (including but not limited to the procedures and approvals described in section A.3. of this Policy). The Authority Board’s approval of an agreement that clarifies and establishes such procedures constitutes the Authority Board’s determination and finding that such procedures satisfy all applicable requirements of this Policy. 6. Waiver. The requirements of this Policy may be waived, in whole or in part, solely as follows: a. For developer-performed public works with an original project award amount of more than $2,000,000, by the Authority making findings that (i) 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. b. For developer-performed public works with an original project award amount of $2,000,000 or less, by written determination of the Executive Director, or designee, that (i) 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. c. For post-award waiver requests, if the estimated total project amount, including all change orders, is more than $2,000,000, post-award waiver requests shall be considered by and subject to approval of the Authority and require the findings stated in section H.6.a. of this Policy. If the estimated total project amount, including all change orders, is $2,000,000 or less, post-award waiver requests shall be considered by and subject to the approval of the Executive Director, or designee, and require the findings stated in section A.6.b. of this Policy. Nothing in this Policy shall subject previously approved waivers to further consideration and/or approval. d. For a “special purpose project,” by resolution of the Authority making findings that: (i) the waiver is in the best interest of the public after consideration of factors including, without limitation, the total project costs, Authority’s share of project costs, time for project completion, public benefits of the project, and other relevant criteria and circumstances, and (ii) appropriate safeguards are in place to protect the public interest. For purposes of this Policy, “special purpose project” means a developer- performed public work that is intended to be owned, leased, and/or operated by a party or parties other than the Authority for a period of no less than 10 years after completion of the developer-performed public work. 7. Delegation of Authority. As the Authority Board deems appropriate or necessary for the implementation of a developer-performed public work, the Authority Board may delegate authority to implement this Policy to the Executive Director, or designee, including without limitation the authority to grant approvals, make findings, implement waivers, and waive requirements in accordance with the standards set forth in this Policy. 8. Exemption from California Public Contract Code. The Authority is exempt from the California Public Contract Code in its procurement of developer-performed public works pursuant to this Policy. APPENDIX A Excerpts from the City Procurement Policy City Charter Section 1009. Contracts on Public Works. When the City contracts for the construction, reconstruction, improvement or repair (excluding routine maintenance) of public buildings, streets, drains, sewers, utilities, parks, playgrounds and similar public facilities (each a “Public Work” and collectively, “Public Works”), the furnishing of labor, supplies, materials, equipment or other contractual services for same shall be done by written contract approved as to form and legality by the City Attorney. The City Council shall, by ordinance, adopt specific policies and procedures for the award of Public Works contracts. This ordinance must contain provision for the following: (a) City Council reservation of authority to approve what it defines as “major” contracts or “special” contracts, based on factors such as contract cost, value or other relevant factors; (b) Competitive bid processes for all contracts, with formal advertisement for bids and sealed bids required for all “major” contracts; (c) The award of contracts to the lowest responsive and responsible bidder; (d) The ability to reject any and all bids, to re-advertise for bids, or to waive minor defects in any bid, where determined by the designated contract-approving authority that such action is necessary or appropriate for the benefit of the public; (e) Emergency authority to waive the applicable competitive bid process requirements if the City Manager determines that the work required is of urgent necessity for the preservation of life, health or property; and (f) Such other provisions consistent with this section as may be necessary or appropriate to implement a Public Works procurement process that is consistent with best practices. The ordinance may also provide for one or more exceptions to the approval and competitive bid processes described in a. through c., above, provided that any such exception is implemented as part of a City-wide policy or program that has been approved and determined to be in the best overall interests of the City by at least four affirmative votes of the City Council. Notwithstanding any provisions of this Charter to the contrary, the City may employ a design-build process for the construction, reconstruction or repair of public works. A “design-build process” shall mean a process in which the design and construction of a project are procured from a single entity. Prior to employing the design-build process, the City shall establish, by ordinance, specific procedures and standards to be used to solicit, qualify, evaluate and select design-build proposals by competitive bid or negotiation process. Chula Vista Municipal Code Section 2.57.030 Design-build procurement. Prior to procuring a design-build public works contract, the City shall complete one of the following processes: A. Project-Specific RFP/RFQ. Prepare a project-specific request for proposal or qualification setting forth the basic scope of the project that may include, but is not limited to, the size, type, and desired design character of the project and site, and performance specifications. The performance specifications shall describe the quality of construction materials, assemblies, and other information deemed necessary to adequately describe the City’s needs. The performance specifications shall be prepared by a design professional designated by the City; or B. Project-Specific RFP to a Qualified List of Proposers. Prepare a project-specific request for proposal setting forth the basic scope of the project that may include, but is not limited to, the size, type and desired design character of the project and site, and performance specifications to be distributed exclusively to those teams selected from the qualified list of design-build entities. The performance specifications shall describe the quality of construction materials, assemblies, and other information deemed necessary to adequately describe the City’s needs. The performance specifications shall be prepared by a design professional designated by the City; or C. Project-Specific RFP (Collaborative Design-Build/Progressive Design-Build) to a Qualified List of Proposers. Prepare a project-specific request for proposal setting forth the basic scope of the project and the project budget to be distributed exclusively to teams selected from a qualified list of design-build entities. The request for proposals shall indicate that the project is to be completed in two contract phases: (1) a design and preconstruction phase and (2) a final design and construction phase. The request for proposals shall require proposers to submit a technical proposal describing the proposer’s experience, project personnel, organizational structure, project approach, and project schedule and plan. The request for proposal shall require proposers to submit a fee proposal for both phases of the project; or D. Selection from Qualified List of Proposers. Select a design-build entity from those teams identified on the qualified list of design-build entities without preparing a formal request for proposals. Prior to an award to a design-build entity pursuant to the qualified list of design-build entities, the City Manager shall certify to the City Council in writing that the most qualified firms have been invited to interview and the selected firm is capable of providing the services and it is in the best interest of the City to proceed in this manner; or E. Sole Source. Select a design-build entity or team as a sole source, if, in advance of the award of the contract, the City Manager certifies in writing that the proposed provider and services meet the requirements for award as a sole source (as defined in CVMC 2.57.020); or F. Cooperative Purchasing. Select a design-build entity or team through a competitive cooperative purchasing solicitation in accordance with CVMC 2.56.140 (Cooperative purchasing agreements) and other City rules, regulations, and procedures governing design-build procurement. The City is authorized to cancel any design-build procurement process at any time if the City determines doing so would be in the best interest of the City. The City is not responsible or liable for any costs incurred by a proposer pursuant to any design-build procurement process. (Ord. 3436 § 1, 2018; Ord. 2827 § 1, 2000). 2.57.040 Qualification and selection process. The City may establish a qualification and selection process for design-build entities that specifies the qualification criteria, as well as recommends the manner in which the winning entity will be selected. Nothing in this chapter precludes a design-build contract from being awarded to a sole source if, in advance of the contract, the City Manager certifies in writing the sole source status of the provider. (Ord. 3436 § 1, 2018; Ord. 2827 § 1, 2000). 218414.1 US-DOCS\111651927.4 4132-8677-6861.3 Exhibit B RESOLUTION 2020-002 [To Be Attached] 1 Chula Vista Bayfront Facilities Financing Authority Resolution 2020-002 RESOLUTION OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) (1) AUTHORIZING RIDA CHULA VISTA, LLC (DEVELOPER) TO PROCEED WITH THE DEVELOPMENT AND CONSTRUCTION OF DEVELOPER’S PUBLIC IMPROVEMENTS, WITH CONDITIONS; (2) FINDING DEVELOPER’S PROPOSED SOLE SOURCE AWARD OF THE PRIME CONTRACT TO CONSTRUCT DEVELOPER’S PUBLIC IMPROVEMENTS TO BE IN THE BEST INTEREST OF THE PUBLIC; (3) DELEGATING AUTHORITY TO THE EXECUTIVE DIRECTOR, OR DESIGNEE, TO IMPLEMENT THE SUBCONTRACTOR PROCUREMENT PROCESS FOR THE PHASE 1A IMPROVEMENTS IN ACCORDANCE WITH AUTHORITY’S PROCUREMENT POLICY; AND (4) FINDING THE CONVENTION CENTER TO BE A SPECIAL PURPOSE PROJECT PURSUANT TO THE AUTHORITY’S PROCUREMENT POLICY, GRANTING A WAIVER OF THE PROCUREMENT POLICY REQUIREMENTS FOR THE SUBCONTRACTOR AWARD AND BID PROCESS FOR THE CONVENTION CENTER, AND DELEGATING AUTHORITY TO THE EXECUTIVE DIRECTOR, OR DESIGNEE, TO IMPLEMENT APPROPRIATE PROJECT IMPLEMENTATION SAFEGUARDS FOR THE CONVENTION CENTER WHEREAS, on May 7, 2018, the San Diego Unified Port District, a public benefit corporation (“Port”), the City of Chula Vista, a California chartered municipal corporation (“City”), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer”), entered into a Disposition and Development Agreement (as it may be amended from time to time, “DDA”) for the development of a Resort Hotel and Convention Center Project (the “Project”) on Parcel H-3 within the Chula Vista Bayfront Master Plan (“CVBMP”), as more fully described in the DDA; and WHEREAS, the “Project” includes the development and construction of “Developer’s Public Improvements”, which consist of the “Phase 1A Infrastructure Improvements” and the “Convention Center”, all as more fully described in the DDA; and WHEREAS, the Project includes the development and construction of “Developer’s Private Improvements” which are comprised of 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 DDA; and 2 WHEREAS, City and Port formed the Chula Vista Bayfront Facilities Financing Authority (“Authority”) pursuant to the California Joint Exercise of Powers Act for the primary purpose of assisting with the financing of the Developer’s Public Improvements portion of the Project; and WHEREAS, on January 8, 2020, the Authority approved and adopted a Procurement Policy (“Procurement Policy”) implementing regulations related to the Authority’s procurement of contracts for developer-performed public works within the CVBMP; and WHEREAS, the Procurement Policy regulates the procurement of construction contracts for certain public improvements such as Developer’s Public Improvements; and WHEREAS, Procurement Policy Section 2.a (Authorization to Proceed) requires Developer to obtain authorization of the Board of Directors of the Authority (“Board”), by resolution, prior to proceeding with a developer-performed public work estimated to exceed $2 million; and WHEREAS, the total cost of constructing the Convention Center portion of the Project is currently estimated at $376 million and the Project Public Investment Amount (as defined in the DDA) is $240 million, with the Developer responsible for all construction costs of the Convention Center in excess of the Project Public Investment Amount; and WHEREAS, Procurement Policy Section 1.b (Sole Source) provides that developer-performed public works may be constructed through the award of a sole source contract where: (i) the Authority Board finds that the award of the sole source contract is in the best interest of the public based on consideration of (1) performance capabilities of the proposed entity or contractor, (2) project characteristics, (3) manufacturing processes, (4) compatibility requirements, and/or (5) market or other conditions/circumstances that render the award of a sole source contract to be in the interest of the public; (ii) the entity or contractor awarded a contract for a developer-performed public work shall competitively bid all subcontracts for the developer-performed public work; and (iii) the Authority Board has been provided assurances that the amount that the developer will pay to the prime contractor for Profit and Overhead (as defined in the Policy) shall not exceed fifteen percent (15%) of the total amount of the hard construction costs of the developer-performed public work (“15% Requirement”); provided, however, the 15% Requirement does not apply to any compensation that is paid to the prime contractor for the performance, on a fixed-price basis, of trade work which the prime contractor does not subcontract, and such compensation will be excluded in determining whether the 15% Requirement has been satisfied; and WHEREAS, Developer has proposed award of a single sole source prime contract to Mortenson/McCarthy Chula Vista Resort, A Joint Venture (“MMJV”) which is comprised of M.A. Mortenson Company (“Mortenson”) and McCarthy Building Companies, Inc. (“McCarthy”); and WHEREAS, the proposed prime contract would combine certain public improvement work, the Developer’s Public Improvements, certain private improvement work, and the Developer’s Private Improvements; and 3 WHEREAS, Developer represents that it has selected MMJV for the construction of, and partial design, of the Project 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 Developer affiliate which makes it uniquely qualified to develop the Project; 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 Procurement Policy Section 1.b (Sole Source), Developer is seeking Authority’s acceptance of MMJV as the sole source general contractor for the construction of the Developer’s Public Improvements based on the Developer’s representation that hiring MMJV as general contractor will provide for a compatible, streamlined, and successful approach that will result in time and cost efficiencies for Project delivery, timely delivery of the Convention Center (where the collective investment of the City, the Port and the Authority in the construction of the Convention Center will not exceed the Project Public Investment Amount), timely deliver the Phase 1A Infrastructure Improvements pursuant to a competitive procurement process that meets the 15% Requirement, and avoid logistical coordination issues that would otherwise impede the overall schedule for completion of the Project; and WHEREAS, staff concurs that MMJV is highly qualified to build the Project and accepts Developer’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 Board find that Developer’s proposed sole source award of the prime contract to MMJV to be in the “best interest of the public”; and WHEREAS, Procurement Policy Section 2.d (Award of Contract) requires competitive bidding for all subcontractors for developer-performed public works in accordance with the Procurement Policy where a developer awards its prime contract on a sole source basis; and WHEREAS, Procurement Policy Section 2.d (Award of Contract) provides that “subcontracts for a 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 Authority 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 has informed staff that it intends to cause its contractors to award subcontracts for the Project, including the Phase 1A Infrastructure Improvements, to “best qualified” subcontractors to ensure that the Project is constructed in a timely manner by subcontracting teams that are determined to be the best qualified to perform the work; and WHEREAS, Developer has presented staff with its proposed process for selection of “best qualified” subcontractors for each respective trade for the Phase 1A Infrastructure Improvements that currently generally includes: (1) a qualification process that considers past relevant / similar project experience, customer feedback from those projects, current backlog, available trades personnel resources, proposed supervisory / management personnel, financial capability, and design capabilities (for design- 4 build subcontracts); (2) where practical, the solicitation of (a) three competitive bid proposals from the pre- qualified list of subcontractors for work estimated to be equal to or in excess of $75,000 and (b) two competitive bid proposals for work estimated to be less than $75,000; (3) a bid proposal evaluation process that considers qualitative factors (i.e. personnel, schedule management, experience, expertise and business practices and policies that increase the likelihood that the Project will be completed without disruption, and quality management) and quantitative factors (i.e. price, schedule details, and rates for labor, equipment, and insurance); (4) a pre-selection in-depth interview with potential “best qualified” subcontractors; and (5) a pre-selection process for potential subcontractors to present a “best and final offer”. Further, prior to execution of each subcontract for the Phase 1A Infrastructure Improvements, Developer will provide written confirmation to the Authority that the subcontractor selection process was complied with or it will provide a written request to waive the process in accordance with the Procurement Policy; and WHEREAS, staff is satisfied that the above-described process will result in the selection of the “best qualified” subcontractors consistent with the Authority’s best interest in high quality and timely construction per applicable standards and the DDA, leases, and other agreements to be entered into between Developer, the City, the Port, or the Authority, or any combination thereof, related to the construction of the Project (“Project Agreements”). Staff acknowledges that it may be desirable or necessary to modify the herein described subcontractor selection process in order to facilitate timely and satisfactory completion of the Phase 1A Infrastructure Improvements; and WHEREAS, if Developer proposes a material change to the process as provided in this Resolution, staff will present such proposed material change to the Authority Board for its consideration and action at a future meeting of the Board; and WHEREAS, Procurement Policy Section 2.d (Award of Contract) states that if a developer awards a “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 bid 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) Authority approves the waiver in accordance with subsection A.6 of this section”; and WHEREAS, Procurement Policy Section 6.a (Waiver) provides that the Authority may waive the requirements of the Procurement Policy, in whole or in part, for developer-performed public works with an original project award amount of more than $2,000,000 where it finds that: (i) 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, final subcontractor bids for the Phase 1A Infrastructure Improvements will not be received or awarded until after the Board’s adoption of this Resolution; and 5 WHEREAS, Developer has informed staff that it intends to seek waivers for the award of certain subcontracts for the Phase 1A Infrastructure Improvements that it believes will achieve the objective of the Procurement Policy, but not precisely follow the procurement process set forth in the Procurement Policy; and WHEREAS, appropriate safeguards to protect the public interest are in place and will be put in place for the selection of subcontracts for the Phase 1A Infrastructure Improvements in the Procurement Policy, this Resolution, and the various Project Agreements, which may include but are not limited to the following: insurance requirements; performance bond requirements; payment bond requirements; a completion guaranty; Developer’s obligation to comply with all laws including without limitation prevailing wage laws; and Developer obligation to indemnify, defend, and hold harmless the public entity parties; and the above-described 10 percent not-to-exceed limitation for the award of subcontracts to non- low bidders; and WHEREAS, in accordance with Section 7 of the Procurement Policy, staff recommends delegating authority to the Executive Director, or designee, to take other actions on behalf of the Authority to implement the subcontractor selection process for the Phase 1A Infrastructure Improvements, or to modify or waive any requirement of the subcontractor selection process for the Phase 1A Infrastructure Improvements; provided, that the actions of the Executive Director are consistent with the Procurement Policy and this Resolution; and WHEREAS, Procurement Policy Section 6.d (Waiver) provides that the Board may, by resolution, waive the requirements of the Procurement Policy, in whole or in part, for a “special purpose project” where it finds that (i) the waiver is in the best interest of the public after consideration of factors including, without limitation, the total project costs, Authority’s share of project costs, time for project completion, public benefits of the project, and other relevant criteria and circumstances, and (ii) appropriate safeguards are in place to protect the public interest; and WHEREAS, Procurement Policy Section 6.d (Waiver) defines a “special purpose project” as a “developer-performed public work that is intended to be owned, leased, and/or operated by a party or parties other than the Authority, the City or the Port, for a period of no less than 10 years after completion”; and WHEREAS, staff recommends that the Board find that the Convention Center portion of the overall Project constitute a “special purpose project” as the Convention Center will be leased and operated by Developer for a period of no less than 10 years after completion of the Convention Center; and WHEREAS, Developer has informed staff that Developer is seeking, and may seek in the future, special purpose project waivers of certain aspects of the Procurement Policy for the Convention Center portion of the Project, including the subcontractor bid and award process, that it believes will achieve the objective of the Procurement Policy, but not precisely follow the procurement process set forth in the Procurement Policy; and WHEREAS, appropriate safeguards to protect the public interest are in place in existing Project Agreements and will be put in place in future Project Agreements for the Convention Center, including but 6 not limited to the following: a not-to-exceed Project Public Investment Amount; insurance requirements; obligations for quality of work, permitting requirements, inspection requirements, performance bond requirements; payment bond requirements; obligations for timely completion; a completion guaranty; Developer’s obligations to comply with all laws including without limitation prevailing wage laws; and Developer’s obligations to indemnify, defend, and hold harmless the public entity parties; and WHEREAS, subcontracts for the Convention Center will not be executed until after the Board’s adoption of this Resolution; and WHEREAS, in accordance with Section 7 of the Procurement Policy, staff recommends delegating authority to the Executive Director, or designee, to take other actions on behalf of the Authority to implement the Procurement Policy as it applies to the Convention Center, including the subcontractor selection process, and to modify or waive requirements of the subcontractor selection process; provided, that the actions of the Executive Director are consistent with this Resolution and the Procurement Policy; and WHEREAS, the development, construction, or financing of the Convention Center or the Phase 1A Infrastructure Improvements are exempt from compliance with the California Public Contract Code pursuant to Section 8 of the Procurement Policy, as adopted by Resolution No. 2020-001; and WHEREAS, as a condition to any waiver of the Procurement Policy, Developer will enter into an agreement with the City, the Port, and the Authority to indemnify, defend, and hold harmless the Authority, the Port, and the City, in a manner substantially consistent with Developer’s indemnification, defense, and hold harmless obligations under Section 4.17 of the DDA as set forth in more detail in Section 7 hereof; and WHEREAS, in accordance with Section 7 of the Procurement Policy, staff recommends granting the Executive Director, or designee, the authority to delegate the authority provided in this Resolution to two or more members of the staff of the Authority; provided that such delegation is made to a contingent comprised of an equal number of City and Port staff members respectively; and WHEREAS, staff intends to bring future Project Agreements concerning the financing, development, and construction of the Developer’s Public Improvements to the Board for its review and consideration at the appropriate time. NOW THEREFORE, BE IT RESOLVED by the Board as follows: Section 1. Authorization to Proceed. In accordance with Procurement Policy Section 2.a, the Board authorizes the Developer to proceed with the development and construction of the Developer’s Public Improvements subject to the terms, conditions, and obligations of the Procurement Policy, this Resolution, all applicable Project Agreements, and all applicable federal, state, and local laws and regulations. Section 2. Sole Source Prime Contract. After consideration of factors stated in Procurement Policy Section 1.b, the agenda statement, the existing Project Agreements, the terms to be contained in future 7 Project Agreements as required pursuant hereto, and the Recitals above, the Board finds that the Developer’s award of a sole source contract to MMJV for the construction of the Developer’s Public Improvements to be in the best interest of the public and finds the 15% Requirement limitation in the Policy to be consistent with current industry standards, and delegates the authority to the Executive Director or designee to implement Procurement Policy Sections 1.b (ii) and (iii) through provisions to be included in future Project Agreements and to oversee and determine compliance therewith. Section 3. Subcontracting Process – Phase 1A Infrastructure Improvements. After consideration of the subcontractor bid and award process for the Phase 1A Infrastructure Improvements in the agenda statement, the existing Project Agreements, the terms to be contained in future Project Agreements as required pursuant hereto, and the Recitals above, the Board finds that the subcontractor bid and award process for the Phase 1A Infrastructure Improvements complies with the Procurement Policy or is in the best interest of the public and appropriate safeguards are in place to protect the public interest. The Board also delegates the authority, pursuant to Procurement Policy Section 7, to the Executive Director, or designee, to implement the subcontractor bid and award process for the Phase 1A Infrastructure Improvements in accordance with the Procurement Policy, as applied by, and subject to, this Resolution, including without limitation the following: (a) The authority, pursuant to Procurement Policy Section 2.b, to make findings and a compliance determination regarding subcontractor bid and contract documents; (b) The authority, pursuant to Procurement Policy Section 2.c, to make findings and a compliance determination regarding competitive solicitations of subcontractor bids, such delegation to include, without limitation, the authority to waive the limitations of the last sentence of Section 2.c as necessary and appropriate to implement a “design assist” procurement protocol and/or to allow MMJV to bid on certain project components where determined by Authority staff to be in the best interests of the public with appropriate safe-guards. (c) The authority, pursuant to Procurement Policy Section 2.d, to make findings and a compliance determination regarding the award of subcontractor contracts to “best qualified contractors”. (d) The authority, pursuant to Procurement Policy Section 2.d, to make findings and waive the not- to-exceed limitation provided in Section 2.d of the Procurement Policy. (e) The authority, pursuant to Procurement Policy Section 6.a, to make findings and waive requirements of the Procurement Policy, in accordance with standards and safeguards set forth in the Procurement Policy and this Resolution. If Developer proposes a material change to the process as provided in this Resolution, staff is directed to present such proposed material change for consideration and action at a future meeting of the Board. Section 4. Special Purpose Project – Convention Center. After consideration of the agenda statement, the existing Project Agreements, the terms to be contained in future Project Agreements as required pursuant hereto, and the Recitals above, the Board: (a) Finds that the Convention Center portion of the Project constitutes a “special purpose project” as defined by Procurement Policy Section 6. 8 (b) Waives the requirements of Sections 1.b.ii., 1.b.iii, 2, and 3.b of the Procurement Policy for the Convention Center. (c) Finds that the waiver in Section 4(b) is in the best interest of the public and that appropriate safeguards are in place based on the following factors: (1) the collective investment of the City, the Port and the Authority in the construction of the Convention Center is limited to the Project Public Investment Amount in accordance with the DDA; and (2) the Developer and the Authority have agreed to include the following additional appropriate safeguards in future Projects Agreements relating to the Convention Center: insurance requirements; obligations for quality of work, performance bond requirements; payment bond requirements; obligations for timely completion; a completion guaranty; Developer’s obligations to comply with all laws including without limitation prevailing wage laws; and Developer’s obligations to indemnify, defend, and hold harmless the contracting public entity parties. (d) Delegates the authority, pursuant to Procurement Policy Section 7, to the Executive Director, or designee, to implement the safeguards set forth in Section 4(c), above, for the Convention Center. Section 5. Delegation of Authority. The Board authorizes the Executive Director, or her designee, to further delegate the authority granted in this Resolution to two or more members of the staff of the Authority; provided that such delegation is made to a contingent comprised of an equal number of City and Port staff members respectively. Section 6. Future Implementing Agreements. The Board also delegates the authority, pursuant to Procurement Policy Section 7, to require Developer to enter into an agreement prior to commencement of a developer-performed public work to implement the developer-performed public work in accordance with the terms of Procurement Policy Section 5 and/or in accordance with other obligations or restrictions applicable to the developer-performed public work. Section 7. Conditional Approval. The actions taken by the Board pursuant to this Resolution are conditioned upon the Developer satisfying the safeguards set forth in Sections 2, 3, and 4 of this Resolution, including without limitation, entering into an agreement with the Authority, the Port, and the City to indemnify, defend, and hold harmless the Authority, the Port, and the City, in a manner substantially consistent with the Developer’s indemnification, defense, and hold harmless obligations under Section 4.17 of the DDA, but solely against any Claims (as defined in the DDA) and Related Costs (as defined in the DDA) brought by any third party arising out of any action taken by the Authority, the Port, or the City, as applicable, in implementation of this Resolution; provided that, such indemnity, defense, and hold harmless obligations of the Developer shall not include any Claims (as defined in the DDA) and Related Costs (as defined in the DDA) arising solely out of (i) the Authority’s, the Port’s, or the City’s, as applicable, sole or collective negligence, or willful misconduct, (ii) the failure of the Board to follow the procedures of the Authority in adopting this Resolution, or (iii) the Board’s lack of authority to adopt this Resolution, but shall include Claims (as defined in the DDA) and Related Costs (as defined in the DDA) arising from Developer’s delivery of incorrect, misleading, or inaccurate information to the City, the Port, or Authority, officers of the Authority, or the Board, which any of the aforementioned parties relied on to adopt, or recommend the adoption of, the Resolution. Such indemnification, defense, and hold harmless obligations shall exist for so long as a challenge or claim can be made against the Authority, the Port, or the City. 9 Section 8. Compliance with the California Public Contract Code. In accordance Section 8 of the Procurement Policy, as adopted by Resolution No. 2020-001, the Authority is exempt from the California Public Contract Code in its procurement of developer-performed public works and the development, construction, and financing of the Convention Center and Phase 1A Infrastructure Improvements are exempt from compliance with the California Public Contract Code. Section 9. Effective Date. This Resolution shall take effect from and after January 8, 2020. Passed and Adopted by the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority this 20th day of May, 2020, by the following vote: