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HomeMy WebLinkAbout2021-06-28 CVBFFA Agenda PacketChula Vista Bayfront Facilities Financing Authority San Diego Unified Port District Meeting Agenda 3165 Pacific Hwy. San Diego, CA 92101 Virtual Meeting3:00 PMMonday, June 28, 2021 ****Pursuant to Governor Newsom’s Executive Order N-29-20 pertaining to the convening of public meetings in response to the COVID-19 pandemic, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE AUTHORITY (BOARD). The BOARD will attend the meeting and participate remotely to the same extent as if they were present. Due to Governor Newsom's Executive Order, the Board Chambers will remain closed to the public. MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at: https://portofsandiego.legistar.com/Calendar.aspx REMOTE PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE FOLLOWING NO LATER THAN 2:00 PM on Monday, June 28, 2021: 1. Call 619-736-2155 and leave a brief voicemail message (no longer than 2 minutes) that will be played during the meeting. 2. Email a request to provide live comment to PublicRecords@portofsandiego.org to receive a link to participate in the meeting to provide live comments. * 3. Submit written comments to PublicRecords@portofsandiego.org which will be forwarded to the Board and included in the agenda-related materials record for the meeting. * Neither the San Diego Unified Port District nor the Authority are responsible for the member of the public’s internet connections or technical ability to participate in the meeting. It is highly recommended that you use voicemail rather than provide live comment. In keeping with the Americans with Disabilities Act (ADA), the Authority and San Diego Unified Port District will make every reasonable effort to encourage participation in all its public meetings. If you require assistance or auxiliary aids in order to participate at this public meeting, please contact the Office of the District Clerk at publicrecords@portofsandiego.org or (619) 686-6206 at least 48 hours prior to the meeting. Page 1 San Diego Unified Port District Printed on 6/24/2021 June 28, 2021Chula 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 Call to Order Roll Call Non-Agenda Public Comment Each individual speaker is limited to two (2) minutes Consent Items A) Approval of Minutes of January 8, 2020 B) Approval of Minutes of February 26, 2020 C) Approval of Minutes of April 1, 2020 D) Approval of Minutes of April 27, 2020 E) Approval of Minutes of May 20, 2020 F) Approval of Minutes of June 8, 2020 G) Approval of Minutes of December 2, 2020 Action Items Resolution: A) Selecting the Chair and Vice Chair and Confirming the Designation of Other Officers of the Chula Vista Bayfront Facilities Financing Authority (Authority) B) Authorizing the Issuance of One or More Series of Revenue Bonds by the Authority C) Authorizing the Execution and Delivery of the Third Amended and Restated Revenue Sharing Agreement among the City of Chula Vista (City), the San Diego Unified Port District (District), and the Authority D) Authorizing the Execution and Delivery of the Project Implementation Agreement among the City, the District, the Bayfront Project Special Tax Financing District (Special Tax District), and RIDA Chula Vista, LLC (RIDA) for the Construction of Public Infrastructure (Phase 1A Improvements) and a Convention Center, with Conditions Page 2 San Diego Unified Port District Printed on 6/24/2021 June 28, 2021Chula Vista Bayfront Facilities Financing Authority Meeting Agenda E) Authorizing the Execution and Delivery of the Site Lease between the District and the Authority (Site Lease) for the land necessary to construct a Convention Center located in the City of Chula Vista, with Conditions F) Authorizing the Execution and Delivery of the Facility Lease between the Authority and the City, with Conditions G) Authorizing the Execution and Delivery of the Bond Purchase Agreement among J.P. Morgan Securities LLC, the Authority, the District, the Special Tax District, and the City for the Purchase and Sale of One or More Series of Bonds issued by the Authority, with Conditions H) Authorizing the Execution and Delivery of the Indenture of Trust between the Authority and Wilmington Trust, National Association (Trustee), with Conditions I) Authorizing the Execution and Delivery of the Support Agreement between the District and the Authority, with Conditions J) Authorizing the Execution and Delivery of the Loan Agreement between the Authority and the Special Tax District, with Conditions K) Authorizing the Execution and Delivery of Other Documents Related to the Issuance of the Authority Bonds Staff Comments Board Comments Adjournment Page 3 San Diego Unified Port District Printed on 6/24/2021 Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY Minutes Wednesday, January 8, 2020 3:00 PM Port of San Diego Don L. Nay Port Administration Boardroom 3165 Pacific Highway San Diego, CA 92101 A. Call to Order Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:10 p.m., on Wednesday, January 8, 2020, in the Port of San Diego’s Don L. Nay Port Administration Boardroom, 3165 Pacific Highway, San Diego, CA 92101. B. Roll Call Board of Directors Present: Mary Casillas Salas, Rafael Castellanos, Dan Malcolm, Ann Moore, and Stephen Padilla Absent: None. Officers Present: Randa Coniglio (Executive Director), and Donna Morales (Secretary) C. Non-Agenda Public Comment None. D. Action Items 1. Approval of Minutes of October 9, 2019 The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Malcolm, seconded by Board Member Castellanos, the Board approved the minutes of October 9, 2019. The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, Moore, and Padilla 2. A. Resolution of the Chula Vista Bayfront Facilities Financing Authority Adopting a Procurement Policy for Developer-Performed Public Works. B. 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 Page 2 of 2 the Phase 1A Improvements in Accordance with the 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. Tiffany Allen, Assistant Director, Development Services, City of Chula Vista provided staff presentation on Action Item D-2 (A copy of the staff report, presentations and any agenda- related materials are on file with the Office of the District Clerk, Port of San Diego). The following member(s) of the public addressed the Board with agenda-related comments: None. Board members Moore, Malcolm, Padilla, and Casillas Salas, provided comments, asked clarifying questions, and directed staff regarding modifications to the resolutions and policy. Tiffany Allen, Glen Googins, City Attorney, City of Chula Vista, and Shaun Sumner, Vice President of Real Estate, Engineering and Facilities, Port of San Diego, responded. Ms. Allen and Mr. Googins acknowledged they will incorporate the changes as directed. Kip Howard, representing RIDA, asked clarifying questions, Board Member Malcolm responded. Board Member Castellanos made a motion to adopt Action Item 2A Resolution 2020-001 Action Item 2B – Resolution 2020-002, as amended per direction to staff, Board member Moore seconded the motion. The motion passed unanimously. E. Staff Comments None. F. Board Comments Commissioner Moore thanked staff for their excellent work regarding the procurement policy. G. Adjournment The meeting adjourned at 3:48 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Minutes Wednesday, February 26, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:10 p.m., on Wednesday, February 26, 2020, in the Port of San Diego’s Don L. Nay Port Administration Boardroom, 3165 Pacific Highway, San Diego, CA 92101. B. Roll Call Board of Directors Present: Mary Casillas Salas, Rafael Castellanos, Dan Malcolm, and Stephen Padilla. Excused: Ann Moore Officers Present: Donna Morales (Secretary) C. Non-Agenda Public Comment None. D. Action Items 1. Resolution to Change the Day and Frequency of the Regular Meetings of the Board of Directors to the First and Third Wednesday of Each Month and the Second and Fourth Monday of Each Month, beginning March 4, 2020, and to Establish the Location of the Regular Meetings The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Castellanos, seconded by Board Member Malcolm, the Board adopted Resolution No. 2020-003 of the Chula Vista Bayfront Facilities Financing Authority Page 2 of 2 (Authority) to Change the Day and Frequency of the Regular Meetings of the Board of Directors to the First and Third Wednesday of Each Month and the Second and Fourth Monday of Each Month, beginning March 4, 2020, and to Establish the Location of the Regular Meetings. The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, and Padilla. Excused: Moore 2. Resolution of the Chula Vista Bayfront Facilities Financing Authority Regarding its Intention to Issue Tax Exempt Obligations to Finance Public Infrastructure on the Chula Vista Bayfront and to Make Related Reimbursements. The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Malcolm, seconded by Board Member Padilla, the Board adopted Resolution No. 2020-004 of the Chula Vista Bayfront Facilities Financing Authority (Authority) Regarding its Intention to Issue Tax Exempt Obligations to Finance Public Infrastructure on the Chula Vista Bayfront and to Make Related Reimbursements. The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, and Padilla. Excused: Moore E. Staff Comments None. F. Board Comments None. G. Adjournment The meeting adjourned at 3:14 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 3 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Minutes Wednesday, April 1, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:01 p.m., on Wednesday, April 1 2020, via Microsoft Teams meeting. B. Roll Call Board of Directors Present: Mary Casillas Salas, Rafael Castellanos, Dan Malcolm, and Ann Moore. Excused: Stephen Padilla Officers Present: Randa Coniglio (Executive Director), and Donna Morales (Secretary), and David Bilby, Treasurer C. Non-Agenda Public Comment None. D. Action Items 1. Adopt a Resolution Ratifying the Final Form of the Chula Vista Bayfront Facilities Financing Authority (Authority) Board of Director’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 The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Malcolm, seconded by Board Member Moore, the Board approved the continuance of the Resolution Ratifying the Final Form of the Chula Page 2 of 3 Vista Bayfront Facilities Financing Authority (Authority) Board of Director’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 The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, and Moore Excused: Padilla 2. Adopt a Resolution of the Authority Adopting a Procurement Policy for Professional and Legal Services Moved by Board Member Casillas Salas, seconded by Board Member Moore, the Board adopted Resolution 2020-005 of the Authority Adopting a Procurement Policy for Professional and Legal Services The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, and Moore Excused: Padilla 3. Adopt a Resolution Authorizing the Co-Counsels of the Authority to Execute the Legal Services Agreement with Stradling Yocca Carlson and Rauth for Bond Counsel and Disclosure Counsel Services in the Maximum Amount of $450,000, Including a Waiver of Potential and Actual Conflicts of Interest Regarding Representation of the Authority and Others Moved by Board Member Moore, seconded by Board Member Castellanos, the Board adopted Resolution 2020-006 Authorizing the Co-Counsels of the Authority to Execute the Legal Services Agreement with Stradling Yocca Carlson and Rauth for Bond Counsel and Disclosure Counsel Services in the Maximum Amount of $450,000, Including a Waiver of Potential and Actual Conflicts of Interest Regarding Representation of the Authority and Others The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, and Moore Excused: Padilla E. Staff Comments: Elizabeth Alonso, Deputy General Counsel, Port of San Diego read the following statement into the record: Consistent with the Procurement Policy for Professional and Legal Services set forth in Item D(2) above, the Co-Counsels of the Authority expect to enter into an agreement for legal services by and among Colantuono, Highsmith & Whatley, P.C., the San Diego Unified Port District, and the City of Chula Vista, for a validation action related to the Chula Vista Bayfront Resort Hotel and Convention Center Project Page 3 of 3 F. Board Comments None. G. Adjournment The meeting adjourned at 3:09 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Agenda Monday, April 27, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:01 p.m., on Wednesday, April 27, 2020, via Microsoft Teams meeting. B. Roll Call Board of Directors Present: Mary Casillas Salas, Dan Malcolm, Ann Moore, and Stephen Padilla Excused: Rafael Castellanos Officers Present: Donna Morales (Secretary), and David Bilby (Treasurer & Auditor) C. Non-Agenda Public Comment None. D. Consent Agenda 1. Adopt a Resolution of the Chula Vista Financing Authority (Authority) Approving an Assignment and Assumption of Investment Banking and Bond Underwriting Services Agreement Between the City of Chula Vista (City) and the Authority and Approving a Bayfront Project Underwriter Letter of Intent Between the Authority and J.P. Morgan Securities LLC. Donna Morales, District Clerk for the Port of San Diego, announced that additional agenda-related information was received by the Board of Directors for this item after the publication of the agenda. The following member(s) of the public addressed the Board with agenda-related comments: None. Board members Malcolm, Moore, Casillas Salas, and Padilla provided comments and asked clarifying questions. Glen Googins, City Attorney, City of Chula Vista and Tiffany Allen, Assistant Director of Development Services, City of Chula Vista, responded. Page 2 of 2 Moved by Chair Casillas Salas, seconded by Board Member Moore, the Board approved the continuance of the Resolution of the Chula Vista Financing Authority (Authority) Approving an Assignment and Assumption of Investment Banking and Bond Underwriting Services Agreement Between the City of Chula Vista (City) and the Authority and Approving a Bayfront Project Underwriter Letter of Intent Between the Authority and J.P. Morgan Securities LLC The motion carried by the following vote: Yeas: Casillas Salas, Malcolm, Moore, and Padilla Excused: Castellanos E. Action Items No action items. F. Staff Comments: Elizabeth Alonso, Deputy General Counsel, Port of San Diego read the following statement into the record: In accordance with the Authority Policy for Procurement of Professional and Legal Services, the Co-Counsels of the Authority entered into an agreement for legal services by and among Colantuono, Highsmith & Whatley, P.C. (Outside Counsel), the San Diego Unified Port District (District), and the City, effective April 1, 2020, for a validation action related to the Chula Vista Bayfront Resort Hotel and Convention Center Project (Legal Agreement). The Legal Agreement includes a waiver regarding potential conflicts of interest resulting from the joint representation from Outside Counsel to the City, the Authority, and the District. The Co-Counsels of the Authority have reviewed the waiver regarding potential conflicts of interests, determined that it is in the best interest of the Authority to approve the waiver, and have approved the waiver. G. Board Comments Board members Moore, Casillas Salas, and Malcolm expressed appreciation for Board Member Padilla’s return. H. Adjournment The meeting adjourned at 3:20 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Minutes Wednesday, May 20, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:06 p.m., on Wednesday, May 20, 2020, via Microsoft Teams meeting. B. Roll Call Board of Directors Present: Rafael Castellanos, Dan Malcolm, Ann Moore, and Stephen Padilla. Excused: Mary Casillas Salas Officers Present: Donna Morales (Secretary), and David Bilby (Treasurer & Auditor) C. Non-Agenda Public Comment None. 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 Page 2 of 2 The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Malcolm, seconded by Board Member Castellanos, the Board adopted Resolution No. 2020-007 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 The motion carried by the following vote: Yeas: Castellanos, Malcolm, Moore, and Padilla Excused: Casillas Salas E. Action Items None. F. Staff Comments None. G. Board Comments None. H. Adjournment The meeting adjourned at 3:12 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Minutes Monday, June 8, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:02 p.m., on Monday, June 8, 2020, via Microsoft Teams meeting. B. Roll Call Board of Directors Present: Mary Casillas Salas, Rafael Castellanos, Dan Malcolm, and Ann Moore Excused: Stephen Padilla. Officers Present: Randa Coniglio (Executive Director), and Donna Morales (Secretary) C. Non-Agenda Public Comment None. D. Consent Items 1. Resolution of the Chula Vista Bayfront Facilities Financing Authority (Authority) Approving an Assignment and Assumption of Investment Banking and Bond Underwriting Services Agreement Between the City of Chula Vista and the Authority and Approving a Bayfront Project Underwriter Letter of Intent Between the Authority and J.P. Morgan Securities LLC Page 2 of 2 The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Castellanos, seconded by Board Member Moore, the Board adopted Resolution No. 2020-008 of the Chula Vista Bayfront Facilities Financing Authority (Authority) Approving an Assignment and Assumption of Investment Banking and Bond Underwriting Services Agreement Between the City of Chula Vista and the Authority and Approving a Bayfront Project Underwriter Letter of Intent Between the Authority and J.P. Morgan Securities LLC The motion carried by the following vote: Yeas:, Casillas Salas, Castellanos, Malcolm, and Moore Excused: Padilla E. Action Items None. F. Staff Comments None. G. Board Comments None. H. Adjournment The meeting adjourned at 3:04 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary Page 1 of 2 MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY BOARD OF DIRECTORS Minutes Wednesday, December 2, 2020 3:00 PM 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 Donna Morales, District Clerk for the Port of San Diego, called the meeting of the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority to order at 3:03 p.m., on Wednesday, December 2, 2020, via Microsoft Teams meeting. B. Roll Call Board of Directors Present: Mary Casillas Salas, Rafael Castellanos, Dan Malcolm, Ann Moore, and Stephen Padilla. Excused: None. Officers Present: Randa Coniglio (Executive Director), Donna Morales (Secretary), and David Bilby (Treasurer & Auditor) C. Non-Agenda Public Comment None. D. Consent Items None. E. Action Items 1. Resolution Adopting a Debt Policy to Establish Guidelines for the Issuance and Application of Proceeds of Debt Issuances by the Chula Vista Bayfront Facilities Financing Authority. Page 2 of 2 The following member(s) of the public addressed the Board with agenda-related comments: None. Moved by Board Member Castellanos, seconded by Board Member Moore, the Board adopted Resolution No. 2020-009 of the Chula Vista Bayfront Facilities Financing Authority (Authority) Adopting a Debt Policy to Establish Guidelines for the Issuance and Application of Proceeds of Debt Issuances by the Chula Vista Bayfront Facilities Financing Authority The motion carried by the following vote: Yeas: Casillas Salas, Castellanos, Malcolm, Moore, and Padilla. F. Staff Comments None. G. Board Comments None. H. Adjournment The meeting adjourned at 3:09 p.m. Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary DATE: June 24, 2021 SUBJECT: RESOLUTION: (A) SELECTING THE CHAIR AND VICE CHAIR AND CONFIRMING THE DESIGNATION OF THE OTHER OFFICERS OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) (B) AUTHORIZING THE ISSUANCE OF ONE OR MORE SERIES OF REVENUE BONDS BY THE AUTHORITY (C) AUTHORIZING THE EXECUTION AND DELIVERY OF THE THIRD AMENDED AND RESTATED REVENUE SHARING AGREEMENT AMONG THE CITY OF CHULA VISTA (CITY), THE SAN DIEGO UNIFIED PORT DISTRICT (DISTRICT), AND THE AUTHORITY (D) AUTHORIZING THE EXECUTION AND DELIVERY OF THE PROJECT IMPLEMENTATION AGREEMENT AMONG THE CITY, THE AUTHORITY, THE DISTRICT, THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT (SPECIAL TAX DISTRICT), AND RIDA CHULA VISTA, LLC (RIDA) FOR THE CONSTRUCTION OF PUBLIC INFRASTRUCTURE (PHASE 1A INFRASTRUCTURE IMPROVEMENTS) AND A CONVENTION CENTER, WITH CONDITIONS (E) AUTHORIZING THE EXECUTION AND DELIVERY OF THE SITE LEASE BETWEEN THE DISTRICT AND THE AUTHORITY (SITE LEASE) FOR THE LAND NECESSARY TO CONSTRUCT A CONVENTION CENTER LOCATED IN THE CITY OF CHULA VISTA, WITH CONDITIONS (F) AUTHORIZING THE EXECUTION AND DELIVERY OF THE FACILITY LEASE BETWEEN THE AUTHORITY AND THE CITY, WITH CONDITIONS (G) AUTHORIZING THE EXECUTION AND DELIVERY OF THE BOND PURCHASE AGREEMENT AMONG J.P. MORGAN SECURITIES LLC, THE AUTHORITY, THE DISTRICT, THE SPECIAL TAX DISTRICT, AND THE CITY FOR THE PURCHASE AND SALE OF ONE OR MORE SERIES OF BONDS ISSUED BY THE AUTHORITY, WITH CONDITIONS (H) AUTHORIZING THE EXECUTION AND DELIVERY OF THE INDENTURE OF TRUST BETWEEN THE AUTHORITY AND WILMINGTON TRUST, NATIONAL ASSOCIATION (TRUSTEE), WITH CONDITIONS Page 2 of 30 (I) AUTHORIZING THE EXECUTION AND DELIVERY OF THE SUPPORT AGREEMENT BETWEEN THE DISTRICT AND THE AUTHORITY, WITH CONDITIONS (J) AUTHORIZING THE EXECUTION AND DELIVERY OF THE LOAN AGREEMENT BETWEEN THE AUTHORITY AND THE SPECIAL TAX DISTRICT, WITH CONDITIONS (K) AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS RELATED TO THE ISSUANCE OF THE AUTHORITY BONDS EXECUTIVE SUMMARY: The Chula Vista Bayfront Facilities Financing Authority (Authority) was formed through that certain Joint Exercise of Powers Agreement between the City of Chula Vista (City) and the San Diego Unified Port District (District) dated as of May 1, 2014 and filed in the Office of the District Clerk as Document No. 61905 (Original Authority Agreement), as amended and restated by that certain Amended and Restated Joint Exercise of Powers Agreement between the City and District dated July 25, 2019 and filed in the Office of the District Clerk as Document No. 70245 (Authority Agreement). The District and City have also approved Amendment No. 1 to the Amended and Restated Authority Agreement (Amendment) on June 15, 2021, which will be executed in connection with the issuance of certain taxable and tax exempt bonds by the Authority (Authority Bonds). The District and the City (each, a Member of the Authority) are the sole members of the Authority. The District and the City have been working collaboratively for decades to plan and implement the Chula Vista Bayfront Master Plan (CVBMP). Since 2014, the District and the City have been working to deliver the catalyst project for the CVBMP, an approximately 275,000 net usable square foot convention center (Convention Center) and a 1,570 to 1,600 room resort hotel (Resort Hotel) to be located on Parcel H3 of the CVBMP. The project also requires the construction of extensive public infrastructure to the areas surrounding Parcel H3 (Phase 1A Infrastructure Improvements). The actions before the Board of Directors of the Authority (Authority Board) at the June 28, 2021 Authority Board Meeting are another significant milestone on the critical path toward delivering the Convention Center and Phase 1A Infrastructure Improvements. RIDA Chula Vista, LLC (RIDA) was selected as the developer of the Convention Center and the Resort Hotel through a Request for Qualifications. At the early stages, and in light of an overall project cost in excess of $1.1 billion, it was determined that in order for the Convention Center and Phase 1A Infrastructure Improvements to be financially feasible, the City and the District would need to make a “Public Contribution” for the construction of the Convention Center and Phase 1A Infrastructure Improvements. The Public Contribution consists of approximately $265MM toward the cost of the Convention Center and approximately $85MM toward the Phase 1A Infrastructure Improvements for a total public investment of $350MM. The Authority was formed to issue bonds to finance most of the Public Contribution. In support of the Public Contribution, the Authority will issue Page 3 of 30 Authority Bonds in an amount not to exceed $400MM and the Authority Bonds will be secured by funds provided by the District, the City, and the Bayfront Project Special Tax Financing District (Special Tax District). Additional funding to cover the amounts not financed will be provided through grants, a contribution of $25MM from the County of San Diego through the County Agreement (defined below), a sewer contribution from the City, a contribution through the City’s Bayfront Development Impact Fee (BFDIF) program, and funds from the District that have been collected over time through various projects on the Chula Vista Bayfront, including a contribution from the North C.V. Waterfront L.P. (Pacifica). At the June 28 Authority Board Meeting, as the first order of business, pursuant to the Authority Agreement and Bylaws of the Authority (Authority Bylaws), the Authority Board will select the Chair and Vice Chair and confirm the other officers of the Authority. The Honorable Mayor Mary Casillas Salas is currently the Chair and Port Commissioner Ann Moore is currently the Vice Chair. Mayor Casillas Salas and Commissioner Moore may be selected to serve in these positions again or other members of the Authority Board may be selected to serve in these positions. Each of the Chair and Vice Chair will serve as Chair and Vice Chair respectively from the date of his or her election through the date of the first meeting of the Authority in the next succeeding calendar year; provided that each shall serve as Chair or Vice Chair, as applicable, until a successor has been duly selected. The other officers of the Authority are currently as follows: Executive Director (District CEO/President and designees), Auditor (City Director of Finance and designees), Treasurer (City Director of Finance and designees), and Secretary (District Clerk and designees). At the June 28 Authority Board Meeting, the Authority Board will also be considering the issuance of Authority Bonds in an amount not to exceed $400MM and approval of the execution and delivery of the agreements which the Authority is a party to, which are described in greater detail in the Discussion section below: (1) Third Amended and Restated Revenue Sharing Agreement among the City, District, and Authority (Third A&R Revenue Sharing Agreement, Attachment A) – Describes the funds to be contributed by the City and the District to the Authority during an approximately 38 year period and how funds distributed to the Authority by the Trustee are to be shared between the City and the District; (2) Project Implementation Agreement among the City, the District, the Authority, the Special Tax District, and RIDA (Project Implementation Agreement, Attachment B) – Sets forth the process for construction of the Convention Center and Phase 1A Infrastructure Improvements, among other things; (3) Site Lease between the District and the Authority (Site Lease, Attachment C) – Leases the land (and the existing improvements thereon) on which the Convention Center will be constructed to the Authority; Page 4 of 30 (4) Facility Lease between the City and the Authority (Facility Lease, Attachment D) – Sets forth the terms and conditions for the City to make lease payments to the Authority for the lease of the Convention Center that will be used by the Authority to pay the debt service on the Authority Bonds; (5) Bond Purchase Agreement among J.P. Morgan Securities, LLC (J.P. Morgan), the Authority, the City, the District, and the Special Tax District (Bond Purchase Agreement, Attachment E) – Sets forth the terms for the purchase and sale of the Authority Bonds to fund a portion of the Public Contribution; (6) Indenture of Trust between the Authority and Trustee (Authority Indenture, Attachment F) – Sets forth the terms and provisions of the Authority Bonds, including repayment provisions; (7) Support Agreement between the District and the Authority (Support Agreement, Attachment G) – Sets forth the terms and conditions for the District to make certain payments to the Authority to be used by the Authority to pay the debt service on the Authority Bonds; and (8) Loan Agreement between the Authority and the Special Tax District (Loan Agreement, Attachment H) – Sets forth the terms and conditions of a loan in an amount not to exceed $175,000,000 to be made by the Authority to the Special Tax District from the proceeds of the Authority Bonds that will be repaid by the Special Tax District from the special taxes the Special Tax District levies on three properties within the CVBMP and the City, including the Resort Hotel. Staff recommends that the Authority Board adopt the resolution selecting the chair and vice chair and confirming the other officers, authorizing the issuance of the Authority Bonds, the execution and delivery of the Third A&R Revenue Sharing Agreement, and the execution and delivery of the agreements to be entered into in connection with the issuance of the Authority Bonds. RECOMMENDATION: ..Recommendation (A) ADOPT THE RESOLUTION TO: (1) SELECT THE CHAIR AND VICE CHAIR AND CONFIRM THE DESIGNATION OF THE OTHER OFFICERS OF THE AUTHORITY; (2) AUTHORIZE ISSUANCE OF THE AUTHORITY BONDS; (3) AUTHORIZE THE EXECUTION AND DELIVERY OF THE THIRD A&R REVENUE SHARING AGREEMENT, WITH CONDITIONS; Page 5 of 30 (4) AUTHORIZE THE EXECUTION AND DELIVERY OF THE PROJECT IMPLEMENTATION AGREEMENT, WITH CONDITIONS; (5) AUTHORIZE THE EXECUTION AND DELIVERY OF THE SITE LEASE, WITH CONDITIONS; (6) AUTHORIZE THE EXECUTION AND DELIVERY OF THE FACILITY LEASE, WITH CONDITIONS; (7) AUTHORIZE THE EXECUTION AND DELIVERY OF THE BOND PURCHASE AGREEMENT, WITH CONDITIONS; (8) AUTHORIZE THE EXECUTION AND DELIVERY OF THE AUTHORITY INDENTURE, WITH CONDITIONS; (9) AUTHORIZE THE EXECUTION AND DELIVERY OF THE SUPPORT AGREEMENT, WITH CONDITIONS; (10) AUTHORIZE THE EXECUTION AND DELIVERY OF THE LOAN AGREEMENT, WITH CONDITIONS; AND (11) AUTHORIZING THE EXECUTION AND DELIVERY OF OTHER DOCUMENTS RELATED TO THE ISSUANCE OF THE AUTHORITY BONDS. ..Body RISKS AND BENEFITS OF THE ISSUANCE OF THE AUTHORITY BONDS: Potential Benefits: (1) Public Amenities/Ecological Buffers: The CVBMP was collaboratively planned through extensive public outreach that included more than 100 community meetings and resulted in a comprehensive Environmental Impact Report and Port Master Plan Amendment, which was approved by the Board of Port Commissioners (District Board) in May 2010 and certified by the California Coastal Commission in August 2012. When implementation of the CVBMP is complete, the public will enjoy more than 200 acres of parks, a shoreline promenade, walking trails, RV camping, shopping, dining and more. The CVBMP also establishes ecological buffers to protect wildlife habitat, species and other coastal resources. (2) Public Access: Completion of the Convention Center, Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements will enhance public Page 6 of 30 access to the waterfront and is expected to attract new visitors and convention business to the region and create thousands of new jobs. (3) Catalyst Project: Construction of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel and Parking Improvements are anticipated to be the centerpiece of and the catalyst project for future development within the Chula Vista Bayfront area to be developed pursuant to the CVBMP. The goal of the CVBMP is to provide a convention center and world-class hotel in the South Bay and to fund and build future public parks, restore sensitive habitat, and construct public infrastructure. (4) Regional Economic Impact: Completion of the Convention Center, Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements are projected to have a tremendous regional economic impact, generating approximately $1.6 billion during construction and an estimated $475 million per year once complete. With respect to jobs, it is projected that completion of the Convention Center, Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements will support 10,000 jobs (direct and indirect) through construction, nearly 1,500 permanent jobs on site, and nearly 3,900 jobs regionally per year in the historically disadvantaged Chula Vista Bayfront area. Potential Risks: (1) Availability of Funds to Pay Debt Service: As described herein, certain payments from the District, the City, and the Special Tax District to the Authority will be applied to pay debt service on the Authority Bonds. Certain of the District and City payments are subject to conditions, including completion and delivery of the Convention Center. (2) Construction Delay Damages: If RIDA is late in completing construction, RIDA will pay delay damages starting on the first month after the Completion Date (as defined below and as such date may be extended by force majeure events or actions of the Authority, Special Tax District, City, or District). (3) Payment of the Authority Bonds in the Event of Termination of the Sublease by RIDA: Under the Sublease between the City and RIDA (Sublease, Attachment K), RIDA may terminate the Sublease due to casualty and condemnation under certain circumstances, mainly involving the cost to repair ($50MM in the case of casualty and $70MM in the case of condemnation). To help mitigate the risk to the Authority, the City and the District in the event of a termination by RIDA before completion of Page 7 of 30 the Convention Center, RIDA has agreed to make up to a $5MM payment if needed to redeem all of the Authority Bonds issued to finance the costs to construct the Convention Center. However, if the insurance or condemnation proceeds and RIDA’s contribution are not sufficient to redeem all of the Authority Bonds, the Authority would still need to find a way to cover any gap or shortfall in revenues needed to redeem all of the Authority Bonds following a casualty or condemnation event prior to completion of the Convention Center. To cover the gap, which is currently approximated to be around $56MM (capitalized interest is currently estimated at approximately $47,465,000 and cost of issuance is currently estimated at approximately $8,825,000), the District and City are working with RIDA to find the most economical manner to procure insurance coverage for these soft costs. Based on recent calculations, the Bond Issuance Working Group (as such term is defined in the Authority Bylaws) believes that if there are sufficient amounts available to redeem all of the Authority Bonds issued for the Convention Center, then there should be adequate revenues from the funds that are being contributed by the District, the City and the Special Tax District under the Facility Lease, the Support Agreement and the Loan Agreement, respectively, to continue to pay debt service on the Authority Bonds issued to finance the Phase 1A Infrastructure Improvements when due. The District and City will continue to analyze this during the course of the validation proceedings. (4) New Market/Lingering Effects of COVID-19: The District engaged CBRE, Inc. in 2015 and the City engaged RSG in 2020 to analyze the feasibility of the revenues to be generated from the Chula Vista Bayfront. Ongoing analysis has been conducted and continues to be conducted and will be finalized prior to the issuance of the Authority Bonds and used in connection with the public offering of the Authority Bonds. Construction of the Convention Center, Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements will be the first large development in the Chula Vista Bayfront and it is possible that the actual revenues will not reach the projected levels. Lingering effects of COVID-19 may also impact actual revenues. FISCAL IMPACT: Bond Purchase Agreement: The Bond Purchase Agreement sets forth the terms and conditions pursuant to which J.P. Morgan will purchase the Authority Bonds and offer them for resale to the public. J.P. Morgan’s underwriting fee will be paid from the proceeds of the Authority Bonds when the Authority Bonds are issued. Page 8 of 30 Authority Indenture: Under the Authority Indenture, the Authority is required to pay the Trustee its fees and expenses (including indemnification). These fees and expenses will be paid from the Administrative Expense Fund established under the Authority Indenture. To the extent the Authority does not have funds to make these payments, the District and the City may be required to make contributions to make such payments. Project Implementation Agreement: The Authority will fund a portion of the costs incurred by RIDA for construction of the Phase 1A Infrastructure Improvements and the Convention Center from the proceeds of the Authority Bonds. As discussed below, the cost to the Authority for construction of the Convention Center is capped at $265MM. Under certain circumstances, including payment of interest on late payments, arbitration and mediation fees, and if funds to be applied to pay costs of construction are misappropriated, additional costs could be incurred by the Authority. Costs of the Phase 1A Infrastructure Improvements are not capped. The Project Implementation Agreement also includes a payment from the Authority of the lesser of (a) the cost actually incurred by RIDA in procuring the payment and performance bonds for the Convention Center, Phase 1A Infrastructure Improvements and Resort Hotel and Parking Improvements; and (b) $1MM, to be paid from Existing Revenues (as defined in the Third A&R Revenue Sharing Agreement). Loan Agreement: If the Authority Bonds are fully paid, the Loan Agreement will terminate and any unpaid portion of the Loan (defined below) will be forgiven. Facility Lease: Under the Facility Lease, the City’s obligation to pay lease payments is subject to certain conditions, including completion and delivery of the Convention Center, availability of funds in the Lease Revenues Fund (defined below), and the City’s ability to use the Convention Center. Site Lease: The Authority will pay the District $1 for the term of the lease. Support Agreement: Under the Support Agreement, the District's obligation to pay Annual Support Payments (defined below) is subject to certain conditions, including completion and delivery of the Convention Center. DISCUSSION: As more fully discussed below, staff recommends that the Authority Board select a Chair and Vice Chair, confirm appointment of the other officers of the Authority as required by the Authority Agreement and Authority Bylaws, authorize the issuance of the Authority Bonds, and approve and authorize the execution and delivery of (a) the Third A&R Revenue Sharing Agreement that has been previously approved by the District Board and City Council of the City (City Council), (b) the Authority Indenture and (c) the remaining agreements identified herein which the Authority is a party to, all of which are critical to the financing and construction of the Convention Center and Phase 1A Infrastructure Improvements. Page 9 of 30 Overall, the transaction can be broken into the following major categories: Financing, Construction, and Leasing and Operations. An overview of the financing agreements and current approach to the financing can be found in the draft Conceptual Plan of Finance, attached as Attachment I. The financing documents for the Authority Bonds consist of (a) the Authority Indenture, (b) the Loan Agreement, (c) the Facility Lease, (d) the Support Agreement, and (d) the Bond Purchase Agreement. The construction document for the Convention Center and Phase 1A Infrastructure Improvements is the Project Implementation Agreement that discusses the procurement, construction and reimbursement provisions for the Convention Center and Phase 1A Infrastructure Improvements, including the initial phases of Sweetwater Park and Harbor Park. The leasing and operations documents for the Convention Center are (a) the Management Agreement between RIDA and Marriott International, Inc. (Marriott) detailing Marriott’s obligations to RIDA and Marriott’s role in operating the Resort Hotel and Parking Improvements and Convention Center (Management Agreement); (b) the Site Lease; (c) the Facility Lease, and (d) the Sublease. The Site Lease, Facility Lease, and Sublease are collectively referred to as the Convention Center Leases. Subject to early termination events described therein, the Site Lease, Facility Lease, and Sublease will be in effect for the longer of: (a) the date of the final payment on the Authority Bonds and (b) 37 years. I. Selection of Officers Under Section 3.3 of the Authority Bylaws, the Chair and Vice Chair of the Authority are to be selected as the first order of business at the first regular or special meeting of the Authority held in each calendar year. Since this is the first regular meeting of the Authority Board held in this calendar year, the Chair and Vice Chair must be selected and designation of the remaining officers must also be confirmed. Following the presentation, staff recommends that the Authority Board select the Authority Board Chair and Vice Chair, confirm the designation of the other officers, and consider the balance of the agenda action items. II. Parameters to Issue Authority Bonds The Authority intends to issue the Authority Bonds in an amount not to exceed $400MM in one or more series pursuant to the Authority Indenture to finance certain public capital improvements to be constructed in the CVBMP as specified in the Authority Indenture as finally executed; provided, however, the final maturity date of the Authority Bonds shall not be more than forty (40) years from the date of issuance of the Authority Bonds, the Authority Bonds shall bear interest at fixed rates to be determined by J.P. Morgan based upon market conditions on the sale date for the Authority Bonds, no Authority Bond shall Page 10 of 30 have an interest rate in excess of twelve percent (12%) per annum and J.P. Morgan’s discount shall not exceed one percent (1%) of the principal amount of Authority Bonds issued. Subject to the foregoing limitations, each of the Executive Director and Treasurer (each, an Authorized Officer) will be authorized to determine the final principal amount and the maturity dates of the Authority Bonds to be sold in each series, the interest rates for each series and the J.P. Morgan’s discount to be paid, with all of such final terms to be included in the Authority Indenture or Bond Purchase Agreement to be executed by an Authorized Officer. III. Approval of Third A&R Revenue Sharing Agreement The City and the District entered into a Revenue Sharing Agreement on April 24, 2018 (Original Revenue Sharing Agreement) to memorialize the various funds that the District and City will contribute to the payment of debt service for the Authority Bonds and expected to be distributed by the Trustee to the Authority subsequent to completion of the Convention Center, Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements. The Original Revenue Sharing Agreement also establishes a waterfall where the City and the District will share the Residual Revenues (as defined in the Revenue Sharing Agreement). Since the approval of the Original Revenue Sharing Agreement on April 24, 2018, the Original Revenue Sharing Agreement has been amended and restated twice to reflect evolutions in the business model and further negotiations with RIDA resulting in the Second Amended and Restated Revenue Sharing Agreement (Revenue Sharing Agreement). The Third A&R Revenue Sharing Agreement is currently being proposed to the Authority Board for its consideration. The Third A&R Revenue Sharing Agreement was approved by the District Board on February 11, 2021 and by the City Council on February 16, 2021. The Authority is being added as a party to the Third A&R Revenue Sharing Agreement to implement directions with respect to amounts being transferred to the Authority by the Trustee and amounts being deposited by the Members of the Authority for distribution as provided in the Third A&R Revenue Sharing Agreement. IV. Overview of Proposed Bond Issuance The total estimated cost to construct the Convention Center and the Phase 1A Infrastructure Improvements is $425,000,000. Approximately $286,500,000 of this amount will be funded from the proceeds of the Authority Bonds, approximately $21,500,000 of which will be applied to fund the construction of the Phase 1A Infrastructure Improvements and approximately $265MM of which will be applied to fund the construction of the Convention Center. District and City staff functioning as the Bond Issuance Working Group have reviewed RIDA’s calculations for the cost of the Phase 1A Infrastructure Improvements. Based on those calculations, the amount needed to fund the Phase 1A Infrastructure Improvements is available using a combination of proceeds from the Authority Bonds and the anticipated $25MM contribution from the County of San Diego as memorialized in the Chula Vista Page 11 of 30 Bayfront Project Funding Agreement among the County, the District, the Authority, and the City (County Agreement). District and City staff have also reviewed RIDA’s calculations for the cost of the Convention Center and based on those calculations the amount needed to fund the Convention Center is available through the contribution of $265MM and RIDA’s expected financing and equity. V. Debt Policy On December 2, 2020, in order to comply with Section 8855(i) of the California Government Code, the Authority Board adopted the Chula Vista Bayfront Facilities Financing Authority Debt Policy (Authority Debt Policy) to provide guidance for the proposed issuance of debt. The purpose of the Authority Debt Policy is to help ensure that the Authority, the Authority Board, the officers of the Authority, staff of each Member of the Authority which function as staff to the Authority, staff engaged by the Authority, if any, and such advisors, consultants and experts as shall be engaged from time to time in connection with a proposed issuance of debt (i) adhere to sound debt issuance practices and (ii) establish and implement monitoring procedures to ensure that the proceeds of proposed debt issuances are directed to their intended use. Pursuant to the Authority Debt Policy, the Authority may issue debt for any of the purposes specified in the Authority Agreement, which purposes include financing the construction of public capital improvements. Proceeds of debt issued may also be applied to pay costs of issuance, fund capitalized interest and a debt service reserve fund. The proposed issuance of debt shall be submitted to, and subject to approval by, the Authority Board, which shall have reviewed and considered a report prepared by the Bond Issuance Working Group. This Action Agenda Item, which is being provided to each member of the Authority Board, constitutes the report prepared by the Bond Issuance Working Group with respect to the proposed issuance of the Authority Bonds. As set forth in the Authority Debt Policy, the individual designated by the Authority Board as the Treasurer and Auditor of the Authority, in consultation with the Treasurer of the District when requested by the Treasurer of the District, shall be responsible for monitoring the use of proceeds of the Authority Bonds to ensure that such proceeds are directed to their intended use and for monitoring the use of the proceeds of any tax exempt bonds to ensure compliance with all applicable federal tax requirements. The Treasurer and Auditor of the Authority shall be responsible for filing or causing to be filed all reports required by state and federal law and by the agreements pursued to which the Authority Bonds are issued. The proposed Authority Bonds meet the criteria set forth in Section V.B of the Authority Debt Policy as follows: 1. Whether proposed issuance complies with the Authority Debt Policy - The proposed issuance complies with the Debt Policy for the reasons discussed in this report, Page 12 of 30 including without limitation, because the proceeds will be used to finance the construction of public capital improvements, pay costs of issuance, fund capitalized interest and a debt service reserve fund, and meet the remaining criteria of Section V.B of the Authority Debt Policy; 2. Sources of payment and security for the proposed issuance of debt - As discussed further in Discussion, Section VI.A.1 below, the Authority Bonds will be secured by (1) the lease payments made by the City under the Facility Lease, (2) the loan payments made by the Special Tax District under the Loan Agreement, (3) the Annual Support Payments (defined below) and Other Ground Lease Revenues (defined below) made by the District under the Support Agreement (collectively, the Port District Payments), and (4) other amounts on deposit in certain of the funds and accounts maintained by the Trustee under the Authority Indenture (collectively, Revenues). To secure the interests of the owners of the Authority Bonds, the Authority will assign to the Trustee certain rights (as defined in the Authority Indenture, the Assigned Rights), which the Authority has under the Facility Lease, Loan Agreement, and Support Agreement to allow the Trustee to enforce the Authority’s right to payments under such agreements; 3. Projected revenues and other benefits from the facilities or infrastructure proposed to be financed from the proceeds of the proposed issuance of debt - As discussed further in the Risks and Benefits of the Issuance of the Authority Bonds above, the Members of the Authority, the region, surrounding areas, and the general public will benefit from the financing of the Convention Center and Phase 1A Infrastructure Improvements and the Resort Hotel and Parking Improvements. 4. Projected operating and other costs related to the facilities or infrastructure proposed to be financed from the proceeds of the proposed issuance of debt – The Authority will not operate or maintain the facilities or infrastructure. The District and the City will accept the Phase 1A Infrastructure Improvements based on their respective interests and share the costs of the operations and maintenance of the Phase 1A Infrastructure Improvements pursuant to the Third A&R Revenue Sharing Agreement and RIDA will be obligated under the Sublease to pay the costs of operations and maintenance of the Convention Center. 5. Period over which interest on the proposed debt should be capitalized – It is currently anticipated that 100% of interest payments will be funded for three years and that a portion of the interest payments will be funded for an additional four years such that the net debt service is structured as level coverage. 6. Extent to which debt service on the proposed debt should be level or non-level – It is currently anticipated the bond amortization will be structured for proportional debt service relative to aggregate gross revenues. The remaining criteria in Section V.B. of the Authority Debt Policy is not applicable because the proposed issuance of the Authority Bonds will be the first issuance of debt by the Authority. Page 13 of 30 VI. Agreements under Consideration by the Authority Board A. Financing Agreements 1. Authority Indenture The Conceptual Outline of the Plan of Finance outlines the sources of revenues that the District and the City intend to use to pay the debt service for the Authority Bonds. The Authority Bonds are expected to be issued in two series, a taxable series to finance the Convention Center (Taxable Bonds), and a tax-exempt series to finance Phase 1A Infrastructure Improvements (Tax-Exempt Bonds). Debt service on Authority Bonds is anticipated to be paid from the various funding sources contributed by the District, the City and the Special Tax District. The Authority Indenture is attached as Attachment F. Pursuant to the Authority Indenture, the Authority Bonds will be secured by the Revenues. To secure the interests of the owners of the Authority Bonds, the Authority will assign to the Trustee the Assigned Rights, which the Authority has under the Facility Lease, Loan Agreement, and Support Agreement to allow the Trustee to enforce the Authority’s right to payments under such agreements. The Authority Bonds are special, limited obligations of the Authority, payable from and secured as to the payment of the principal of, redemption premium, if any, and interest thereon, in accordance with their terms and the terms of the Authority Indenture, solely from the Revenues. The Authority Bonds are not a charge against the general credit of the Authority or of the Members of the Authority. Under no circumstances shall the Authority be obligated to pay principal of, redemption premium, if any, or interest on the Authority Bonds except from the Revenues. Neither the State of California nor any public agency (other than the Authority) nor either the District or the City as a Member of the Authority is obligated to pay the principal of, redemption premium, if any, or interest on the Authority Bonds. No covenant or agreement contained in any Authority Bond or the Authority Indenture shall be deemed to be a covenant or agreement of either Member of the Authority, any of the directors of the Authority Board, or by any officer, member, agent, contractor or employee of the Authority, District, or City in his or her individual capacity and neither the City or the District as Members of the Authority, nor any of the directors of the Authority Board, nor any officer or employee thereof executing the Authority Bonds shall be liable personally on any Authority Bond or be subject to any personal liability or accountability by reason of the issuance of such Authority Bonds. Pursuant to the Authority Indenture, the Trustee will establish a Construction Fund that will hold proceeds from the Authority Bonds and funds from the County Agreement that will be used to pay or reimburse RIDA for its payment of costs of construction of the Phase 1A Infrastructure Improvements and the Convention Center. No amounts in the Construction Fund may be withdrawn for any other purpose or transferred to any other fund established under the Authority Indenture until all costs of the construction have been paid, at which time the Trustee shall transfer all remaining amounts in the Page 14 of 30 Construction Fund to the Revenue Fund for application in accordance with the provisions of the Authority Indenture, which includes provisions permitting transfers to the Authority Surplus Fund established under the Authority Indenture and transfers to the Authority for deposit pursuant to the Third A&R Revenue Sharing Agreement. To ensure that RIDA gets paid the costs for construction RIDA is entitled to receive under the Project Implementation Agreement, amounts may not be transferred by the Authority to the Third A&R Revenue Sharing Agreement until any true up payments owed to RIDA under the Project Implementation Agreement are paid. The Trustee will also establish an Insurance and Condemnation Fund under the Authority Indenture that will hold any Net Proceeds (as defined in the Authority Indenture) and any payments received from RIDA following a casualty or condemnation event. Net Proceeds deposited in the Insurance and Condemnation Fund will be used to redeem the Taxable Bonds in the event that the Sublease terminates due to a casualty or condemnation event or will be disbursed to RIDA if RIDA is rebuilding. As long as any Authority Bonds remain outstanding, in order to amend the Authority Indenture, consent of the owners of the majority in aggregate principal amount of the Authority Bonds may be required. Such consent may also be required to amend or modify the Convention Center Leases and/or the Project Implementation Agreement. 2. Support Agreement At the February 11, 2021 District Board meeting, the District Board authorized, with conditions, a Support Agreement to provide for the terms and conditions upon which the District will be obligated to contribute Port District Payments to the Authority to pay debt service on the Authority Bonds. Under the Support Agreement, Port District Payments are comprised of annual payments (Annual Support Payments) set forth in a schedule attached to the Support Agreement and payments made from Other Ground Lease Revenues (defined below). The District is not required to make Annual Support Payments until the Convention Center is complete. This means that if the Convention Center construction is not completed until Bond Year 6, the Annual Support Payment for Bond Year 5 would be “abated” and the amount abated would be tacked on to the end of the schedule such that the District would have an Annual Support Payment in Bond Year 38 for $5MM. In addition, if the City’s Lease Payments are abated pursuant to the terms of the Facility Lease as a result of casualty, condemnation, or title defect with respect to the Convention Center, the District’s Annual Support Payments will be abated to the same degree. Other Ground Lease Revenues consist of ground lease revenues actually received by the District from (a) the ground lease with The Marine Group LLC (dba Marine Group Boat Works) (District Clerk No. 54509, as amended from time to time), (b) the ground lease with Chula Vista Marina LP (dba Chula Vista Marina) (District Clerk No. 14244, as amended from time to time), (c) the ground lease with California Yacht Marina - Chula Vista LLC (California Yacht Club) (District Clerk No. 23924, as amended from time to Page 15 of 30 time); and (d) the ground lease with Sun Chula Vista Bayfront RV LLC (District Clerk No. 70407) (as amended from time to time, the RV Park Lease). In addition, if any of these four ground leases are renewed, replaced, or amended in such a way as to change the size or configuration of the original premises to include premises outside of the original premises boundaries of all the other ground leases (Modified Boundary Lease) or the premises for such ground leases are used for other revenue generating agreements some or all of such additional revenues resulting from such Modified Boundary Lease or revenue generating agreements need to be contributed as part of the Other Ground Lease Revenues. The District has current debt comprised of revenue bonds (District Bonds) issued under an existing indenture filed in the Office of the District Clerk as Document Nos. 48385, 48388, and 70956 (collectively, District Indenture) and a promissory note issued to the San Diego Airport Authority filed in the Office of the District Clerk as Document No. 47940 (Airport Note). Pursuant to the District Indenture and the Airport Note, the District is required to pay debt service on the District Bonds and Airport Note prior to payment of the Port District Payments. In the event the District does not pay any Port District Payment, the Authority may exercise any and all remedies available or granted to it pursuant to law, including specific performance or its equivalent remedy, including a writ of mandamus. The Authority will assign to the Trustee the right to collect and enforce payment of the Port District Payments, so the Trustee would enforce any obligation of the District to pay the Port District Payments under the Support Agreement. Under the Support Agreement, the Authority and the District each make customary representations regarding the ability to enter into the Support Agreement. In addition, if the District elects to issue additional bonds under the District Indenture or incur Parity Debt or Subordinate Obligations (each as defined in the District Indenture) in the future, in addition to complying with the requirements of the District Indenture, the District has also agreed to comply with certain additional requirements set forth in the Support Agreement, including providing certain certifications to the Trustee regarding debt service coverage on the District Bonds, Parity Debt, Subordinate Obligations, the Airport Note and the Port District Payments. 3. Convention Center Site Lease Under the Site Lease, the Authority will ground lease the land (including the existing improvements thereon) on which the Convention Center will be constructed from the District for a total rent of $1. As consideration for this Site Lease, the Authority will enter into the Facility Lease, the Authority Indenture, the Loan Agreement, and the Project Implementation Agreement. The Site Lease requires that the Authority cause RIDA to construct the Convention Center. Once complete, the Convention Center will be owned by the Authority. When the Site Lease expires, the Authority will convey the Convention Center to the District and the District will own the Convention Center. The term of the Site Page 16 of 30 Lease is 37 years, unless terminated earlier, or extended, in accordance with the terms of the Site Lease. The term of the Site Lease cannot be longer than 66 years. 4. Convention Center Facility Lease The Authority will sublease the Convention Center to the City through the Facility Lease. The Facility Lease is the City’s main financing vehicle for contributing its funds toward the payment of debt service on the Authority Bonds. The term of the Facility Lease is coterminous with the Site Lease. The City will make payments to the Authority in accordance with the terms of the Facility Lease from the following sources of revenues to the extent such revenues are actually received by the City: (a) An amount equal to the funds received by the City from the District, in fiscal year 2016 pursuant to Municipal Services Agreement No. 88-2012 between the District and the City (MSA Revenues) ($986,225), increasing 3% on July 1 of each year; (b) Transient Occupancy Tax Revenues from the Resort Hotel and the RV Park Lease (collectively, TOT Revenues); (c) Sales and Use Tax revenues from the Resort Hotel, the Convention Center and the RV Park Lease, exclusive of any amount levied and allocated to the City pursuant to voter approval by the electors of the City, which portion is currently one percent (1%) of taxable transactions (Sales and Use Tax Revenues); and (d) Incremental ad valorem property taxes (including property tax in-lieu of motor vehicle license fees) generated by the Resort Hotel and Convention Center, which is that amount in excess of any ad valorem property tax levied in the fiscal year in which the Authority Bonds are issued (Tax Increment Revenues). The City does not have an obligation to make lease payments to the Authority from any source other than those listed above and only to the extent such revenues are available in the Lease Revenues Fund (as defined in the Facility Lease) that is held separate and apart from the City’s other revenues or that have been received by the City and not yet deposited into the Lease Revenues Fund. The obligation of the City to make the Lease Payments (as defined in the Facility Lease) is subject to abatement in order to comply with the constitutional debt limit. The City will agree to make Pre-Completion Lease Payments (as defined in the Facility Lease) from amounts in the Lease Revenues Fund prior to the delivery of the completed Convention Center; however, in order to comply with the constitutional debt limit such amounts will be subject to annual appropriation by the City. The City’s obligation to pay the Lease Payments is contingent on the Convention Center being completed and delivered to the City and thereafter remaining available to the City for its use. If the Convention Center is not completed or the Convention Center cannot be used by the City for its intended purposes due to damage, destruction, condemnation or title defect, the City’s Lease Payments will be abated in an amount which is proportionate Page 17 of 30 to the amount of the City’s loss of use. If as a result of any abatement of Lease Payments the Authority Bonds are not repaid at their final maturity, then the term of the Facility Lease will be extended and the City will continue to make Lease Payments until the Authority Bonds are repaid or the term of the Facility Lease reaches 66 years. During any extension, the City’s obligation to make Lease Payments will remain contingent on funds being available in the Lease Revenues Fund. In the event the City does not pay any Lease Payments when due in accordance with the provisions of the Facility Lease, the Authority may exercise any and all remedies available or granted to it pursuant to law, including specific performance or its equivalent remedy, including a writ of mandamus. The Authority will assign to the Trustee the right to collect and enforce payment of the Lease Payments, so the Trustee would enforce any obligation of the City to pay the Lease Payments under the Facility Lease. Since the Lease Payments are a large component of the Revenues that will be used to pay the debt service on the Authority Bonds, the City intends to procure rental interruption insurance to cover the City’s Lease Payments during a casualty or condemnation event to avoid a default under the Authority Bonds. The District, City, and the Authority are working with RIDA to determine the most economical way of providing such insurance and will secure a commitment for such insurance prior to the issuance of the Authority Bonds. Although some provisions of the Facility Lease and the Project Implementation Agreement will overlap, the Project Implementation Agreement will generally address the construction of the Convention Center and the Facility Lease will generally address the operations period of the Convention Center (i.e., after the completion of the Convention Center). Examples of the division between construction and operations include insurance (RIDA will provide liability and builder’s risk insurance under the Project Implementation Agreement for the Convention Center and Site and will provide the liability and all-risk insurance required by the Facility Lease and the Sublease after the Convention Center is complete), liens, and prevailing wage requirements. 5. Loan Agreement The City formed the Special Tax District in 2020. It is expected that the Special Tax District will receive a loan (Loan) from the Authority which the Special Tax District will repay from the taxes received from an annual special tax levy (Special Taxes). The Loan Agreement is attached as Attachment H. The amount of the Loan, which will have a fixed repayment schedule, is expected to be in an amount not to exceed $175,000,000. Payments on the Loan will be made to the Trustee and will be applied to pay debt service on the Authority Bonds. In the event that the amount of the Special Taxes collected from the special tax levy is less than the scheduled Loan payment, then the unpaid amount will be deferred and paid in a future year or years to the extent that the Special Taxes collected exceeds the amount of the scheduled Loan payment in such year. If the Special Taxes collected are sufficient to pay all scheduled and any deferred Loan payments, then the remaining amount would be available for use on other qualified expenditures of the Page 18 of 30 Special Tax District. If the Authority Bonds are redeemed prior to the maturity date of the Loan, the Loan will be forgiven. 6. Bond Purchase Agreement The Bond Purchase Agreement sets forth the terms and conditions pursuant to which J.P. Morgan will purchase the Authority Bonds and offer them for sale to investors . The primary role of J.P. Morgan, as an underwriter, is to purchase the Authority Bonds, for resale to investors, in an arm’s length commercial transaction between J.P. Morgan, as underwriter and the Authority, the City, the District and the Special Tax District. The interest rates on the Authority Bonds will be set based on market conditions on the day that the Bond Purchase Agreement is signed by the parties. J.P. Morgan’s underwriting fee will be paid from the bond proceeds as a cost of issuance of the Authority Bonds when the Authority Bonds are issued. The terms of the Bond Purchase Agreement include conditions for the purchase and sale of the Authority Bonds and will require that each of the Authority, City, District, Special Tax District and RIDA provide and certify as to the accuracy of certain information for inclusion in the offering documents to be prepared and used in the offering of the Authority Bonds which are the Preliminary Official Statement and the Official Statement. In addition, the terms of the Bond Purchase Agreement require the Authority, the City, District and Special Tax District to undertake an obligation to make “continuing” disclosure to the financial markets through the use of the MSRB EMMA website. B. Construction Agreement (Project Implementation Agreement) 1. Procurement Process for the Convention Center and Phase 1A Infrastructure Improvements The Project Implementation Agreement establishes the terms and conditions for the construction of the Phase 1A Infrastructure Improvements and Convention Center. RIDA will construct the Convention Center as the Authority’s contractor under the Project Implementation Agreement. On May 20, 2020, the Authority Board adopted Resolution 2020-007 ratifying the final form of a procurement policy for developer-performed public improvements for the Authority attached as Exhibit A to such resolution (Authority Procurement Policy) and ratifying the final form of Authority Resolution 2020-002 in the form presented and attached as Exhibit B to Resolution 2020-007 (Authority Resolution 2020-002) applying the Authority Procurement Policy to the construction of developer- performed public works for the Convention Center and Phase 1A Infrastructure Improvements. The Authority Procurement Policy and Authority Resolution 2020-002 are attached as Attachment J hereto. Pursuant to Authority Resolution 2020-002 and in accordance with Procurement Policy Section 2.a. (Authorization to Proceed), the Authority Board authorized RIDA to proceed with the development and construction of specific Phase 1A Infrastructure Improvements and the Convention Center subject to the terms, conditions, and obligations of the Authority Procurement Policy, Authority Resolution 2020-002, all applicable project agreements, including the Project Page 19 of 30 Implementation Agreement, and all applicable federal, state, and local laws and regulations. Section 5 of the Authority Procurement Policy specifically authorizes the Authority Board to require a developer to enter into an agreement to clarify or modify the application of the Authority Procurement Policy and/or to clarify, establish, or modify the procedures to be undertaken in connection with the Authority Procurement Policy. The Project Implementation Agreement is intended to clarify and delineate how the Authority Procurement Policy will specifically apply to RIDA’s construction of the Convention Center and Phase 1A Infrastructure Improvements. Under Authority Resolution 2020-002, the Authority Board determined that the Convention Center was a “special purpose project” under Section 6 of the Authority Procurement Policy and waived certain provisions of Authority Procurement Policy as in the best interest of the public provided that certain safeguards were put in place to protect the public interest. These safeguards include: (1) cap on the Public Contribution to $265MM; (2) future agreements to include appropriate insurance and payment and performance bond requirements, (3) performance of the work to the appropriate standard and in compliance with applicable laws; and (4) indemnification of the Authority, the City and the District by RIDA. The Authority Board also delegated to the Executive Director of the Authority the authority to implement the safeguards in support of the waiver described herein. Under Authority Resolution 2020-002, the Authority Board determined that it was in the best interest of the public for the Phase 1A Infrastructure Improvements to be constructed through a sole source prime contract to the Mortensen/McCarthy Chula Vista Resort Joint Venture (MMJV), provided that RIDA followed the subcontractor bid and award process in the Authority Resolution 2020-002, which is included in Exhibit G-1 of the Project Implementation Agreement. Similar to the Convention Center, the Authority Board also delegated authority to the Executive Director of the Authority to determine RIDA’s compliance with Authority Resolution 2020-002, and in particular, the subcontractor bid and award process. The Project Implementation Agreement incorporates and implements the safeguards that the Authority Board required in the Authority Procurement Policy and Authority Resolution 2020-002. In particular, the Project Implementation Agreement establishes the maximum amount of Public Contribution to the Convention Center costs, sets forth RIDA’s insurance obligations, requires that RIDA’s contractor deliver both performance and payment bonds, obligates RIDA to make late payments if completion of the project is not timely (further discussed below), requires RIDA to deliver a completion guaranty, requires RIDA to ensure the quality of work and to comply with all laws (including prevailing wage laws); and sets forth RIDA’s indemnity obligations to the Authority, the District, the City, and the Special Tax District. 2. Convention Center RIDA is required to complete the Convention Center within 48 months of commencement of construction (Completion Date). “Completion” means that RIDA has obtained from the Page 20 of 30 City and delivered to the Authority a certificate of occupancy or temporary certificate of occupancy for the Convention Center. The Completion Date can be extended for the following reasons: 1) (i) the occurrence of a force majeure event (including actual collateral effects) that delays the completion of (x) the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel or Parking Improvements or (y) Sweetwater Park (if RIDA exercise its option to construct); (ii) a breach of the District, City, Special Tax District, or Authority under the financing, operations, or construction agreements, or the Convention Center Leases or the Ground Lease between the District, as lessor, and RIDA, as lessee, entered into with respect to the Resort Hotel and Parking Improvements, that causes delays to the completion of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, or Parking Improvements; or (2) delays by the District in completing Sweetwater Park (if RIDA does not construct). If RIDA does not meet the Completion Date (as extended by (1) or (2) above), RIDA must pay construction late damages starting on the date that is one year after the Completion Date (as extended by (1) or (2) above). The cost of the construction of the Convention Center is currently estimated at approximately $340MM. The Public Contribution toward the construction of the Convention Center includes $265MM from the Authority Bonds that will be paid to RIDA over time until the amount is fully disbursed. RIDA is responsible for covering any costs over $265MM, except for interest payments as further discussed below. To receive payments, RIDA must submit monthly payment requests based on work performed. Under Authority Resolution 2020-002, the Authority Board authorized the Executive Director of the Authority to delegate the Executive Director's authority under Authority Resolution 2020-002 to two or more members of the staff of the City or the District functioning as staff to the Authority; provided that such delegation is made to a contingent comprised of an equal number of City and District staff members respectively. The staff members delegated this authority will review the payment requests received from RIDA and authorize the Trustee to issue the corresponding payments from the Construction Fund established under the Authority Indenture. As part of the payment request process, both RIDA and its architect will certify that the request is based on work performed to- date and provide supporting documentation. In order to avoid construction delays or interruptions resulting from payment disputes, the parties have agreed to use binding arbitration to resolve payment disputes related to the payment requests in very defined circumstances, including issues related to defective work, amounts under protest, late payments, incomplete payment requests, incorrect payments, and whether the dispute qualifies for arbitration, to avoid delay in the project and increased costs to all parties (collectively, the Arbitration Disputes). If the Arbitration Disputes are brought to arbitration, the arbitrator will have limited jurisdiction to resolve the Arbitration Disputes. For example, in a dispute arising from a demand involving a payment request for the Convention Center, (a) the arbitrator only has jurisdiction to determine whether any amount is owed to RIDA in accordance with the Project Implementation Agreement and to order payment to RIDA of the amount owed, and (b) the arbitrator has no power to order the Authority, the District, or the City to pay Page 21 of 30 any amount to RIDA in excess of $265MM (other than default interest in accordance with the Project Implementation Agreement). In addition, for all Arbitration Disputes, the arbitrator shall have no authority or power to do any of the following: (i) award payment of any amount that is not consistent with the Project Implementation Agreement or expressly authorized within the terms of the Project Implementation Agreement; (ii) award any consequential, incidental or punitive damages or any amounts relating to lost profits, lost business opportunity or similar damages; (iii) commit errors of law; (iv) decide any matter related to the Project Implementation Agreement that is not specifically identified as a “Specified Dispute” arising from a “demand;" (v) order injunctive relief or (vi) order the Authority, City, or District to perform any discretionary act. For arbitration, the parties will use an approved arbitrator list to help avoid delays caused through the arbitrator selection process and proceed in accordance with the JAMS Expedited Construction Arbitration Rules (JAMS Rules), including for disputes greater than $100,000. The arbitration will be completed (whether by settlement or the issuance of an award by the arbitrator) within twenty (20) business days after the arbitrator is selected. The arbitrator’s jurisdiction will be limited to determining whether a demand is subject to arbitration as well as the amount due from one party to other under the Project Implementation Agreement and ordering the payment of such amounts due from one party to the other party by a date certain. If the Authority does not make a payment to RIDA on time, then RIDA will be entitled to default interest (10% per annum) on the amount of the delinquency, which must be paid by the Authority regardless of whether that amount is in excess of the $265MM Public Contribution. To help alleviate the costs to the Authority, RIDA granted the Authority four “grace periods” each year for late payments in which interest will not accrue during the grace period. If the Authority disputes a payment request, the Authority can make the payment under protest in order to avoid potential interest accrual, in which case RIDA would be liable to return any overpayment to the Authority with interest. In the event of any payment dispute that cannot be resolved through negotiations amongst the parties, the dispute will proceed to arbitration on an expedited basis (as discussed above). The Authority’s costs of arbitration cannot be paid through the $265MM Public Contribution and will need to be funded from other Authority funds. Following completion of the Convention Center, there will be a final review and true-up of all payments to ensure that the Authority has not overpaid RIDA. 3. Phase 1A Infrastructure Improvements The Project Implementation Agreement specifies that RIDA will cause the development and completion of certain Phase 1A Infrastructure Improvements within approximately 48 months of commencement of construction. The Project Implementation Agreement also specifies the projected costs of development and costs reporting associated with the Phase 1A Infrastructure Improvements that RIDA will construct. Upon satisfactory Page 22 of 30 completion, the Phase 1A Infrastructure Improvements will be accepted by the City or District, as applicable, based on the nature of the improvement. A general, high level list of the Phase 1A Infrastructure Improvements which RIDA has committed to construct is as follows: • E Street (G Street to H Street) • G Street Connection • H Street (Bay Boulevard to Street A) • H Street (Marina Parkway to E Street) • Parcel H3 Site Preparation • Parcel H3 Utility Corridor The remaining Phase 1A Infrastructure Improvements that RIDA has not committed to construct, but that RIDA may construct pursuant to the terms of the Project Implementation Agreement, are listed below: • Sweetwater Park (initial phase, including Sweetwater Buffer (SP1 for Parcel S2)) • Harbor Park (initial phase) The District will construct Sweetwater Park and the Sweetwater Buffer (SP1 for Parcel S2). The District and City have allocated the amounts for the initial phase of Harbor Park to be used as a contingency funding for payments to RIDA for the Phase 1A Infrastructure Improvements which RIDA has committed to construct. Consistent with this approach, Harbor Park will not be a “priority” Phase 1A Infrastructure Improvement. However, the District and City intend to build Harbor Park and once the Phase 1A Infrastructure Improvements to be constructed by RIDA are 75% complete, the City, District, and RIDA will meet and confer to decide whether there are funds available to build Harbor Park and whether RIDA or the District will construct Harbor Park. The total to construct all Phase Infrastructure 1A Improvements, including work completed to date, is currently estimated at $85MM. This amount for the remaining work on Sweetwater Park is $13.2MM and on Harbor Park is $19.5MM. Staff has reviewed RIDA’s calculations for the cost of the Phase 1A Infrastructure Improvements and based on those calculations the amount needed to fund the Phase 1A Infrastructure Improvements is available using a combination of the BFDIF credits, sewer fees, a portion of the proceeds of the Authority Bonds, funds from the County Agreement, a grant from California Natural Resources, and other work performed by other tenants on the CVBMP. The key difference in funding between the Phase 1A Infrastructure Improvements and the Convention Center is that RIDA will look to the Authority to pay for all of the costs of the Phase 1A Infrastructure Improvements. This means that the District and City may need to contribute additional amounts to reimburse RIDA for the construction of the Phase 1A Infrastructure Improvements if the cost exceeds available funds. Under Authority Resolution 2020-002, the Authority Board authorized the Executive Director of the Authority to delegate the Executive Director's authority under Authority Resolution 2020- Page 23 of 30 002 to two or more members of the staff of the District and the City functioning as staff to the Authority; provided that such delegation is made to a contingent comprised of an equal number of City and District staff members respectively. The staff members delegated this authority will review the payment requests received from RIDA and authorize the Trustee to issue the corresponding payments from the Construction Fund established under the Authority Indenture. 4. Sweetwater Park Sweetwater Park is part of the Phase 1A Infrastructure Improvements. Sweetwater Park is a new, resource based passive recreation park that will serve as a regional, coastal destination. The park improvements include parking for 216 vehicles, a new park restroom, plazas and informal small group gathering areas, a nature-themed play area, an adventure dunes play area, a large multiuse meadow with perimeter walkway and picnic areas, a shade pavilion, multiple trail and path routes for walking, jogging, and bicycling, and elevated scenic overlook areas that will provide sweeping views of San Diego Bay. Since RIDA did not include the Sweetwater Park as part of its bid for the Chula Vista Bayfront project, the District determined that it might be more economical and effective for the District to bid out the work and construct Sweetwater Park. Under the Project Implementation Agreement, the District will be required to construct Sweetwater Park within 22 months of the issuance of the Authority Bonds. This time limit was added to provide additional certainty that Sweetwater Park will be sufficiently complete in time for the opening of the Convention Center, Parking Improvements, and Resort Hotel. To address RIDA’s concerns that Sweetwater Park will be sufficiently complete in a timely manner and not delay the opening of the Convention Center and Resort Hotel, RIDA has two opportunities to step in and perform the work itself: first, before the District bids the contract to construct Sweetwater Park; and second, at month 23 if the District does not complete the construction within the 22 months. If RIDA takes over the construction of Sweetwater Park, RIDA would be reimbursed in the same manner as it is being reimbursed for the other Phase 1A Infrastructure Improvements. If RIDA takes over the construction, RIDA will have a right to accept assignment of the District’s design contract to move forward with construction without competitive bids. 5. Harbor Park As discussed earlier, Harbor Park will not be constructed on the same timeline as the remainder of the Phase 1A Infrastructure Improvements. Instead, the District and City will use the money it would have allocated to Harbor Park as contingency funding in case the costs of the remainder of the Phase 1A Infrastructure Improvements, including Sweetwater Park, increase beyond the amounts currently projected to be needed to construct the Phase 1A Infrastructure Improvements. This decision was made to reduce risk to RIDA that RIDA would not be paid for excess costs related to the Phase 1A Infrastructure Improvements. Once the Phase 1A Infrastructure Improvements, excluding Harbor Park, are 75% complete, the District, the City, and RIDA will reconvene to decide Page 24 of 30 whether to move forward with Harbor Park and whether RIDA or the District will perform the construction. If RIDA constructs Harbor Park, it is anticipated that the same payment request process as used for the other Phase 1A Infrastructure Improvements will be used. 6. Payment and Dispute Resolution Process For the Phase 1A Infrastructure Improvements (including Sweetwater Park and Harbor Park if RIDA proceeds with the construction), the Project Implementation Agreement contains a similar payment request and dispute resolution process as the Convention Center process. RIDA will submit monthly payment requests, certified by a RIDA executive and a third-party architect, which will be limited to work performed to-date, and the Authority will direct the Trustee to issue payments it approves, which it can choose to issue under protest, and the parties will take any unresolved disputes that qualify for arbitration to expedited arbitration. If an arbitrator orders RIDA to return any payments, RIDA will be liable for 10% annual interest. Likewise, the Authority will have to pay interest on any untimely payments, subject to the four free grace periods. There will also be a final review and true-up of all the payments that the Authority made to RIDA for the Phase 1A Infrastructure Improvements. As discussed above, a Construction Fund will be established under the Authority Indenture to pay for the cost of the Phase 1A Infrastructure Improvements and a portion of the cost of construction of the Convention Center and the Trustee will distribute payments from the Construction Fund at the request of the Authority. In addition, if the Authority is late in issuing payments, RIDA will get paid interest and an arbitration provision has been incorporated to fast track solutions regarding payment request. Despite these protections, RIDA has also requested that if an employee of the City or District misappropriates or transfers funds from the Construction Fund or Authority Surplus Fund (either in the capacity as an employee of the City or District or as staff of the Authority), or the District Board or City Council approves an affirmative action transferring these funds, the Authority, City, and the District will use commercially reasonable efforts to pursue recovery of these amounts and seek crime insurance coverage. To the extent the Authority cannot recover the misappropriated funds, through the employee or insurance, the Authority would be responsible for paying the remaining amount. C. Leasing and Operations The leasing and operations documents for the Convention Center are (a) the Management Agreement (between and being executed by RIDA and Marriott); (b) the Site Lease; (c) the Facility Lease, and (d) the Sublease (between and being executed by the City and RIDA but requiring the Authority’s and District’s consent and agreement as to certain sections as specified therein). The Management Agreement was consented to by the District on May 11, 2021. Under the Management Agreement, Marriott will supervise, direct and control the management and operation of the Convention Center and Resort Hotel and Parking Improvements. If Page 25 of 30 there is a conflict between the Management Agreement and the Sublease, the terms of the Sublease control. The City will be subleasing to RIDA the Convention Center and Convention Center land in the form of the Sublease. Due to the Authority’s interest in the Convention Center, as owner of the Convention Center, the Authority has certain third-party rights under the Sublease. Under the Sublease, RIDA may terminate the Sublease due to casualty and condemnation under certain circumstances, mainly involving the cost to repair ($50MM in the case of casualty and $70MM in the case of condemnation). To help mitigate the risk to the Authority, the City and the District in the event of a termination by RIDA before completion of the Convention Center, RIDA has agreed to make up to a $5MM payment if needed to redeem all of the Authority Bonds issued to finance the costs to construct the Convention Center. However, if the insurance or condemnation proceeds and RIDA’s contribution are not sufficient to redeem all of the Authority Bonds, the Authority would still need to find a way to cover any gap or shortfall in revenues needed to redeem all of the Authority Bonds following a casualty or condemnation event prior to completion of the Convention Center. To cover the gap, which is currently approximated to be around $56MM (capitalized interest is currently estimated at approximately $47,465,000 and cost of issuance is currently estimated at approximately $8,825,000), the District and City are working with RIDA to find the most economical manner to procure insurance coverage for these soft costs. Based on recent calculations, the Bond Issuance Working Group (as such term is defined in the Authority Bylaws) believes that if there are sufficient amounts available to redeem all of the Authority Bonds issued for the Convention Center, then there should be adequate revenues from the funds that are being contributed by the District, the City and the Special Tax District under the Facility Lease, the Support Agreement and the Loan Agreement, respectively, to continue to pay debt service on the Authority Bonds issued to finance the Phase 1A Infrastructure Improvements when due. The District and City will continue to analyze this during the course of the validation proceedings. VII. Economic Development Investment The Authority’s issuance of the Authority Bonds for the financing of the Convention Center and the Phase 1A Infrastructure Improvements will result in an “economic development opportunity” as defined in Government Code Section 52200.2 and an “economic development subsidy” to the project as defined in Government Code Section 53083(a) (together, the Economic Development Investment) for the following reasons: The construction of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, and the Parking Improvements will benefit the Members of the Authority and generate substantial benefits to the local and regional community in the form of increased tax and land lease revenues, permanent and temporary jobs, and the provision of significant public amenities and public infrastructure. The construction of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, and the Parking Improvements is also anticipated to be the development catalyst for the CVBMP and is consistent with the policies of the Members of the Authority: (a) the City’s Economic Page 26 of 30 Development Element of the General Plan in order to achieve its economic development goals and objectives and (b) the Port’s Compass Strategic Goals and planning objectives under the CVBMP. The operation of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, and the Parking Improvements will serve the region and the surrounding community by providing commercial and recreational facilities that are not currently available in the community. When implementation of the CVBMP is complete, the public will enjoy more than 200 acres of parks, a shoreline promenade, walking trails, RV camping, shopping, dining and more. The CVBMP also establishes ecological buffers to protect wildlife habitat, species and other coastal resources. The Phase 1A Infrastructure Improvements include the Sweetwater Park, the construction and relocation of streets, development of sewers, and other amenities for the public. Further, no luxury, AAA Four Diamond (or similar) hotel currently operates in the City or the CVBMP. Further, the City and CVBMP currently lacks large, luxury conference facilities similar to the Convention Center that will accommodate community events and gatherings such as high school dances, meetings of local trade organizations, fundraisers, and other community events. The nature of the Resort Hotel as a high-end, luxury resort is expected to bring a demand for additional luxury facilities and services in the community, encouraging related investment and development in the region, the Chula Vista Bayfront, the City, and surrounding areas. The development, opening, and operation of the Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, and the Parking Improvements will be of material benefit to the region, the City, the Chula Vista Bayfront, and to the citizens of, and property owners in, the City and surrounding areas, because construction and operation of Convention Center, Phase 1A Infrastructure Improvements, the Resort Hotel, and the Parking Improvements will encourage and foster the economic revitalization of the Chula Vista Bayfront and the City for the people in the area and the region and the general public as a whole; provide commercial facilities, recreational amenities, and services not currently available in the City and Chula Vista Bayfront; increase tax revenues available to the City and other taxing agencies; increase sales tax revenues available to the City; increase Transient Occupancy Tax revenues available to the City; generate Additional Rent (as defined in the Ground Lease) to the City and the District; generate Parking Rent (as defined in the Ground Lease) to the City and the District; generate leasing revenues to the City and the District; and create jobs within the City, the Chula Vista Bayfront, and the region. VIII. Other Documents Related to the Issuance of the Authority Bonds Staff recommends that the Authority Executive Director and his written designees and the Authority Treasurer and his or her written designees (each, an Authorized Officer), and other officers, employees and agents of each of the Members of the Authority, be authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable in order to consummate the transactions authorized by the Authority Board on June 28, 2021 and to otherwise carry out, give effect to and comply Page 27 of 30 with the terms and intent of the draft resolution attached to this Action Item (Resolution), including, but not limited to, the execution and delivery of easement agreements related to the Facility (as such term is defined in the Facility Lease), a Tax Certificate for any of the Authority Bonds and other certificates or agreements required pursuant to the terms of the Bond Purchase Agreement or by the City or the District as a condition to their consummating the transactions described herein related to the Authority Bonds. In addition, following the issuance of the Authority Bonds, each of the Authorized Officers, acting alone, is authorized to take any and all actions required of the Authority under the Authority Agreements (defined below), including, but not limited to, executing required certificates, granting consents, filing reports and sending notices on behalf of the Authority. This delegation of authority shall extend to and include such items, but not be limited to, the execution and delivery by the Authority of the consent and agreement required by the Authority under the Sublease. IX. Conclusion and Recommendation The documents to be approved by the Authority Board in connection with the issuance of the Authority Bonds are: 1. Authority Indenture 2. Loan Agreement 3. Bond Purchase Agreement 4. Project Implementation Agreement 5. Site Lease 6. Facility Lease 7. Support Agreement 8. Sublease 9. Third A&R Revenue Sharing Agreement The aforementioned documents are collectively referred to as, the “Authority Agreements”. The first eight documents are part of the validation action that will be filed by the Authority, the City, and the District. Authority approval of these documents is the last legislative action needed before the validation action can be filed. If the validation action is successful, the parties will then move forward with issuing the Authority Bonds, enter into their respective financing, construction, leasing and operations, and enforcement agreements at the time of issuance of the Authority Bonds, and RIDA would commence construction of certain of the Phase 1A Infrastructure Improvements, the Convention Center and the Resort Hotel and Parking Improvements shortly thereafter. Based on the current schedule, it is estimated that the construction could commence as early as the end of 2021. As more fully discussed above, staff recommends that the Authority Board: Page 28 of 30 (A) Select the Chair and Vice Chair and Confirm the Designation of the Other Officers of the Authority; (B) Authorize the Issuance of the Authority Bonds by the Authority (C) Authorize the Execution and Delivery of the Third A&R Revenue Sharing Agreement; (D) Authorize the Execution and Delivery of the Project Implementation Agreement, with conditions; (E) Authorize the Execution and Delivery of the Site Lease, with conditions; (F) Authorize the Execution and Delivery of the Facility Lease, with conditions; (G) Authorize the Execution and Delivery of the Bond Purchase Agreement, with conditions; (H) Authorize the Execution and Delivery of the Authority Indenture, with conditions; (I) Authorize the Execution and Delivery of the Support Agreement, with conditions; (J) Authorize the Execution and Delivery of the Loan Agreement, with conditions; and (K) Authorize the Execution and Delivery of Other Documents Related to the Issuance of the Authority Bonds. Co-Counsel’s Comments: Each Co-Counsel has reviewed this agenda sheet and Attachments A-H and K as presented to him or her and approve each as to form and legality. Environmental Review: The proposed action by the Authority Board, selecting the Chair and Vice Chair and confirming the designation of the other officers of the Authority, the issuance of the Authority Bonds, and approving the execution and delivery of the Third A&R Revenue Sharing Agreement, the Project Implementation Agreement, the Site Lease, the Facility Lease, the Bond Purchase Agreement, the Authority Indenture, the Support Agreement, the Loan Agreement, and other documents related to the issuance of the Authority Bonds, was previously analyzed in the Final Environmental Impact Report (FEIR) for the Chula Vista Bayfront Master Plan (UPD #83356-EIR-658; SCH #2005081077; Clerk Document No. 56562), certified by the District on May 18, 2010 (Resolution No. 2010-78), the Page 29 of 30 Addendum to the FEIR, which was adopted by the District Board on August 13, 2013 (Resolution No. 2013-138), the Second Addendum to the FEIR, which was adopted by the District Board on April 10, 2018 (Resolution No. 2018-0069), and the Third Addendum to the FEIR, which was adopted by the District Board on December 8, 2020 (Resolution No. 2020-116). The proposed Authority Board actions are not a separate “project” for CEQA purposes but are 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.) Additionally, pursuant to CEQA Guidelines Sections 15162 and 15163, and based on the review of the entire record, including without limitation, the FEIR and Addendums, the Authority finds that the proposed Authority Board actions do not require further environmental review as: 1) no substantial changes are proposed to the project and no substantial changes have occurred that require major revisions to the FEIR and Addendums due to the involvement of new significant environmental effects or an increase in severity of previously identified significant effects; 2) no new information of substantial importance has come to light that (a) shows the project will have one or more significant effects not discussed in the FEIR and Addendums, (b) identifies significant impacts would not be more severe than those analyzed in the FEIR and Addendums, or (c) shows that mitigation measures or alternatives are now feasible that were identified as infeasible and those mitigation measures or alternatives would reduce significant impacts, and 3) no changes to mitigation measures or alternatives have been identified or are required. Pursuant to CEQA Guidelines §15162(b), the Authority finds that no further analysis or environmental documentation is necessary. Accordingly, the proposed Authority Board actions are 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 Board actions were covered in the Coastal Development Permit (CDP) for the Resort Hotel and Convention Center, Parking, Infrastructure and Phase 1A Improvements (CDP-2019-03; Clerk Document No. 70152) approved by the District Board on June 18, 2019 (Resolution No. 2019-080). The proposed Authority Board actions are consistent with the project in the CDP. No additional action under the California Coastal Act is required at this time. PREPARED BY: Shaun D. Sumner Vice President Real Estate, Engineering, and Facilities, District Adam Meyer Assistant Director, Real Estate, District Tiffany Allen Page 30 of 30 Director, Development Services, City Attachment(s): Attachment A: Third A&R Revenue Sharing Agreement Attachment B: Project Implementation Agreement Attachment C: Site Lease Attachment D: Facility Lease Attachment E: Bond Purchase Agreement Attachment F: Authority Indenture Attachment G: Support Agreement Attachment H: Loan Agreement Attachment I: Conceptual Plan of Finance Attachment J: Authority Resolution 2020-002 and Authority Procurement Policy Attachment K: Sublease Draft Dated 02/04/21 1 4123-6602-0395.6 THIRD AMENDED AND RESTATED REVENUE SHARING AGREEMENT By and Among CITY OF CHULA VISTA, SAN DIEGO UNIFIED PORT DISTRICT, and CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (Chula Vista Resort Hotel, Convention Center and Public Infrastructure Improvements) This Third Amended and Restated Revenue Sharing Agreement (“Agreement”), dated , 2021, is entered into by and among the City of Chula Vista, a chartered municipal corporation (“City”), the San Diego Unified Port District, a public corporation (“District”), and the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (“Authority”). The City, Authority, and District may be individually referred to herein as, a “Party”, and collectively as, the “Parties”. RECITALS WHEREAS, to develop certain portions of the Chula Vista Bayfront (“CVB”) for the benefit of the residents, tenants, and visitors of the CVB, the City and the District formed the Authority to fund a portion of the costs of a convention center (“Convention Center”) to be located on the CVB and a portion of the costs of certain public infrastructure improvements in the CVB to be constructed during the initial phase of development of the CVB (such public infrastructure improvements being herein referred to as the “Phase 1A Infrastructure Improvements”); and WHEREAS, the Authority will fund such costs through issuance of the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the “2021A Bonds”) and Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) (the “2021B Bonds” and, together with the 2021A Bonds, the “Authority 2021 Bonds”); and WHEREAS, the Authority 2021 Bonds will be issued pursuant to the terms of an indenture of trust (“Indenture”) by and between the Authority and the corporate trustee identified therein (the “Trustee”); and WHEREAS, it expected that RIDA Chula Vista, LLC (“RIDA”) will finance the construction of a resort hotel (“Hotel”) to be located on the CVB; and WHEREAS, it is expected that RIDA will make payments to the District with respect to the Hotel; and WHEREAS, it is expected that RIDA will make payments to the City, or its assignee, with respect to the Convention Center; and WHEREAS, the District will contribute funds to the repayment of the Authority 2021 Bonds pursuant to a Support Agreement between the Authority and the District (the “Support Agreement”) and the City will contribute funds to repayment of the Authority 2021 Bonds pursuant to a Facility Lease between the Authority and the City; and Attachment A 2 4123-6602-0395.6 WHEREAS, the Bayfront Project Special Tax Financing District (“Special Tax District”) will contribute funds to the repayment of the Authority 2021 Bonds pursuant to a loan agreement between the Special Tax District and the Authority (the “Loan Agreement”); and WHEREAS, the City and the District entered into that certain Revenue Sharing Agreement dated April 24, 2018 and filed in the Office of the District Clerk as Document No. 68392 (the “Original RSA”); and WHEREAS, the City and District entered into that certain Amended and Restated Revenue Sharing Agreement dated November 19, 2019 and filed in the Office of the District Clerk as Document No. 70911 (the “Amended RSA”) that amended and restated in its entirety the Original RSA; and WHEREAS, the City and District entered into that certain Second Amended and Restated Revenue Sharing Agreement dated September 15, 2020 and filed in the Office of the District Clerk as Document No. 71855 (the “Second Amended RSA”) that amended and restated in its entirety the Amended RSA; and WHEREAS, the City and the District desire to amend and restate in its entirety the Second Amended RSA as set forth herein to add the Authority as a Party to this Agreement and to describe the funds to be contributed and distributed pursuant to this Agreement. NOW THEREFORE, in consideration of One Dollar and the mutual promises set forth herein, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Recitals. The Recitals are incorporated herein by reference. 2. Term. The term of this Agreement commenced on the effective date of the Original RSA, May 7, 2018. Amendment and restatement of the Second Amended RSA as set forth herein shall take effect on the date first set forth above. If the Authority 2021 Bonds are issued, this Agreement shall terminate on the later to occur of the following two dates, which shall be referred to herein as the “Agreement Termination Date”: (i) the first date on which no Authority 2021 Bonds remain Outstanding (as such term is defined in the Indenture); or (ii) thirty-eight (38) years from the date the Authority 2021 Bonds are issued (the “Closing Date”), provided however that in no event shall the term of this Agreement exceed sixty-six (66) years. Prior to the Closing Date, the Parties may, by mutual agreement, terminate this Agreement at any time. If the Authority 2021 Bonds are not issued on or prior to June 30, 2025, then this Agreement shall terminate on July 1, 2025 unless extended or terminated by mutual agreement of the Parties prior thereto. 3. Agreements. This Agreement amends, restates, and supersedes in its entirety the Second Amended RSA. As their interests may appear, the City, the District and the Authority hereby agree as follows: 3.1 Funds and Existing Funds. “Funds” means, collectively, moneys in an amount equivalent to each of the following sources of funds actually received by the City or the District on a yearly basis commencing July 1, 2018: A. District Attachment A 3 4123-6602-0395.6 (i) all funds derived from the following items (a) – (b) (collectively, “Ground Lease Revenues”): (a) those real estate agreements set forth in Exhibit 1 (collectively, the “Other Ground Leases”); provided, however, if one or more of the Other Ground Leases are renewed, replaced, or amended in such a way as to change the size or configuration of the original premises to include premises outside of the original premises boundaries of all the Other Ground Leases (each a “Modified Boundary Lease”), then, for purposes of this Section, the Ground Lease Revenues derived from each Modified Boundary Lease shall be calculated by multiplying the total amount of Ground Lease Revenues generated by such Modified Boundary Lease by a fraction, the numerator of which shall be an amount equal to the Modified Boundary Lease premises still within the original premises boundary, and the denominator of which shall be the total premises area of the Modified Boundary Lease as modified. The City and the Port District acknowledge and agree that a Modified Boundary Lease shall not include the modification of the RV Park Lease (listed on and as defined in Exhibit 1) to include some or all of parcel S-3 or a replacement of the RV Park TUOP (listed on and as defined in Exhibit 1) where RIDA is the tenant. For example, if the original premises of an Other Ground Lease encompasses 5.0 acres, and the Modified Boundary Lease includes 4.0 acres of the original premises, and adds 6.0 acres of premises outside the original premises, then forty percent (40%) of the lease payments paid to the District under the Modified Boundary Lease shall be included as Other Ground Leases lease payments under this Section (collectively, the “Other Ground Leases Revenues”); to the extent District enters into any revenue generating agreement other than a Ground Lease with respect to operations on all or any portion of the Other Ground Leases premises, such revenue, net any related out-of-pocket operating costs paid by District to third parties, shall also be included as Other Ground Leases Revenues under this Section; (b) less $3,283,970, which is the actual amount of the buyout payment paid solely by the District to Chula Vista Marina, LP, dba Chula Vista Marina ( “RV Park Lessee”) to terminate the lease between the RV Park Lessee and the District (“Net RV Park Buyout Credit”), such amount to be amortized over a period of eight years commencing on July 1, 2018 pursuant to the schedule of credits provided in Exhibit 2, attached hereto and incorporated herein by reference (“Net RV Park Buyout Credit Schedule”), as such Net RV Park Buyout Credit Schedule and its contents may be administratively modified from time to time with the mutual consent of the City Manager Attachment A 4 4123-6602-0395.6 of the City (the “City Manager”) and the Executive Director of the District (the “Executive Director”), without further approval of the Board of Port Commissioners of the District (“District Board”) or City Council of the City (“City Council”); and (ii) the annual payments to be made by the District (the “District Support Payments”) pursuant to the Support Agreement; and (iii) any funds in addition to those specified in (i) and (ii) above committed by the District to the Convention Center or the Phase 1A Infrastructure Improvements (together, the “CVB Public Improvements”) to be applied as Funds in accordance with the terms of this Agreement with the approval of the City Manager and the Executive Director, without further approval of the District Board or the City Council. B. City (i) the transient occupancy taxes levied pursuant to Chula Vista Municipal Code Chapter 3.40, attributable to the Convention Center, the Hotel, the RV Park TUOP (listed on and as defined in Exhibit 1), and the RV Park Lease (listed on and as defined in Exhibit 1) (such transient occupancy taxes, the “TOT”); (ii) that portion of use and sales taxes levied pursuant to the Bradley-Burns Uniform Local Use and Sales Tax Law (California Revenue and Taxation Code Section 7000, et seq.) and allocated to the City pursuant to applicable law attributable to the RV Park Lease, the Convention Center and the Hotel, exclusive of any amount so levied and allocated to the City pursuant to voter approval by the electors of the City, which portion is currently one percent (1%) of taxable transactions (the “Sales Tax”); (iii) incremental ad valorem property tax (including property tax in-lieu of motor vehicle license fees) generated by the Convention Center and Hotel parcels, which is that amount in excess of any ad valorem property tax levied in the fiscal year in which the Authority 2021 Bonds are issued; (iv) an amount equal to $986,625.00, increasing 3% on July 1 of each year, commencing July 1, 2017, which amount is based on the payment made by the District to the City in fiscal year 2016 pursuant to that certain Municipal Services Agreement No. 88-2012 between the District and the City for the provision of Police, Fire and Emergency Medical Services; (v) special tax proceeds (“Special Tax Revenues”) of the Special Tax District, equal to the annual amount used to repay the Authority under Attachment A 5 4123-6602-0395.6 the Loan Agreement or any other indebtedness of the Special Tax District related to the Authority 2021 Bonds; and (vi) any funds in addition to those specified in (i) through (v) above committed by the City to the CVB Public Improvements to be applied as Funds in accordance with the terms of this Agreement, with the approval of the City Manager and the Executive Director, without further approval of the City Council or the District Board. C. As used herein, “Existing Funds” means, collectively, moneys in an amount equivalent to each of the following sources of funds actually received by the District or the City, as applicable, from and after July 1, 2018: (i) the Ground Lease Revenues; (ii) the TOT attributable to the RV Park TUOP and the RV Park Lease; and (iii) amounts described in Section 3.1(B)(iv). The City and the District shall remit any Existing Funds remaining after any expenditure permitted by Section 3.2 to the Authority by no later than the date the Preliminary Official Statement for the Authority 2021 Bonds is posted on the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access website (the “Contribution Date”). No interest will accrue with respect to the Existing Funds contributed by the City or the District prior to the Contribution Date. The Existing Funds to be contributed by the City and by the District shall not include interest earned by the City or the District on such funds prior to the Contribution Date. Should either the City or the District elect to retain Existing Funds for the period from and after July 1, 2018 to the Contribution Date, such Existing Funds shall be reported as restricted in the audited financial statements included in such Party's Comprehensive Annual Financial Report (“CAFR”), commencing with such Party's CAFR for the fiscal year ended June 30, 2020. Funds received by the Authority on the Contribution Date shall be transferred by the Authority to the Trustee on or prior to the Closing Date as provided in Section 3.3. 3.2 Use of Existing Funds Prior to the Contribution Date. Existing Funds may be expended by the City and the District prior to the Contribution Date pursuant to the following terms: A. The City may deduct amounts reimbursed to RIDA pursuant to that certain Pre- Close Design Reimbursement Agreement, dated September 15, 2020, entered into between the City and RIDA. B. The City may deduct plan review, permitting, and inspection fees in the amount that would have been incurred by RIDA to process the work for the Phase 1A Infrastructure Improvements based on current schedules of fees adopted by the City for such plan review, permitting, and inspection; Attachment A 6 4123-6602-0395.6 C. The City and the District may deduct design, plan review, permitting, project/construction management, and inspection costs incurred by the City and the District, respectively, for Phase 1A Infrastructure Improvements, memorialized in one or more operating memoranda of the City and the District executed by the City Manager and the Executive Director, without further approval of the City Council or the District Board; D. The District or the City may deduct the cost of any Phase 1A Infrastructure Improvements constructed by or at the direction of RIDA pursuant to that certain Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right of Entry License Agreement, to be entered into among the City, the District, the Authority and RIDA, including without limitation, any cost increases and delay damages, up to the amount of the budget approved by such parties; E. The City and the District may deduct such amounts necessary for the payment of existing or future obligations of the Authority, including without limitation, administrative fees, consultant and attorneys’ fees, and other staff reimbursements and fees (collectively, the “Pre-Close Authority Expenses”), as such Pre-Close Authority Expenses are memorialized in one or more operating memoranda of the City and the District executed by the City Manager and the Executive Director, without further approval of the City Council or the District Board; F. Prior to the deduction of any amounts by the City or by the District pursuant to Section 3.2(A) through Section 3.2(E), the Party desiring to deduct such amount shall submit an accounting of such amounts to the other Parties and the other Parties shall review the accounting in good faith and approve or reject such accounting within thirty (30) days. If the accounting is approved, such amount shall be deducted from the Existing Funds to be delivered by such Party prior to the Contribution Date. Should the Closing Date for the Authority 2021 Bonds not occur as provided in Section 2, and such date is not extended by mutual agreement of the Parties in accordance with Section 2 of this Agreement, the City and the District shall each prepare an accounting of amounts deducted and approved by such Party from the Existing Funds pursuant to Section 3.2(A) through Section 3.2(E) above (the “Pre-Close Expenses”). Should the Pre-Close Expenses of the City exceed the Pre-Close Expenses of the District, or in the alternative, the Pre-Close Expenses of the District exceed the Pre-Close Expenses of the City, then the Party with the lower Pre-Close Expenses shall make a reimbursement sufficient to equalize the Pre-Close Expenses between the City and the District (e.g., if the City has expended $2.0 million and the District has expended $1.0 million, then the combined Pre-Close Expenses total $3.0 million, with a fair-share expense of $1.5 million per Party, and a reimbursement due from the District to the City in the amount of $0.5 million, the “Pre-Close Expense Reimbursement”). The Pre-Close Expense Reimbursement shall be made within thirty (30) days of the District and City’s mutual agreement as to the amount of such payment; and G. This Section 3.2 shall survive the termination of this Agreement. Attachment A 7 4123-6602-0395.6 3.3 Use of Existing Funds Subsequent to the Contribution Date. Any Existing Funds collected by the City and the District subsequent to the transfer of funds on the Contribution Date shall be paid by such Parties to the Authority, for transfer by the Authority to the Trustee on or prior to the Closing Date for application in accordance with the provisions of the Indenture. 3.4 Distribution of Funds Post Closing Date. On and after the Closing Date until the Agreement Termination Date, amounts disbursed by the Trustee to the Authority pursuant to the provisions of the Indenture (the “Residual Revenues”), together with the RIDA Lease Payments (as such term is defined below) received by the Authority, shall be applied in the following order of priority: 1. To reimburse the District for the cumulative amount of District Support Payments actually contributed by the District and not previously reimbursed to the District by the Authority; then 2. To reimburse the City and the District pari passu for any amounts either Party actually paid or contributed to the County of San Diego (“County”) pursuant to the Chula Vista Bayfront Project Funding Agreement (“Funding Agreement”) by and among the County, the City, the District and the Authority; then 3. To reimburse the City for 73.6% of the cumulative actual, direct costs incurred by the City to provide fire service within the CVB, which 73.6% reflects amounts for which the City is entitled to reimbursement in addition to any payments the City receives pursuant to any municipal services agreement between the City and the District in effect at the time such reimbursement is being made and which is the proportionate share of costs attributable to the Convention Center and the Hotel and not previously reimbursed to the City or paid through Special Tax Revenues; then 4. To reimburse the City and the District on a proportionate, pro-rata basis, for each Party’s contribution of the Existing Funds, as of the Closing Date; then 5. To reimburse the City and the District on a proportionate, pro-rata basis, for each Party’s contribution of Existing Funds after the Closing Date, continuing to the Agreement Termination Date; then 6. To fund an additional reserve fund or reserve fund insurance policy in the amount of one year’s debt service for the Authority 2021 Bonds; and finally 7. Any Funds remaining after the payments described in numbered items (1) through (6) above will be equally distributed between the City and the District. No interest will accrue with respect to unreimbursed Funds contributed by the City or the District. 3.5 RIDA Lease Payments. Pursuant to a ground lease between the District and RIDA for the Hotel (the “Hotel Ground Lease”) and a sublease between the City and RIDA for the Convention Center (the “Convention Center Sublease”), each to be executed at the Closing Date, RIDA will be obligated to pay to the District and to the City, Attachment A 8 4123-6602-0395.6 respectively, certain payments, which payments, exclusive of the RIDA Parking Payments (as such term is defined in Section 3.8 of this Agreement) and any Advance Rent (as such term is defined in the Convention Center Sublease) are collectively referred to herein as the “RIDA Lease Payments.” Each of the District and City shall remit to the Authority any RIDA Lease Payments such Party actually receives from RIDA within thirty (30) days following the District’s or City’s receipt of such RIDA Lease Payments. The District’s and City’s obligation to remit the RIDA Lease Payments to the Authority shall cease on the Agreement Termination Date. For purposes of this Agreement, the RIDA Lease Payments shall not be considered Funds. 3.6 Parks. The District and the City have agreed to cooperate in good faith and use their respective best efforts to negotiate an agreement (“Park Agreement”) which grants the City a nonexclusive, joint-use right or other interest in the areas designated for public park use within the CVB (the “Park Areas”). The Park Agreement is anticipated to provide as follows: as and when the City collects Parkland Acquisition and Development fees, or other such park related impact fees as may be adopted in the future, from developments in the CVB (collectively, the “PAD Fees”), the City will pay the acquisition component of such PAD Fees to the District, or an amount equivalent to the acquisition component of the PAD Fees, as rent under the Park Agreement (such amount being referred to as the “Park Rent”). To the extent that the City pays Park Rent to the District, the District shall contribute the Park Rent actually received to the Authority and the Authority shall use the Park Rent to reimburse the City and the District for O&M Costs actually paid by each of the City and the District, subject to terms of any future implementing agreements entered into by the City, the District and/or the Authority. 3.7 Operations & Maintenance Costs and Transit Plan. A. The City and District agree to generally split the operation and maintenance costs (“O&M Costs”) for the CVB not otherwise maintained by a third party. The District will be responsible for the O&M Costs of the parks and all related public infrastructure located within the parks. The City will be responsible for the O&M Costs of the streets and sanitary sewers. B. The City and District will split the O&M Costs payable pursuant to that certain Chula Vista Bayfront Master Plan Natural Resources Management Plan filed June 6, 2016 in the Office of the District Clerk as Document No. 65065 that are not the responsibility of a third party (“NRMP Costs”). The NRMP Costs shall be shared equally by the District and the City. C. The City will be responsible for funding a transit plan for the Chula Vista Bayfront Shuttle as defined in the Chula Vista Bayfront Master Plan Public Access Program, filed in the Office of the District Clerk as Document No. 59408, as such document may be amended from time to time (the “Shuttle Transit Plan”). The City will cooperate with the District in good faith to coordinate implementation of the Shuttle Transit Plan with any other transit plan needed for the CVB. The City will also be responsible for funding the implementation of the Shuttle Transit Plan, including capital costs and operational costs of the Chula Vista Bayfront Shuttle, until such time as such Attachment A 9 4123-6602-0395.6 operational costs are borne by other applicable transportation providers or the City and District mutually agree that the Chula Vista Bayfront Shuttle is no longer required. In no event shall either Party be reimbursed for any O&M Costs that have been previously reimbursed to such Party through Special Tax Revenues or Park Rent. 3.8 Parking Lease Payments. RIDA is expected to pay to the District a percentage of the gross revenues it receives for the use of parking spaces on the Hotel site and in the parking garage (collectively, the “RIDA Parking Payments”). The District shall deliver to the City fifty percent (50%) of all RIDA Parking Payments the District actually receives from RIDA under the Hotel Ground Lease within thirty (30) days following the District’s receipt of such RIDA Parking Payments. The District’s obligation to remit the RIDA Parking Payments to the City shall cease on the Agreement Termination Date. For purposes of this Agreement, the RIDA Parking Payments shall not be considered Revenues as such term is defined in the Indenture and shall not be considered Funds for purposes of this Agreement. 4. Operating Memoranda. To the extent the City and the District enter into any operating memoranda pursuant to the terms of this Agreement that requires any action(s) be taken by the Authority, the City and the District shall (i) specify in the operating memoranda any instructions that the Authority shall follow upon receipt of the operating memoranda; and (ii) promptly deliver the operating memoranda to the Treasurer of the Authority after the execution of the operating memoranda by the City Manager of the City and the Executive Director of the District. If the Authority is unable to comply with the instructions set forth in the operating memoranda for any reason, the Authority shall inform the District and the City promptly and to the extent compliance with the instructions requires the adoption of certain administrative rules or procedures or an amendment to the Amended and Restated Joint Exercise of Powers Agreement filed on August 7, 2019 in the Office of the District Clerk as Document No. 70245 (“Authority Incorporation Agreement’) or the Bylaws of the Authority (“Authority Bylaws”), the City and the District, as the sole members of the Authority, shall use good faith efforts to promptly adopt such administrative rules or procedures administratively or present any modifications to the Authority Bylaws or Authority Incorporation Agreement to the Authority Board of Directors for their consideration, as necessary. 5. Binding Agreement. The Parties agree that this Agreement is a binding agreement among the Parties. Notwithstanding the binding nature of this Agreement, the Parties contemplate that future implementing agreements between the City and the District or the Authority, between the District and the Authority and/or among the City, the District and the Authority may be needed to implement or clarify the terms of this Agreement. To that end, each of the Parties agree to meet and confer in good faith in response to a request by any other Party regarding the implementation or clarification of this Agreement. 6. Event of Default. An “Event of Default” will occur under this Agreement when: (a) there is a material breach of any material condition, covenant or promise set forth herein; (b) written notice thereof has been given to the Party in breach; and (c) such breach has not been cured within ten (10) business days after such notice was given to the Party in breach. In the event the breach cannot reasonably be cured within such ten (10) business day period, the Party in breach must commence cure of the breach within such ten (10) business day period and thereafter diligently proceed to cure such breach. A waiver by any Party of any such breach Attachment A 10 4123-6602-0395.6 shall not be construed as a waiver of any succeeding breach of the same or other condition, covenant or promise. In the event of an Event of Default, the non-defaulting Parties may, in their sole and absolute discretion, elect to either: (a) extend the time beyond the cure period set forth in this Section 6 for the defaulting Party to perform the applicable obligation(s) hereunder for a period of time acceptable to the non-defaulting Parties, or (b) proceed with an action or proceeding for specific performance. 7. Remedies. The occurrence of an Event of Default shall give the non-defaulting Parties the right to proceed with an action or proceeding for specific performance. 8. Notices. The notice addresses shall be the same as those set forth in the Authority Incorporation Agreement and shall be sent by certified U.S. Mail (return receipt requested) and shall be deemed delivered three days after deposit in the U.S. Mail. 9. Entire Agreement. This Agreement constitutes the entire understanding and agreement of the Parties, integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the City and the District with respect to the subject matter hereof. 10. Drafting Presumption; Review Standard. The Parties acknowledge that this Agreement has been agreed to by all the Parties, that each Party has consulted with attorneys with respect to the terms of this Agreement and that no presumption shall be created against the drafting Party. Any deletion of language from this Agreement prior to its execution by City, District and Authority shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the Parties intended thereby to state the converse of the deleted language. 11. Governing Law. This Agreement and all of the rights and obligations of the Parties hereto and all of the terms and conditions hereof shall be construed, interpreted and applied in accordance with and governed by and enforced under the laws of the State of California. 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. 13. Electronic Signatures. The words “execution”, “execute”, “signed”, “signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transaction contemplated hereby shall be deemed to include electronic signatures, contract formations on electronic platforms approved by the Parties, or the keeping of such electronic signatures and electronic contracts in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Attachment A 11 4123-6602-0395.6 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and the year first set forth above. CITY: CITY OF CHULA VISTA By:__________________________________ Mary Casillas Salas, Mayor ATTEST: Kerry K. Bigelow, City Clerk APPROVED AS TO FORM: Glen R. Googins, City Attorney DISTRICT: APPROVED AS TO FORM AND LEGALITY: SAN DIEGO UNIFIED PORT DISTRICT, GENERAL COUNSEL a public corporation By: By:_________________________________ Thomas A. Russell Name: Its: Attachment A 12 4123-6602-0395.6 AUTHORITY: APPROVED AS TO FORM AND LEGALITY: CHULA VISTA BAYFRONT FACILITIES CO-COUNSEL FINANCING AUTHORITY, a California joint exercise of powers authority By: By:_________________________________ Glen R. Googins City of Chula Vista City Attorney Name: Its: By: Thomas A. Russell San Diego Unified Port District General General Counsel Attachment A 13 4123-6602-0395.6 Exhibit 1 Listing of Other Ground Leases 1. Amended, Restated and Combined Lease between the San Diego Unified Port District (the "District") and The Marine Group LLC for property at the North Side of G Street at the terminus of both Quay Avenues and Sandpiper Way in Chula Vista, which lease is on file in the Office of the District Clerk as Document No. 54509, as amended and may be amended from time to time. 2. Lease between the District and Chula Vista Marina, LP, dba Chula Vista Marina, for property located at 550 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 14244, as amended and may be amended from time to time. 3. Lease between the District and California Yacht Marina-Chula Vista, LLC, for property located at 640 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 23924, as amended and may be amended from time to time. 4. Lease between the District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the District Clerk as Document No. 70407, as amended and may be amended from time to time (“RV Park Lease”). 5. Tideland Use and Occupancy Permit between the District and Sun Chula Vista Existing Park RV LLC for property located at 460 Sandpiper Way in Chula Vista which tideland use and occupancy permit is on file in the Office of the District Clerk as Document No. 69412, as amended and may be amended from time to time (“RV Park TUOP”). Attachment A 14 4123-6602-0395.6 Exhibit 2 Net RV Park Buyout Credit Schedule Fiscal Year (FY) RV Park Buyout Credit Cumulative Credit FY 19 $410,500 $410,500 FY 20 $410,500 $821,000 FY 21 $410,500 $1,231,500 FY 22 $410,500 $1,642,000 FY 23 $410,500 $2,052,500 FY 24 $410,500 $2,463,000 FY 25 $410,500 $2,873,500 FY 26 $410,470 $3,283,970 Note: The total rent credit was reduced from $4,329,614 to $3,283,970 based on a permitted rent credit applied to the Chula Vista Marina lease as partial payment of the RV Park Buyout. This therefore will reduce the Chula Vista Marina rent actually received by the District from the tenant by $1,045,644 until November 30, 2021. Attachment A 4825-3218-1203v24/024036-0079 PROJECT IMPLEMENTATION AGREEMENT by and among THE CITY OF CHULA VISTA, a California charter city and municipal corporation, THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT, a financing district, THE SAN DIEGO UNIFIED PORT DISTRICT, a public corporation, THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY a joint exercise of powers entity, and RIDA CHULA VISTA, LLC a Delaware limited liability company Dated as of __________ 1, 2021 Relating to $_______________________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT CONVENTION CENTER) SERIES 2021A (FEDERALLY TAXABLE) $_______________________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2021B (TAX-EXEMPT) Page 1 of 237 EAttachment B TABLE OF CONTENTS Page i ARTICLE I DEFINITIONS 1.1. Definitions Addendum .............................................................................................................. 4 ARTICLE II SUBJECT OF THE AGREEMENT GENERALLY 2.1. Developer’s Phase 1A Infrastructure Improvements................................................................. 5 2.2. Convention Center ..................................................................................................................... 7 2.3. Sweetwater Park ........................................................................................................................ 7 ARTICLE III DURATION OF AGREEMENT 3.1. Term of Agreement ................................................................................................................. 12 ARTICLE IV PROJECT COSTS 4.1. Phase 1A Infrastructure Improvements ................................................................................... 12 4.2. Convention Center ................................................................................................................... 13 4.3. Cost Reporting ......................................................................................................................... 13 ARTICLE V CONSTRUCTION OF THE PROJECT AND THE REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS 5.1. Construction of the Project ...................................................................................................... 14 5.2. Reserved .................................................................................................................................. 19 5.3. Reserved .................................................................................................................................. 19 5.4. Project Schedule and Schedule Updates .................................................................................. 19 5.5. Unavoidable Delay .................................................................................................................. 21 5.6. Completion Guaranty .............................................................................................................. 24 5.7. Entitlements ............................................................................................................................. 24 5.8. Energy Requirements .............................................................................................................. 25 ARTICLE VI PROCUREMENT REQUIREMENTS AND EQUAL OPPORTUNITY 6.1. Award of Sole-Sole Source Prime Contract ............................................................................ 26 6.2. Subcontractor Bid and Award Process for the Developer’s Phase 1A Infrastructure Improvements .......................................................................................................................... 26 6.3. Bid and Award Process for the Remaining Phase 1A Infrastructure Improvements .............. 27 6.4. The Convention Center as a Special Purpose Project .............................................................. 27 6.5. Procurement of Alterations ...................................................................................................... 27 6.6. Bid Opening and Award .......................................................................................................... 27 6.7. Authority Procurement Policy Acknowledgement .................................................................. 28 Page 2 of 237 EAttachment B TABLE OF CONTENTS (continued) Page ii 4825-3218-1203v24/024036-0079 ARTICLE VII DESIGN AND CONSTRUCTION STANDARDS 7.1. Standard of Care ...................................................................................................................... 28 7.2. Compliance with Laws ............................................................................................................ 28 7.3. Compliance with Design and Construction Standards ............................................................ 31 7.4. Construction Period ................................................................................................................. 31 7.5. Authority Approval Not a Waiver of Obligations ................................................................... 31 ARTICLE VIII CONSTRUCTION 8.1. Site Safety, Security ................................................................................................................ 31 8.2. Public Right-of-Way ............................................................................................................... 32 8.3. Traffic Control ......................................................................................................................... 33 8.4. Maintenance ............................................................................................................................ 33 ARTICLE IX PAYMENT OF PROJECT COSTS 9.1. Developer’s Phase 1A Infrastructure Improvements Costs ..................................................... 33 9.2. Convention Center Costs ......................................................................................................... 40 9.3. Investment of Amounts in the Construction Fund .................................................................. 47 9.4. Calculation of Specified Default Rate ..................................................................................... 47 9.5. Redemption of the Authority Bonds ........................................................................................ 47 9.6. Survival ................................................................................................................................... 47 ARTICLE X ACCEPTANCE OF IMPROVEMENTS 10.1. Developer’s Phase 1A Infrastructure Improvements............................................................... 48 10.2. Convention Center ................................................................................................................... 49 10.3. Sweetwater Park ...................................................................................................................... 49 ARTICLE XI WARRANTIES 11.1. Enforcement of Warranties ...................................................................................................... 50 11.2. Term of Warranties .................................................................................................................. 50 11.3. Additional Warranties ............................................................................................................. 51 ARTICLE XII DEFECTIVE WORK 12.1. Correction, Removal, or Replacement .................................................................................... 51 12.2. Extension of Warranty ............................................................................................................. 51 12.3. Right of Authority to Correct .................................................................................................. 51 12.4. No Limitation on Other Remedies .......................................................................................... 51 12.5. Disputes ................................................................................................................................... 51 12.6. Applicability ............................................................................................................................ 52 Page 3 of 237 EAttachment B TABLE OF CONTENTS (continued) Page iii 4825-3218-1203v24/024036-0079 ARTICLE XIII SECURITY FOR CONSTRUCTION 13.1. Bonds ....................................................................................................................................... 52 13.2. Insolvency or Bankruptcy ........................................................................................................ 52 13.3. Calling a Bond ......................................................................................................................... 53 13.4. Bond Reimbursement .............................................................................................................. 53 ARTICLE XIV INDEMNITY AND DUTY TO DEFEND 14.1. General Indemnity ................................................................................................................... 54 14.2. Damage to Other Properties .................................................................................................... 55 14.3. Hazardous Materials Indemnity .............................................................................................. 55 14.4. Illegal Discharge to Storm Drains ........................................................................................... 57 14.5. Implementation of Authority Resolution 2020-002 ................................................................ 57 14.6. Costs of Defense and Award ................................................................................................... 57 14.7. Insurance Proceeds .................................................................................................................. 58 14.8. Declarations ............................................................................................................................. 58 14.9. Survival ................................................................................................................................... 58 ARTICLE XV INSURANCE REQUIREMENTS 15.1. Insurance Requirements .......................................................................................................... 58 15.2. Forms and Amounts of Coverage ............................................................................................ 58 15.3. General Requirements ............................................................................................................. 61 15.4. Waiver of Subrogation ............................................................................................................ 62 15.5. Authority Obligation to Maintain Insurance ........................................................................... 62 ARTICLE XVI RECORDS AND AUDITS 16.1. Retention of Project Records ................................................................................................... 63 16.2. Audit of Records...................................................................................................................... 63 ARTICLE XVII TITLE TO ALTERATIONS AND IMPROVEMENTS 17.1. Title to Project ......................................................................................................................... 64 17.2. Survival ................................................................................................................................... 64 ARTICLE XVIII LIENS 18.1. No Right to Bind Port District ................................................................................................. 64 18.2. Notice of Non-Responsibility .................................................................................................. 64 18.3. Mechanics’ Liens..................................................................................................................... 65 18.4. Contest of Lien ........................................................................................................................ 65 18.5. Port District’s Right to Pay ...................................................................................................... 65 18.6. Notice of Liens ........................................................................................................................ 65 Page 4 of 237 EAttachment B TABLE OF CONTENTS (continued) Page iv 4825-3218-1203v24/024036-0079 18.7. Right of Entry .......................................................................................................................... 66 ARTICLE XIX TAXES 19.1. Reporting ................................................................................................................................. 66 19.2. Tax Claims .............................................................................................................................. 67 19.3. Property Expenses ................................................................................................................... 68 19.4. Property Tax Contest Cooperation .......................................................................................... 69 ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC 20.1. Nondiscrimination ................................................................................................................... 69 20.2. Compliance with Employment and Labor Requirements........................................................ 70 20.3. OFAC Compliance .................................................................................................................. 70 ARTICLE XXI EVENTS OF DEFAULT AND REMEDIES 21.1. Events of Default ..................................................................................................................... 71 21.2. Remedies for Events of Default .............................................................................................. 72 21.3. Sweetwater Park ...................................................................................................................... 74 21.4. Reserved .................................................................................................................................. 74 21.5. Authority Events of Default .................................................................................................... 74 21.6. Remedies for Authority Events of Default (Rent Offset) ........................................................ 74 21.7. Payment Sources ..................................................................................................................... 75 ARTICLE XXII ASSIGNMENT PARTICIPATION FEE 22.1. Assignment Participation Fee .................................................................................................. 76 22.2. Assignment and Collateral Assignment .................................................................................. 77 22.3. Non-Disturbance Agreement ................................................................................................... 78 ARTICLE XXIII NONDISTURBANCE 23.1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases .......................................................................................................................... 78 23.2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases ...................................................................................................................................... 79 ARTICLE XXIV Operation of the Site and the Convention Center 24.1. Approved Agreements ............................................................................................................. 79 24.2. Reservations ............................................................................................................................ 79 24.3. Cooperation in connection with Condemnation ...................................................................... 81 Page 5 of 237 EAttachment B TABLE OF CONTENTS (continued) Page v 4825-3218-1203v24/024036-0079 ARTICLE XXV “AS-IS” LEASE AND WAIVERS 25.1. Developer’s Acknowledgment ................................................................................................ 81 25.2. Only Port District’s Express Written Agreements Binding ..................................................... 82 25.3. As-Is ........................................................................................................................................ 82 25.4. Waivers, Disclaimers and Indemnity ...................................................................................... 82 25.5. Survival ................................................................................................................................... 84 ARTICLE XXVI MISCELLANEOUS PROVISIONS 26.1. Notices ..................................................................................................................................... 84 26.2. Captions ................................................................................................................................... 86 26.3. No Merger ............................................................................................................................... 86 26.4. Recording ................................................................................................................................ 86 26.5. Port District Transfer ............................................................................................................... 86 26.6. Time of Essence ...................................................................................................................... 87 26.7. Partial Invalidity ...................................................................................................................... 87 26.8. Entire Agreement ..................................................................................................................... 87 26.9. Joint and Several...................................................................................................................... 87 26.10. Developer’s Authority ............................................................................................................. 87 26.11. Interaction with Sewer Agreement .......................................................................................... 87 26.12. Resolution of Specified Disputes ............................................................................................ 88 26.13. Attorneys’ Fees ........................................................................................................................ 91 26.14. Transaction Costs .................................................................................................................... 91 26.15. Provisions Regarding Authority Operations ........................................................................... 92 26.16. Replacement Trustees .............................................................................................................. 92 26.17. Effect of Section 365(h)(1) Election ....................................................................................... 92 26.18. Financial Information Regarding Continuous Operations....................................................... 92 26.19. Governing Law ........................................................................................................................ 93 26.20. Modification ............................................................................................................................ 93 26.21. Counterparts ............................................................................................................................ 93 26.22. Drafting Presumption; Review Standard ................................................................................. 93 26.23. Administrative Claims ............................................................................................................. 93 26.24. Non-liability of Public Agency Officials and Employees ....................................................... 94 26.25. Authority Executive Director; Authority Approvals and Actions ........................................... 94 26.26. Further Assurances .................................................................................................................. 94 LIST OF EXHIBITS EXHIBIT A-1 LEGAL DESCRIPTION OF THE SITE ........................................................ A-1-1 EXHIBIT A-2 LEGAL DESCRIPTION OF THE GROUND LEASE PROPERTY ............ A-2-1 EXHIBIT A-3 LEGAL DESCRIPTION OF THE DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE ........................................... A-3-1 EXHIBIT B-1 DEPICTION OF THE SITE ............................................................................ B-1-1 Page 6 of 237 EAttachment B TABLE OF CONTENTS (continued) Page vi 4825-3218-1203v24/024036-0079 EXHIBIT B-2 DEPICTION OF THE GROUND LEASE PROPERTY ................................ B-2-1 EXHIBIT B-3 DEPICTION OF THE DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE ............................................ B-3-1 EXHIBIT C-1-A PUBLIC AGENCY’S ESTIMATED DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS COST ..................................... C-1-A-1 EXHIBIT C-1-B SOURCES FOR DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS COST ........................................................................... C-1-B-1 EXHIBIT C-2 DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS BUDGET ............................................................................................................ C-2 EXHIBIT D REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS (SWEETWATER PARK) .................................................................................. D-1 EXHIBIT E CONSTRUCTION REQUIREMENTS .............................................................. E-1 EXHIBIT F CONVENTION CENTER PLANS .................................................................... F-1 EXHIBIT G-1 APPROVED SUBCONTRACTOR BID AND AWARD PROCESS ........... G-1-1 EXHIBIT G-2 SUBCONTRACTOR BIDS AWARDED PRIOR TO EFFECTIVE DATE .............................................................................................................. G-2-1 EXHIBIT G-3 APPROVED CONSTRUCTION CONTRACTS ............................................... G-3 EXHIBIT H FORM OF COMPLETION GUARANTY ......................................................... H-1 EXHIBIT I OTHER GROUND LEASES .............................................................................. I-1 EXHIBIT J PUBLIC DEBT SERVICE OBLIGATION (PDSO) ........................................... J-1 EXHIBIT K-1 DEVELOPER’S PHASE 1A PAYMENT REQUEST ................................... K-1-1 EXHIBIT K-2 FORM OF CONVENTION CENTER PAYMENT REQUEST .................... K-2-1 EXHIBIT L SOLE SOURCE SUBCONTRACT AWARD APPROVAL (DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS) ...... L-1 EXHIBIT M BEST QUALIFIED CONTRACTOR SUBCONTRACT AWARD APPROVAL (DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS) .......................................................................................... M-1 EXHIBIT N-1 LIST OF APPROVED ARBITRATORS ....................................................... N-1-1 EXHIBIT N-2 LIST OF APPROVED MEDIATORS ........................................................... N-2-1 Page 7 of 237 EAttachment B TABLE OF CONTENTS (continued) Page vii 4825-3218-1203v24/024036-0079 EXHIBIT O ENERGY REQUIREMENTS ............................................................................ O-1 EXHIBIT P FORM OF DEVELOPER’S CONVENTION CENTER BUDGET .................. P-1 EXHIBIT Q PORT DISTRICT TRANSFER DOCUMENTS ................................................ Q-1 EXHIBIT R FORM OF MEMORANDUM OF AGREEMENT ............................................ R-1 EXHIBIT S APPROVED AGREEMENTS ........................................................................... S-1 EXHIBIT T DISTRICT DOCUMENTS ................................................................................ T-1 EXHIBIT U PRIOR AGREEMENTS ..................................................................................... U-1 EXHIBIT V-1 APPROVED DRAWINGS AND SPECIFICATIONS FOR DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS ..... V-1-1 EXHIBIT V-2 APPROVED DRAWINGS AND SPECIFICATIONS FOR REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS ................................. V-2-1 EXHIBIT W FORM OF EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION ............................................................................................. W-1 EXHIBIT X-1 FORM OF EARLY WORK AGREEMENT ................................................. X-1-1 EXHIBIT X-2 REIMBURSEMENT AGREEMENT ........................................................... X-2-1 EXHIBIT X-3 SEWER AGREEMENT ................................................................................ X-3-1 EXHIBIT Y HOTEL OPERATOR NON-DISTURBANCE AGREEMENT ......................... Y-1 Page 8 of 237 EAttachment B 4825-3218-1203v24/024036-0079 PROJECT IMPLEMENTATION AGREEMENT BY AND AMONG THE CITY OF CHULA VISTA, THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT, THE SAN DIEGO UNIFIED PORT DISTRICT, THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, AND RIDA CHULA VISTA, LLC This PROJECT IMPLEMENTATION AGREEMENT (“Agreement”) is entered into as of ____________ 1, 20__ by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance (the “Financing District”), the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority” and also sometimes referred to herein as the “JEPA”; and, collectively with the City, the Financing District, and the Port District, the “Public Agencies” or each separately, a “Public Agency”), a joint exercise of powers entity created by the City and the Port District pursuant to the Joint Exercise of Powers Act (defined herein below), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer” or “RIDA”) (collectively, the “Parties” and, individually, a “Party”), with reference to the following Recitals: RECITALS A. The City and the Port District are parties to that certain Amended and Restated Joint Exercise of Powers Agreement, dated and effective July 25, 2019 (the “JEPA Agreement”), which amended and restated that certain Joint Exercise of Powers Agreement, dated as of May 1, 2014, by and between the City and the Port District. The JEPA Agreement forms the Authority for the purpose of assisting in the financing and refinancing of capital improvement projects of the City and the Port District as permitted under the Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code relating to the Chula Vista Bayfront. B. Pursuant to a “Site Lease” dated as of ____________ 1, 20__ (the “Site Lease”), the Port District has leased to the JEPA and the JEPA has leased from Port District certain real property described in Exhibit A-1 and depicted in Exhibit B-1 attached hereto (the “Site”), upon which an approximately 275,000 net usable square foot convention center (the “Convention Center” and, together with the Site, the “Facility”) will be constructed by RIDA pursuant to this Agreement and operated by RIDA pursuant to the Sublease, as described in more detail below. C. Pursuant to a “Facility Lease” dated as of ____________ 1, 20__ (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Lease”), the JEPA has in turn subleased the Site and leased the Convention Center to the City. D. Pursuant to a “Sublease Agreement” dated as of ____________ 1, 20__ (as amended, amended and restated, supplemented or otherwise modified from time to time, together with any New Sublease (as defined in the Sublease, the “Sublease”), the City has in turn subleased the Facility to RIDA. The Site Lease, Facility Lease, and Sublease are referred to collectively herein as the “Convention Center Leases.” E. Port District and Developer have entered into a ground lease dated as of ____________ 1, 20__ (as amended, amended and restated, supplemented or otherwise modified Page 9 of 237 EAttachment B 2 4825-3218-1203v24/024036-0079 from time to time, the “Ground Lease”), pursuant to which the Port District has leased to Developer approximately 37 acres of land located in the City of Chula Vista, California, described in Exhibit A- 2 and depicted in Exhibit B-2 attached hereto (the “Ground Lease Property”), together with all improvements currently located on the Ground Lease Property. Pursuant to the Ground Lease, the Developer is obligated to construct, operate and maintain (or cause to be constructed, operated and maintained) the Resort Hotel (defined herein) on the Ground Lease Property. F. The City, the Port District, the Authority and the County of San Diego (the “County”) entered into that certain Chula Vista Bayfront Project Funding Agreement dated as of December 13, 2019, (the “County Funding Agreement”) pursuant to which the County will assist the City, the Port District and the Authority in financing the construction of the Phase 1A Infrastructure Improvements by contributing the County Funds (defined in the Definitions Addendum) as provided for in the County Funding Agreement. G. To create a vehicle to generate special tax revenues initially equal to 5.5% of the transient occupancy revenues collected within the CVBMP (defined below), to pay or reimburse the cost of the Phase 1A Infrastructure Improvements (defined below) and/or to support payments with respect to the Revenue Bonds (defined below), the City Council of the City (the “City Council”), took certain actions under and pursuant to the powers reserved to the City under Sections 3, 5, and 7 of the Constitution and the Charter of the City, and enacted Chapter 3.61 of the Chula Vista Municipal Code (“Chapter 3.61”) for the purpose of establishing a procedure for financing certain public and private improvements and maintenance and services to serve development within the boundaries of the Financing District through the establishment of the Financing District, the levy and collection of special taxes (the “Special Tax Revenues”) therein by the Financing District and the issuance of bonds or other indebtedness of such Financing District secured by such special taxes for the purpose of financing the Convention Center and certain other public improvements, including the Phase 1A Infrastructure Improvements, as described below. H. On September 10, 2019, the City Council initiated proceedings pursuant to Chapter 3.61 to establish the Financing District, to authorize the Financing District to finance the purchase, construction, expansion, improvement, and rehabilitation of the Convention Center and certain other public improvements and certain maintenance and services, to authorize the levy of a special tax pursuant to the amended and restated rate and method of apportionment thereof to pay for such improvements and services and to declare the necessity of the Financing District to incur an indebtedness to contribute to the financing of such improvements. I. On February 16, 2021, the City Council adopted a resolution declaring its intention and initiating proceedings to make changes to the rate and method of apportionment of the Financing District to increase the special tax rates to be levied initially on taxable property in the Financing District, to extend the term of the special tax to June 30, 2086 and to give the City Council the ability to lower the special tax rates in future fiscal years. J. The City and the Port District entered into an Amended and Restated Joint Community Facilities Agreement (Chula Vista Bayfront Project Special Tax Financing District) effective as of February 24, 2020 (as amended, the “JCFA”) to set forth some of the essential terms for the development, operation, maintenance, and servicing of various improvements within the Chula Vista Bayfront Master Plan Area (the “CVBMP”) or outside the CVBMP as further described in the JCFA. Such essential terms included the priorities for the allocation of the Special Tax Revenues, as such term is defined in the JCFA, and to provide that the Special Tax Revenues Page 10 of 237 EAttachment B 3 4825-3218-1203v24/024036-0079 dedicated to the Convention Center and the Developer’s Phase 1A Infrastructure Improvements shall be disbursed pursuant to an agreement between the Port District, the City and/or the Authority, on the one hand, and the Developer, the Project lenders and/or the Developer’s contractors, on the other hand. K. On May 20, 2020, the Authority Board adopted its Resolution 2020-007 ratifying the final form of a procurement policy for developer-performed public improvements for the Authority attached as Exhibit A to such resolution (the “Authority Procurement Policy”) and ratifying the final form of Authority Resolution 2020-002 in the form presented and attached as Exhibit B to Resolution 2020-007 (the “Authority Resolution 2020-002”) applying the Authority Procurement Policy to the construction of developer-performed public works for the Project. L. Pursuant to Authority Resolution 2020-002 and in accordance with Procurement Policy Section 2.a., the Authority Board authorized the Developer to proceed with the development and construction of the Developer’s Phase 1A Infrastructure Improvements and the Convention Center subject to the terms, conditions, and obligations of the Authority Procurement Policy, Authority Resolution 2020-002, all applicable Project agreements, including this Agreement, and all applicable federal, state, and local laws and regulations. M. The Authority, the Port District and the City have determined it to be beneficial to have the Financing District finance certain of the Phase 1A Infrastructure Improvements in connection with the construction of the Resort Hotel and the Convention Center. To assist in the financing of the Convention Center and the Phase 1A Infrastructure Improvements, the Authority has determined to issue its “Authority Taxable Bonds” and its “Authority Tax-Exempt Bonds,” each as defined herein and together, the “Authority Bonds” pursuant to the terms of the “Authority Indenture,” as defined herein. The Authority Bonds will be secured in part and be repaid from loan payments made by the Financing District on the “Loan,” as defined herein, and any loan payable on a parity with the Loan, made under the “Loan Agreement,” as defined herein, “Lease Payments,” as defined herein, payable by the City pursuant to the Facility Lease and payments to be made by the Port District pursuant to the Port Support Agreement. N. Pursuant to the Sublease and this Agreement, the Developer is required to cause the development and construction of the “Project” which consists of the Developer’s Phase 1A Infrastructure Improvements and the Convention Center (as such terms are defined herein). O. Certain Laws may require that certain of the Phase 1A Infrastructure Improvements (as defined herein) be constructed in connection with the construction of the Convention Center and the Resort Hotel (as defined herein). P. Developer and the Public Agencies desire that Developer construct the Convention Center, and in connection with the construction of the Convention Center and the Resort Hotel, construct the Developer’s Phase 1A Infrastructure Improvements on certain real property described in Exhibit A-3 and depicted in Exhibit B-3 attached hereto (the “Developer’s Phase 1A Infrastructure Improvements Site”, together with the Site, the “Project Site”), as set forth in this Agreement. Q. City, Authority and Developer have entered into that certain Phase 1A Early Work Implementation and Right of Entry License Agreement, dated as of [  ], 2021 (the “Early Work Agreement”), a copy of which is attached hereto as Exhibit X-1. The Early Work Agreement Page 11 of 237 EAttachment B 4 4825-3218-1203v24/024036-0079 provides for the reimbursement of certain costs described therein by the Authority to the Developer. However, City, Authority and Developer intend that such costs be reimbursed as part of the Developer’s Phase 1A Infrastructure Improvements Costs payable hereunder to the extent such amounts are not reimbursed under the Early Work Agreement. R. City and Developer have entered into (i) that certain City of Chula Vista Reimbursement Agreement to Design Specified Bayfront Infrastructure Improvements, dated as of September 15, 2020 (the “Reimbursement Agreement”), a copy of which is attached hereto as Exhibit X-2, and (ii) that certain City of Chula Vista Reimbursement Agreement to Construct Specified Bayfront Sewer Improvements, dated as of September 15, 2020 (the “Sewer Agreement”), a copy of which is attached hereto as Exhibit X-3. Each of the Reimbursement Agreement and the Sewer Agreement provide for the reimbursement of certain costs described therein by City to Developer, and therefore such costs are excluded from the Developer’s Phase 1A Infrastructure Improvements Costs payable hereunder to avoid double counting. S. The Parties desire to enter into, and Authority has required that Developer enter into, this Agreement to establish the terms and conditions in compliance with the applicable provisions of the Authority Procurement Policy and Authority Resolution 2020-002 pursuant to which the Developer may develop and construct the Project and obtain payment for all of the eligible costs of developing and constructing the Developer’s Phase 1A Infrastructure Improvements from proceeds of the Authority Tax-Exempt Bonds and the County Funds, reimbursements pursuant to the Sewer Agreement, and will provide credit to the Developer pursuant to the BFDIF Program, which is on file in the office of the City Clerk, and a portion of the overall costs of developing and constructing the Convention Center from the proceeds of the Authority Taxable Bonds. T. The Parties desire to provide for the development and construction of the “Remaining Phase 1A Infrastructure Improvements” (as defined herein) by the Port District, pursuant to the procurement rules of the Port District; provided that payment or reimbursement to the Port District of the costs of constructing the Remaining Phase 1A Infrastructure Improvements shall be handled by separate agreement between the City and/or the Authority, on one hand, and the Port District, on the other hand. U. The Parties further desire to set forth certain provisions relating to nondisturbance, indemnification, and other continuing covenants of the Parties relating to the Resort Hotel and Convention Center Project and the Phase IA Infrastructure Improvements which shall remain in effect for the Term hereof. 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, the Authority, the Port District, the City, the Financing District and the Developer agree as follows: ARTICLE I DEFINITIONS 1.1. Definitions Addendum. Defined terms used in this Agreement and not specifically defined herein shall have the meanings set forth in the Definitions Addendum attached hereto, which Page 12 of 237 EAttachment B 5 4825-3218-1203v24/024036-0079 is incorporated herein by this reference. Any reference in this Agreement to this Agreement or any other agreement is a reference to such agreement as the same may be amended or amended and restated from time to time. ARTICLE II SUBJECT OF THE AGREEMENT GENERALLY All Exhibits attached to this Agreement are incorporated into this Agreement by this reference. 2.1. Developer’s Phase 1A Infrastructure Improvements. 2.1.1. Access to the Developer’s Phase 1A Infrastructure Improvements Site. The Developer Parties shall have the non-exclusive right to enter upon the Developer’s Phase 1A Infrastructure Improvements Site in connection with the construction and development of the Developer’s Phase 1A Infrastructure Improvements commencing on the Commencement Date and ending on the earlier of the following dates: (x) as to each portion of the Developer’s Phase 1A Infrastructure Improvements Site, the date on which the Developer’s Phase 1A Infrastructure Improvements corresponding to such portion of the Developer’s Phase 1A Infrastructure Improvements Site is Accepted, (y) the date on which this Agreement is terminated, and (z) the date on which this Agreement expires. 2.1.2. Construction of Developer’s Phase 1A Infrastructure Improvements. Except as expressly provided in this Agreement, Developer shall cause the development of the Developer’s Phase 1A Infrastructure Improvements on the Developer’s Phase 1A Infrastructure Improvements Site substantially in accordance in all material respects with the Approved Drawings and Specifications for the development of the Developer’s Phase 1A Infrastructure Improvements within the timeframe described in Section 5.1, in each case, in accordance with all the terms and conditions of this Agreement. 2.1.3. Complete and Functional Improvements. Developer shall provide complete and functional Developer’s Phase 1A Infrastructure Improvements substantially in accordance in all material respects with the Approved Drawings and Specifications. Neither recommendation of any progress payment, nor any payment by the Authority to Developer under this Agreement, nor any use or occupancy of the Project or any part thereof by the Authority, the City, or the Port District, nor any failure to act, nor any review of a shop drawing or sample submittal, will constitute an approval by any of the Public Agencies of work which is not completed by Developer substantially in accordance with the Approved Drawings and Specifications. The foregoing shall not limit claims pursuant to Articles XI or XII. 2.1.4. Payment of Developer’s Phase 1A Contract Sum, Reimbursements under Sewer Agreement, Credits under BFDIF Program, and Developer’s Phase 1A Project Administration Fee. In consideration for the Developer’s development and delivery of the Developer’s Phase 1A Infrastructure Improvements as required by this Agreement, (a) the Authority shall pay the Developer’s Phase 1A Contract Sum to Developer, (b) the City shall provide to Developer a credit towards the amount payable by Developer pursuant to the BFDIF Program, as a condition of developing the Resort Hotel and Convention Center (as applicable), (c) the City shall pay to Developer amounts required to be reimbursed to Developer pursuant to the Sewer Agreement, and (d) the City shall provide payment to or credit for Developer, as applicable, the amount of the Page 13 of 237 EAttachment B 6 4825-3218-1203v24/024036-0079 Developer’s Phase 1A Project Administration Fee. The Authority acknowledges and agrees that, without limitation, all of the Public Agency’s Estimated Developer’s Phase 1A Infrastructure Improvements Costs identified in Exhibit C-1-A are Developer’s Phase 1A Infrastructure Improvements Costs. The Parties acknowledge that concurrent with requesting payment of Developer’s Phase 1A Contract Sum, Developer will identify amounts to be paid pursuant to the Sewer Agreement and City will issue payment for same consistent with the terms of the Sewer Reimbursement Agreement. Further, Developer will identify BFDIF credit amounts requested with each payment request. City shall incrementally accrue BFDIF credits toward Developer’s ultimate BFDIF obligation, subject to true-up and final calculation of credits earned and BFDIF amounts to be paid to City. City shall pay or credit, as applicable, to Developer portions of the Developer’s Phase 1A Project Administration Fee as and when Developer’s Phase 1A Project Administration Fee Eligible Costs are incurred by Developer. 2.1.5. Sources of Funding for Developer’s Phase 1A Contract Sum. The Parties anticipate that the sources of funding for the payment of the Developer’s Phase 1A Contract Sum are as set forth on Exhibit C-1-B. 2.1.6. Changes to Developer’s Phase 1A Infrastructure Improvements. 2.1.6.1. In accordance with the Authority Procurement Policy, any change to the Contract Documents or the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements shall be subject to Authority’s prior written approval, except for changes or change orders that result in none of the following (as determined in Authority’s reasonable discretion): (i) any additional payment by Authority in excess of the contingency set forth in the Developer’s Phase 1A Infrastructure Improvements Budget; (ii) any additional maintenance or overhead costs to the Authority; (iii) any material delay to the date on which Completion of the Developer’s Phase 1A Infrastructure Improvements occurs; (iv) any material modifications to the design or construction of the Developer’s Phase 1A Infrastructure Improvements nor (v) any adverse effect with respect to the Developer’s Phase 1A Infrastructure Improvements’ compliance with Law. Authority shall provide written approval or a reasonable basis for denial of such changes within ten (10) Business Days after Authority receives written notice thereof from Developer. Without limitation of the foregoing, Authority shall consider reasonably and in good faith any change to the Contract Documents or the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements that is proposed by Developer to address conditions affecting the Project Site that are unknown to Developer as of the Effective Date. 2.1.6.2. Developer shall meet and confer in good faith with Authority regarding, and will reasonably consider in good faith, any changes that Authority desires to make to the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements, and Developer shall use commercially reasonable efforts to implement any such changes, to the extent Developer reasonably determines that such changes result in none of the following: (i) any delay to the date on which Completion of the Developer’s Phase 1A Infrastructure Improvements occurs; (ii) any adverse effect with respect to the Developer’s Phase 1A Infrastructure Improvements’ compliance with Law nor (iii) any adverse effect on the development, maintenance or operation of (including any adverse effect on the compliance with Law by) the Convention Center or the Private Improvements (as defined in the Ground Lease). Notwithstanding the foregoing, if any such change would decrease the funds that could be allocated for the construction of Harbor Park by more than Two Million Five Hundred Thousand Dollars ($2,500,000) individually or in the Page 14 of 237 EAttachment B 7 4825-3218-1203v24/024036-0079 aggregate with other changes proposed by the Authority, then such change will be subject to Developer’s approval in its sole discretion. The re-allocation of amounts from the contingency to a non-contingency line item within the Developer’s Phase 1A Infrastructure Improvements Budget shall not be considered when determining whether the funds that could be allocated for the construction of Harbor Park have decreased. 2.1.6.3. Nothing in this Agreement amends or waives the regulatory process for amending permits or plans approved by the City or the Port District, which shall be governed by the City’s and Port District’s established entitlement and permitting processes and applicable Laws. 2.2. Convention Center. Developer shall cause the development of the Convention Center substantially in accordance in all material respects with the Convention Center Plans, within the timeframe described in Section 5.1 and in accordance with all the terms and conditions of this Agreement. 2.2.1. Complete and Functional Improvements. Developer shall provide a complete and functional Convention Center substantially in accordance in all material respects with the Convention Center Plans and the Convention Center Costs incurred shall not be less than the Project Public Investment Amount. 2.2.2. Payment of Convention Center Costs. In consideration for the work performed or caused to be performed by Developer pursuant to this Section 2.2, the Authority shall pay the Convention Center Contract Sum to Developer pursuant to the procedures set forth in Section 9.2. 2.3. Sweetwater Park. Port District shall Sufficiently Complete development of Sweetwater Park. “Sufficient Completion” or “Sufficiently Complete” means that the Port District, in its sole and good faith discretion, determines that Sweetwater Park, as developed, satisfies the following criteria: (1) the Sweetwater Park on parcel S2 shall be open to the public and include improvements such as landscaping, public parking lots and restrooms, which may be temporary in nature and (2) the development within the Transition Buffer Areas and Limited Use zones of parcel SP-1 and the fencing of the No Touch Buffer Area of parcel SP-1 shall be completed. The Transition Buffer Areas and Limited Use zones of parcel SP-1 and the No Touch Buffer Area of parcel SP-1 are described in the certified PMP. Port District may, in its sole and absolute discretion, further develop Sweetwater Park following achievement of Sufficient Completion, including but not limited to the development of additional features, elements and/or landscaping, without any obligation to the Developer and without requiring Developer’s approval or consent. 2.3.1. Sweetwater Park Updates. Port District shall provide, not less frequently than monthly, written updates to the Developer of the progress of the development of Sweetwater Park and shall provide written notice to Developer when Port District determines that Sweetwater Park is Sufficiently Complete. 2.3.2. First Sweetwater Park Option. Port District shall provide written notice to Developer at least thirty (30) days before Port District advertises for bids for the construction of Sweetwater Park and shall provide Developer with all Sweetwater Park Materials to the extent available at such time. On or before 5:00 p.m. (Pacific Time) on the last day of such thirty (30) day period (such date, the “First Sweetwater Park End Date”), Developer may, but shall not be Page 15 of 237 EAttachment B 8 4825-3218-1203v24/024036-0079 obligated to, exercise the option to Sufficiently Complete Sweetwater Park (the “First Sweetwater Park Option”). If Developer exercises the First Sweetwater Park Option, then: (a) Sweetwater Park shall thereafter be considered part of Developer’s Phase 1A Infrastructure Improvements for purposes of this Agreement (except as otherwise set forth herein), and Developer shall expeditiously Sufficiently Complete Sweetwater Park, and (b) subject to section 2.3.2.1, Developer’s costs to Sufficiently Complete Sweetwater Park shall be considered Developer’s Phase 1A Infrastructure Improvements Costs and shall thereafter be payable in the same manner as other Developer’s Phase 1A Infrastructure Improvements Costs. 2.3.2.1. Developer may exercise the First Sweetwater Park Option only by giving written notice to the Port District and the Authority (“First Developer Completion Notice”) prior to the First Sweetwater Park End Date. If Developer does not deliver the First Developer Completion Notice prior to the First Sweetwater Park End Date, then (a) the First Sweetwater Park Option shall terminate, and (b) the Port District shall expeditiously continue development of the Sweetwater Park until Sufficiently Complete. Notwithstanding delivery of the First Developer Completion Notice, Developer shall not commence any development work for Sweetwater Park at the Remaining Phase 1A Infrastructure Improvements Site until the Developer has the right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in accordance with Section 2.3.2.4 below. Notwithstanding the foregoing, Developer may commence any other work for the performance of the Sweetwater Park that does not require access to the Remaining Phase 1A Infrastructure Improvements commencing on the first calendar day after Developer exercises the First Sweetwater Park Option. The Authority will not issue payment to Developer for work performed on Sweetwater Park if Developer does not exercise any of the First Sweetwater Park Option or the Second Sweetwater Park Option (as defined below). If Developer exercises the First Sweetwater Park Option, then with respect to Sweetwater Park, Developer shall be entitled to reimbursement only of costs incurred by Developer from and after the date the First Developer Completion Notice is delivered to Port District. 2.3.2.2. If Developer timely delivers the First Developer Completion Notice, then (a) Developer shall Sufficiently Complete Sweetwater Park in accordance with Sweetwater Park Materials on or before the Outside Construction Completion Date, and (b) within five (5) Business Days after Port District’s timely receipt of the First Developer Completion Notice, Port District shall deliver to Developer the Sweetwater Park Materials that have not previously been delivered to Developer. After Developer has delivered the First Developer Completion Notice, the Port District shall reasonably cooperate with Developer, at no cost or expense to Developer, in seeking any consent to Developer’s use of such Sweetwater Park Materials reasonably requested by Developer from the preparer or issuer of any Sweetwater Park Materials. 2.3.2.3. [Reserved]. 2.3.2.4. If Developer exercises the First Sweetwater Park Option, the Developer Parties shall have the non-exclusive right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in connection with the construction and development of Sweetwater Park commencing on the First Sweetwater Park End Date and ending on the earlier of the following dates: (x) the date on which Sweetwater Park is Accepted; and (y) the date on which this Agreement is terminated. 2.3.2.5. If Developer exercises the First Sweetwater Park Option, Developer’s failure to Sufficiently Complete Sweetwater Park by the Original Outside Construction Page 16 of 237 EAttachment B 9 4825-3218-1203v24/024036-0079 Completion Date shall in no event relieve Developer of the obligation to pay Construction Late Charges. 2.3.3. Second Sweetwater Park Option. If Developer does not exercise the First Sweetwater Park Option and the development of Sweetwater Park is not Sufficiently Complete on or before the Second Sweetwater Park End Date, then Developer may, but shall not be obligated to, exercise the option to Sufficiently Complete Sweetwater Park (the “Second Sweetwater Park Option”; and, together with the First Sweetwater Park Option, the “Sweetwater Park Option”). If Developer exercises the Second Sweetwater Park Option, then: (a) Sweetwater Park shall thereafter be considered part of Developer’s Phase 1A Infrastructure Improvements for purposes of this Agreement (except as otherwise set forth herein), and Developer shall expeditiously Sufficiently Complete Sweetwater Park and (b) subject to Section 2.3.3.1, Developer’s costs to Sufficiently Complete Sweetwater Park shall be considered Developer’s Phase 1A Infrastructure Improvements Costs and shall thereafter be payable in the same manner as other Developer’s Phase 1A Infrastructure Improvements Costs. The Second Sweetwater Park Option shall terminate upon Port District irrevocably notifying Developer that Sweetwater Park is Sufficiently Complete. 2.3.3.1. Developer may exercise the Second Sweetwater Park Option only by giving written notice to the Port District and the Authority (“Second Developer Completion Notice”) within ten (10) Business Days after the Second Sweetwater Park End Date, but not sooner than ten (10) days prior to the Second Sweetwater Park End Date. If Developer does not deliver the Second Developer Completion Notice within the time stated in this Section 2.3.2.1, then (a) the Second Sweetwater Park Option shall terminate at 5:00 p.m. (Pacific Time) on the date that is ten (10) Business Days after the Second Sweetwater Park End Date and Developer shall have no further remedy against Port District with respect to the development of Sweetwater Park, and (b) the Port District shall expeditiously continue development of Sweetwater Park until Sufficiently Complete. Notwithstanding delivery of the Second Developer Completion Notice, Developer shall not commence any development work for Sweetwater Park at the Remaining Phase 1A Infrastructure Improvements Site until the Developer has the right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in accordance with Section 2.3.2.4 below. Notwithstanding the foregoing, Developer may commence any work for the performance of the Sweetwater Park that does not require access to the Remaining Phase 1A Infrastructure Improvements commencing on the first calendar day after the Second Sweetwater Park End Date. The Authority will not issue payment to Developer for work performed on Sweetwater Park if the Port District Sufficiently Completes Sweetwater Park by the Second Sweetwater Park End Date or if Developer does not exercise any of the Second Sweetwater Park Option or the First Sweetwater Park Option. If Developer exercises the Second Sweetwater Park Option, then with respect to Sweetwater Park, Developer shall be entitled to reimbursement only of costs incurred by Developer from and after Developer’s exercise of the Second Sweetwater Park Option. Developer shall not request reimbursement for such costs until after the Second Sweetwater Park End Date. 2.3.3.2. If Developer timely delivers the Second Developer Completion Notice, then (a) Developer shall Sufficiently Complete Sweetwater Park in accordance with the Sweetwater Park Materials on or before the Outside Construction Completion Date, and (b) within five (5) Business Days after Port District’s timely receipt of the Second Developer Completion Notice, Port District shall (i) issue a notice of termination under any outstanding Sweetwater Park Construction Contracts and (ii) deliver to Developer the Sweetwater Park Materials that have not previously been delivered to Developer. After the Developer has delivered the Second Developer Completion Notice, the Port District shall reasonably cooperate with Developer, at no cost or Page 17 of 237 EAttachment B 10 4825-3218-1203v24/024036-0079 expense to the Developer, in seeking any consent from the preparer or issuer of any Sweetwater Park Materials. If Port District fails to issue a notice of termination under any outstanding Sweetwater Park Construction Contract within five (5) Business Days after Port District’s timely receipt of the Second Developer Completion Notice as set forth above, then Developer shall have the right to issue such notice of termination on behalf of Port District and on Developer’s own behalf pursuant to Section 2.3.4.2. 2.3.3.3. Prior to delivery of the Second Developer Completion Notice, but not sooner than six (6) months prior to the Second Sweetwater Park End Date, Developer may request, and Port District shall from time-to-time provide, within ten (10) Business Days after Developer’s request therefor, (i) copies of the Sweetwater Park Materials, all outstanding construction, development and design documents related to Sweetwater Park (including, without limitation, construction contracts, pay applications and architect certifications), at Developer’s sole cost and expense, and (ii) a written description of the work that remains uncompleted in order to cause Sweetwater Park to be Sufficiently Complete. 2.3.3.4. If Developer exercises the Second Sweetwater Park Option, the Developer Parties shall have the non-exclusive right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in connection with the construction and development of Sweetwater Park commencing on the date that is the later of (a) ten (10) days after Developer exercises the Second Sweetwater Park Option or (b) the day after the Second Sweetwater Park End Date and ending on the earlier of the following dates: (x) the date on which Sweetwater Park is Accepted; and (y) the date on which this Agreement is terminated. 2.3.3.5. If Developer exercises the Sweetwater Park Option, Developer’s failure to Sufficiently Complete Sweetwater Park by the Original Outside Construction Completion Date shall in no event relieve Developer of the obligation to pay Construction Late Charges. 2.3.3.6. Each Sweetwater Park Design Contract is hereby assigned by Port District to Developer; provided, that such assignment shall be effective only upon Developer’s exercise of the Second Sweetwater Park Option and only for those Sweetwater Park Contracts that Developer accepts by notifying Port District and the counterparty to such Sweetwater Park Contract in writing. When the Developer accepts the assignment of a Sweetwater Park Design Contract, Developer assumes Port District’s rights and obligations under such Sweetwater Park Design Contract, but in the case of obligations, only to the extent such obligations are to be performed after the date Developer accepts the assignment. Port District shall not assign any Sweetwater Park Design Contract to, or grant a security interest in any Sweetwater Park Design Contract in favor of, any person or entity other than Developer. Port District hereby grants to Developer a security interest in the Sweetwater Park Design Contracts to secure Port District’s obligations under the preceding sentence of this Section 2.3.3.6, and Port District shall take such steps as may be reasonably requested by Developer to evidence and perfect such security interest (including, without limitation, by authorizing Developer to file a UCC-1 financing statement with respect to the Sweetwater Park Design Contracts). Developer shall not assign its security interest in any Sweetwater Park Design Contract, except that it may assign or collaterally assign such security interest to a permitted assignee, or permitted collateral assignee, of this Agreement. Page 18 of 237 EAttachment B 11 4825-3218-1203v24/024036-0079 2.3.4. Sweetwater Park Contracts. 2.3.4.1. Port District shall include in each Sweetwater Park Design Contract (or, to the extent that any Sweetwater Park Design Contract exists as of the Effective Date, amend such Sweetwater Park Design Contract to include): (a) a provision that permits Port District (or its successors or assignees) or Developer to terminate such Sweetwater Park Design Contract for convenience upon not more than ten (10) days’ prior written notice, (b) to the extent applicable, a provision that Developer is entitled to use any drawings, plans or specifications prepared under such Sweetwater Park Design Contract in connection the construction or development of Sweetwater Park, and (c) the following provision with appropriate conforming modifications: “[Contractor] consents to the assignment of [Port District’s] rights and obligations in this [Sweetwater Park Design Contract] by [Port District] to RIDA Chula Vista, LLC, its assigns and/or its lenders and their respective assigns (“RIDA Parties”), and agrees that the warranties and obligations hereunder shall inure to the benefit of RIDA Parties, all as if RIDA Parties were a party of this [Sweetwater Park Design Contract]. Such assignment will be effective when a RIDA Party delivers to [Contractor] and [Port District] a notice accepting such assignment and assuming Port District’s obligations under this [Sweetwater Park Design Contract] from and after the date of such notice. From and after Contractor’s receipt of such notice, [Contractor] will treat such RIDA Party as the [Port District] under this [Sweetwater Park Design Contract].” To the extent that Developer assumes Port District’s obligations under any Sweetwater Park Design Contract, Developer may pay any amounts that are owing to the counterparty under such Sweetwater Park Design Contract which result from a breach by Port District under such Sweetwater Park Design Contract, and such payments shall constitute Developer’s Phase 1A Infrastructure Improvements Costs. Unless Developer does not exercise the First Sweetwater Park Option prior to the First Sweetwater Park End Date and does not exercise the Second Sweetwater Park Option prior to the Second Sweetwater Park End Date, Port District shall neither assign nor terminate any Sweetwater Park Design Contract without Developer’s prior written consent, which shall not be unreasonably withheld or delayed. 2.3.4.2. Port District shall include in each Sweetwater Park Construction Contract (or, to the extent that any Sweetwater Park Construction Contract exists as of the Effective Date, amend such Sweetwater Park Construction Contract to include): (a) a provision that permits Port District (or its successors or assignees) or Developer to terminate such Sweetwater Park Construction Contract for convenience upon not more than ten (10) days’ prior written notice, and (b) the following provision with appropriate conforming modifications: “[Contractor] agrees that RIDA Chula Vista, LLC, its assigns and/or its lenders and their respective assigns (“RIDA Parties”) shall have the right to terminate this [Sweetwater Park Construction Contract] pursuant to [cross- reference termination for convenience provision] of this Sweetwater Park Construction Contract as if RIDA Parties were a party of this [Sweetwater Park Construction Contract]. Such termination will be effective when a RIDA Party delivers to [Contractor] and [Port District] a notice of termination pursuant to such Section. Notwithstanding anything to the contrary in this [Sweetwater Park Construction Contract], no RIDA Party shall have any obligations under this [Sweetwater Park Construction Contract].” 2.3.4.3. Developer shall have no right to accept assignment of a Sweetwater Park Design Contract or to terminate for convenience a Sweetwater Park Design Contract or Sweetwater Park Construction Contract, unless and until Developer exercises the First Sweetwater Park Option or the Second Sweetwater Park Option, as applicable. Developer shall provide any notice of its acceptance of assignment or notice of termination for convenience (excluding any notice of termination for convenience after Developer’s acceptance of assignment of Page 19 of 237 EAttachment B 12 4825-3218-1203v24/024036-0079 the applicable contract) to the Port District and the counterparty of the respective contract within thirty (30) days following delivery of the First Developer Completion Notice or the Second Developer Completion Notice, as applicable. 2.3.5. Sweetwater Park Materials. Port District shall use commercially reasonable efforts to deliver the Sweetwater Park Materials to Developer pursuant to Section 2.3.3.3 or as soon as practicable after Developer exercises the First Sweetwater Park Option or the Second Sweetwater Park Option. After Developer exercise the First Sweetwater Park Option or the Second Sweetwater Park Option, Developer shall have the right to use any and all plans, drawings and specifications that constitute Sweetwater Park Materials for construction and development of Sweetwater Park. The Sweetwater Park Materials (other than the Sweetwater Park Design Contracts that are assumed by Developer) shall remain the property of the Port District, and Developer shall return or deliver all such Sweetwater Park Materials to the Port District upon Acceptance of Sweetwater Park. ARTICLE III DURATION OF AGREEMENT 3.1. Term of Agreement. This Agreement shall become effective on the Effective Date, and the term of this Agreement (the “Term”) shall extend until the earlier of (a) the termination of this Agreement by the Public Agencies according to the termination provisions herein, (b) the termination of the Sublease according to Sections 5.1 or 5.2 of the Sublease (unless Authority provides written notice to Developer within ten (10) Business Days after the termination of this Agreement directing Developer to complete the Developer’s Phase 1A Infrastructure Improvements, in which case (i) except with respect to obligations that expressly survive the termination of this Agreement, Developer shall have no further obligations hereunder with respect to the Convention Center and (ii) the Term shall end upon Acceptance of all Developer’s Phase 1A Infrastructure Improvements (including Harbor Park only if Developer has agreed to construct Harbor Park pursuant to Section 5.4.4) and (if Developer has exercised a Sweetwater Park Option) the Sufficient Completion of Sweetwater Park, or (c) the later of (i) the termination or expiration of the Sublease and (ii) the occurrence of the Expansion Date under and as defined in the Ground Lease. Notwithstanding the foregoing, but subject to the next sentence of this Section 3.1, if the Sublease terminates according to Sections 5.1 or 5.2 of the Sublease, but the Ground Lease remains in effect, then (x) Developer shall have no further obligations hereunder with respect to the Convention Center, but this Agreement shall otherwise remain in effect (including with respect to Developer’s Phase 1A Infrastructure Improvements, Harbor Park (only if Developer has agreed to construct Harbor Park pursuant to Section 5.4.4), and Sweetwater Park (including with respect to the payment for each of the foregoing)) and (y) the Term shall end upon Acceptance of all Developer’s Phase 1A Infrastructure Improvements (including Harbor Park only if Developer has agreed to construct Harbor Park pursuant to Section 5.4.4) and the Sufficient Completion of Sweetwater Park. Notwithstanding anything to the contrary herein, the Term shall not extend beyond sixty-six (66) years from the Effective Date. ARTICLE IV PROJECT COSTS 4.1. Phase 1A Infrastructure Improvements. The provisions of Section 4.1.1 and each subsection thereof shall apply only to the Developer’s Phase 1A Infrastructure Improvements. Page 20 of 237 EAttachment B 13 4825-3218-1203v24/024036-0079 4.1.1. Public Agency’s Estimated Developer’s Phase 1A Infrastructure Improvements Cost. 4.1.1.1. The aggregate Public Agency’s Estimated Developer’s Phase 1A Infrastructure Improvements Cost is ____________________ dollars ($__________), as shown in Exhibit C-1-A attached hereto. Developer’s Phase 1A Infrastructure Improvements Budget as of the Effective Date is attached as Exhibit C-2 hereto. Developer may modify from time to time the Developer’s Phase 1A Infrastructure Improvements Budget reasonably and in good faith and shall provide written notice of any such modification to the Public Agencies. The Developer’s Phase 1A Infrastructure Improvements Budget shall indicate the Guaranteed Maximum Price for the General Contractor’s services, which shall not be increased unless (a) the General Contractor is entitled to an increase under the General Contract or (b) as otherwise expressly agreed by the Authority in writing, in the Authority’s sole and absolute discretion. 4.1.1.2. If, at any time, Developer definitively establishes that the amount expended on the Developer’s Phase 1A Infrastructure Improvements will exceed the amount set forth in the Developer’s Phase 1A Infrastructure Improvements Budget (including contingency amounts), Developer shall promptly, and in any case not more than ten (10) Business Days after the Developer definitively establishes the amount of the increase, notify the Executive Director 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 amount set forth in the Developer’s Phase 1A Infrastructure Improvements Budget. The Authority may either: (i) approve an increase in the Developer’s Phase 1A Infrastructure Improvements Budget (which approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably value engineer, delete or replace subcomponents of a component of the Developer’s Phase 1A Infrastructure Improvements so that the Developer’s Phase 1A Infrastructure Improvements can be constructed for the amount set forth in the Developer’s Phase 1A Infrastructure Improvements Budget, but only if such modification neither has a material and adverse effect on the design, development, or construction of the Resort Hotel or the Project nor delays the Completion of the Resort Hotel, the Parking Improvements or the Project. 4.1.2. Approved Drawings and Specifications for the Developer’s Phase 1A Infrastructure Improvements. As of the Effective Date, each of the Port District and the City has reviewed and approved the Approved Drawings and Specifications for the Developer’s Phase 1A Infrastructure Improvements. 4.2. Convention Center. The provisions of Section 4.2 and each subsection thereof shall apply only to the Convention Center. 4.2.1. Estimated Convention Center Cost. The aggregate Estimated Convention Center Cost is ____________________________ ($____________). The Convention Center Budget as of the Effective Date is attached as Exhibit P hereto. Developer may modify from time to time the Convention Center Budget reasonably and in good faith and shall provide written notice of any such modification to the Public Agencies. 4.3. Cost Reporting. Developer shall, during the Term and, with respect to each record, for a period of seven (7) years after the date such record is created (or such longer period as Developer may decide in its sole discretion), use commercially reasonable efforts to maintain customary records of construction costs incurred by Developer in connection with the Project. Such Page 21 of 237 EAttachment B 14 4825-3218-1203v24/024036-0079 records shall include, but are not limited to, a general ledger, vendor invoices, cancelled checks, agreements with third-party contractors and contractor progress payment billings. Such records may be in electronic format. Developer shall furnish to Authority an itemized statement of the construction costs incurred and paid by Developer in connection with the Improvements, as applicable, within thirty (30) days after Developer receives Authority’s request therefor (which request shall not be provided to Developer until the respective Improvements have been Completed). The statement shall be sworn to and signed, under penalty of perjury, by Developer as fairly representing, to the best of Developer’s knowledge, the construction costs incurred and paid by Developer. Should Developer perform any construction with its own personnel, Developer shall during the Term and, with respect to each record, for a period of seven (7) years after the date of such record (or such longer period as Developer may decide in its sole discretion), maintain the following records with respect to the actual work performed by its own personnel: a payroll journal, copies of cancelled payroll checks, and timecards or other payroll documents which show dates worked, hours worked, and pay rates. Books and records herein required shall be maintained and made available either at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to Authority. Authority shall have the right with 48 hours’ advanced notice and at reasonable times to examine and audit said books and records without restriction for the purpose of determining the accuracy thereof, and the accuracy of the aforesaid statement. In the event Developer does not make available the original books and records at the Project Site, the Convention Center, or at such other location in San Diego County, California, then Developer agrees to pay all expenses incurred by the Authority Parties, as applicable, in conducting an audit at the location where said books and records are maintained. After the seven (7) year period has expired for any record subject to this Section 4.3, Developer shall deliver the original or an electronic copy of such record to Authority at the address set forth in Section 26.1 or such other location designated by Authority in writing, which may include the main offices of the City; provided, however, that Developer may elect to deliver all of the records subject to this Section 4.3 that expire in a given year at one time, in one delivery, within twelve (12) months after the end of the applicable year. ARTICLE V CONSTRUCTION OF THE PROJECT AND THE REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS 5.1. Construction of the Project. 5.1.1. Commencement and Completion of the Project. 5.1.1.1. Following the Commencement Date, but not later than the Outside Construction Commencement Date, Developer shall commence the construction of the Project. Developer shall be deemed to have commenced the construction of the Project when Developer delivers a notice to proceed with respect to the construction of the Project to Developer’s contractor. Thereafter, Developer shall, subject to the terms of Section 5.5, diligently proceed with the construction of the Project to Completion, and Complete the Project by the Outside Construction Completion Date. Without limiting the generality of the foregoing, Developer acknowledges and agrees that the cessation of construction of the Project for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event, be deemed a failure by Developer to diligently proceed with the construction of the Project to Completion and shall constitute an Event of Default under this Agreement without further notice or cure right by Developer if Developer does not resume construction of the Project within ten (10) days after Developer receives notice thereof from Page 22 of 237 EAttachment B 15 4825-3218-1203v24/024036-0079 Authority which notice shall include the following language: “FAILURE BY DEVELOPER TO RESUME CONSTRUCTION OF THE PROJECT (AS SUCH TERM IS DEFINED IN THE PROJECT IMPLEMENTATION AGREEMENT) WITHIN TEN (10) DAYS AFTER THE DATE DEVELOPER RECEIVES, OR IS DEEMED TO HAVE RECEIVED, THIS NOTICE SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE PROJECT IMPLEMENTATION AGREEMENT”. 5.1.1.2. The Convention Center Plans have been previously approved in writing by Port District, Authority and City. Changes to the Convention Center Plans must be approved by the Authority in writing, in Authority’s sole and absolute discretion, and, once approved, shall be considered a part of the “Convention Center Plans”; provided, however, Authority’s approval of any change in the Convention Center Plans shall not be required if: (a) such change does not result in a use that is not a Permitted Use, (b) such change does not require modifications to the Convention Center Plans for the structural portions of the Convention Center, (c) such change does not change the design principles of the exterior appearance of the Convention Center (if any), as set forth in the CDP, (d) such change is in compliance with the Chula Vista Building Code, (e) such change is in compliance with, and does not violate the provisions of, the PMP, CDP, the EIR, CVBMP Documents and any other Laws, (f) such change does not trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, and (g) such change does not pave any area greater than twenty-five (25) square feet unless Developer has previously secured the approval to perform such work from all applicable Governmental Authorities, including the Authority. Within thirty (30) days of the Authority’s notice to Developer, Developer shall provide to Authority a reasonably detailed explanation of all changes that Developer has made to the Convention Center Plans without the Authority’s approval pursuant to this Section 5.1.1, including, without limitation, an explanation of why such change did not require approval from the Authority, and copies of the revised Convention Center Plans showing the changes, and Authority shall have thirty (30) days from the receipt of such information to object to the changes to the Convention Center Plans as requiring the Authority’s approval as provided in this Section 5.1.1.2. The Convention Center Plans are by this reference made a part hereof. In the event of any inconsistency between the Convention Center Plans and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail. 5.1.1.3. In constructing the Project, Developer shall comply with all Construction Requirements set forth in Exhibit E attached hereto and all Laws, including, without limitation, the PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals by any Governmental Authority for the Project, including any CDPs applicable to the Project Site or the use or development thereof and any conditions of approval or mitigation measures or Project changes pursuant to any environmental review under CEQA. 5.1.2. Initial Public Financing Payments; Construction Late Charge. Developer hereby acknowledges that if the Resort Hotel, Parking Improvements, and Convention Center are not Complete by the Original Outside Construction Completion Date (as extended in accordance herewith), JEPA Parties, Port District Parties, Financing District Parties, and City Parties will incur costs not contemplated by this Agreement, the Ground Lease and the Convention Center Leases. Accordingly, in the event Developer or the Foreclosure Purchaser (if applicable) does not Complete the Resort Hotel and Convention Center by the Original Outside Construction Completion Date (as extended in accordance herewith), then, beginning with the first month following the Original Outside Construction Completion Date, and monthly thereafter until the Resort Hotel, Parking Improvements, and Convention Center are Complete, the Developer shall, on or before the first day Page 23 of 237 EAttachment B 16 4825-3218-1203v24/024036-0079 of each such month, pay to the Trustee, as assignee of JEPA under the Authority Indenture, the Developer Public Financing Payment (the “RPFP”) based on the formula set forth below (collectively, “Construction Late Charges”). The Parties further agree that the Construction Late Charges apply whether or not Developer receives notice of its failure to Complete the Convention Center, Resort Hotel, and Parking Improvements, and that said Construction Late Charges are appropriate to compensate the City, Port District, Financing District, and JEPA, and are the sole compensation and remedy of the Public Agencies, for the Developer’s failure to construct the Resort Hotel, Convention Center, Developer’s Phase 1A Infrastructure Improvements, or the Parking Improvements by the Original Outside Construction Completion Date or if the Foreclosure Purchaser has assumed the Sublease, Ground Lease, and the Project Implementation Agreement, the Foreclosure Purchaser’s failure to construct the Resort Hotel, Convention Center, or the Parking Improvements, by the Outside Construction Completion Date, including any loss resulting from the loss of revenues that the JEPA Parties, the Port District Parties, the Financing District Parties and the City Parties would have received if the Resort Hotel, Convention Center, Parking Improvements, and Developer’s Phase 1A Infrastructure Improvements had been Completed by the Original Outside Construction Completion Date or the Outside Construction Completion Date (each as extended in accordance herewith); provided, however, Developer acknowledges and agrees that, as and to the extent provided in the next sentence, there will be an Event of Default if (a) Developer fails to Complete the Convention Center by the date that is three hundred sixty-five (365) days after the Outside Construction Completion Date (the “Extended Construction Period Deadline”) (as extended as a result of a Force Majeure Event) (“Late Completion”) and (b) either (i) Developer does not pay the Construction Late Charges until Completion of the Convention Center (a “Construction Late Charge Failure”) or (ii) if Developer can reasonably Complete the Convention Center within thirty (30) days of the Extended Construction Period Deadline, Developer does not Complete the Convention Center within such thirty (30) days, and if the nature of the Completion of the Convention Center is such that Developer cannot reasonably Complete the Convention Center within such thirty (30) days, Developer does not diligently commence such cure within such thirty (30) days or thereafter fails to diligently proceed to rectify and cure such failure (a “Completion Cure Failure”, and any Completion Cure Failure or any Construction Late Charge Failure, a “Post- Late Completion Failure”). Developer acknowledges and agrees that if Late Completion Occurs and any Post-Late Completion Failure occurs, then the Public Agencies may declare an Event of Default, and such Event of Default shall constitute a cross-default under the Ground Lease and the Sublease, if Developer does not cure its Post-Late Completion Failure within thirty (30) days of receipt of notice from the Authority, and Developer shall not be entitled to any additional cure periods under Article XXI herein. Developer acknowledges and agrees that the payment of Construction Late Charges does not constitute a remedy for any Event of Default under this Agreement, Event of Default under the Sublease for failure to Complete the Convention Center, or Event of Default under the Ground Lease for failure to Complete the Resort Hotel and Parking Improvements. Without limiting the generality of the foregoing, Developer acknowledges and agrees that the cessation of construction of the Convention Center for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event, be deemed a failure by Developer to diligently proceed with the construction of the Convention Center to Completion and shall constitute an Event of Default under this Agreement without further notice or cure right by Developer if Developer does not resume construction of the Convention Center within ten (10) days after Developer receives notice thereof from the Public Agencies which notice shall include the following language: “FAILURE BY DEVELOPER TO RESUME CONSTRUCTION OF THE CONVENTION CENTER (AS SUCH TERM IS DEFINED IN THE PROJECT IMPLEMENTATION AGREEMENT) WITHIN TEN (10) DAYS AFTER THE DATE DEVELOPER RECEIVES, OR IS DEEMED TO HAVE RECEIVED, THIS NOTICE SHALL Page 24 of 237 EAttachment B 17 4825-3218-1203v24/024036-0079 CONSTITUTE AN EVENT OF DEFAULT UNDER THE PROJECT IMPLEMENTATION AGREEMENT”. Calculation of RPFP Formula: RPFP = PDSO – (EF + DSP) 12 Example of Calculation of RPFP: Assuming the following annual amounts: • Annual PDSO: $18,000,000 • Annual EF: $4,000,000 • Annual DSP: $4,000,000 RPFP = $18,000,000 – ($4,000,000+ $4,000,000) 12 RPFP = $10,000,000 12 RPFP = $833,333.33 For purposes of this Section 5.1.2: “District Support Payment” or “DSP” means, with respect to any Fiscal Year, the Annual Support Payments under and as defined in the Port Support Agreement as of the Effective Date that are due and payable during such Fiscal Year. “Existing Funds” or “EF” means, collectively, with respect to any Fiscal Year, moneys in an amount equivalent to each of the following sources of funds described in (i), (ii), and (iii), actually received by the Port District or the City, during such Fiscal Year: (i) the Ground Lease Revenues (defined below) received by the Port District during the preceding Fiscal Year, which Ground Lease Revenues shall be subject to adjustment pursuant to Section 5.1.3 below; (ii) the TOT attributable to the RV Park Lease; and (iii) an amount equal to $986,625.00, increasing 3% on July 1 of each year, commencing July 1, 2017, which amount is based on the payment made by the Port District to the City in Fiscal Year 2016 pursuant to that certain Municipal Services Agreement No. 88-2012 between the Port District and the City for the provision of Police, Fire and Emergency Medical Services. “Ground Lease Revenues” means all funds derived from the following clause (a) less the amounts listed in the following clause (b): Page 25 of 237 EAttachment B 18 4825-3218-1203v24/024036-0079 (a) those real estate agreements set forth in Exhibit I (collectively, the “Other Ground Leases”); provided, however, if one or more of the Other Ground Leases are renewed, replaced, or amended in such a way as to change the size or configuration of the original premises to include premises outside of the original premises boundaries of all the Other Ground Leases (each a “Modified Boundary Lease”), then, for purposes of this Section, the Ground Lease Revenues derived from each Modified Boundary Lease shall be calculated by multiplying the total amount of Ground Lease Revenues generated by such Modified Boundary Lease by a fraction, the numerator of which shall be an amount equal to the Modified Boundary Lease premises still within the original premises boundary, and the denominator of which shall be the total premises area of the Modified Boundary Lease as modified. The City and the Port District acknowledge and agree that a Modified Boundary Lease shall not include the modification of the RV Park Lease to include some or all of parcel S-3. For example, if the original premises of an Other Ground Lease encompasses 5.0 acres, and the Modified Boundary Lease includes 4.0 acres of the original premises, and adds 6.0 acres of premises outside the original premises, then forty percent (40%) of the lease payments paid to the District under the Modified Boundary Lease shall be included as Other Ground Leases lease payments under this Section (collectively, the “Other Ground Leases Revenues”); to the extent Port District enters into any revenue generating agreement other than a Ground Lease with respect to operations on all or any portion of the Other Ground Leases premises, such revenue, net any related out-of-pocket operating costs paid by Port District to third parties, shall also be included as Other Ground Leases Revenues under this Section; (b) less $3,283,970, which is the actual amount of the buyout payment paid solely by the Port District to Chula Vista Marina, LP, dba Chula Vista Marina (“RV Park Lessee”) to terminate the lease between the RV Park Lessee and the Port District (“Net RV Park Buyout Credit”), such amount to be amortized over a period of eight years commencing on July 1, 2018 pursuant to the Net RV Park Buyout Credit Schedule (defined below), as such Net RV Park Buyout Credit Schedule and its contents may be administratively modified from time to time with the mutual consent of the City Manager and the Executive Director, without further approval of the BPC or City Council. “Net RV Park Buyout Credit Schedule” means the following schedule: Fiscal Year (FY) RV Park Buyout Credit Cumulative Credit FY 19 $410,500 $410,500 FY 20 $410,500 $821,000 FY 21 $410,500 $1,231,500 FY 22 $410,500 $1,642,000 FY 23 $410,500 $2,052,500 FY 24 $410,500 $2,463,000 FY 25 $410,500 $2,873,500 FY 26 $410,470 $3,283,970 “Public Debt Service Obligation” or “PDSO” means, for any year, the amount of debt service set forth on Exhibit J attached hereto and incorporated herein by reference. Page 26 of 237 EAttachment B 19 4825-3218-1203v24/024036-0079 “RV Park Lease” means that certain lease described in Exhibit I between the Port District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista which lease is on file in the Office of the Port District Clerk as Document No. 70407, as amended and may be amended from time to time. “TOT” means the transient occupancy taxes levied pursuant to Chula Vista Municipal Code Chapter 3.40, attributable to the RV Park Lease. The amount of the RPFP will be reduced to the extent the RPFP would otherwise be increased solely because Port District or the City fails to use commercially reasonable efforts to ensure the receipt of amounts that, if received by the City or the Port District, would be Existing Revenues and are due and payable to the City or the Port District. 5.1.3. True-Up Payments. Because the actual amounts of the RPFP may not be known when Developer is required to pay Construction Late Charges (since some of the amounts used in the calculation of RPFP will not be known), the Authority shall promptly, after any request by Developer, notify Developer of the reasonably expected amount of the applicable RPFP and Developer shall initially pay Construction Late Charges based on such estimated amounts. Within sixty (60) days after the end of each Fiscal Year with respect to which Developer was required to pay Construction Late Charges pursuant to this Section 5.1, the Port District shall reasonably determine the actual Ground Lease Revenues it received during such Fiscal Year and present such amount, together with reasonable supporting documentation, to Developer for Developer’s review and approval. If the amount of such actual Ground Lease Revenues received by the Port District exceeds the Ground Lease Revenues as calculated based on the preceding Fiscal Year, then the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days from the Revenue Fund maintained under the Authority Indenture. If the amount of such Ground Lease Revenues calculated by the Port District based on the preceding Fiscal Year exceeds the amount of such actual Ground Lease Revenues received by the Port District, then Developer shall make a true- up payment to the Authority for the difference within twenty (20) Business Days of a notice of deficiency and upon receipt of such amount from Developer, the Authority shall deposit it into the Revenue Fund maintained under the Authority Indenture. 5.2. Reserved. 5.3. Reserved. 5.4. Project Schedule and Schedule Updates. 5.4.1. Planned Completion Date. For the Developer’s Phase 1A Infrastructure Improvements, the Project schedule shall indicate a planned completion date following the Commencement Date that is not later than the Outside Construction Completion Date (the “Planned Completion Date”). The Planned Completion Date may be extended in the event of a delay, provided that Developer duly requests a time extension in accordance with this Section 5.4 and such extension is authorized under this Article V. Any such schedule is for information purposes only. 5.4.2. Critical Path Method Schedules. Developer shall require that MMJV maintain a detailed, computer-generated, logic-driven, precedence style critical path method (“CPM”) schedule that is prepared with Primavera or other software used by MMJV and that includes all of MMJV’s work related to the Project. Developer shall submit to the Authority a Page 27 of 237 EAttachment B 20 4825-3218-1203v24/024036-0079 courtesy copy of all schedules and schedule updates that Developer receives from MMJV. If requested by the Authority, Developer shall deliver digital copies of any schedules in native computer file format. 5.4.3. Schedule Updates. Developer shall provide to Authority regular schedule updates not less than monthly, which shall include: actual start dates; actual completion dates; and remaining duration of activities in progress. Developer shall promptly notify the Authority of any changes to the schedule. 5.4.4. Schedule for Commencement and Completion of Harbor Park. Notwithstanding any provision of this Agreement to the contrary, Harbor Park shall be deemed to be excluded from Developer’s Phase 1A Infrastructure Improvements and not part of the Developer’s Phase 1A Infrastructure Improvements Site unless and until Harbor Park is included in the Developer’s Phase 1A Infrastructure Improvements in accordance with this Section 5.4.4. Developer shall provide notice to the Public Agencies promptly after Developer determines that 75% Completion has occurred. Developer and the Public Agencies shall meet and confer in good faith within ten (10) Business Days after Developer provides such notice in order to (i) establish the plans and specifications for Harbor Park (the “Harbor Park Plans”) and budget for Harbor Park (the “Harbor Park Budget”), (ii) discuss whether the Port District or Developer will construct Harbor Park, (iii) discuss the status of the development of Sweetwater Park, and (iv) discuss the use of moneys in the County Funded Bayfront Improvements Subaccount. Within sixty (60) days following such meet and confer, Port District will notify Developer in writing as to whether the Port District will construct Harbor Park (which decision will be made by the Port District in its sole and absolute discretion). If Port District elects to develop Harbor Park, then Port District shall not commence development, and shall not commence construction, of Harbor Park unless and until the Developer and the Public Agencies agree in writing that the proceeds available in the County Funded Developer’s Phase 1A Subaccount, the 2021B Bond Proceeds Subaccount; and the County Funded Bayfront Improvements Subaccount of the 2021B Construction Account (including any amounts deposited by the Public Agencies in such account after the Effective Date), are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Developer’s Phase 1A Infrastructure Improvements Costs and that the remaining County Sweetwater Park Funds held by the Port District and the amounts on deposit in the Sweetwater Park Subaccount, if needed, are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Remaining Phase 1A Infrastructure Improvements Costs that may be incurred to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements. If the Port District does not elect to construct Harbor Park within such ten (10) Business Day period and the Developer and the Public Agencies agree in writing upon the Harbor Park Plans and the Harbor Park Budget and that the proceeds available in the County Funded Developer’s Phase 1A Subaccount, the 2021B Bond Proceeds Subaccount; and the County Funded Bayfront Improvements Subaccount of the 2021B Construction Account (including any amounts deposited by the Public Agencies in such account after the Effective Date), are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Developer’s Phase 1A Infrastructure Improvements Costs (assuming for this purpose only that Harbor Park is included in Developer’s Phase 1A Infrastructure Improvements) and that the remaining County Sweetwater Park Funds held by the Port and the amounts on deposit in the Sweetwater Park Subaccount, if needed, are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Remaining Phase 1A Infrastructure Improvements Costs that may be incurred to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements, then Developer’s Phase 1A Infrastructure Improvements shall be deemed to include Harbor Park, Developer’s Phase 1A Infrastructure Improvements Costs shall be modified accordingly and Page 28 of 237 EAttachment B 21 4825-3218-1203v24/024036-0079 Developer shall commence development and construction of Harbor Park. Developer shall not commence development or construction of Harbor Park prior to such time. Notwithstanding anything in this Agreement to the contrary, Harbor Park will in no event be included in Developer’s Phase 1A Infrastructure Improvements for the purpose of determining whether Developer’s Phase 1A Infrastructure Improvements are Complete, Harbor Park will be Accepted separately from the remainder of Developer’s Phase 1A Infrastructure Improvements and any warranty period will be calculated separately for Harbor Park, on the one hand, and the remainder of Developer’s Phase 1A Infrastructure Improvements, on the other hand. Developer’s Phase 1A Infrastructure Improvements shall be deemed not to include Harbor Park, and Developer shall have no obligation to develop nor construct Harbor Park, unless (a) Developer and the Public Agencies agree (i) upon the Harbor Park Plans and the Harbor Park Budget, (ii) that the proceeds available in the County Funded Developer’s Phase 1A Subaccount, the 2021B Bond Proceeds Subaccount; and the County Funded Bayfront Improvements Subaccount of the 2021B Construction Account (including any amounts deposited by the Public Agencies in such account after the Effective Date), are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Developer’s Phase 1A Infrastructure Improvements Costs (assuming for this purpose only that Harbor Park is included in Developer’s Phase 1A Infrastructure Improvements) and (iii) that the remaining County Sweetwater Park Funds held by the Port and the amounts on deposit in the Sweetwater Park Subaccount, if needed, are sufficient (with a contingency that is acceptable to the Authority and Developer) to pay all Remaining Phase 1A Infrastructure Improvements Costs that may be incurred to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements, and (b) the Port District does not elect to construct Harbor Park as provided above. If the Port District elects to develop Harbor Park, the Port District, on the one hand, and the City and Authority, on the other hand, shall enter into a separate agreement regarding the development of Harbor Park. Notwithstanding anything herein to the contrary, the Parties shall determine appropriate insurance requirements at the time the Harbor Park Plans and Harbor Park Budget are prepared. 5.5. Unavoidable Delay. Each of the Developer and the Port District shall be entitled to an extension of the date of the performance of any obligation required of such Party under this Agreement upon the occurrence of a Force Majeure Event as and to the extent set forth in this Section 5.5. (a) Definition. The term “Force Majeure Event” means the occurrence of any of the following events (and the actual collateral effects of such event), individually or in any combination, to the extent that (x) such event is beyond the reasonable control of the Developer or the Port District, as applicable, that is asserting that a Force Majeure Event has occurred (the “Force Majeure Party”) and (y) such event and/or such actual collateral effect prevents such Force Majeure Party from the performance of its obligations under this Agreement and is approved by the Authority pursuant to Section 5.5(e) below: (i) A strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had the Force Majeure Party (or Hotel Operator or a Developer Party, in the case of the Project), complied with Laws or labor agreements with respect to the Project, if any. (ii) Hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods. Page 29 of 237 EAttachment B 22 4825-3218-1203v24/024036-0079 (iii) Days of precipitation or high winds in any month in excess of ten (10) year average for the area within City’s jurisdiction. (iv) An earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster. (v) Fires (including wildfires). (vi) Inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or the Force Majeure Party’s (or Hotel Operator or a Developer Party, in the case of the Project) acts or failure to act). (vii) Acts of war or armed conflict, insurrections, riots, and acts of terrorism (including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof. (viii) Extraordinary delays in the issuance of any approvals or authorizations from any Governmental Authority (excluding any non-regulatory approvals provided under the terms of this Agreement by the Port District, the JEPA or the City) that is necessary to proceed with development or operation of the Convention Center, Developer’s Phase 1A Infrastructure Improvements or the Remaining Phase 1A Infrastructure Improvements, as applicable (provided that Developer has timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that the Force Majeure Party (or Hotel Operator or a Developer Party) is not responsible for the delay in the issuance of such approvals or authorizations by such party’s own actions or inactions). For purposes of this paragraph, (A) “extraordinary delays” with respect to City regulatory approvals or authorizations that are subject to the Staffing and Processing Agreement shall mean delays in City processing actions or approvals that exceed 150% of the time periods for City actions under the terms of the Staffing and Processing Agreement, excluding any such delays caused by RIDA’s own actions or inactions thereunder, and (B) “extraordinary delays” with respect to any other approval or authorization from any Governmental Authority shall mean delays beyond the reasonably expected time period for such approval or authorization which reasonably expected time period shall include customary or reasonably foreseeable delays in obtaining such approvals. (ix) An act of God. (x) Embargoes or blockades. (xi) Pre-Existing Hazardous Material (that is not the result of Material Exacerbation). (xii) Closures or work stoppages ordered by any Governmental Authority that do not arise from a breach of this Agreement or the Sublease or misconduct by Force Majeure Party (or Hotel Operator or a Developer Party, in the case of the Project). (b) Calculation of Delay. Actual delays resulting from the occurrence of one or more Force Majeure Events occurring concurrently shall be calculated concurrently and not consecutively. Page 30 of 237 EAttachment B 23 4825-3218-1203v24/024036-0079 (c) Exclusions. For purposes of this Section 5.5, a Force Majeure Event shall not include adverse general economic or market conditions not caused by any of the events described in 5.5(a)(i) through (xii) above. (d) Payment Obligations. In no event will a Force Majeure Event excuse the payment of Project Costs due under this Agreement. (e) Notice and Acceptance Requirement. After the Force Majeure Party learns of any Force Majeure Event, such Force Majeure Party shall endeavor to provide prompt (under the circumstances) informal written notice to the Executive Director and Authority staff working in the field that a Force Majeure Event has commenced, with a formal written notice to follow as described below. The Force Majeure Party shall notify the Authority and the other Parties in writing within ten (10) Business Days after the Force Majeure Party learns of, and in no event later than thirty (30) days after commencement of a Force Majeure Event. Such notice (the “Initial Force Majeure Notice”) must be made in good faith and describe the Force Majeure Event creating delay, why such delay is occurring, the estimated expected duration of such delay, and the commercially reasonable efforts that the Force Majeure Party is taking to minimize the period of delay. Commencing on the date that is thirty (30) days after the date of the Initial Force Majeure Notice and for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exist (whichever is later), the Force Majeure Party shall provide to the Authority and the other Parties monthly written updates on the estimated expected duration of such delay and the commercially reasonable efforts that the Force Majeure Party is taking to minimize the period of delay. Within thirty (30) days after the Force Majeure Event or the actual collateral effects of such Force Majeure Event cease to exist (whichever is later), the Force Majeure Party shall notify the Authority and the other Parties in writing that the Force Majeure Event and the actual collateral effects of such Force Majeure Event, as applicable, have ceased to exist and of the number of days by which Force Majeure Event (including the actual collateral effects of such Force Majeure Event) has delayed the Force Majeure Party’s construction of the Project (or, with respect to the Port District, the Remaining Phase 1A Infrastructure Improvements) or Completion (the “Force Majeure Notice”). Within thirty (30) days after Authority’s receipt of the Force Majeure Notice, the Authority shall provide notice to the Force Majeure Party and the other Parties (“Force Majeure Response”) that either the Authority (a) requires additional information to make a determination regarding the Force Majeure Party’s assertion of the existence of a Force Majeure Event or the duration of the delay caused by the Force Majeure Event or the actual collateral effects of such Force Majeure Event, (b) approves the Force Majeure Notice, or (c) denies some or all of the Force Majeure Notice. The Authority’s approval or denial of the Force Majeure Notice shall be in the Authority’s reasonable discretion. If the Authority denies some or all of the Force Majeure Notice, the Authority and the Force Majeure Party will meet and confer in good faith within ten (10) days after the Authority’s delivery of the Force Majeure Response to attempt to reach a mutually acceptable modification to the Force Majeure Notice that will result in the Authority approving the Force Majeure Notice as modified (“Meet & Confer Period”). If the Authority and the Force Majeure Party do not agree on a modification to the Force Majeure Notice during the Meet & Confer Period, the Force Majeure Party may elect to withdraw the Force Majeure Notice and if the Force Majeure Party does not withdraw the Force Majeure Notice, the Authority shall present the Force Majeure Notice to the Authority Board for its consideration to either approve or deny the Force Majeure Notice at a regularly scheduled meeting that shall take place within sixty (60) days after the expiration of the Meet & Confer Period. If the Authority Board denies the Force Majeure Notice, then the dispute shall be resolved by a court of competent jurisdiction. If a court of competent jurisdiction determines in a final and non-appealable decision that the putative Force Majeure Event that was described in such Force Majeure Notice did not Page 31 of 237 EAttachment B 24 4825-3218-1203v24/024036-0079 constitute a Force Majeure Event, the duration of such delay in the construction of the Project (or, with respect to the Port District, the Remaining Phase 1A Infrastructure Improvements) or Completion specified therein was not reasonable, or the efforts that the Force Majeure Party took to minimize the period of delay were not commercially reasonable, then, at the Authority’s sole and exclusive remedy for the Force Majeure Party’s failure to perform any obligation under this Agreement from which the Force Majeure Party claimed to be excused as a result of such Force Majeure Event, but was not excused, the Force Majeure Party shall make the Authority whole for any loss that the Authority suffered as a result of such failure. 5.6. Completion Guaranty. On or before the Effective Date, Developer shall cause each Completion Guarantor (as defined in each Completion Guaranty) to execute and deliver to Authority, and maintain in effect in accordance with its terms, a Completion Guaranty substantially in the form attached hereto as Exhibit H and incorporated herein by reference (“Completion Guaranty”), with any deviations from such form being reasonably acceptable to Authority, City, Port District, and Developer. 5.7. Entitlements. 5.7.1. Entitlement Costs. If any discretionary approval, permit or entitlement, including, without limitation, environmental analysis under CEQA or the National Environmental Policy Act, the PMP, a Port Master Plan Amendment (“PMPA”), stormwater permits, a CDP and/or a Coastal Act exclusion (collectively, “Discretionary Entitlement”), are necessary, in Port District’s sole and absolute determination, in connection with any Improvements or Alterations, demolition work, remediation work or other projects undertaken by Developer on or at the Project Site or the Improvements (each of the foregoing for which a Discretionary Entitlement is required, the “Discretionary Project”), then Developer shall enter into agreements, consistent with the Port District’s applicable standard practices at that time (if any), with third-party experts, professionals and consultants to prepare reports and other materials (“Consultant Services”) that are required to process the Discretionary Project and for the Port District or any other relevant Governmental Authority to consider the Discretionary Entitlement or Discretionary Project. Developer shall be directly responsible for the costs of the Consultant Services. Developer shall reimburse Port District pursuant to the Reimbursement Procedure for all reasonable costs and expenses incurred by Port District in connection with preparing, processing, considering and approving any Discretionary Project, any Discretionary Entitlement or any appeal of any CDP or Coastal Act exclusion to the CCC. If Developer fails to reimburse Port District for such costs or expenses pursuant to the Reimbursement Procedure, then, in addition to any other remedies that Port District may have, following three (3) Business Days’ prior written notice to Developer, Port District may, at its reasonable discretion, discontinue the preparing, processing, considering or approving of such Discretionary Project, Discretionary Entitlement or such appeal of a CDP or Coastal Act exclusion to the CCC, as applicable, until Developer reimburses Port District, and Developer shall be responsible for any costs and expenses incurred by Port District related to such discontinuance and if such failure continues for seven (7) additional Business Days after written notice from Port District to Developer, then such failure shall be an Event of Default. Nothing herein shall obligate Port District to seek, process or obtain any Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project for the benefit of Developer, and Port District makes no warranty or representation to Developer that Developer will obtain any Discretionary Entitlement or ministerial approval. Port District shall not be required to pay any Governmental Authority fees or costs and expenses for any Consultant Services associated with any Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project. If Developer requests Page 32 of 237 EAttachment B 25 4825-3218-1203v24/024036-0079 Port District’s assistance in obtaining from any third-party Governmental Authority any licenses, approvals, notifications, registrations or permits in connection with development, use and operation of the Project Site and the Improvements, including the construction of the Initial Project Improvements, Port District will consider Developer’s request and inform Developer within thirty (30) days whether it will agree to reasonably assist Developer. 5.7.2. Entitlements Indemnity. Without limitation of Developer’s other obligations under this Agreement, Developer agrees, at its sole cost and expense, and with counsel selected by the Public Agencies and reasonably acceptable to Developer, to indemnify, defend and hold harmless the Port District Parties, Authority Parties, Financing District Parties, and the City Parties from any third-party claims, demands, actions, causes of action, suits and Related Costs, arising out of Port District’s approval of any Discretionary Project, Discretionary Entitlement or appeal of a CDP or Coastal Act exclusion to the CCC. Port District may, in its sole and absolute discretion, participate in the defense of any claims, demands, actions and causes of action and suits, and Developer shall reimburse Port District for all reasonable costs that are incurred by Port District in connection therewith, including, without limitation, reimbursement for attorneys’ fees, experts’ fees and other costs. Port District’s participation in such defense shall not relieve Developer of any of its obligations under this Section 5.7.2. The foregoing indemnity obligations of Developer are in addition to, and not in limitation of, any other indemnity obligations of Developer contained in this Agreement, the Ground Lease, and the Sublease, and this Section 5.7.2 shall survive the expiration or earlier termination of this Agreement and the Sublease. 5.7.3. Reservation of Discretion. Developer acknowledges and agrees that, notwithstanding the terms and conditions of this Agreement, and the Sublease, Port District reserves its discretion to condition, approve or disapprove any Discretionary Entitlements or Discretionary Project, including, without limitation, adoption of any and all feasible mitigation measures, alternatives to a Discretionary Project, including a no project alternative, and a statement of overriding consideration, if applicable, and that nothing in this Agreement or the Sublease will be construed as circumventing or limiting Port District’s discretion with respect to any Discretionary Entitlement, or any Discretionary Project, including, without limitation, the exercise of eminent domain, code enforcement and the making of findings and determinations required by Laws. Developer acknowledges and agrees that any and all Discretionary Entitlements may be conditioned, approved or denied by Port District, in its sole and absolute determination, and Developer accepts the risk that Port District may deny any and all Discretionary Entitlements, and hereby waives any claims, demands, actions, causes of action, suits against Port District for such conditions or denial. 5.7.4. Ministerial Action by Authority. At Developer’s request, the Authority will take any reasonable and lawful ministerial action that is reasonably necessary in connection with Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project (including, without limitation, signing any application for a Discretionary Entitlement in its capacity as the owner of the Convention Center, tenant under the Site Lease or sublandlord under the Facility Lease). 5.8. Energy Requirements. Notwithstanding any other provision of this Agreement to the contrary, the only obligations of Developer with respect to Section 15 and Exhibit 3 of the Settlement Agreement and any indemnification obligations with respect thereto are set forth in Exhibit O attached hereto and incorporated herein by reference and in the Ground Lease. Page 33 of 237 EAttachment B 26 4825-3218-1203v24/024036-0079 ARTICLE VI PROCUREMENT REQUIREMENTS AND EQUAL OPPORTUNITY 6.1. Award of Sole-Sole Source Prime Contract. Pursuant to the findings of the Authority Board found in Authority Resolution 2020-002, the Developer may award one or more single sole source prime contracts to MMJV for the partial design and construction of the Project subject to the terms and conditions of Authority Resolution 2020-002 and this Article VI of this Agreement. The Authority has approved the final, executable construction contracts for the Convention Center and the Developer’s Phase 1A Infrastructure Improvements listed on Exhibit G-3.1 6.2. Subcontractor Bid and Award Process for the Developer’s Phase 1A Infrastructure Improvements. The provisions of this Section 6.2 shall apply only to the Phase 1A Infrastructure Improvements that Developer performs. Developer shall award subcontracts in compliance with the Authority Procurement Policy and Authority Resolution 2020-002 and as implemented (with modifications) and further delineated in the bid and award process that is attached as Exhibit G-1 hereto and as further set out in this Section 6.2. Developer represents and warrants that the subcontracts listed in Exhibit G-2 hereto were awarded in accordance with the bid and award process set forth in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority under the Authority Procurement Policy and Authority Resolution 2020-002. Developer may utilize subcontracts awarded prior to the Effective Date of this Agreement, provided such subcontracts were procured in accordance with this Section 6.2. Nothing herein is intended to limit the Executive Director’s authority to implement the Authority Procurement Policy and Authority Resolution 2020- 002 and approve waivers as set forth therein. 6.2.1. Sole Source Subcontract Award. If so intended by Developer, Developer shall provide notice of its intention to award a sole-source contract to Authority and Authority shall evidence its approval of the Developer’s proposed sole source subcontract award (which approval shall not be unreasonably withheld) by delivering a signed Sole Source Subcontract Award Approval in the form set forth in Exhibit L (with respect to Developer’s Phase 1A Infrastructure Improvements) and Authority shall evidence its approval of such sole source subcontract award by counter-signing such Sole Source Subcontract Award Approval. Authority shall counter-sign a Sole Source Subcontract Award Approval or provide written notice of Authority’s reasons for withholding approval within five (5) Business Days after receiving written notice from the Developer. If Authority fails to respond to a written request for Sole Source Subcontract Award Approval within five (5) Business Days, Developer shall notify Authority that such deadline has passed and Authority shall respond in writing within two (2) Business Days after receiving written notice from the Developer. If Authority fails to respond within such additional two (2) Business Day period, then Authority shall be deemed to have approved such Sole Source Subcontract Award Approval. 6.2.2. Best Qualified Contractor Subcontract Award. If so intended by Developer, Developer shall provide notice of its intention to award a subcontract on the best qualified contractor (who is not the lowest bidder) to Authority and Authority shall evidence its approval of the Developer’s proposed best qualified subcontract award (which approval shall not be unreasonably withheld) by delivering a signed Best Qualified Contractor Subcontract Award Approval in the form set forth in Exhibit M (with respect to Developer’s Phase 1A Infrastructure Improvements) and Authority shall evidence its approval of such best qualified contractor award by counter-signing such Best Qualified Contractor Subcontract Award Approval. Authority shall counter-sign a Best 1 NTD: Such approval to occur before Closing. Page 34 of 237 EAttachment B 27 4825-3218-1203v24/024036-0079 Qualified Contractor Subcontract Award Approval or provide written notice of Authority’s reasons for withholding approval within five (5) Business Days after receiving written notice from the Developer. If Authority fails to respond to a written request for Best Qualified Contractor Subcontract Award Approval within five (5) Business Days, Developer shall notify Authority that such deadline has passed and Authority shall respond in writing within two (2) Business Days after receiving written notice from the Developer. If Authority fails to respond within such additional two (2) Business Day period, then Authority shall be deemed to have approved such Best Qualified Contractor Subcontract Award Approval. 6.2.3. Applicability of Authority Procurement Policy. Notwithstanding anything to the contrary set forth in the Authority Procurement Policy or Authority Resolution 2020-002, to the extent that Developer procures work to construct all or a portion of the Remaining Phase 1A Infrastructure Improvements pursuant to Section 2.3 and to the extent Developer procures work with respect to Remaining Phase 1A Infrastructure Improvements (or, with the reasonable approval of the Executive Director, Developer’s Phase 1A Infrastructure Improvements) as a result of a casualty or condemnation event, Developer may procure such work without regard to the bidding requirements set forth in Sections 1 and 2 of the Authority Procurement Policy. Except with respect to Sections 1 and 2 of the Authority Procurement Policy, the requirements of the Authority Procurement Policy and Authority Resolution 2020-002, as modified by this Agreement, shall remain in effect and apply to the Remaining Phase 1A Infrastructure Improvements constructed by Developer and any work with respect to Remaining Phase 1A Infrastructure Improvements (or, with the reasonable approval of the Executive Director, Developer’s Phase 1A Infrastructure Improvements) procured by Developer as a result of a casualty or condemnation event. The modifications described above are intended to be modifications by agreement approved by the Authority Board, as expressly authorized in the Authority Procurement Policy. 6.3. Bid and Award Process for the Remaining Phase 1A Infrastructure Improvements. If the Port District constructs or causes the construction of the Remaining Phase 1A Infrastructure Improvements or Harbor Park, the Port District shall use its procurement policies, then in effect. 6.4. The Convention Center as a Special Purpose Project. Pursuant to Authority Resolution 2020-002, the Convention Center constitutes a “special purpose project” as defined in Section 6 of the Authority Procurement Policy, and the requirements of Sections 1.b.ii, 1.b.iii, 2 and 3(b) of the Authority Procurement Policy shall not apply to the provisions of this Agreement pertaining to development and construction of the Convention Center or work for the Convention Center procured by Developer as a result of a casualty or condemnation event pursuant to Article V of the Sublease. 6.5. Procurement of Alterations. Procurement of work for Alterations is governed by the Sublease and not this Agreement, and the requirements of the Authority Procurement Policy shall not apply to Alterations. The modifications described above are intended to be modifications by agreement approved by the Authority Board, as expressly authorized in the Authority Procurement Policy. 6.6. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process for the Developer’s Phase 1A Infrastructure Improvements, Developer shall provide the Authority with a copy of the tabulation of competitive bid results with respect to each contract and subcontract, as applicable. Developer shall provide the Authority with copies of all executed contracts awarded in accordance with this Section 6.6 and Developer shall certify in writing to the Authority that such Page 35 of 237 EAttachment B 28 4825-3218-1203v24/024036-0079 contracts were awarded in accordance with the process described in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority in accordance with the Authority Procurement Policy and Authority Resolution 2020-002. A list of the subcontracts awarded for the Developer’s Phase 1A Infrastructure Improvements prior to the Effective Date is set forth in Exhibit G-2. Developer hereby certifies to the Public Agencies that the subcontracts listed in Exhibit G-2 were bid and awarded in accordance with the process described in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority under the Authority Procurement Policy and Authority Resolution 2020-002. 6.7. Authority Procurement Policy Acknowledgement. In the event Developer exercises the Second Sweetwater Park Option and only for purposes of Developer’s procurement of General Contracts for Sweetwater Park, Authority waives the bidding requirement of the Authority Procurement Policy (including, without limitation, set forth in Sections 1 and 2 of the Authority Procurement Policy). All other requirements of the Authority Procurement Policy and Authority Resolution 2020-002, as modified by this Agreement, shall apply to Developer’s procurement of contracts for Sweetwater Park. Authority acknowledges that in compliance with the applicable provisions of the Authority Procurement Policy and Authority Resolution 2020-002, Authority has required Developer to enter into this Agreement to establish the terms and conditions pursuant to which the Developer may develop and construct the Project and obtain payment for a portion of the eligible costs of developing and constructing the Developer’s Phase 1A Infrastructure Improvements and the Convention Center from the proceeds of the Authority Bonds and the County Funds, and that to the extent requirements set forth in this Agreement differ from the requirements set forth in Authority Procurement Policy and Authority Resolution 2020-002, the requirements set forth in this Agreement will govern the procurement, development and funding of the Project, including the Remaining Phase 1A Infrastructure Improvements if Developer has exercised the Second Sweetwater Park Option (to the extent permitted by Authority Procurement Policy and Authority Resolution 2020-002). Notwithstanding anything to the contrary in this Agreement, Sections 6.2 through 6.2.2 shall not apply to the Remaining Phase 1A Infrastructure Improvements. ARTICLE VII DESIGN AND CONSTRUCTION STANDARDS 7.1. Standard of Care. Developer will use commercially reasonable efforts to furnish efficient business administration and supervision and manage the performance of the work with respect to the Project in an expeditious and economical manner consistent with Authority’s interests. Developer shall endeavor to cause the General Contractor and all Subcontractors to construct the Project in a workmanlike manner. Developer’s professional consultants shall be skilled in the profession necessary to perform their respective services and Developer shall cause them to perform their services related to the Project in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the services in the same discipline in the State of California. 7.2. Compliance with Laws. 7.2.1. Port District Compliance with Laws. Port District shall in its construction of the Remaining Phase 1A Infrastructure Improvements abide by and comply with, and cause any of its General Contractor, Subcontractors, employees, and agents, to abide by and comply with all Laws. Page 36 of 237 EAttachment B 29 4825-3218-1203v24/024036-0079 7.2.2. Developer’s Compliance with Laws. Developer shall in all activities on or in connection with the Project Site and the Project, and in all uses thereof, including without limitation the Permitted Use and any construction of the Project, abide by and comply with, and cause the Developer Parties (other than Developer) and Hotel Operator to abide by and comply with, all Laws at Developer’s sole cost and expense, and Authority shall not have any obligations or responsibilities to comply with any Laws as to the Project Site and the Improvements or any use thereby by Developer Parties or Hotel Operator. In particular and without limitation, Developer shall have the sole and exclusive obligation and responsibility, at Developer’s sole cost and expense, to comply with the requirements of the following, to the extent applicable: (i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control), (ii) the ADA, including but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 7.2.3 and Article XX of this Agreement, (iv) any Coastal Development Permit (“CDP”) (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act (“CEQA”)) or any other California Coastal Commission (“CCC”) regulations or local, state or federal requirements now or hereafter affecting the Project Site or the Improvements, including the use or development thereof, (v) the Port Master Plan (“PMP”), (vi) the Chula Vista Municipal Code, (vii) any other development permits or approvals accepted by Developer, and (viii) the policies adopted by the BPC. Until the earlier of such time as all components of the Developer’s Phase 1A Infrastructure Improvements are Accepted or the Term of this Agreement terminates or expires, neither the BPC nor the City Council shall adopt any Law that only applies to the Developer’s Phase 1A Infrastructure Improvements, unless the Law is determined by the BPC, in its sole and absolute discretion, or the City Council, in its sole and absolute discretion (as applicable), but in either case, in a manner that is neither arbitrary nor capricious, to be necessary for health and safety reasons, to protect the welfare of the people, or to exercise the Port District’s police powers under the Port Act or the City Council’s police powers under applicable Laws, including the CVMC. The foregoing limitation shall not apply to the adoption of any ordinance or resolution that authorizes an amendment to this Agreement or any Contemporaneous Agreement, or is adopted to authorize the enforcement of Port District’s or City’s rights or the performance of Port District’s or City’s obligations under this Agreement or any Contemporaneous Agreement, including without limitation, any ordinances or resolutions adopted by the BPC or City Council as part of any discretionary approval. In the event of any conflict between the terms of a policy adopted by the BPC or City Council and this Agreement, Developer shall deliver notice to Port District or City, as applicable, of such a conflict and the Parties shall meet and confer within ten (10) days of Port District’s or City’s, as applicable, receipt of the notice to discuss the conflict and attempt to resolve the conflict in good faith prior to commencing mediation pursuant to Section 26.12.10. If the conflict is not resolved pursuant to Section 26.12.10, then the terms of this Agreement shall control and Developer shall be excused from complying with the terms of such policy adopted by the BPC or City Council, to the extent of such conflict only. 7.2.3. Prevailing Wage. 7.2.3.1. This Section 7.2.3.1 applies only to the Project and does not apply to the Remaining Phase 1A Infrastructure Improvements unless and until Developer exercises a Sweetwater Park Option or to Harbor Park unless Harbor Park will be constructed by Developer. Developer acknowledges and agrees that: Page 37 of 237 EAttachment B 30 4825-3218-1203v24/024036-0079 a. Any construction, alteration, demolition, installation, or repair work, in each case for the Project, required or performed under this Agreement constitutes “public work” under California Prevailing Wage Law, including Labor Code §§ 1720 through 1861, et seq. (“PWL”), and obligates Developer to cause such work to be performed as “public work,” including, but not limited to, the payment of applicable prevailing wages to all Persons subject to the PWL. b. Developer shall cause all Persons performing “public work” for the Project under this Agreement to comply with all applicable provisions of the PWL and other applicable wage Laws. c. Developer’s violations of the PWL shall constitute a breach (subject to cure pursuant to Section 21.1.2) under this Agreement. d. Authority hereby notifies Developer, and Developer hereby acknowledges, that the PWL includes, without limitation, Labor Code § 1771.1(b) that provides that the following requirements described in Labor Code § 1771.1(a) shall be included in all bid invitations and “public work” contracts: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of § 4104 of the Public Contract Code, or engage in the performance of any contract for “public work,” as defined in this chapter, unless it is currently registered and qualified to perform “public work” pursuant to Section 1725.5. It is not a violation of this Section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Sections 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform “public work” pursuant to Section 1725.5 at the time the contract is awarded.” e. Developer acknowledges that its obligations under the PWL with respect to the Project include, without limitation, ensuring that: i. pursuant to Labor Code § 1771.1(b), a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor’s current registration to perform “public work” pursuant to § 1725.5; ii. pursuant to Labor Code § 1771.4(a)(1), the call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”); iii. pursuant to Labor Code § 1771.4(a)(2), it posts or requires the prime contractor to post job site notices, as prescribed by regulation; and iv. pursuant to Labor Code § 1773.3(a)(1), it provides notice to the DIR of any “public works” contract subject to the requirements of the PWL, within thirty (30) days of the award, but in no event later than the first day in which a contractor has workers employed upon the public work. Pursuant to Labor Code § 1773.3(a)(2), the notice shall be transmitted electronically in a format specified by the DIR and shall include the name and registration number issued by the DIR pursuant to §1725.5 of the contractor, the name and registration number issued by the DIR pursuant to §1725.5 of any subcontractor listed on the successful bid, the bid and contract award dates, the contract amount, the estimated start and completion dates, job site location, and any additional information that the DIR specifies that aids in Page 38 of 237 EAttachment B 31 4825-3218-1203v24/024036-0079 the administration and enforcement of the PWL. PWC-100 is the name of the form currently used by the DIR for providing the notice, but Developer shall determine and use whatever form the DIR requires. f. None of the Authority, Port District, City, or Financing District shall be responsible for Developer’s failure to comply with any applicable provisions of the PWL. g. Notwithstanding anything in this Agreement to the contrary, Developer shall not be responsible for any Person’s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Public Agency Party (other than by a Developer Party or Hotel Operator, or on behalf of a Developer Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Developer Party or Hotel Operator). 7.3. Compliance with Design and Construction Standards. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, or other Developer Parties, with the applicable Design and Construction Standards in connection with the design and construction of Developer’s Phase 1A Infrastructure Improvements. 7.3.1. Standard Specifications. In connection with any modification of the Approved Drawings and Specifications for the Developer’s Phase 1A Infrastructure Improvements, 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 were in effect on the Plan Submission Date: the Standard Specifications and the Chula Vista Standard Special Provisions. 7.4. Construction Period. With respect to Convention Center and any portion of the Developer’s Phase 1A Infrastructure Improvements, the provisions of Sections 7.1, 7.2 and 7.3 shall apply until Acceptance of the Convention Center or such portion of Developer’s Phase 1A Infrastructure Improvement, as applicable. 7.5. Authority Approval Not a Waiver of Obligations. Where approval by the Authority, the Executive Director, or other representatives of the Authority is required, it is understood to be general approval only and does not relieve Developer of responsibility for complying with all applicable Laws or other requirements of this Agreement, except in the case of the Authority’s express waiver of the requirement to comply with (a) any Authority requirement, to the extent such requirement is waivable, or (b) any other requirement of this Agreement waivable by the Authority. For purposes of this Agreement, in the event of Authority’s express waiver provided pursuant to clauses (a) or (b) above, Developer shall be deemed in compliance with such Authority requirements or other requirement of this Agreement as a result of such waiver, in each case, only to the extent of such waiver. No such waiver shall constitute an assumption of liability by the Authority, nor shall the Authority, through approval, become an insurer or surety of work associated with the approvals. ARTICLE VIII CONSTRUCTION 8.1. Site Safety, Security. Developer shall be responsible for Project Site safety and security, with respect to Developer’s construction of the Project. Page 39 of 237 EAttachment B 32 4825-3218-1203v24/024036-0079 8.1.1. Persons. As between the Developer, on one hand, and the City, Port District, and the Authority, on the other hand, and without expanding the Developer’s contractual obligations or duties to any Person other than the City, Port District, and Authority, the Developer shall be solely 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 each portion of the Developer’s Phase 1A Infrastructure Improvements Site and all other materials, equipment, and other incidentals on such portion of the Developer’s Phase 1A Infrastructure Improvements Site until such portion of the completed Developer’s Phase 1A Infrastructure Improvements have been Accepted by the City or Port District, as applicable. Developer is responsible for the Site, materials, equipment, and all other incidentals on the Site until the completed Convention Center has been Accepted by the Authority. From and after Acceptance, any responsibility of the Developer for the Convention Center shall be pursuant to the Sublease. 8.1.3. Environment. In the construction and development of the Project, 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 of the Convention Center or the applicable Developer’s Phase 1A Infrastructure Improvements. 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. During the Construction Period, the Public Agency Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Project Site where the construction of the Project is ongoing, during normal business hours and upon a two (2) Business Days’ prior notice to Developer (except for or in connection with inspections undertaken by any Public Agency in its regulatory capacity and except in the case of an emergency in which case no prior notice shall be required but each of such Public Agency Parties that enter the Project Site shall notify Developer and Developer’s Risk Construction Manager thereof by phone prior to entering the Project Site), and each Public Agency that enters the Project Site shall, and shall cause each of its respective Public Agency Parties that enter the Project Site, as applicable, to: (a) comply with all applicable security and safety procedures of Developer of which Developer informs such Public Agency in writing and with which such Public Agency Party can reasonably comply, and (b) not interfere with Developer’s construction of the Project. Notwithstanding the foregoing, nothing herein shall limit the Port District’s or City’s right to enter the Project Site at any time to exercise their respective police powers. 8.2. Public Right-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 Authority. Developer agrees to follow all Laws and regulations, and all written and publicly available standards and regulations of the Authority, as applicable, while working in the public right-of-way, including, but not limited to, utilizing proper traffic control and obtaining necessary permits. Page 40 of 237 EAttachment B 33 4825-3218-1203v24/024036-0079 8.3. Traffic Control. In connection with the Project, Developer shall be responsible for traffic management, including traffic control implementation, maintenance, and preparing detailed traffic control plans to be submitted to the jurisdiction for approval. 8.4. Maintenance. Developer shall maintain and be responsible for each portion of the Developer’s Phase 1A Infrastructure Improvements until Acceptance of such portion, including ongoing erosion prevention measures. Upon Acceptance, the City, the Port District and/or the Authority, as applicable, shall be responsible for maintenance of such portion of the Developer’s Phase 1A Infrastructure Improvements, as determined through one or more separate agreements among two or more of the City, the Port District, and the Authority. All costs incurred by Developer in maintaining the Developer’s Phase 1A Infrastructure Improvements shall be Developer’s Phase 1A Infrastructure Improvements Costs. To the extent such costs are incurred after Completion but before Acceptance of the Developer’s Phase 1A Infrastructure Improvements and are not paid to Developer pursuant to Section 9.1 (including pursuant to the Final Accounting under Section 9.1.6), Authority shall reimburse Developer for such costs within thirty (30) days after Developer provides Authority with a request for reimbursement, together with supporting documentation evidencing such costs. For the avoidance of doubt, Developer shall have no further obligations pursuant to this Section 8.4 with respect to any portion of the Developer’s Phase 1A Infrastructure Improvements after Acceptance of such portion of the Developer’s Phase 1A Infrastructure Improvements. ARTICLE IX PAYMENT OF PROJECT COSTS 9.1. Developer’s Phase 1A Infrastructure Improvements Costs. The provisions of this Section 9.1 and each subsection of this Section 9.1 shall apply solely to the Developer’s Phase 1A Infrastructure Improvements. 9.1.1. Payment of Costs Associated with the Developer’s Phase 1A Infrastructure Improvements. Based upon Developer’s Phase 1A Payment Requests submitted to the Authority by the Developer, the Authority shall make progress payments on account of the Developer’s Phase 1A Contract Sum to the Developer in accordance with the provisions of this Section 9.1. The amount of each progress payment shall be computed as follows: 9.1.1.1. The amount of each progress payment shall first include: a. The Developer’s Phase 1A Infrastructure Improvements Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Developer’s Phase 1A Payment Request; and b. The Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount that has accrued as of the date of such Developer’s Phase 1A Payment Request. 9.1.1.2. The amount of each progress payment shall then be reduced by, without duplication: a. The aggregate of any amounts previously paid by the Authority in respect of the Developer’s Phase 1A Contract Sum; Page 41 of 237 EAttachment B 34 4825-3218-1203v24/024036-0079 b. The amount by which the Architect, pursuant to the Architect’s Certificate that is attached to such Developer’s Phase 1A Payment Request, reduces the amount to be paid with respect to such Developer’s Phase 1A Payment Request. The Architect may reduce such amount to the extent the work performed by Developer for which payment is requested has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications for the Developer’s Phase 1A Infrastructure Improvements, in which case the amount to be disbursed under the applicable Developer’s Phase 1A Payment Request shall be reduced to reflect the cost of causing such construction to be performed substantially in accordance in all material respects with such Approved Drawings and Specifications (without duplication of any similar reduction that is made by Developer). In the event of any such reduction, Developer may seek payment for the amounts so reduced in any subsequent Developer’s Phase 1A Payment Request; and c. Any amount for which the Developer does not intend to pay General Contractor or any Subcontractor, unless the work has been performed by others the Developer intends to pay. 9.1.1.3. Funds for Payment of Costs/Expenses. a. On the Effective Date, Authority shall cause the Trustee to deposit an amount equal to $[  ] [NTD: such amount shall be the net proceeds of the Authority Tax-Exempt Bonds] into the 2021B Bond Proceeds Subaccount. The Parties acknowledge that the County Funding Agreement provides for the County to pay County Funds to the Authority in multiple payments, from time to time as described in the County Funding Agreement, and that such payments are expected to occur after the Effective Date. Within five (5) Business Days of the Authority’s receipt of any County Funds, the Authority shall transfer such County Funds as follows: (i) the Authority shall transfer the first $10,500,000 in County Funds that the Authority receives (the “County Sweetwater Park Funds”) to the Port District; (ii) the Authority shall transfer the next $2,500,000 in County Funds that the Authority receives to the Trustee for deposit into the Sweetwater Park Subaccount; (iii) the Authority shall transfer the next $6,000,000 in County Funds that the Authority receives to the Trustee for deposit into the County Funded Developer’s Phase 1A Subaccount; and (iv) the Authority shall transfer all County Funds that the Authority receives thereafter to the Trustee for deposit into the County Funded Bayfront Improvements Subaccount. The Authority shall cause the Trustee to make the deposits described in clauses (ii), (iii) and (iv), above. b. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from the 2021B Bond Proceeds Subaccount and the County Funded Developer’s Phase 1A Subaccount for payments required to be made to the Developer, as and when required under this Agreement. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from the Sweetwater Park Subaccount for payments required to be made to the Port District, as and when required under this Agreement. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from the County Funded Bayfront Improvements Subaccount for payments required to be made to the Developer, the Port District, or the City, as applicable, as and when required under this Agreement. Each Public Agency shall not interfere with any lawfully made disbursement request delivered to the Trustee. Until the County Funds Release Date, (A) Authority shall not permit any funds in the 2021B Bond Proceeds Subaccount or the County Funded Developer’s Phase 1A Subaccount to be used for any purpose other than making payments to Developer in accordance with this Section 9.1 without the prior written consent of the Page 42 of 237 EAttachment B 35 4825-3218-1203v24/024036-0079 Developer, which consent shall be granted or withheld in Developer’s sole discretion, and (B) Authority shall direct or authorize the Trustee to transfer funds out of the 2021B Bond Proceeds Subaccount and the County Funded Developer’s Phase 1A Subaccount only to the account or accounts designated by Developer in writing (or as otherwise consented to in Developer’s sole discretion). c. Until the County Funds Release Date, the Port District shall use the County Sweetwater Park Funds only for Remaining Phase 1A Infrastructure Improvements Costs. Notwithstanding the foregoing, not later than five (5) Business Days after the Developer exercises a Sweetwater Park Option, the Port District shall promptly transfer all remaining County Sweetwater Park Funds to the Trustee for deposit into the County Funded Developer’s Phase 1A Subaccount. d. After all County Sweetwater Park Funds have been expended for Remaining Phase 1A Infrastructure Improvements Costs, at the written request of the Port District from time to time, the Authority shall direct the Trustee to transfer amounts on deposit in the Sweetwater Park Subaccount to the Port District. Until the County Funds Release Date, the Port District shall request and use amounts from the Sweetwater Park Subaccount only for Remaining Phase 1A Infrastructure Improvements Costs incurred or to be incurred to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements. Notwithstanding the foregoing, not later than five (5) Business Days after the Developer exercises a Sweetwater Park Option, the Authority shall direct the Trustee to transfer all amounts remaining in the Sweetwater Park Subaccount into the County Funded Developer’s Phase 1A Subaccount. e. Not later than five (5) Business Days after the later to occur of (i) Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements and (ii) payment of all Remaining Phase 1A Infrastructure Improvements Costs incurred to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements (or on such earlier date designated by the Port District if the Port District reasonably determines that sufficient moneys have been set aside by the Port District to Sufficiently Complete Sweetwater Park), and provided that the Developer has not previously exercised a Sweetwater Park Option, (A) the Port District shall transfer any remaining County Sweetwater Park Funds held by the Port District directly to the Trustee for deposit in the County Funded Bayfront Improvements Subaccount and (B) the Authority shall direct the Trustee to transfer all amounts remaining in the Sweetwater Park Subaccount into the County Funded Bayfront Improvements Subaccount. f. Until 75% Completion, amounts in the County Funded Bayfront Improvements Subaccount shall not be used for any purpose other than payment of Developer’s Phase 1A Infrastructure Improvements Costs without the prior written consent of the Developer, which consent shall be granted or withheld in Developer’s sole discretion. Pursuant to Section 5.4.4, following 75% Completion and until the County Funds Release Date, the Developer, the Port District, and the City shall mutually agree with respect to the use of amounts on deposit in the County Funded Bayfront Improvements Subaccount. The Parties anticipate that, until the County Funds Release Date, the Parties will apply amounts on deposit in the County Funded Bayfront Improvements Subaccount for the following purposes, in the following order of priority: (i) first, the payment of Developer Phase 1A Infrastructure Improvements Costs in excess of the amounts deposited into the 2021B Bond Proceeds Subaccount and the County Funded Developer’s Phase 1A Subaccount, (ii) second, the payment of Remaining Phase 1A Infrastructure Improvements Costs in excess of the County Sweetwater Park Funds and amounts deposited into the Sweetwater Park Page 43 of 237 EAttachment B 36 4825-3218-1203v24/024036-0079 Subaccount, (iii) third, the payment of costs incurred to construct Harbor Park as set forth in the approved Harbor Park Budget, and (iv) fourth, other uses permitted by the County Funding Agreement or as otherwise consented to by the County. On and after the County Funds Release Date, all amounts in the County Funded Bayfront Improvements Subaccount shall be available for withdrawal and use by the Authority for any purpose as may be agreed to by the City and the Port District from time to time without any obligation to confer with or obtain consent from the Developer. g. Until such time that the Parties have agreed on the Harbor Park Budget, any costs allocated to Harbor Park in Developer’s Phase 1A Infrastructure Improvement Budget shall be held by the Trustee in the 2021B Bond Proceeds Subaccount and the County Funded Developer’s Phase 1A Subaccount and made available to pay Developer’s Phase 1A Infrastructure Improvements Costs to the extent other moneys in the 2021B Bond Proceeds Subaccount and the County Funded Developer’s Phase 1A Subaccount are insufficient to pay all Developer’s Phase 1A Infrastructure Improvements Costs. Such costs allocated to Harbor Park shall be deemed part of the contingency reserve in Developer’s Phase 1A Infrastructure Improvement Budget. 9.1.2. Prerequisites to Payment. 9.1.2.1. Developer’s Phase 1A Payment Request. Prior to the disbursement of any amounts to pay the Developer’s Phase 1A Contract Sum, Developer shall provide the Executive Director with a Developer’s Phase 1A Payment Request, together with all of the items described therein. Each Developer’s Phase 1A Payment Request shall show (i) the Developer’s Phase 1A Infrastructure Improvements Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Developer’s Phase 1A Payment Request and (ii) the Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount with respect to such Developer’s Phase 1A Infrastructure Improvements. The form of Developer’s Phase 1A Payment Request attached hereto as Exhibit K-1 may be modified or replaced by Developer, subject to the consent of Authority provided or withheld in Authority’s sole discretion. Each Developer’s Phase 1A Payment Request shall be delivered in the following manner (or by such other means as is reasonably agreed to by the Developer and the Authority): Developer shall send by electronic mail to the Authority Email Addresses a notice that the Developer’s Phase 1A Payment Request and supporting documentation have been uploaded to an internet website, the link to which shall be included in such email notice. Authority shall send confirmation to the Developer by electronic mail once Authority has successfully accessed the Developer’s Phase 1A Payment Request. The Authority shall not have an obligation to make payment to Developer unless and until Developer provides the Executive Director with a Developer’s Phase 1A Payment Request, together with all of the items described therein (including the Architect’s Certificate), and such Developer’s Phase 1A Payment Request is approved by the Executive Director as provided below. 9.1.2.2. Inspection. The Developer’s Phase 1A Infrastructure Improvements shall be subject to City inspection, as applicable, as provided in section 2-11 of the Greenbook. Developer shall ensure that all persons and entities providing work or services for the Page 44 of 237 EAttachment B 37 4825-3218-1203v24/024036-0079 Developer’s Phase 1A Infrastructure Improvements comply with the inspection requirements provided in section 2-11 of the Greenbook. 9.1.2.3. Prevailing Wage Compliance. Developer shall ensure that all persons and entities providing work or services for the Developer’s Phase 1A Infrastructure Improvements comply with prevailing wage requirements, as and to the extent described in Section 7.2.3.1. 9.1.2.4. Public Agency Approval. The Executive Director shall review each Developer’s Phase 1A Payment Request and the supporting documentation. If the Executive Director finds in his/her reasonable discretion that any such Developer’s Phase 1A Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Developer’s Phase 1A Payment Request to Authority of the reasons for his/her finding. Developer shall have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Executive Director shall review any further documentation received from Developer in support of the Developer’s Phase 1A Payment Request and inform Developer of his/her approval or denial of the Developer’s Phase 1A Payment Request within five (5) Business Days after Developer provides such further documentation to Authority. If the Executive Director does not find that any such Developer’s Phase 1A Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Developer’s Phase 1A Payment Request to Authority and within that time period approve the Developer’s Phase 1A Payment Request. If the Executive Director determines that the Developer’s Phase 1A Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, but that sufficient and complete information exists with respect to a portion of the Phase 1A Payment Request, then the Executive Director shall approve the Developer’s Phase 1A Payment Request with respect to such portion of the Developer’s Phase 1A Payment Request and so notify Developer within ten (10) Business Days after Developer provides such Developer’s Phase 1A Payment Request to Authority. The Authority shall cause the Executive Director to carry out his or her duties under this Section 9.1.2.4 in a reasonable and good faith manner. Notwithstanding anything to the contrary set forth in this Agreement, (a) the Authority may make payment to Developer under protest and commence dispute resolution proceedings pursuant to Section 26.12 and (b) if Authority has made a payment to Developer and later determines that the payment was made in error, whether due to an incomplete or inaccurate payment request or due to missing documentation or otherwise, Authority may commence dispute resolution proceedings pursuant to Section 26.12 to challenge such previous payment. A certificate or request that Developer delivers under this Agreement will be deemed to contain material errors or misstatements on its face if such material error or omission is apparent from the four corners of such certificate or request without the use of extrinsic evidence. 9.1.3. Time of Payment. If the Executive Director provides approval pursuant to Section 9.1.2 with respect to all or any portion of any Developer’s Phase 1A Payment Request, then the Authority shall cause payment to be made to Developer for the approved costs/expenses associated with such Developer’s Phase 1A Payment Request by the Payment Date (excluding any Developer’s Phase 1A Contested Charges). If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Business Day. Except for Developer Phase 1A Contested Charges, all costs/expenses associated with each Developer Phase 1A Payment Request shall accrue interest at the Specified Default Rate from the Payment Date until paid. At the request of the Page 45 of 237 EAttachment B 38 4825-3218-1203v24/024036-0079 Authority, the Developer will waive the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section 9.1.3 and Sections 9.1.4.3(b), 9.2.3 and 9.2.4.2(b). Any payment or portion thereof made to Developer in accordance with a Developer’s Phase 1A Payment Request and later determined by the Authority and Developer or by an arbitrator after dispute resolution pursuant to Section 26.12 to have been incorrectly made shall accrue interest at the Specified Default Rate from the date the Authority made the incorrect payment until the date the Developer returns such amount to the Authority with interest. Developer shall pay the amount of the incorrect payment or portion thereof plus such accrued interest to Authority within ten (10) Business Days following the determination that such payment was incorrectly made to Developer, or, with the written approval of the Executive Director, such amounts shall be deducted from the following Developer’s Phase 1A Payment Request(s) submitted by the Developer. Subject to Section 21.7, additional Developer’s Phase 1A Infrastructure Improvements Costs incurred by the Developer that result from the failure to make payments when required by this Agreement will be the obligation of the Authority. 9.1.3.1. Additional Costs. Any costs that may accrue, such as interest on late payments to the General Contractor, Subcontractors, suppliers, or consultants as a result of the Developer’s failure to make a payment to such parties shall not be the obligation of the Authority if the Authority has timely made all required payments to Developer or Developer has failed to provide the corresponding complete Developer’s Phase 1A Payment Request to Authority. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement. 9.1.4. Withholding and Contested Charges. 9.1.4.1. Withholding. Except to the extent required by law, Developer shall comply with and enforce the provisions relating to retainage and withholding set forth in the General Contract. Any deviations from such provisions of the General Contract shall be subject to the Authority’s approval, which shall be provided in the sole and absolute discretion of the Authority. Without limiting the foregoing, Developer may release retainage or withholding amounts to a General Contractor, subject to Authority’s reasonable approval, if it would reduce the overall cost of the applicable General Contract. Amounts required to be withheld or retained pursuant to this Agreement shall be excluded from amounts requested for payment pursuant to Developer Phase 1A Payment Requests until such amounts will be actually paid to the applicable General Contractor. 9.1.4.2. Payment and Invoicing for Withholding. Where a stop payment notice or mechanic’s lien has been filed following the recordation of the Notice of Completion, Developer shall, to the extent in compliance with Law, 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 Authority, as applicable. 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. 9.1.4.3. Developer’s Phase 1A Contested Charges. In the event the Authority contests whether any amount that is included in any Developer’s Phase 1A Payment Request is properly included in the Developer’s Phase 1A Contract Sum (“Developer’s Phase 1A Contested Charges”), the Authority shall provide Developer a written statement of the Developer’s Page 46 of 237 EAttachment B 39 4825-3218-1203v24/024036-0079 Phase 1A Contested Charges, the reason why the costs/expenses are contested, and a proposed resolution. a. Appeal to the Executive Director. Developer may appeal the determination by the Authority of any Developer’s Phase 1A Contested Charges. The appeal must be received within thirty (30) days after the Authority notifies the Developer of such Developer’s Phase 1A Contested Charge. During the appeal period, and as long as any Developer’s Phase 1A Contested Charge remains disputed, Developer shall proceed with the development of the Project, and the Authority shall compensate Developer for all amounts requested under Developer’s Phase 1A Payment Request at issue other than the Developer’s Phase 1A Contested Charges. If, following the appeal, the Executive Director determines that any Developer’s Phase 1A Contested Charges are eligible for reimbursement or payment to Developer, such amounts shall be included in the next payment to Developer. If the Parties involved in the dispute regarding Developer’s Phase 1A Contested Charges are unable to agree and settle such dispute within ten (10) Business Days after the commencement of the appeal period, then the Parties shall resolve the conflict pursuant to Section 26.12. b. Interest. All Developer’s Phase 1A Contested Charges shall accrue interest at the Specified Default Rate from the Payment Date that would have been applicable to such Developer’s Phase 1A Contested Charges if such Developer’s Phase 1A Contested Charges were approved for payment until the date on which such Developer’s Phase 1A Contested Charges are paid to Developer; provided, that no interest shall be paid to Developer with respect to any Developer’s Phase 1A Contested Charges that are finally determined to be ineligible for reimbursement or payment to Developer. At the request of the Authority, the Developer will waive the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section 9.1.4.3(b) and Sections 9.1.3, 9.2.3 and 9.2.4.2(b). 9.1.5. Cutoff for Submission of Invoices. Developer shall submit its final Developer’s Phase 1A Payment Request not later than the Cutoff Date. Any Developer’s Phase 1A Payment Requests submitted after the Cutoff Date shall not be reviewed or included as a Developer’s Phase 1A Infrastructure Improvements Cost or Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount. The final payment by the Authority for the Developer’s Phase 1A Infrastructure Improvements will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing the Developer’s Phase 1A Infrastructure Improvements associated with that phase, mechanic’s lien free, stop payment notice free, substantially in accordance with the Approved Drawings and Specifications for the Developer’s Phase 1A Infrastructure Improvements in all material respects. Final inspection and sign-off by the inspectors of the Authority 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 Developer’s Phase 1A Infrastructure Improvements. 9.1.6. Final Accounting. Following Completion of the Developer’s Phase 1A Infrastructure Improvements, Developer shall submit a Final Accounting to the Authority in order to determine the actual amount of the Developer’s Phase 1A Infrastructure Improvements Costs, the Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount and Developer’s Phase 1A Contract Sum. Developer shall also submit all supporting information reasonably necessary (to the extent not otherwise previously submitted in conjunction with a Developer’s Phase Page 47 of 237 EAttachment B 40 4825-3218-1203v24/024036-0079 1A Payment Request) to document the Developer’s Phase 1A Infrastructure Improvements Costs, including specific details on the costs and work attributable to the Developer’s Phase 1A Infrastructure Improvements, including, as applicable, third-party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs, and similar expenses. Developer shall also submit final lien releases and stop payment notice waivers and releases for all Developer’s Phase 1A Infrastructure Improvements. Any dispute regarding the Final Accounting shall be resolved in accordance with Section 26.12. 9.1.6.1. True-up Payments. Within thirty (30) Business Days following a Final Accounting, the Authority shall determine whether the actual payments made with respect to the Developer’s Phase 1A Infrastructure Improvements equal the audited approved costs and expenses and provide the Authority’s report thereon (the “Authority’s Phase 1A Final Review”) to RIDA for RIDA’s review and approval. Any dispute regarding the Authority’s Final Review shall be resolved in accordance with Section 26.12. In the event that the amount of the Developer’s Phase 1A Contract Sum as determined in the approved Authority’s Final Review (the “Developer’s Phase 1A Final Amount”) exceeds the amount of the actual payments, then the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days. If the amount of actual payments to Developer exceeds the Developer’s Phase 1A Final Amount, then Developer shall remit or cause the remittance of the difference to the Authority within twenty (20) Business Days of a notice of deficiency. 9.2. Convention Center Costs. The provisions of this Section 9.2 and each subsection of this Section 9.2 shall apply solely to the Convention Center. 9.2.1. Payment of Costs Associated with the Convention Center. On the Effective Date, Authority shall pay the Initial Development Fee Payment to Developer. Based upon the Convention Center Payment Requests submitted to the Authority by the Developer, the Authority shall make progress payments on account of the Convention Center Contract Sum to the Developer in accordance with the provisions of this Section 9.2. The amount of each progress payment shall be computed as follows: 9.2.1.1. The amount of each progress payment shall first include: a. The Convention Center Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Convention Center Payment Request; b. The Initial Development Fee Payment plus the Remaining Convention Center Development Fee that has accrued as of the date of such Convention Center Payment Request; and c. The Stipulated Convention Center Overhead Amount that has accrued as of the date of such Convention Center Payment Request. 9.2.1.2. The amount of each progress payment shall then be reduced by, without duplication: a. The aggregate of any amounts previously paid by the Authority in respect of the Convention Center Contract Sum; Page 48 of 237 EAttachment B 41 4825-3218-1203v24/024036-0079 b. The amount by which the Architect, pursuant to the Architect’s Certificate that is attached to such Convention Center Payment Request, reduces the amount to be paid with respect to such Convention Center Payment Request. The Architect may reduce such amount to the extent the work performed by Developer for which payment is requested has not been performed substantially in accordance in all material respects with the Convention Center Plans, in which case the amount to be disbursed under the applicable Convention Center Payment Request shall be reduced to reflect the cost of causing such construction to be performed substantially in accordance in all material respects with the Convention Center Plans (without duplication of any similar reduction that is made by Developer). In the event of any such reduction, Developer may seek payment for the amounts so reduced in any subsequent Convention Center Payment Request; and c. Any amount for which the Developer does not intend to pay General Contractor or any Subcontractor, unless the work has been performed by others the Developer intends to pay. 9.2.1.3. Maximum Convention Center Amount. The maximum amount disbursed hereunder for the Convention Center Contract Sum shall not exceed the Maximum Convention Center Amount. Neither Developer nor its General Contractor nor any Subcontractor, nor any combination thereof, shall be entitled to payment in respect of the Convention Center Contract Sum in excess of the Maximum Convention Center Amount. For the avoidance of doubt, Repair/Restoration Costs are not included in the Convention Center Contract Sum and shall not be limited to the Maximum Convention Center Amount, rather such amounts will also be funded from Net Proceeds transferred to the 2021A Construction Account and other amounts available to the Developer for Repair/Restoration Costs pursuant to the terms of the Sublease, Facility Lease and Authority Indenture. Once transferred to the 2021A Construction Account pursuant to the terms of the Authority Indenture, such Net Proceeds will be disbursed pursuant to the procedures set forth in Sections 9.2.1. 9.2.1.4. Allocation of Common Costs. Common costs shall be reasonably and equitably allocated between the Developer’s Phase 1A Infrastructure Improvements and the Convention Center, generally consistently with the allocation of such common costs set forth in the Form of Convention Center Budget attached hereto as Exhibit P, and such allocations shall be subject to review and approval by the Port District and City (in their reasonable discretion). All such common costs shall be tracked and allocated so as to properly distinguish common cost allocations between the Developer’s Phase 1A Infrastructure Improvements and the Convention Center for purposes of complying with provisions applicable to the Authority Tax-Exempt Bonds. 9.2.1.5. Funds for Payment of Costs/Expenses. a. Subject to Section 9.2.1.5(b) and Section 21.7, (i) the source of funds for the payment of costs and expenses for the Convention Center shall be limited to eligible proceeds of the Taxable Authority Bonds and any Net Proceeds authorized to be used for such payments (in an amount not to exceed the Project Public Investment Amount plus any Net Proceeds or other amounts available therefor pursuant to the Authority Indenture, the Facility Lease and the Sublease); Advance Rent (to the extent received by any Public Agency and not paid to Developer pursuant to this Agreement); amounts on deposit in the Authority Surplus Fund (solely to the extent provided in Section 21.7); other amounts to the extent provided in Section 21.7; and other amounts deposited by the Developer with the Authority to pay Convention Center Costs and (ii) no Page 49 of 237 EAttachment B 42 4825-3218-1203v24/024036-0079 other funds of the City, the Financing District, the Port District or the Authority, or monies held by, owed to, or in trust for, the City, the Financing District, the Port District, the Authority or the County, shall be used by the Authority or sought to be collected by any Developer Party for the payment of costs and expenses for the Convention Center other than those identified in this Section. b. On the Effective Date, Authority shall cause the Trustee to deposit an amount equal to the Project Public Investment Amount into the 2021A Construction Account. Pursuant to the terms of the Authority Indenture, the Authority shall cause the Trustee to transfer any Net Proceeds deposited into the Insurance and Condemnation Fund that are available to be used for repair, rebuilding, restoration or reconstruction of the Convention Center to the 2021A Construction Account if required pursuant to the terms of the Authority Indenture, the Sublease and the Facility Lease. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from the 2021A Construction Account (a) for payments required to be made to the Developer as and when required under this Agreement, the Sublease, the Facility Lease and the Authority Indenture, including for any repair, rebuilding, restoration or reconstruction of the Convention Center and (b) until Final Payment, only to Developer. No Public Agency shall interfere with any lawfully made disbursement request delivered to the Trustee. c. Until Full Payment, the Authority shall (a) neither direct nor authorize the Trustee to transfer amounts out of the 2021A Construction Account or the Authority Surplus Fund for any purpose other than to Developer for payment of Convention Center Contract Sum pursuant to Section 9.2 of this Agreement, interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of this Agreement, and amounts to be paid to Developer pursuant to Section 5.1.3, and (b) direct or authorize the Trustee to transfer amounts out of the 2021A Construction Account or the Authority Surplus Fund only to the account or accounts designated by Developer in writing. 9.2.1.6. Application of Funds. Payments to the Developer made pursuant to this Section 9.2 shall be made: a. First, from eligible proceeds of the Taxable Authority Bonds authorized to be used for such payments (which shall be equal to the Project Public Investment Amount); and b. Second, upon the exhaustion of the proceeds described in clause a., from the proceeds of Advance Rent received by the Authority pursuant to the Facility Lease; c. Solely to the extent provided in Section 21.7, from amounts on deposit in the Authority Surplus Fund; and d. If and as needed in accordance with the terms of the Sublease, Facility Lease and Authority Indenture, from the Net Proceeds available for use for Repair/Restoration Costs. 9.2.2. Prerequisites to Payment. 9.2.2.1. Convention Center Payment Request. Prior to the disbursement or reimbursement of any amounts to pay the Convention Center Contract Sum or Repair/Restoration Page 50 of 237 EAttachment B 43 4825-3218-1203v24/024036-0079 Costs, Developer shall provide the Executive Director with a Convention Center Payment Request, together with all of the items described therein. Each Convention Center Payment Request shall show (i) the Convention Center Costs or Repair/Restoration Costs, as applicable, incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Convention Center Payment Request, (ii) the Remaining Convention Center Development Fee computed upon such Convention Center Costs and (iii) the Stipulated Convention Center Overhead Costs with respect to such Convention Center Costs and as applicable. The form of Convention Center Payment Request attached hereto as Exhibit K-2 may be modified or replaced by Developer, subject to the consent of Authority provided or withheld in Authority’s sole discretion. Each Convention Center Payment Request shall be delivered in the following manner (or by such other means as is reasonably agreed to by the Developer and the Authority): Developer shall send by electronic mail to the Authority Email Addresses a notice that the Convention Center Payment Request and supporting documentation has been uploaded to an internet website, the link to which shall be included in the email notice. Authority shall send confirmation to the Developer by electronic mail once Authority has successfully accessed the Convention Center Payment Request. The Authority shall not have an obligation to make payment to Developer unless and until Developer provides the Executive Director with a Convention Center Payment Request, together with all of the items described therein (including the Architect’s Certificate), and such Convention Center Payment Request is approved by the Executive Director as provided below. 9.2.2.2. Prevailing Wage Compliance. Developer shall ensure that all persons and entities providing work or services for the Improvements comply with Prevailing Wage requirements, as and to the extent described in Section 7.2.3.1. 9.2.2.3. Public Agency Approval. The Executive Director shall review each Convention Center Payment Request and the supporting documentation. If the Executive Director finds in his/her reasonable discretion that any such Convention Center Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Convention Center Payment Request to Authority, of the reasons for his/her finding. Developer shall have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Executive Director shall review any further documentation received from Developer in support of the Convention Center Payment Request and inform Developer of his/her approval or denial of the Convention Center Payment Request within five (5) Business Days after Developer provides such further documentation to Authority. If the Executive Director does not find that any such Convention Center Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Convention Center Payment Request to Authority and within that time period approve the Convention Center Payment Request. If the Executive Director determines that the Convention Center Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, but that sufficient and complete information exists with respect to a portion of the Construction Costs Payment Request, then the Executive Director shall approve the Convention Center Payment Request with respect to such portion of the Convention Center Payment Request and so notify Developer within ten (10) Business Days after Developer provides such Convention Center Payment Request to Authority. The Authority shall cause the Executive Director to carry out his or her duties under this Section 9.2.2.3 Page 51 of 237 EAttachment B 44 4825-3218-1203v24/024036-0079 in a reasonable and good faith manner. Notwithstanding anything to the contrary set forth in this Agreement, (a) the Authority may make payment to Developer under protest and commence dispute resolution proceedings pursuant to Section 26.12 and (b) if Authority has made a payment to Developer and later determines that the payment was made in error, whether due to an incomplete or inaccurate payment request or due to missing documentation or otherwise, Authority may commence dispute resolution proceedings pursuant to Section 26.12 to challenge such previous payment. A certificate or request that Developer delivers under this Agreement will be deemed to contain material errors or misstatements on its face if such material error or omission is apparent from the four corners of such certificate or request without the use of extrinsic evidence. 9.2.3. Time of Payment. If the Executive Director provides approval pursuant to Section 9.2.2 with respect to all or any portion of any Convention Center Payment Request, then the Authority shall cause payment to be made to Developer for the approved costs/expenses associated with such Convention Center Payment Request to be paid by the Payment Date (excluding any Convention Center Contested Charges). If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Business Day. Except for Convention Center Contested Charges, all costs/expenses associated with each Convention Center Payment Request shall accrue interest at the Specified Default Rate from the Payment Date until paid. At the request of the Authority, the Developer will waive the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section 9.2.3 and Sections 9.1.3, 9.1.4.3(b) and 9.2.4.2(b). Any payment or portion thereof made to Developer in accordance with a Convention Center Payment Request and later determined by the Authority and Developer or by an arbitrator after dispute resolution pursuant to Section 26.12 to have been incorrectly made shall accrue interest at the Specified Default Rate from the date the Authority made the payment until the date the Developer returns such payment together with such interest thereon to the Authority. Developer shall pay the amount of the incorrect payment or portion thereof plus such accrued interest to Authority within ten (10) Business Days following the determination that such payment was incorrectly made to Developer, or, with the written approval of the Executive Director, such amounts shall be deducted from the following Convention Center Payment Request(s) submitted by the Developer. Subject to Section 21.7, additional costs incurred by the Developer in excess of the amount of interest paid to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) (calculated as if interest at the Specified Default Rate had accrued during the ten (10) Business Day cure periods described in such Sections 9.2.3 and 9.2.4.2(b) and was not waived by Developer) that, in each case, result from the failure to make payments when required by this Agreement will be the obligation of the Authority. 9.2.3.1. Advance Rent Notices. In the event that the payment required pursuant to Section 9.2.3 will be made, in whole or in part, from the proceeds of Advance Rent received by the Authority under the Facility Lease, then the Authority shall, no later than two (2) days after submitting the applicable approval described in Section 9.2.2, provide a Facility Lease Advance Rent Notice to the City for the amount of Advance Rent required to make such payment. Except as set forth in this Section 9.2.3.1 or in Section 9.2.6.1, (a) the Authority shall not, without the Developer’s prior written consent, provide a Facility Lease Advance Rent Notice to the City and (b) the City shall not, without the Developer’s prior written consent, provide a Sublease Advance Rent Notice to the Developer unless the City shall have received a corresponding Facility Lease Advance Rent Notice from the Authority. As provided in the Sublease, if Developer receives a notice from the City confirming that the City assigned to the Authority its right to receive the payment of Sublease Advance Rent (as defined in the Sublease) under the Sublease, then, from and after the date of the Page 52 of 237 EAttachment B 45 4825-3218-1203v24/024036-0079 receipt of such notice, Developer shall pay Advance Rent to the Authority as the City’s assignee. The Parties acknowledge that additional procedures regarding the payment of Advance Rent are set forth in the Advance Rent Side Letter. 9.2.3.2. Additional Costs. Any costs that may accrue, such as interest on late payments to the General Contractor, Subcontractors, suppliers, or consultants as a result of the Developer’s failure to make a payment to such parties shall not be the obligation of the Authority if the Authority has timely made all required payments to Developer or Developer has failed to provide the corresponding complete Convention Center Payment Request to Authority. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement. 9.2.4. Withholding and Contested Charges. 9.2.4.1. Payment and Invoicing for Withholding. Where a stop payment notice or mechanic’s lien has been filed following the recordation of the Notice of Completion, Developer shall, to the extent in compliance with Law, 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 Authority, as applicable. 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. 9.2.4.2. Convention Center Contested Charges. In the event the Authority contests whether any amount that is included in any Convention Center Payment Request is properly included in the Convention Center Contract Sum or as a Repair/Restoration Cost (“Convention Center Contested Charges”), the Authority shall provide Developer a written statement of the Convention Center Contested Charges, the reason why the costs/expenses are contested, and a proposed resolution. a. Appeal to the Executive Director. Developer may appeal the determination by the Authority of any Convention Center Contested Charges. The appeal must be received within thirty (30) days after the Authority notifies the Developer of such Convention Center Contested Charge. During the appeal period, and as long as any Convention Center Contested Charge remains disputed, Developer shall proceed with the development of the Project (or repair and restoration of the Convention Center, as applicable), and the Authority shall compensate Developer for all amounts requested under the Convention Center Payment Request at issue other than the Convention Center Contested Charges. If, following the appeal, the Executive Director determines that any Convention Center Contested Charges are eligible for reimbursement, such amounts shall be included in the next payment to Developer. If the Parties involved in the dispute regarding Convention Center Contested Charges are unable to agree and settle such dispute within ten (10) Business Days after the commencement of the appeal period, then the Parties shall resolve the conflict pursuant to Section 26.12. b. Interest. All Convention Center Contested Charges shall accrue interest at the Specified Default Rate from the Payment Date that would have been applicable to such Convention Center Contested Charges if such Convention Center Contested Charges were approved for payment until the date on which such Convention Center Contested Charges are paid to Developer; provided, that no interest shall be paid to Developer with respect to any Convention Center Contested Charges that are finally determined to be ineligible for reimbursement or payment Page 53 of 237 EAttachment B 46 4825-3218-1203v24/024036-0079 to Developer. At the request of the Authority, the Developer will waive the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section 9.2.4.2(b) and Sections 9.1.3, 9.1.4.3(b) and 9.2.3. 9.2.5. Cutoff for Submission of Invoices. Except with respect to any Convention Center Payment Request for Repair/Restoration Costs, Developer shall submit its final Construction Costs Payment Request not later than the Cutoff Date. Any Construction Costs Payment Requests (other than those for Repair/Restoration Costs) submitted after the Cutoff Date shall not be reviewed or included in the Project Costs for the Convention Center. The final payment by the Authority, for the Project or for Repair/Restoration Costs, as applicable, will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing or restoring/repairing, as applicable, the Convention Center associated with that phase, mechanic’s lien free, stop payment notice free, substantially in accordance with the Convention Center Plans in all material respects. Final inspection and sign-off by the inspectors of the Authority 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 Convention Center. 9.2.6. Final Accounting. Following Completion of the Convention Center, Developer shall submit a Final Accounting to the Authority in order to determine the actual amount of the Convention Center Costs and Convention Center Contract Sum. Developer shall also submit all supporting information reasonably necessary (to the extent not otherwise previously submitted in conjunction with a Convention Center Payment Request) to document the Convention Center Costs, including specific details on the costs and work attributable to the Convention Center, including, as applicable, third-party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs, and similar expenses. Developer shall also submit final lien releases and stop payment notice waivers and releases for the Convention Center. Any dispute regarding the Final Accounting shall be resolved in accordance with Section 26.12. 9.2.6.1. True-up Payments. Within thirty (30) Business Days following a Final Accounting, the Authority shall determine whether the actual payments made with respect to the Convention Center equal the audited approved costs and expenses and provide the Authority’s report thereon (the “Authority’s Convention Center Final Review”) to RIDA for RIDA’s review and approval. Any dispute regarding the Authority’s Convention Center Final Review shall be resolved in accordance with Section 26.12. In the event that the amount of the Convention Center Contract Sum as determined in the Authority’s Final Review (the “Convention Center Final Amount”) exceeds the amount of the actual payments, then: (a) the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days and (b) in the event that the payment required pursuant to clause (a) will be made, in whole or in part, from the proceeds of Advance Rent received by the Authority under the Facility Lease, then the Authority shall, no later than two (2) Business Days after the final determination of the Convention Center Final Amount, provide an Advance Rent Notice to the City under the Facility Lease for the amount of Advance Rent required to make such payment. If the amount of actual payments to Developer exceeds the Convention Center Final Amount, then Developer shall remit or cause the remittance of the difference to the Authority within twenty (20) Business Days of a notice of deficiency. 9.2.6.2. Final Accounting and True-up for Repair/Replacement Costs. If requested by either the Authority or Developer not later than one (1) year following payment to Page 54 of 237 EAttachment B 47 4825-3218-1203v24/024036-0079 Developer of the final Repair/Replacement Costs incurred as a result of any Condemnation as provided in Section 5.1 of the Sublease, the Developer shall submit a Final Accounting which shall be processed to resolution in a similar manner to the Final Accounting described in Sections 9.2.6 and 9.2.6.1 for Convention Center Costs. There will be no Final Accounting with respect to a casualty event pursuant to Section 5.2 of the Sublease. 9.2.7. Casualty and Condemnation. While the disbursement provisions of this Section 9.2 have been drafted primarily to address the disbursement of funds for the development of the Convention Center, the Parties intend that the provisions of this Section 9.2 (with the exception of Subsections 9.2.5 which will not be applicable in such context) will also govern the disbursement of funds for the reconstruction or modification of the Convention Center following any event of damage to or destruction of, or condemnation or eminent domain with respect to, any portion of the Convention Center. As such, when the provisions of this Section 9.2 (with the exception of Subsections 9.2.5) are given effect in connection with such reconstruction or modification, such provision will be construed with the intent that Developer be able to access funds for such purposes, and the provisions of this Section 9.2 (with the exception of Subsections 9.2.5) will be deemed modified as reasonably necessary to give effect to such intent. Net Proceeds not disbursed pursuant to this Section 9.2 shall be disbursed pursuant to Article V of the Sublease and Section 6.1(a) of the Facility Lease. 9.3. Investment of Amounts in the Construction Fund. The Parties acknowledge that proceeds of the Authority Bonds and Net Proceeds on deposit from time to time in the Construction Fund and the Insurance and Condemnation Fund will be invested in Permitted Investments pursuant to, and as defined in, the Authority Indenture. The Authority agrees to provide the Developer an opportunity to provide recommendations regarding the Permitted Investments in which amounts on deposit in the Construction Fund and the Insurance and Condemnation Fund will be invested by providing the Developer with ten (10) days’ notice prior to directing the Trustee to change the investment of such funds. 9.4. Calculation of Specified Default Rate. All interest at the Specified Default Rate shall compound on a monthly basis on the first day of each full calendar month in which such interest is payable. 9.5. Redemption of the Authority Bonds. If Developer has not received the full Developer’s Phase 1A Contract Sum, or has not received the Convention Center Contract Sum, pursuant to this Article IX at the time that the Authority Bonds have been redeemed in full and the proceeds of the Authority Bonds and County Funds are held by the Authority and not the Trustee, then the Authority shall make disbursements to the Developer for Convention Center Costs and Developer’s Phase 1A Infrastructure Improvements Costs, as applicable, at the times and in the amounts required by this Article IX. Notwithstanding the foregoing, the Authority agrees not to terminate the Authority Indenture while any Authority Bond proceeds or County Funds could become due to the Developer under this Agreement unless the Authority enters into an escrow agreement or account control agreement in a form reasonably approved by the Developer pursuant to which the Authority Bond proceeds and County Funds, as applicable, will be held and disbursed on substantially the same terms as set forth in the Authority Indenture and this Article IX. 9.6. Survival. With respect to any amounts that constitute part of Developer’s Phase 1A Contract Sum or the Convention Center Contract Sum that have been incurred by Developer but have Page 55 of 237 EAttachment B 48 4825-3218-1203v24/024036-0079 not been paid or reimbursed to Developer pursuant to this Article IX, this Article IX and Section 21.7 shall survive the prior expiration and/or termination of this Agreement. ARTICLE X ACCEPTANCE OF IMPROVEMENTS 10.1. Developer’s Phase 1A Infrastructure Improvements. If Developer’s Phase 1A Infrastructure Improvements are Completed by Developer substantially in accordance in all material respects with the Approved Drawings and Specifications, if they comply with all Laws and Construction Requirements, and if Developer has satisfied all conditions of Acceptance set forth in Section 10.1.1, the City and the Port District shall Accept their respective Developer’s Phase 1A Infrastructure Improvements. This Section does not govern Acceptance of the Remaining Phase 1A Infrastructure Improvements. 10.1.1. Conditions of Acceptance. Prior to Acceptance of any portion of Developer’s Phase 1A Infrastructure Improvements, Developer shall, as applicable: 10.1.1.1. Complete all punch-list items from the City’s inspection of Developer’s Phase 1A Infrastructure Improvements. 10.1.1.2. Record a Notice of Completion (NOC) with the County Recorder of San Diego County at least thirty-five (35) days prior to Acceptance of such portion of Developer’s Phase 1A Infrastructure Improvements. 10.1.1.3. Submit to Port District and to the City, as applicable, the following with respect to such portion of Developer’s Phase 1A Infrastructure Improvements, as applicable: a. Record drawings or “as-builts” in the form of final as- built CAD files; and b. Copies of the signed as-built mylars that are submitted to the City (a copy of which shall be provided to the Port District). c. With respect to City, evidence that adequate funds are available in City’s deposit account to cover City’s project close out costs with respect to permitting; d. With respect to City, record drawings or “as-builts” in the form of signed as-built mylars, and with respect to Port District, copies of such signed “as-builts”; e. One set of final soils reports (“as-graded” Geotech report); f. Completed City Form 5519 Certification; g. Completed City Form 5522 Statement of Substantial Conformance; h. Operations and maintenance manuals; and Page 56 of 237 EAttachment B 49 4825-3218-1203v24/024036-0079 i. Warranty documentation. 10.1.1.4. Submit to Port District or City, as applicable, documentation and information reasonably necessary for Port District or City, as applicable, to provide the following items to Developer with respect to such portion of Developer’s Phase 1A Infrastructure Improvements, as applicable: a. Approval from Port District’s or City’s Land Surveyor, as applicable, confirming survey monuments are set and verified (as applicable); b. Confirmation that street lights are fully functional; and c. Written approval from Port District’s or City’s NPDES section, as applicable, confirming stormwater requirements have been satisfied. Subject to Section 2.1.6.3, upon receipt of the documentation and information set forth in this Section 10.1.1.4, City and Port District, as applicable, shall take all actions reasonably required to provide the foregoing items to Developer. 10.1.2. Acceptance Notice and Confirmation of Acceptance. When Developer reasonably determines that the conditions for Acceptance of any component of Developer’s Phase 1A Infrastructure Improvements have been satisfied, Developer will provide written notice thereof to Authority (an “Acceptance Notice”). Each of the City and the Port District, as applicable, shall either confirm its Acceptance (in its reasonable discretion) of such component of Developer’s Phase 1A Infrastructure Improvements or set forth the reasons for denying its Acceptance within ten (10) Business Days after Authority’s receipt of such Acceptance Notice. If the City or the Port deny Acceptance, then Developer shall take such steps as may be reasonably necessary to address the City’s reasons or the Port District’s reasons (as applicable) for denying its Acceptance and submit a new Acceptance Notice to Authority and the foregoing process shall continue on an iterative basis (and City and the Port District, as applicable, shall have ten (10) Business Days to respond to each Acceptance Notice) until the City or the Port District, as applicable, have confirmed that Acceptance of such component has occurred. 10.2. Convention Center. When Developer determines that the Convention Center is Complete, Developer will provide a copy of its certificate of occupancy or temporary certificate of occupancy to Authority, and the Authority shall confirm its Acceptance of the Convention Center within five (5) Business Days after Authority’s receipt of such copy of such certificate of occupancy or temporary certificate of occupancy. 10.3. Sweetwater Park. This Section applies only if Developer exercises a Sweetwater Park Option. 10.3.1. When Developer reasonably determines that the conditions for Sweetwater Park to be Sufficiently Complete have been satisfied, Developer will provide written notice thereof to Port District (a “Sufficient Completion Notice”). Port District shall either confirm Sufficient Completion (in its sole and good faith discretion) of Sweetwater Park or set forth the reasons for denying that Sweetwater Park is Sufficiently Complete within ten (10) Business Days after Port District’s receipt of such Sufficient Completion Notice. If Port District denies that Sweetwater Park is Sufficiently Complete, then Developer shall take such steps as may be reasonably necessary to Page 57 of 237 EAttachment B 50 4825-3218-1203v24/024036-0079 address the Port District’s reasons for such denial and submit a new Sufficient Completion Notice to Port District and the foregoing process shall continue on an iterative basis (and Port District shall have ten (10) Business Days to respond to each Sufficient Completion Notice) until the Port District has confirmed that Sufficient Completion of Sweetwater Park has occurred. 10.3.2. Following Sufficient Completion and prior to Acceptance, Developer shall complete any remaining punch-list items, record a notice of completion with the County Recorder of San Diego County, and deliver to the Port District (i) “as-built” or record drawings, (ii) final soils report (“as-graded” Geotech report), (iii) operations and maintenance manuals (if applicable), and (iv) all applicable warranty documentation. When Developer reasonably determines that Sweetwater Park has been Sufficiently Completed and the conditions to Acceptance described above in this Section have been satisfied, Developer will provide written notice thereof to the Port District (an “Acceptance Notice”). Port District shall either confirm its Acceptance (in its reasonable discretion) of Sweetwater Park or set forth the reasons for denying its Acceptance within ten (10) Business Days after Port District’s receipt of such Acceptance Notice. If Port District denies Acceptance, then Developer shall take such steps as may be reasonably necessary to address the Port District’s reasons for denying its Acceptance and submit a new Acceptance Notice to Port District and the foregoing process shall continue on an iterative basis (and Port District shall have ten (10) Business Days to respond to each Acceptance Notice) until the Port District has confirmed that Acceptance of such component has occurred. Developer may provide an Acceptance Notice in addition or in lieu of providing a Sufficient Completion Notice pursuant to Section 10.3.1. ARTICLE XI WARRANTIES 11.1. Enforcement of Warranties. Upon Acceptance of each applicable Developer’s Phase 1A Infrastructure Improvement, Developer shall assign any manufacturer’s warranties to the Public Agency accepting ownership of such applicable Developer’s Phase 1A Infrastructure Improvements. Until such improvements are assigned to the applicable Public Agency, Developer shall enforce for the Authority’s benefit all warranties provided in the Contract Documents with respect to such improvements and any other explicit warranties with respect to such improvements. 11.1.1. Materials and Workmanship. Developer shall require its General Contractor and Subcontractor(s) to warrant all work on the Project against Defective Work for a period of one (1) year following the date of Completion. 11.1.2. New Materials and Equipment. Developer shall require its General Contractor and Subcontractor(s) to warrant and guarantee to Authority that all materials and equipment incorporated into the Project are new unless otherwise specified. 11.1.3. Documentation. Developer shall furnish, or cause its General Contractor to furnish, the Public Agencies with all warranty and guarantee documents prior to Acceptance. 11.2. Term of Warranties. Unless otherwise specified or provided by Law, warranties shall extend for a term of one (1) year following the date of Completion, except that, with respect to the Convention Center, the warranties shall extend for one year after the Convention Center is substantially complete in accordance with the Contract Documents (excluding, for the avoidance of doubt, punch list items, so that the Convention Center can be occupied or utilized for its intended use (the “Warranty Period”). Page 58 of 237 EAttachment B 51 4825-3218-1203v24/024036-0079 11.3. Additional Warranties. In addition to the warranties set forth in this Article, following Acceptance, Developer or its General Contractor shall assign to the Public Agencies any and all other manufacturer’s or installer’s warranties for equipment or materials not manufactured by the General Contractor provided as part of the work related to the Developer’s Phase 1A Infrastructure Improvements, to the extent that such third-party warranties are assignable and extend beyond the Warranty Period. Developer shall furnish, or cause its General Contractor to furnish, the Public Agencies with all warranty and guarantee documents with respect to Developer’s Phase 1A Infrastructure Improvements prior to Acceptance. ARTICLE XII DEFECTIVE WORK 12.1. Correction, Removal, or Replacement. The Developer shall require that if, within the Warranty Period, the Authority determines the Developer’s Phase 1A Infrastructure Improvements contain Defective Work and provides written notice thereof to the Developer, the Developer’s General Contractor or applicable Subcontractor, as applicable, shall promptly correct, repair, or both remove and replace the Defective Work as determined by Developer in its sole discretion. 12.2. Extension of Warranty. With respect to the Developer’s Phase 1A Infrastructure Improvements (excluding plant materials), when Defective Work, or damage therefrom, has been corrected, repaired, replaced or removed, as applicable, during the initial Warranty Period, the Warranty Period for such Defective Work will be extended for an additional time period equal to that of the initial Warranty Period, after the date of the satisfactory completion of the correction, repair, replacement or removal, as applicable, but, in no event, beyond the earlier to occur of (a) one (1) year after the date of the expiration of the initial Warranty Period or (b) two (2) years after Acceptance of the applicable Improvement. 12.3. Right of Authority to Correct. In the event of the Developer’s failure, its General Contractor’s failure, or such Subcontractor’s failure, as applicable, to adhere to Section 12.1 within thirty (30) days after Developer receives notice of such Defective Work from the Authority (provided that, if the nature of such Defective Work is such that the same cannot reasonably be corrected, repaired or replaced within such thirty (30) day period, and Developer diligently commences such perform such work within such thirty (30) day period and thereafter diligently proceeds with such work, then such thirty (30) day period shall be extended for as long as reasonably necessary to complete such work) or in the event of an emergency or immediate threat to public safety, Developer shall as promptly as practicable correct, remove, or replace the Defective Work or, if Developer does not do so, the Authority may, in its sole and absolute discretion, notify Developer in writing and then the Authority may correct, remove, or replace the Defective Work. In such circumstances, the costs payable to the Developer shall be reduced by the actual cost incurred by the Authority to correct, remove or replace the Defective Work. 12.4. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant to this Article XII shall not limit the remedies the Authority may pursue under this Agreement or at law or equity. 12.5. Disputes. If Developer and Authority are unable to reach agreement on disputed work, the Authority 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 Page 59 of 237 EAttachment B 52 4825-3218-1203v24/024036-0079 Section 26.12. Developer shall maintain and keep all records relating to disputed work for a period of three (3) years in accordance with Article XVI. 12.6. Applicability. This Article XII shall not apply with respect to the Convention Center. ARTICLE XIII SECURITY FOR CONSTRUCTION 13.1. Bonds. The Contract Documents for the Developer’s Phase 1A Infrastructure Improvements shall require each General Contractor to provide a performance bond on a form reasonably acceptable to the Authority for the construction of the Developer’s Phase 1A Infrastructure Improvements and the aggregate amount of such bond will be no less than the amount payable pursuant to the General Contracts with respect to Developer’s Phase 1A Infrastructure Improvements. Developer shall cause the Authority to be named as a co-obligee of such performance bond. Developer shall provide a payment bond on a form reasonably acceptable to Authority for the construction of the Developer’s Phase 1A Infrastructure Improvements in the total amount set forth on the Developer’s Phase 1A Infrastructure Improvements Budget. Developer shall deliver copies of the payment bond and performance bond to the Authority prior to commencement of construction for the Developer’s Phase 1A Infrastructure Improvements. With respect to any portion of the Developer’s Phase 1A Infrastructure Improvements, Developer shall ensure that (a) the payment bond is maintained though the period of time required by California Civil Code Section 9558 and (b) the performance bond is maintained for at least one (1) year following Acceptance of such portion of the Developer’s Phase 1A Infrastructure Improvements, provided however that Developer may replace a performance bond with a warranty bond which shall remain in effect for the initial Warranty Period, subject to reasonable approval of the form of such warranty bond by the Public Agency accepting such Developer Phase 1A Infrastructure Improvements. The Contract Documents for the Convention Center shall require each General Contractor to provide a performance bond on a form reasonably acceptable to the Authority for the construction of the Convention Center and the aggregate amount of such bonds will be no less than the amount payable pursuant to the General Contracts with respect to the Convention Center. Developer shall cause the Authority to be named as a co-obligee of such performance bond. Developer shall provide a payment bond on a form reasonably acceptable to Authority for the construction of the Convention Center in the total amount set forth on the Convention Center Budget. Developer shall deliver copies of the payment bond and performance bond to the Authority prior to commencement of construction for the Convention Center. Developer shall ensure the payment bond is maintained though the period of time required by California Civil Code Section 9558. Developer shall ensure the performance bond is maintained until such time as the Convention Center is Complete. If the estimated amount payable to a General Contractor pursuant to its General Contract is increased, the Developer shall advise such General Contractor and the surety of the increased amount and the payment bond shall be increased accordingly. Under no circumstances shall the payment bond surety be released from liability to those for whose benefit such bond has been given, by reason of any breach of contract between the Developer and such General Contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of such person’s claim. 13.2. Insolvency or Bankruptcy. If the surety on any of the above-mentioned bonds pertaining to Developer’s Phase 1A Infrastructure Improvements is declared bankrupt, becomes Page 60 of 237 EAttachment B 53 4825-3218-1203v24/024036-0079 insolvent (as defined in Insurance Code Section 985), or its right to do business is terminated in the State of California, Developer shall, within fifteen (15) Business Days after Developer’s actual knowledge or receipt of notice from the Authority, substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent a replacement bond is commercially available. If the surety on any of the above-mentioned bonds pertaining to the Convention Center is declared bankrupt, becomes insolvent (as defined in Insurance Code Section 985), or its right to do business is terminated in the State of California, Developer shall within fifteen (15) Business Days after Developer’s actual knowledge or receipt of notice from the Authority substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent (i) a replacement bond is commercially available and (ii) the cost of such replacement bond does not exceed one hundred ten percent (110%) of the portion of the cost of the original bond that is fairly allocable to the portion of the Convention Center that has not then been completed. The Parties acknowledge that the bonds required by Section 13.1 must be in place throughout the period of time required by Section 13.1 and, to that end, in the event replacement bonds are needed for the reasons described in the immediately preceding sentence but the thresholds set forth in clauses (i) and (ii) of the immediately preceding sentence are not met, the Parties shall meet and confer to determine how the Parties can replace the subject bonds or potentially obtain an alternative form of security; provided that RIDA shall not be required to obtain any such replacement bond or alternative security unless the Parties mutually agree, and in no event shall the cost to the Developer of any replacement bond or alternative security exceed the cost threshold set forth in clause (ii) of the immediately preceding sentence. 13.3. Calling a Bond. 13.3.1. Developer acknowledges and agrees that if Developer’s construction of Developer’s Phase 1A Infrastructure Improvements has not been performed in accordance with Section 5.1 or if the Developer has failed to cure any Defective Work within a commercially reasonable time after Developer’s receipt of notice pursuant to Section 12.1 (subject to the notice and cure periods set forth in Section 12.3), and, in each case, such failure constitutes a breach by the General Contractor under the applicable Contract Documents, the Authority may use the performance bond referenced in Section 13.1 above to complete Developer’s Phase 1A Infrastructure Improvements. This remedy is not a limitation on remedies of the Authority, as applicable. and is in addition to any other remedy that the Authority may have at law or in equity. 13.3.2. Developer acknowledges and agrees that if Developer’s construction of the Convention Center has not been completed in accordance with Section 5.1 or if the Developer has failed to cure any Defective Work within a commercially reasonable time after Developer’s receipt of notice pursuant to Section 12.1 (subject to the notice and cure periods set forth in Section 12.3), and, in each case, such failure constitutes a breach by the General Contractor under the applicable Contract Documents, the Authority may use the performance bond referenced in Section 13.1 above to complete the Convention Center. This remedy is not a limitation on remedies of the Authority and is in addition to any other remedy that the Authority may have at law or in equity. 13.4. Bond Reimbursement. Not later than one year after the last date on which a payment, performance, or warranty bond is required by this Agreement with respect to the Convention Center, Developer shall provide the Authority with an invoice and reasonable supporting documentation showing the cost actually incurred by Developer in procuring the payment bond(s) and the Page 61 of 237 EAttachment B 54 4825-3218-1203v24/024036-0079 performance bond(s) with respect to the Convention Center pursuant to Section 13.1. Within thirty (30) days after the receipt of such invoice and supporting documentation, Authority shall pay to Developer the lesser of (a) the cost actually incurred by the Developer in procuring such bonds and (b) One Million Dollars ($1,000,000) (the “Payment Bond Reimbursement Amount”). This Section 13.4 shall apply notwithstanding anything to the contrary set forth in Section 9.2.5. ARTICLE XIV INDEMNITY AND DUTY TO DEFEND 14.1. General Indemnity. To the maximum extent allowed by law, Developer hereby indemnifies and shall defend the Authority, the Port District Parties and the City Parties, at Developer’s sole cost and expense and with counsel selected by the Public Agencies and reasonably approved by Developer, and hold the Authority, the Port District Parties, and the City Parties harmless from any and all claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (i) the performance by Developer of its obligations under this Agreement, (ii) the construction of any Improvements and (until Acceptance) the Developer’s Phase 1A Infrastructure Improvements, (iii) any breach by Developer of its obligations under this Agreement, (iv) any accident, injury or damage whatsoever caused to any Person or the property of any Person on or about the Project Site or at the Improvements or (until Acceptance) the Developer’s Phase 1A Infrastructure Improvements; or (v) the use, occupancy, possession or operation of the Project Site and the Improvements and (until Acceptance) the Developer’s Phase 1A Infrastructure Improvements by any Developer Party or Hotel Operator, or any acts or omissions of any Developer Party or Hotel Operator, in each case, except for claims or litigation arising through the sole gross negligence or willful misconduct of the Authority, any Authority Party, any Port District Party (including, without limitation, with respect to the Remaining Phase 1A Infrastructure Improvements) or City Party (but subject to Section 15.4); provided, that the sole gross negligence or willful misconduct of one Public Agency Party with respect to any Public Agency shall not be attributed to or affect the rights of any Public Agency Party with respect to any other Public Agency under this Section 14.1. The foregoing indemnity, defense and hold harmless obligations of Developer shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (w) the Project’s failure or alleged failure to comply with Section 15 and Exhibit 3 of the Settlement Agreement or any other document implementing or duplicating Section 15 and Exhibit 3 of the Settlement Agreement, provided that Developer has satisfied its obligations under Section 5.8, Exhibit O, and any other agreement entered into between the Port District and/or City with Developer regarding the subject of this subsection (w), (x) any Person’s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Port District Party (other than by a Developer Party or Hotel Operator, or on behalf of a Developer Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Developer Party or Hotel Operator), (y) the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by Developer or a Developer Party or (z) any use, development or construction of any portion of the Developer’s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding (1) claims pursuant to Articles XI and XII and (2) claims that arise directly or indirectly out of any act or omission of a Developer Party or Hotel Operator. If a Public Agency determine in its reasonable discretion that there is a conflict of interest with Developer’s counsel representing such Public Agency and Developer, or that there is a conflict of interest with counsel representing such Public Agency and the other Public Agencies, then Page 62 of 237 EAttachment B 55 4825-3218-1203v24/024036-0079 such Public Agency, at its election, may conduct its own defense with its own counsel that is reasonably selected by the Public Agency, reasonably approved by Developer, and independent from Developer’s counsel (and in that event Developer will select its own counsel) and the reasonable costs incurred by the applicable Public Agency in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The terms of this Section 14.1 shall survive the expiration or earlier termination of this Agreement. The foregoing indemnity obligations of Developer are in addition to, and not in limitation of, any other indemnity obligations of Developer contained in this Agreement or any other agreement between any of the Public Agencies and Developer. Notwithstanding the foregoing, Section 19.2.3, and not this Section 14.1, shall apply to the reimbursement of any fees or expenses incurred by Public Agencies in connection with a Tax Claim. Notwithstanding anything to the contrary in this Section, Developer shall have no obligation to pay or reimburse any Public Agency for costs incurred by such Public Agency that such Public Agency would have been obligated to pay without express right to reimbursement by Developer, or for which such Public Agency would have been obligated to reimburse Developer, pursuant to this Agreement. 14.2. Damage to Other Properties. The indemnification and agreement to hold harmless set forth in Section 14.1 shall extend to damages, including without limitation monetary claims based on allegations of takings or inverse condemnation, 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 Project. The foregoing indemnification obligations of Developer shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (x) the sole gross negligence or willful misconduct of any Public Agency Party (except that the sole gross negligence or willful misconduct of one Public Agency Party with respect to any Public Agency shall not be attributed to or affect the rights of any Public Agency Party with respect to any other Public Agency under this Section 14.2), (y) Public Agency conduct in connection with construction, maintenance, or operation of the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by Developer or a Developer Party, or (z) any use of the Developer’s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding any claims pursuant to Articles XI or XII. 14.3. Hazardous Materials Indemnity. 14.3.1. Excluding Pre-Existing Hazardous Material, Developer hereby assumes for itself and shall indemnify, defend the Authority, the Port District Parties, and the City Parties, and hold the Authority, the Port District Parties, and the City Parties harmless from any and all claims, demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders (judicial or administrative), judgments, and all Related Costs (whether or not based upon personal injury, negligence, strict liability, property damage, or contamination of, or adverse effects upon, the environment, waters or natural resources, including any loss of or damage to any Public Agency’s real or personal property), which occur or arise during or after the Term relating to, or resulting from, any Hazardous Materials Activity, any Tenant Hazardous Material, any Material Exacerbation of Pre-Existing Hazardous Material by a Developer Party or Hotel Operator, or any breach by Developer of its obligations under this Section 14.3, at Developer’s sole cost and expense and with counsel and experts selected by the Public Agencies in their reasonable discretion, Page 63 of 237 EAttachment B 56 4825-3218-1203v24/024036-0079 and reasonably approved by Developer, and who act according to the Public Agencies’ reasonable direction, with reasonable input and cooperation from Developer. Developer’s obligations under Section 6.20 of the Sublease (and the indemnification of the Authority, the Port District Parties, and the City Parties by Developer under this Section 14.2) include, without limitation, any Environmental Cleanup required by this Agreement, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by this Agreement or any federal, state or local government agency because of Hazardous Materials present in the air, soil or ground water above, on, or under the Site or Improvements or (until Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements) the Developer’s Phase 1A Infrastructure Improvements and the Developer’s Phase 1A Infrastructure Improvements Site. The Public Agencies shall have a direct right of action against Developer even if no third party has asserted a claim. If a Public Agency determine in its reasonable discretion that there is a conflict of interest with Developer’s counsel representing such Public Agency and Developer, or that there is a conflict of interest with counsel representing such Public Agency and the other Public Agencies, then such Public Agency, at its election, may conduct its own defense with its own counsel that is reasonably selected by the Public Agencies, reasonably approved by Developer and independent from Developer’s counsel (and in that event Developer will select its own counsel) and the reasonable costs incurred by the applicable Public Agency in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The indemnification and Environmental Cleanup requirements under Section 6.20 of the Sublease and this Section 14.3 include, but, are not necessarily limited to: 14.3.1.1. Losses attributable to diminution in the value of the Site, Improvements or (with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements) the Developer’s Phase 1A Infrastructure Improvements Site; 14.3.1.2. Losses of rental or other income from the Site, Improvements or (with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements) the Developer’s Phase 1A Infrastructure Improvements Site; 14.3.1.3. Loss of or damage to natural resources regarding which Port District is the lawfully designated trustee; 14.3.1.4. Loss or restriction of use of rentable space(s) in the Site, Improvements or (with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements) the Developer’s Phase 1A Infrastructure Improvements Site; 14.3.1.5. Adverse effect on the marketing of any space(s) in the Site, Improvements or (with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements) the Developer’s Phase 1A Infrastructure Improvements Site; and 14.3.1.6. All other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including reasonable attorney, consultant, and expert fees and expenses). Page 64 of 237 EAttachment B 57 4825-3218-1203v24/024036-0079 Notwithstanding anything to the contrary in this Section, Developer shall have no obligation to pay or reimburse any Public Agency for costs incurred by such Public Agency that such Public Agency would have been obligated to pay without express right to reimbursement by Developer, or for which such Public Agency would have been obligated to reimburse Developer, pursuant to this Agreement. 14.4. Illegal Discharge to Storm Drains. Developer shall defend, indemnify, protect, and hold harmless each of the Public Agency Parties 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 Project (an “Illegal 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 any Public Agency for an Illegal Discharge. Developer’s duty to indemnify and hold harmless shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (x) the sole negligence or willful misconduct of any Public Agency Party, (y) Public Agency conduct in connection with construction, maintenance or operation of the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by the Developer or a Developer Party, or (z) any use of the Developer’s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding any claims pursuant to Articles XI or XII. 14.5. Implementation of Authority Resolution 2020-002. Without limitation of the Developer’s other obligations under this Agreement, the Developer agrees, at its sole cost and expense, and with counsel selected by the Public Agency Parties, each in its reasonable discretion, and reasonably approved by Developer, to indemnify, defend and hold harmless each of the Public Agency Parties, and their officers, directors, employees, partners, affiliates, agents, contractors, successors and assigns from any Claims, Related Costs, and amounts paid in settlement of any claims or actions brought by any third party and related to the subject matter of the Related Costs (as determined by the Developer and the Public Agency Parties), arising out of any action taken by the Authority, the Port District, or the City, as applicable, in implementation of Authority Resolution 2020-002; provided, however, such indemnity, defense and hold harmless obligations of the Developer under this Section 14.5 shall not include any Claims and Related Costs arising solely out of (a) the sole or collective negligence, or willful misconduct of the Authority, the Port District and/or the City, as applicable, (b) the failure of the Authority Board to follow the procedures of the Authority in adopting Authority Resolution 2020-002, or (c) the lack of authority of the Authority Board to adopt Authority Resolution 2020-002, but shall include Claims and Related Costs arising from the Developer’s delivery of incorrect, misleading, or inaccurate information to the City, the Port District, or Authority, officers of the City, the Port District or the Authority, or the Authority Board, which any of the aforementioned parties relied upon to adopt, or recommend the adoption of, Authority Resolution 2020-002. The indemnification, defense, and hold harmless obligations of the Developer under this Section 14.5 shall exist so long as a challenge or claim can be made against the Authority, the Port District of the City. 14.6. 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 each Public Agency, its officials, officers, employees and/or agents and that appear to be covered by the defense Page 65 of 237 EAttachment B 58 4825-3218-1203v24/024036-0079 obligation defined in Sections 14.1, 14.2, 14.3, and 14.4. Developer acknowledges and agrees that its obligation to accept tender and defend each Public Agency, its officials, officers, employees, and/or agents as provided in this Section 14.6 is absolute and not subject to any limitations in Sections 14.1, 14.2, 14.3, and 14.4 of this Agreement, or elsewhere. Developer shall pay and satisfy any judgement, award, or decree that may be rendered against any Public Agency or its officials, officers, employees and/or agents, for any and all related legal expense and costs incurred by each of them subject to the limitations in Sections 14.1 through 14.4 and only to the extent Section 14.1 through 14.4 requires Developer to do so. If a court of competent jurisdiction determines by a final judgment that any Public Agency was not entitled to indemnification or defense by Developer pursuant to this Article XIV, then such Public Agency shall pay to Developer the cost incurred by Developer in providing such indemnification or defense (including, without limitation, the reasonable costs of Developer’s internal legal counsel). Where outside counsel has been retained, reasonable costs of Developer’s internal legal counsel shall be limited to (x) supervising such outside counsel and (y) such other customary work performed by in-house counsel in connection with proceedings of this type where outside counsel is engaged; provided that Developer shall use reasonable efforts to avoid duplicating work performed by its outside counsel and its internal legal team. For the avoidance of doubt, “supervising such outside counsel” shall include, without limitation, review and revision of any documents prepared by outside counsel, preparation of memoranda or other similar correspondence to be provided to Developer, correspondence with regarding status of matter, review of billing matters, negotiation of contracts with outside counsel, and any other activities that would be reasonably performed by in house counsel in connection with such supervision. 14.7. Insurance Proceeds. Developer’s obligation to indemnify shall not be restricted to insurance proceeds, if any, it receives. 14.8. Declarations. Developer’s obligations under Article XIV shall not be limited by any prior or subsequent declaration by Developer. 14.9. Survival. Developer’s obligations under Article XIV shall survive the expiration and/or termination of this Agreement. ARTICLE XV INSURANCE REQUIREMENTS 15.1. Insurance Requirements. During the Construction Period, and with respect to any portion of the Developer’s Phase 1A Infrastructure Improvements (including Sweetwater Park if the Developer exercises the Sweetwater Park Option), until Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements, Developer shall maintain the policies of insurance described in Sections 15.2 and 15.3 in full force and effect. Insurance requirements applicable to Alterations are set forth in the Sublease; however, if any Alterations are constructed during the Construction Period, the Developer shall comply with the insurance requirements set forth in this Article XV with respect to such Alterations. 15.2. Forms and Amounts of Coverage. The policies for said insurance shall, as a minimum, provide the following: 15.2.1. Commercial General Liability. “Occurrence” form Commercial General Liability covering the Project Site, the Improvements, and Developer’s Phase 1A Infrastructure Improvements, operations and contractual liability assumed by Developer in this Agreement and the Page 66 of 237 EAttachment B 59 4825-3218-1203v24/024036-0079 Sublease in the amount of not less than as set forth in Section 15.2.1.1. Developer’s indemnification obligations under this Agreement and the Sublease shall in no event be limited by the terms or qualifications to the contractual liability coverage under such insurance. 15.2.1.1. Commercial General Liability Policy Amount: Not less than Twenty Million Dollars ($20,000,000) per occurrence limit for bodily injury and property damage. The general aggregate limit shall be not less than Forty Million Dollars ($40,000,000) unless a Twenty Million Dollars ($20,000,000) per location aggregate limit is provided by separate endorsement. All such limits may, at Developer’s option, be satisfied by limits set forth in primary policies and excess policies. 15.2.2. Builder’s Risk Property Coverage. 15.2.2.1. During the Construction Period, builder’s risk completed value form insurance covering the perils insured under the ISO special causes of loss form, including collapse, water damage and transit, covering the total value of work performed and equipment, supplies and materials furnished (with an appropriate limit for soft costs in the case of construction) and covering the full insurable value (exclusive of the cost of noninsurable items) of all equipment, supplies and materials at any off-site storage location used with respect to the Project or in transit. Specific limits of insurance for flood shall be determined at the joint discretion of Developer and Authority. Earthquake limits shall, at a minimum, cover 250 year maximum probable loss or such other limits as are agreed to by Developer and the Authority. The damage coverage shall be endorsed with a Loss Payee endorsement in favor of the Trustee. Notwithstanding anything to the contrary herein, the builder’s risk insurance required by this Agreement may not be terminated until property insurance policies required by the Sublease are in effect. Net Proceeds shall be assigned by the Authority to the Trustee pursuant to the Indenture. Developer shall if commercially available cause its builder’s risk policy to define “soft costs” to include the costs of issuance of the Authority Bonds and capitalized interest on the Authority Bonds and interest expense related thereto (“Expanded Soft Cost Coverage”). The Developer shall request proposals for builder’s risk policies including Expanded Soft Cost Coverage, and shall present such proposals to the Public Agencies for their consideration. If and as needed, Developer and the Public Agencies shall meet and confer regarding such proposals. Notwithstanding the foregoing provisions of this paragraph, if the Public Agencies, in their reasonable discretion, select a proposal for the procurement of such builder’s risk policy, and RIDA (A) determines that procuring such Expanded Soft Cost Coverage will neither adversely affect RIDA’s procurement of builders’ risk insurance nor adversely affect the coverage of such builder’s risk insurance or (B) determines in its reasonable discretion to procure such Expanded Soft Cost Coverage, then Developer shall procure such builder’s risk policy for the applicable policy period with Expanded Soft Cost Coverage (assuming that such builder’s risk policy remains commercially available to Developer, and provided, that if there is more than one proposal and RIDA determines that the proposal selected by the Public Agencies would adversely affect RIDA’s procurement of builder’s risk insurance or the coverage of such builder’s risk insurance, then RIDA may, in RIDA’s sole discretion, select any proposal that would not adversely affect, or would have lesser adverse effect on, RIDA’s procurement of builder’s risk insurance or the coverage of such builder’s risk insurance), and the Authority shall promptly reimburse Developer for the amount by which (x) the aggregate amount expended by Developer in connection with obtaining and maintaining the builder’s risk policy with Expanded Soft Cost Coverage exceeds (y) the amount that Developer would have expended in connection with maintaining a builder’s risk policy without Expanded Soft Cost Page 67 of 237 EAttachment B 60 4825-3218-1203v24/024036-0079 Coverage. Promptly after any Public Agency so requests, Developer shall provide documentation to the Public Agencies that reasonably evidences the amount of such excess. The Public Agencies shall be named as additional insureds under any builder’s risk policy procured by the Developer pursuant to this Agreement. 15.2.2.2. Any Casualty Proceeds shall be paid to the Trustee as “loss payee” under the property insurance policies that are required to be maintained pursuant to this Agreement or the Sublease and shall be deposited into the Insurance and Condemnation Fund pursuant to Section 4.5 of the Authority Indenture and Section 6.1(a) of the Facility Lease. Such Casualty Proceeds shall be held in trust by the Trustee in the Insurance and Condemnation Fund pursuant to the terms of the Indenture and shall be paid and be applied as provided in Section 9.2 hereof, Section 5.2 of the Sublease, and Section 6.1(a) of the Facility Lease. If there is no Trustee or if there is but the Trustee declines to act as a trustee for the disbursement of funds as provided in Section 5.2 of the Sublease, then any Casualty Proceeds shall be paid and disbursed as provided in Section 5.2 of the Sublease and Section 6.1(a) of the Facility Lease. 15.2.3. Worker’s Compensation. Workers’ compensation insurance covering all persons employed by Developer at the Project Site, Improvements and Developer’s Phase 1A Infrastructure Improvements and with respect to whom death or bodily injury claims could be asserted against Developer, any Public Agency, the Project Site, the Improvements, or the Developer’s Phase 1A Infrastructure Improvements, with statutorily required limits, and employer’s liability insurance with minimum limits of not less than One Million Dollars ($1,000,000) for each accident/employee/disease. Workers’ compensation insurance shall include a waiver of subrogation in favor of Public Agency Parties. 15.2.4. Automobile Liability. Business automobile liability insurance covering liability arising out of vehicles used on or about the Project Site, Improvements and Developer’s Phase 1A Infrastructure Improvements by Developer or its employees (including owned, non-owned, leased, rented and/or hired vehicles) insuring against liability for bodily injury, death and property damage in an amount not less than One Million Dollars ($1,000,000) each accident limit. 15.2.5. Contractor’s Pollution Liability Coverage. If either the City or the Port District determines, in its sole and absolute discretion, that Developer performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, Developer shall obtain or cause its contractor to obtain Contractor’s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $10,000,000 aggregate per policy period of one year or the limits maintained by or available to the contractor, whichever is higher. The Public Agencies shall also be named as additional insureds on any such policy. During the Construction Period, immediately upon learning of or reasonably suspecting that a release of Hazardous Materials has occurred on, in, under or about the Project Site, Developer shall provide notice of the same to each of the Public Agencies. 15.2.6. UST Coverage. To the extent the foregoing coverages do not cover any underground storage tanks (USTs) located on the Site during the Construction Period, Developer Page 68 of 237 EAttachment B 61 4825-3218-1203v24/024036-0079 shall procure such insurance in amounts and with limits reasonably acceptable to Developer and the Public Agencies. 15.3. General Requirements. 15.3.1. Certificates and Other Requirements. The cost of all required insurance shall be borne by Developer. During the Construction Period, Developer shall provide the Public Agencies with insurance certificates, in the form customary in the insurance industry, issued by the insurer evidencing the existence of the necessary insurance policies and certified endorsements effecting coverage required by this Article XV (“Certificates”). The Certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind insurance on its behalf. Notwithstanding the foregoing, Developer shall request copies of each insurance policy required under this Article XV and make available to the Public Agencies for inspection at the Project Site or the Improvements any insurance policy it receives. 15.3.2. Additional Insureds and Other Requirements. All liability insurance policies shall name, or be endorsed to name the Public Agencies as additional insureds and protect the Public Agencies against any legal costs in defending claims. All liability policies shall provide cross-liability coverage. If Developer receives notice of any cancellation, modification such that the requirements of this Agreement are no longer satisfied, suspension or voiding of an insurance policy required under this Article XV from the applicable insurance carrier, then Developer shall provide to the Public Agencies written notice thereof within five (5) Business Days after receipt of such notice. To the extent the policy is blanket endorsed or is specifically endorsed to provide the same, all insurance policies shall also provide that the subject policy shall not be cancelled without thirty (30) days’ prior written notice to the Public Agencies. All insurance policies shall be endorsed to state that Developer’s insurance is primary and not excess or contributory to any insurance issued in the name of the Public Agencies. Further, all insurance companies must have an S&P or AM Best rating of not less than “A-”. 15.3.3. Deductibles. Any deductibles or self-insured retentions must be declared to each of the Developer and the Public Agencies and be consistent with customary deductibles and self-insured retentions, as applicable, for a convention center or conference center operating in the United States of America that is comparable with the Convention Center; provided, however, if the deductible or self-insured retention is in excess of Two Hundred Fifty Thousand Dollars ($250,000), Developer shall provide the Public Agencies with reasonably satisfactory evidence of its ability to meet the deductible or self-insured retention. The evidence to be provided to the Public Agencies must include separate, unconsolidated, audited financial statements to be provided annually or upon any Public Agencies’ written request to Developer. If Developer does not provide reasonably satisfactory evidence of its ability to meet the deductible or self-insured retention, then Developer shall have the option to either: (i) reduce or eliminate such deductible or self-insured retention as respects the Public Agency Parties; (ii) procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses; or (iii) agree to self-insure the risk with form of collateral or written agreement acceptable to the Public Agencies. 15.3.4. Updates. If any Public Agency reasonably determines that the insurance provisions in this Agreement do not constitute Adequate Insurance, then such Public Agency shall notify Developer thereof and of the changes to the insurance requirements of this Agreement that any Public Agency reasonably believes are necessary to cause such requirements to constitute Adequate Insurance. The Parties agree that the insurance provisions will be modified to increase Developer’s Page 69 of 237 EAttachment B 62 4825-3218-1203v24/024036-0079 insurance obligations to the smallest extent that is consistent with such modified insurance provisions providing for Adequate Insurance. The Parties shall, in the first instance, attempt to agree on any revisions to such insurance provisions so that they provide for Adequate Insurance by entering into good faith negotiations and, if, within seven (7) days from the commencement of such negotiations, the Parties do not reach agreement, then, until the dispute is finally resolved by a final judgment rendered by a court of competent jurisdiction, the then-existing insurance requirements of this Agreement shall continue to govern Developer’s obligations. After the Parties agree on a new insurance program that constitutes Adequate Insurance or such final judgment of a court of competent jurisdiction establishes a new insurance program, such new insurance program shall bind the Parties. Developer shall deposit new Certificates incorporating such changes within thirty (30) days of the Parties agreeing on such new insurance program. Failure by Developer to maintain insurance or deposit insurance Certificates as required in this Article XV, where such failure is not cured by Developer within ten (10) days following written notice thereof to Developer, shall constitute an Event of Default. Without limitation of the foregoing, Developer agrees that if Developer does not take out and maintain such insurance or furnish the Public Agencies with Certificates in a timely manner, the Public Agencies may, but shall not be required to, procure said insurance on Developer’s behalf and charge Developer the cost thereof, which amount shall be payable by Developer to the Public Agencies pursuant to the Reimbursement Procedure. 15.3.5. No Limit on Liability. The procuring of such required policies of insurance shall not be construed to limit Developer’s liability hereunder, nor to fulfill the indemnification provisions and requirements of this Agreement. 15.3.6. Compliance with Insurance Requirements. Developer agrees not to keep on the Project Site or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Project Site. Developer shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Project Site and represents to the Public Agencies that Developer will confirm that it is in compliance with such requirements at all times. 15.4. Waiver of Subrogation. Developer hereby releases the Public Agencies from any and all liability or responsibility to Developer or anyone claiming through or under Developer by way of subrogation or otherwise for any loss or damage to the Project Site, any Improvements, and Developer’s Phase 1A Infrastructure Improvements, or any of Developer’s personal property or business caused by or arising from a fire or any other event that is covered by the insurance required to be carried pursuant to this Agreement or is actually carried, even if such fire or other event shall have been caused by the fault or negligence of any of the Public Agencies. 15.5. Authority Obligation to Maintain Insurance. Until the earlier of (a) Full Payment or (b) the earlier termination of the Sublease and this Agreement, the Authority shall maintain crime insurance, or its equivalent, with respect to conduct by officers and staff of the Authority and employees of the City and Port District relating to the transfer and requisition of Authority Bond proceeds and County Funds and processing of Developer’s Phase 1A Payment Requests and Convention Center Payment Requests, in the minimum coverage amount of $5 million (“Crime Insurance”). In the event of the occurrence of any insurable event under such Crime Insurance, Authority shall pursue recovery under such Crime Insurance. The Crime Insurance shall name, or be endorsed to name the Developer as an additional insured or loss payee, as reasonably and commercially appropriate and available. If Authority receives notice of any cancellation, modification such that the requirements of this Section 15.5 are no longer satisfied or suspension or Page 70 of 237 EAttachment B 63 4825-3218-1203v24/024036-0079 voiding of an insurance policy required under this Section 15.5 from the applicable insurance carrier, then Authority shall provide to the Developer written notice thereof within five (5) Business Days after receipt of such notice. ARTICLE XVI RECORDS AND AUDITS 16.1. Retention of Project Records. Developer shall use commercially reasonable efforts to maintain the Project Records (defined below) for a period of not less than seven (7) years after the date such record is created (or such longer period as Developer may decide in its sole discretion). Developer shall make available to the Public Agencies any of the Project Records upon request of any of the Public Agencies. “Project Records” means the following documents and materials, but only if such documents and materials are related to the Project: Contract Documents, plans and specifications, inspection reports, invoices related to Project Costs, and documents that evidence payment of Project Costs or the basis for such payments. Project Records also means such other documents that (a) are reasonably necessary to evaluate (i) whether the Project has been or is being constructed in accordance with the requirements of this Agreement; (ii) whether the certifications that have been made in any Developer Phase 1A Payment Request or Convention Center Payment Request are true and correct; (iii) whether Developer is in compliance with Article XIII; (iv) the existence of any Force Majeure Event that Developer asserts exists and the duration of any delay in connection therewith; or (vi) the amount of Project Costs that have been or will be incurred; and (b) are reasonably requested by the Public Agencies; provided, however, that “Project Records” with respect only to such other documents under clauses (a) and (b) above shall not include any of the following: proprietary documents and information, documents and information that are subject to confidentiality agreements which do not permit their disclosure to the Public Agencies, documents and information that are subject to the attorney client privilege, tax advisor privilege, internal communications among Developer, its Affiliates or any of their respective officers, employees or agents (including, without limitation, attorneys and tax advisors and consultants), communications among Developer, Marriott, any lender, any direct or indirect owner of Developer or any of their respective officers, employees or agents. Developer may redact from documents provided under clauses (a) and (b) above any information that is not reasonably necessary for the purposes of such clauses. 16.2. Audit of Records. At any time during normal business hours, with 48 hours’ advanced notice and as often as the Public Agencies reasonably deem necessary, Developer shall make available, or shall cause its General Contractor or any Subcontractor to make available, to the Public Agencies for examination at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to the Public Agencies all of the Project Records. Developer, the General Contractor and Subcontractors will permit the Public Agencies to make audits of the Project Records. If any Project Records are not made available at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to Authority, then Developer shall pay all the travel related costs of the Authority to audit such Project Records at the location where the records are maintained. Such costs will not be Project Costs. 16.2.1. Costs. Developer and Developer’s agents shall allow the Public Agencies to audit and examine the Project Records and any and all accounting procedures and practices that the Public Agencies reasonably determine are necessary to discover and verify all costs of whatever Page 71 of 237 EAttachment B 64 4825-3218-1203v24/024036-0079 nature, which are claimed to have been incurred, anticipated to be incurred, or for which a claim for additional compensation or for extra work have been submitted under this Agreement. ARTICLE XVII TITLE TO ALTERATIONS AND IMPROVEMENTS 17.1. Title to Project. The Improvements constituting the Project which may be installed, constructed or placed in, on, over or under the Project Site, from time to time by Developer in accordance with this Agreement, the Sublease, and other agreements, (a) shall, subject to Developer’s obligations under Section 6.6 of the Sublease or such other agreements, as applicable, be so installed, constructed or placed at the JEPA’s, the City’s or Port District’s, as applicable, sole cost and expense, and (b) shall remain the JEPA’s, the City’s or Port District’s, as applicable, property during the Term; provided that Developer’s trade fixtures (that is fixtures relating uniquely to Developer and which are removable without non-repairable damage to the other Improvements), furnishings, moveable equipment and other personal property of Developer shall remain the property of Developer. Notwithstanding the foregoing, at least ninety (90) days before the last day of the Sublease Term or, in the case of earlier termination of the Sublease, within ten (10) days after such termination, unless the City expressly elects within the same time periods to require Developer to remove the same, any artworks that constitute personal property and that were provided to comply with Developer Art Investment but which are not governed by a separate agreement between Developer and the artist relating to the removal of such artworks at the end of the Sublease Term, shall not be removed and shall remain located on the Site or the Convention Center, as applicable. Prior to the Expansion Date, any and all expenditures made by Developer with respect to the Project shall be treated as supplemental Rent for all purposes under the Sublease; provided that, for the avoidance of doubt, such expenditures shall not modify, reduce, substitute or credit any of Developer’s other Rent obligations under the Sublease. 17.2. Survival. The terms of this Article XVII shall survive the expiration or earlier termination of this Agreement and the Sublease. ARTICLE XVIII LIENS 18.1. No Right to Bind Port District. Neither Developer, any Developer Party, nor the Hotel Operator shall have any power or authority to do any act or thing, or to make any contract or agreement which shall bind Port District in any way whatsoever, and Port District shall have no responsibility to Developer, Developer Party, the Hotel Operator, or other Person who performs, causes to perform, engages in or participates in any construction of any Developer’s Phase 1A Infrastructure Improvements, Improvements, Alterations or any other work on the Project Site at the request of Developer, Developer Party, Hotel Operator, or other Persons. Port District shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom. 18.2. Notice of Non-Responsibility. Developer shall give written notice to all contractors, subcontractors and materialmen of Port District’s non-responsibility in connection with any construction of the Developer’s Phase 1A Infrastructure Improvements, Convention Center, Alterations or any other construction work on the Project Site, and shall immediately provide Port District with true copies of such notices not less than ten (10) days prior to the commencement of any work on the Project Site. The Port District Parties shall have the right to post and keep posted thereon Page 72 of 237 EAttachment B 65 4825-3218-1203v24/024036-0079 notices of non-responsibility, or such other notices which Port District may deem to be proper for the protection of Port District’s interest in the Project Site. Developer shall provide Port District with any information required by Port District to complete the notice of non-responsibility. 18.3. Mechanics’ Liens. Developer shall pay or cause to be paid all costs for work, labor, services or materials supplied to or performed on the Project Site that might result in any mechanics’ lien or similar lien as and when Developer is required to do so under Developer’s agreement with the respective provider thereof. If Developer receives notice that any mechanics’ lien or any similar lien is recorded against the Project Site and Developer is not contesting such lien in accordance herewith, then Developer shall cause such lien to be released and removed of record within thirty (30) days after Developer receives notice of the recordation of the mechanics’ lien or similar lien. Developer shall indemnify, defend, release and save Port District free and harmless from and against any and all claims of lien of laborers or materialmen or others for work performed or caused to be performed or for materials or supplies furnished for or at the Project Site, the Improvements or the Developer’s Phase 1A Infrastructure Improvements by or for any Developer Party and the Hotel Operator and all Related Costs. 18.4. Contest of Lien. If Developer in good faith wishes to contest the amount or validity of any lien (other than any lien with respect to taxes), then Developer shall have the right to do so; provided that (a) Developer shall first provide Port District with at least ten (10) Business Days’ written notice prior to any such contest, (b) Developer shall first record a surety bond sufficient to release such lien; and (c) Developer shall cause the following conditions to remain satisfied during such contest: 18.4.1. such contest shall not place the fee estate of the Project Site in material danger of being forfeited or lost; 18.4.2. such contest shall be without cost, liability, or expense to Port District; 18.4.3. Developer shall prosecute such contest with reasonable diligence and in good faith; and 18.4.4. no Event of Default shall exist under this Agreement at the time of or during such contest. 18.5. Port District’s Right to Pay. If Developer shall be in default in paying any charge for which a lien claim has been filed, and if Developer has not contested such lien in accordance with Section 18.4, then Port District may, but shall not be so obliged to, pay said lien claim and any costs incurred in connection therewith, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due and owing from Developer to Port District, and Developer shall pay the same to Port District pursuant to the Reimbursement Procedure, together with interest on the full amount thereof at the Default Rate from the date of Port District’s payments until paid. 18.6. Notice of Liens. Should any claims of lien be filed against the Project Site or any Improvement or any action affecting the title to the Project Site, the Improvements or the Developer’s Phase 1A Infrastructure Improvements be commenced, the Party receiving notice of such lien or action shall give the other Party written notice thereof within five (5) Business Days of receipt. Page 73 of 237 EAttachment B 66 4825-3218-1203v24/024036-0079 18.7. Right of Entry. Nothing herein shall imply any consent on the part of Port District to subject Port District’s estate to liability under any mechanics’ lien or other lien. Without limiting Developer’s obligations under Section 18.2 above, the Port District Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Developer’s Phase 1A Infrastructure Improvements, Alterations, and Convention Center that are generally accessible to the general public or the portions of the Project Site where the operation of the Developer’s Phase 1A Infrastructure Improvements, Alterations, and Convention Center is ongoing, during normal business hours and upon a three (3) Business Days’ prior notice to Developer (except in the case of an emergency in which case no prior notice shall be required but each of such Port District Parties shall notify Developer and, prior to the Completion of the Resort Hotel, Developer’s Risk Construction Manager thereof by phone prior to entering the Project Site) and Port District shall, and shall cause each of such Port District Parties to: (a) comply with all applicable security and safety procedures of Developer of which Developer informs Port District in writing and with which such Port District Party can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Developer’s operation and use of the Project Site and the Improvements, while on the Project Site and at the Improvements. Notwithstanding the foregoing, nothing herein shall limit the Port District’s right to enter the Project Site, the Improvements or the Developer’s Phase 1A Infrastructure Improvements at any time to exercise its police powers. ARTICLE XIX TAXES 19.1. Reporting. 19.1.1. The Public Agencies and Developer acknowledge and agree that they have delivered the Ground Lease and the Convention Center Leases with the understanding that (i) during the Term and the Ground Lease Term, the Resort Hotel is owned by Developer, (ii) during the Term, the Convention Center is owned by the Authority, (iii) from and after the Expansion Date, the Convention Center is owned by Port District, (iv) Developer has only the right to the possession and use of the Convention Center during the Term upon the terms and conditions of the Sublease, and from and after the Expansion Date upon the terms and conditions of the Ground Lease, (v) each of the Ground Lease and the Sublease is a “true lease” for all applicable legal and federal state and local tax purposes and is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of the Ground Lease and the Sublease are those of a true lease, (vi) all amounts paid by Developer pursuant to Article 5 of the Ground Lease, and with respect to the Convention Center pursuant to Article 7 and Article 15 of the Ground Lease, are Rent (as defined in the Ground Lease) for all applicable tax purposes, subject to Section 5.9 of the Ground Lease, (vii) all amounts paid by RIDA pursuant to Article III of the Sublease and with respect to the Facility, are Rent for all applicable tax purposes, subject to Section 3.6 of the Sublease, (viii) the Ground Lease and the Convention Center Leases have been entered into by each of Port District, City, Authority, and Developer in reliance upon the mutual covenants, conditions and agreements contained therein; and (ix) none of the covenants, conditions or agreements contained herein or therein is intended, nor shall the same be deemed or construed, to create a partnership between or among the Port District, City, Authority, and Developer, to make them joint venturers, or to make Developer an agent, legal representative, partner, subsidiary or employee of Port District, the City, or the Authority. 19.1.2. The Public Agencies and Developer agree not to (i) file or submit any tax return or other document with any Governmental Authority; (ii) enter into any contract with any Page 74 of 237 EAttachment B 67 4825-3218-1203v24/024036-0079 Person; or (iii) release any financial statements, in each case, that takes a position other than that (x) both the Ground Lease and the Sublease are “true leases” for federal, state and local tax purposes, (y) the Authority is the owner of the Convention Center during the Sublease Term, and (z) Port District is the owner of the Convention Center from and after the Expansion Date, in each case, unless otherwise required by a final “determination” within the meaning of Section 1313 of the Code. The Parties agree that the foregoing includes their agreement that (x) Developer will not claim depreciation deductions under Sections 167 or 168 of the Code with respect to the Convention Center and (y) Developer will report all payments described in Sections 19.1.1(vi) and (vii) as rent expense under Section 162 of the Code, subject to Section 5.9 of the Ground Lease or Section 3.6 of the Sublease, as applicable. 19.1.3. The terms of this Section 19.1 shall survive the expiration or earlier termination of this Agreement. 19.2. Tax Claims. Each Party agrees to (A) promptly notify the other Parties of any audit, examination or other proceeding with respect to any tax, tax return (including any schedule attached thereto) or information reporting related to the Ground Lease or the Sublease, the Improvements, the Resort Hotel, or the Project, including without limitation, the agreed positions described in Sections 19.1.1 and 19.1.2 (collectively, the “Tax Claims”, and individually, a “Tax Claim”) and (B) reasonably cooperate with the other Parties in connection with any Tax Claim. In the event that any Tax Claim is asserted against a Public Agency Party, Developer agrees to indemnify and defend such Public Agency Party, at Developer’s sole cost and expense, and hold such Public Agency Party harmless from any and all Tax Expenses and documented Related Costs arising in connection with such Tax Claim; provided, that the Related Costs with respect to such Tax Claim shall be determined in accordance with the following principles: 19.2.1. Related Costs arising from the work of an employee of a Public Agency during a particular calendar year shall not exceed the product of (x) the salary of such employee and (y) the percentage of such employee’s time in such year which such employee was solely engaged on the Tax Claim (to be substantiated by time records in form and substance reasonably acceptable to Developer), plus, for the avoidance of doubt, any reasonable, out-of-pocket expenses incurred by such employee with respect to the Tax Claim in such calendar year. For example, if an employee of City earns $160,000, spends 25% of her time in the calendar year on the Tax Claim and incurs $100 of reasonable, out-of-pocket expenses, City would be entitled to no more than $40,100 of Related Costs with respect to the work of such employee during such calendar year. 19.2.2. A Public Agency shall not engage any outside counsel with respect to the Tax Claim without the prior written consent of Developer (not to be unreasonably withheld, conditioned or delayed; provided, that Port District, Authority and Developer acknowledge and agree that consent from Developer shall not be required if the counsel selected by Port District or the Authority is Orrick Herrington & Sutcliffe LLP; provided, further, that the City and Developer acknowledge and agree that consent from Developer shall not be required if the counsel selected by the City is Stradling Yocca Carlson & Rauth, P.C.). For the avoidance of doubt, there shall be no cap on the Related Costs incurred by outside counsel approved or deemed approved by Developer and such Related Costs shall include all legal fees and out of pocket expenses; and 19.2.3. in the event that a Public Agency engages outside counsel, then, notwithstanding Section 19.2.1 above, such Public Agency shall not be entitled to recovery of Related Costs with respect to the work performed by employees of the Public Agency except to the Page 75 of 237 EAttachment B 68 4825-3218-1203v24/024036-0079 extent such work is limited to (x) supervising such outside counsel and (y) such other customary work performed by in-house counsel in connection with audits, examinations or other proceedings of this type where outside counsel is engaged; provided that such Public Agency shall use reasonable efforts to avoid duplicating work performed by its outside counsel. For the avoidance of doubt, “supervising such outside counsel” shall include without limitation, review and revision of any documents prepared by outside counsel, preparation of memoranda or other similar correspondence to be provided to the governing board or other executives of the relevant Public Agency, correspondence with the general counsel or other executive members of the relevant Public Agency regarding status of matter, review of billing matters, negotiation of contract with outside counsel, and any other activities that would be reasonably performed by the office of the general counsel in fulfillment of its fiduciary duties to the relevant Public Agency. This Section 19.2 shall survive the early termination or expiration of this Agreement. Notwithstanding anything to the contrary herein, (i) this Section 19.2 shall not apply to, and Developer shall have no responsibility with respect to, any taxes payable based on income or profits of the Public Agency Parties (for the avoidance of doubt, such exclusion shall not apply to the extent such Tax Claim relates to withholding or information reporting with respect to the taxable income of the Developer), and (ii) Section 19.4 and either Section 4.6 of the Ground Lease or Section 6.19(b) of the Sublease, as applicable, and not this Section 19.2, shall govern all Tax Claims with respect to Property Tax Expenses. 19.3. Property Expenses. Without limitation of Developer’s other obligations under this Agreement and the Sublease, Developer agrees to pay, on or before the date due, all Property Expenses. As used herein, “Property Expenses” shall include, without limitation, all costs and expenses of any nature incurred or payable, or arising in connection with, the ownership, management, maintenance, construction, repair, replacement, restoration or operation of the Site and/or the Improvements, including, without limitation, any amounts paid for: (i) the cost of supplying any utilities, the cost of operating, maintaining, repairing, renovating and managing any utility systems, mechanical systems, communications systems, sanitary and storm drainage systems, and the cost of supplies and equipment and maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, permits and inspections; (iii) the cost of any insurance carried or required to be carried by Developer pursuant to this Agreement, the Sublease, the Ground Lease, and the Hotel Management Agreement with respect to the Site and/or the Improvements including without limitation any premiums and deductibles except the cost of any Facility Lease Lost Rental Insurance (as defined in the Sublease) and the incremental cost of any Expanded Soft Cost Coverage; (iv) the cost of landscaping, supplies, tools, equipment and materials, and all fees, charges and other costs incurred in connection with the management, operation, repair and maintenance of the Site and/or the Improvements; (v) payments under any easement, license, permit, operating agreement, declaration, or covenant or instrument pertaining to the Site that exist as of the Commencement Date or that are created or consented to by Developer; and (vi) the cost of any Improvements, capital repairs, capital alterations, or capital equipment, required by Laws, the Hotel Management Agreement or otherwise required under this Agreement, the Sublease, or the Ground Lease. Notwithstanding anything to the contrary in this Agreement or the Sublease, Property Expenses shall not include (a) Property Tax Expenses, (b) any amounts that constitute Sublease Advance Rent (as defined in the Sublease), or (c) any other amount that a Public Agency has expressly agreed to pay without reimbursement from Developer under this Agreement or any Contemporaneous Agreement or that this Agreement or any Contemporaneous Agreement expressly provides that the Developer is not required to pay. Page 76 of 237 EAttachment B 69 4825-3218-1203v24/024036-0079 19.4. Property Tax Contest Cooperation. Subject to its consent under the Ground Lease or Sublease, as applicable, and subject to any conditions which it has imposed thereunder, a Public Agency shall join in a Property Tax Contest if such Property Tax Contest is legally required to be initiated or prosecuted in such Public Agency’s name. In such case, such Public Agency shall cooperate, as Developer reasonably requests, and at Developer’s sole cost and expense, to permit the Property Tax Contest to be prosecuted in such Public Agency name. The Public Agencies shall give Developer any publicly available documents requested by Developer in writing that are in their control and Developer determines are reasonably necessary for Developer to prosecute its Property Tax Contest except where (i) the document is subject to an exemption or exception under the California Public Records Act (California Government Code Sections 6250 et seq.); (ii) the document is confidential pursuant to another agreement between the relevant Public Agency and another Person; (iii) the document is protected by the attorney-client privilege or work-product protections; (iv) the disclosure or release of such document would result in a breach of an agreement to which the relevant Public Agency is a party; or (v) the disclosure or release of the document would result in a violation of Laws. Developer shall pay all costs and expenses, including any legal costs, of any Property Tax Contest, including, without limitation, any costs and expenses resulting from the withdrawal of a Property Tax Contest. If Developer requests that a Public Agency assist Developer with any Property Tax Contest in accordance with the Ground Lease or the Sublease, and such assistance is consistent with the requirements of Section 4.6 of the Ground Lease or Section 6.19 of the Sublease, as applicable, and this Section 19.4, then the Public Agency shall, within fifteen (15) days after receipt of such request, notify Developer of the total amount of Anticipated Assistance Costs. Developer may, but shall have no obligation to, fund the Anticipated Assistance Costs (“Developer Funding”). If Developer does not notify the Public Agency that Developer will provide Developer Funding to the Public Agency, then the Public Agency shall have no obligation to assist Developer with such Property Tax Contest. If Developer notifies the Public Agency that Developer will provide Developer Funding to the Public Agency and Developer pays to the Public Agency an amount that is equal to or greater than the Anticipated Assistance Costs, then the Public Agency shall reasonably assist Developer with such Property Tax Contest as Developer reasonably requires. If the actual amount of Assistance Costs in connection with such assistance is at any time greater than the Developer Funding provided before and at such time, then the Public Agency shall promptly notify Developer thereof and the Parties shall follow the process set forth in the preceding three sentences. Port District shall have no obligation to reimburse Developer for Developer Funding up to the amount of Assistance Costs. A Public Agency shall have no liability to Developer if the Public Agency does not assist, or continue to assist, with any Property Tax Contest if Developer refuses to provide Developer Funding or the amount Developer has advanced is not sufficient to cover the Assistance Costs or the Property Tax Contest is not in compliance with this Section 19.5.2 and Section 4.6 of the Ground Lease or Section 6.19 of the Sublease, as applicable. A Public Agency shall return to Developer any portion of Developer Funding that the Public Agency receives from Developer and does not use for the Property Tax Contest within thirty (30) days after the Public Agency receives notice from Developer that the Property Tax Contest is concluded or Developer is withdrawing the Property Tax Contest. ARTICLE XX EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC 20.1. Nondiscrimination. Developer shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, Page 77 of 237 EAttachment B 70 4825-3218-1203v24/024036-0079 without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, Developer shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between Port District and Developer. Developer shall contractually require the General Contractor, all Subcontractors, and Developer’s consultants, subconsultants, and contractors to comply with the requirements of this Article XX. 20.1.1. Equal Employment Opportunity Certification. Developer shall require all bidders to submit signed equal employment opportunity certifications, in substantially the form attached as Exhibit W, with their bid packages. 20.1.2. 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 Section 20.1.2 shall be considered a material breach of this Agreement and may result in termination of this Agreement or other sanctions. The language in this Section 20.1.2 shall be inserted in contracts between Developer, the General Contractor, any Subcontractors, vendors, and suppliers awarded in accordance with Section 6.6. 20.2. Compliance with Employment and Labor Requirements. Developer shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor-Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices. Developer shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize. 20.3. OFAC Compliance. Developer represents and warrants as of the Effective Date that (i) Developer and, to the best of Developer’s knowledge, the Persons that directly or indirectly hold an interest in Developer (collectively, “Developer’s Members”, each a “Developer Member”) (other than any such Person that owns an interest in Developer through publicly traded securities) is not now a Person with whom Port District or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or a Person (also, a “Prohibited Person”) with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of Developer’s knowledge, none of the funds or other assets of Developer constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of Developer’s knowledge, no Prohibited Person directly or indirectly Controls Developer, or any of Developer’s Members, either individually or in the aggregate and (iv) to the best of Developer’s knowledge, none Page 78 of 237 EAttachment B 71 4825-3218-1203v24/024036-0079 of the funds of Developer have been derived from any unlawful activity with the result that the investment in Developer is prohibited by Laws or that the Agreement is in violation of Laws. Developer covenants and agrees that at no time during the Term shall a Developer Member with a twenty percent (20%) or more direct or indirect interest in Developer be a Prohibited Person. Developer shall reimburse Port District for all reasonable costs, including, without limitation, attorneys’ fees, resulting from Developer’s failure to comply with this Section 20.3. If Developer receives written notice that any of Developer’s Members (other than any such Person that holds an interest in Developer through publicly traded securities) is a Prohibited Person, then Developer shall promptly use Developer’s best and commercially reasonable efforts to cause such Person to divest such Person’s interests in Developer. Notwithstanding any limits set forth in this Section 20.3, any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder. ARTICLE XXI EVENTS OF DEFAULT AND REMEDIES 21.1. Events of Default. The occurrence of any one (1) or more of the following events shall constitute an event of default by Developer hereunder (each, an “Event of Default”): 21.1.1. Failure to Pay. Failure by Developer to pay, when due, any payment, and/or charge that Developer is required to pay hereunder, where such failure continues for a period of five (5) days after written notice thereof from another Party to this Agreement. 21.1.2. Failure to Perform. Failure by Developer to perform any express or implied covenants or conditions in this Agreement (other than as provided in the other subsections of this Section 21.1), where such failure continues for thirty (30) days after written notice thereof from another Party to this Agreement; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and Developer diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default; and provided, further, that if such failure is due to a Force Majeure Event in accordance with Section 5.5, then such failure shall not constitute an Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists. 21.1.3. Bankruptcy Event. The occurrence of a Bankruptcy Event. 21.1.4. Cross-Defaults During the Term. The occurrence or existence of an Event of Default as defined in and in accordance with the Sublease or an Event of Default as defined in and in accordance with the Ground Lease, in each case, at any time during the Term; provided that in the event an Event of Default under the Sublease is cured pursuant to the terms of the Sublease, such Event of Default shall be deemed cured hereunder and in the event an Event of Default under the Ground Lease is cured pursuant to the terms of the Ground Lease, such Event of Default shall be deemed cured hereunder. 21.1.5. Breach of a Representation or Warranty. 21.1.5.1. Any representation or warranty by Developer under this Agreement or the Exhibits attached hereto, including any representation or warranty made in any payment request or certification provided or delivered by Developer pursuant to this Agreement, is Page 79 of 237 EAttachment B 72 4825-3218-1203v24/024036-0079 not true, correct or complete in any material respect and Developer does not cure such deficiency within ten (10) Business Days after it actually knows about such deficiency, or within ten (10) Business Days after Developer receives written notice thereof; provided that, if the nature of such breach is such that the same cannot reasonably be cured within such ten (10) Business Day period, and Developer diligently commences such cure within such ten (10) Business Day period and thereafter diligently proceeds to rectify and cure such breach, then such failure shall not constitute an Event of Default. 21.1.5.2. Any representation or warranty by the Completion Guarantor under the Completion Guaranty is not true, correct or complete and Developer does not cause the Completion Guarantor to cure such deficiency within ten (10) Business Days after it actually knows about such deficiency, or within ten (10) Business Days after Developer receives written notice thereof; provided that, if the nature of such breach is such that the same cannot reasonably be cured within such ten (10) Business Day period, and Completion Guarantor diligently commences such cure within such ten (10) Business Day period and thereafter diligently proceeds to rectify and cure such failure, then such breach shall not constitute an Event of Default. 21.1.6. Specified Defaults. The occurrence of any event expressly stated to constitute an Event of Default under this Agreement. 21.2. Remedies for Events of Default. Upon any Event of Default but subject to Section 21.2.4, the Public Agencies may, in addition to all other rights and remedies afforded to the Public Agencies hereunder or by law or in equity, take any one or more of the following actions: 21.2.1. Termination of Agreement. Terminate this Agreement by giving Developer written notice thereof. Failure by the Public Agencies to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default. 21.2.2. Perform Acts on Behalf of Developer. Perform any act that Developer is obligated to perform under this Agreement (and enter upon the Site (and, until Acceptance of the applicable Developer’s Phase 1A Infrastructure Improvements, the Developer’s Phase 1A Infrastructure Improvements Site) in connection therewith if necessary) in Developer’s name and on Developer’s behalf, without being liable for any claim for damages therefor, and Developer shall reimburse each Public Agency on demand for any expenses which such Public Agency may incur in thus effecting compliance with Developer’s obligations under this Agreement (including, but not limited to, collection costs and legal expenses), plus interest thereon at the Default Rate. 21.2.3. Assignment of Plans and Other Matters. Require Developer to, in which case Developer shall, (i) at Developer’s sole cost and expense, assign and transfer to the Authority all of Developer’s right, title and interest in and to all plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site, free and clear of liens and claims by third parties, in connection with and (ii) execute and deliver to the Authority, within five (5) Business Days of the Authority’s request, in a form provided by and acceptable to the Authority, an instrument confirming the Assignment and transfer of such property and interests to the Authority and, within such five (5) Business Day period, to deliver the originals of such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site to the Authority. Developer agrees to reasonably cooperate with the Authority at no cost or expense to the Authority in seeking any consent from the Page 80 of 237 EAttachment B 73 4825-3218-1203v24/024036-0079 preparer of any plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site, which may be required for the Authority to rely on such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site. 21.2.4. Certain Limitations. The Public Agencies shall not have the right to terminate this Agreement as a result of any Event of Default arising solely under Section 21.1.2 or Section 21.1.4 of the Agreement that is susceptible to cure (but will retain all other remedies) if the following conditions apply: (i) the Developer has, in good faith, by written notice served on the Public Agencies within thirty (30) days of receipt of any notice from any Public Agency of such Event of Default, contested that (x) Developer has failed to perform any covenant or condition required to be performed by it under this Agreement or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, as applicable, until any final determination by a court with jurisdiction that (x) the Developer has in fact failed to perform any covenant or condition required to be performed by it under this Agreement and that such failure has had a material adverse effect on one or more of the Public Agencies or the Project or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, and that such Event of Default has had a material adverse effect on one or more of the Public Agencies or the Project, as applicable; or (ii) after any final determination by a court with jurisdiction that (x) the Developer has in fact failed to perform any covenant or condition required to be performed by it under this Agreement and that such failure has had a material adverse effect on one or more of the Public Agencies or the Project or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, and that such Event of Default has had a material adverse effect on one or more of the Public Agencies or the Project, as applicable, Developer promptly (and in all events, within thirty (30) days of such final determination), cures such failure, such Event of Default as defined in the Sublease or such Event of Default as defined in the Ground Lease, as applicable. Without limiting the foregoing, the Public Agencies shall not have the right to terminate this Agreement as a result of any Event of Default arising solely under Section 21.1.4 unless the Sublease or the Ground Lease, as applicable, has been terminated in accordance with its terms. For purposes of this Section 21.2.4, a “final determination by a court with jurisdiction” shall mean the entry of a final judgment by the trial court or equivalent tribunal in any such proceeding. For clarification, the thirty day cure period following such “final determination” within which Developer’s failure to perform must be cured in order to avoid the Public Agencies’ right to terminate pursuant to this Section shall commence immediately upon entry of such judgment by the trial court and shall not be stayed, delayed or otherwise postponed during any appeal periods or other post-judgment proceedings (e.g., Motion for New Trial or JNOV) that Developer might pursue following entry of such judgment. For purpose of this Section 21.2.4, “material adverse effect on one or more of the Public Agencies or the Project” shall mean, but shall expressly not be limited to, (i) a failure to comply with any provision of the Port Act, including but not limited to Port Act provisions limiting use of the Project Site or the Improvements, (ii) a material failure to comply with any CDP (as may be amended from time to time) applicable to the Project Site and Improvements, (iii) a material failure to comply with the Port Master Plan, or any amendment thereto, (iv) a material failure to comply with any provision of this Agreement related to Hazardous Materials, (v) [reserved], (vi) a failure to comply with any provision of this Agreement relating to PWL requirements, (vii) a failure to comply with any provision of this Agreement that results or could reasonably be expected to result in a public health or safety issue, (viii) a failure to comply with any provision of this Agreement the effect of Page 81 of 237 EAttachment B 74 4825-3218-1203v24/024036-0079 which may be that any Public Agency Party has incurred or could reasonably be expected to incur criminal liability, (ix) a failure by Developer to comply with any provision of this Agreement that could reasonably be expected to result in a default by the Authority with respect to payment of debt service on the Authority Bonds or under the Indenture, a default by the City under the Facility Lease, a default by the Port District under the Support Agreement, or a default by the Financing District under the Loan Agreement, or (x) a failure to comply with any provision of this Agreement that could reasonably be expected to result in significant irreparable harm or injury to any Public Agency. Nothing in this Section 21.2.4 shall prejudice Developer’s ability to appeal any decision of any court, provided, that, Developer’s appeal shall not limit the Public Agencies’ ability to pursue any remedies available to the Public Agencies under this Agreement. 21.3. Sweetwater Park. Port District shall not be deemed in default or breach for failure to Sufficiently Complete Sweetwater Park on or prior to the Sweetwater Park End Date. Developer’s exercise of either the First Sweetwater Park Option or the Second Sweetwater Park Option shall be Developer’s sole and exclusive remedy for any failure of Port District or Developer to Sufficiently Complete Sweetwater Park. Developer, Authority, Special Tax District, and City acknowledge and agree that the Port District shall not be liable to Developer, Authority, Special Tax District, or City or any other Person for monetary damages (including but not limited to contract damages, consequential, incidental or punitive damages, lost profits, lost business opportunity, or any other type of monetary damage regardless of form) for Port District’s failure to Sufficiently Complete Sweetwater Park. This Section 21.3 is not intended to limit (i) Developer’s ability to recover its costs from Authority that are Developer’s Phase 1A Infrastructure Improvements Costs (including, for the avoidance of doubt, costs incurred by Developer to Sufficiently Complete Sweetwater Park or otherwise construct Sweetwater Park in accordance with the Sweetwater Park Materials) or (ii) Developer’s right to the remedy of specific performance of the Port District’s obligations under Section 2.3.2.2 and 2.3.3.2. 21.4. Reserved. 21.5. Authority Events of Default. The occurrence of any one (1) or more of the following events shall constitute an event of default by Authority hereunder (each, an “Authority Event of Default”): 21.5.1. Failure to Pay. Failure by Authority to pay, when due, any payment, and/or charge that Authority is required to pay hereunder, where such failure continues for a period of five (5) days after written notice thereof from Developer. 21.5.2. Failure to Perform. Failure by Authority to perform any express or implied covenants or conditions in this Agreement (other than as provided in the other subsections of this Section 21.5), where such failure continues for thirty (30) days after written notice thereof from Developer; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and Authority diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default. 21.6. Remedies for Authority Events of Default (Rent Offset). Upon any Authority Event of Default, Developer may, in addition to all other rights and remedies afforded to Developer hereunder or by law or in equity, offset against Rent (excluding Advance Rent under the Sublease) Page 82 of 237 EAttachment B 75 4825-3218-1203v24/024036-0079 under the Sublease any amount that Authority has failed to pay when due hereunder and that has not been paid by the Port District or the City under Section 21.7. 21.7. Payment Sources. In the event Authority fails to pay any Convention Center Contract Sum to Developer pursuant to Section 9.2 of this Agreement or any interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of this Agreement (collectively, the “Specified Obligations”), then such Convention Center Contract Sum or interest, as applicable, will be payable (a) from any amounts remaining on deposit in the 2021A Construction Account (the “Indenture Funds”); (b) in the event such failure to pay is a result of the misappropriation of Indenture Funds that are in the possession or control of the City or that have been directed for City purposes by affirmative action of the City Council, then to the extent of such misappropriated Indenture Funds, from any source of funds legally available to the City, including general fund monies, to make such payments; (c) in the event such failure to pay is a result of the misappropriation of Indenture Funds that are in the possession or control of the Port District or that have been directed for Port District purposes by affirmative action of the BPC, then to the extent of such misappropriated Indenture Funds, from any source of funds legally available to the Port District to make such payments; (d) with respect to the Authority, the City or the Port District, respectively from amounts received thereby or otherwise available to the applicable Public Agency, if any, from the proceeds of a fidelity bond or crime insurance policy covering acts by their respective officers or employees that cause a misappropriation from the 2021A Construction Account, or amounts recovered from the Person that misappropriated such moneys; and (e) from amounts on deposit in the Authority Surplus Fund, if and when available from time to time. The City shall promptly pay to the Developer the amounts set forth in the foregoing clauses (b) and (d), if any, to the extent such amounts relate to the City. The Port District shall promptly pay to the Developer the amounts set forth in the foregoing clauses (c) and (d) if any, to the extent such amounts relate to the Port District. The Authority shall promptly pay to the Developer the amounts set forth in the foregoing clause (d), if any, to the extent such amounts relate to the Authority. The Parties intend that the Port District and the City be deemed principal obligors (and not guarantor) with respect to any payment obligations they may have pursuant to the terms of this Section and (without limiting the express obligations of the Port District and the City under this Agreement) the Parties agree not to assert that the Port District or City are guarantors or sureties of the Authority’s obligation hereunder under applicable law; provided, however, in an abundance of caution, in case, contrary to such intention, it is determined that the Port District and City are guarantors with respect to the foregoing payment obligations, each of Port District and City hereby waive (i) until Full Payment, any rights of subrogation, reimbursement, indemnification, and contribution with respect to the Authority and (ii) any other rights and defenses that are or may become available to Port District or City, as applicable, by reason of California Civil Code §§ 2808, 2809, 2810, 2819, 2832, 2839 (but only to the extent of a mere offer of performance in full by Authority without the capacity to perform or actual tender of performance, or where Developer has rejected an Authority offer to perform as inadequate), 2845 and 2855 (but only with respect to Specified Disputes). Port District and City expressly reserve the right to assert, each on their own behalf, any defense(s) Authority may have under the terms of this Agreement to excuse or reduce any Authority obligation to pay Indenture Funds to Developer. The Authority shall use commercially reasonable efforts to pursue recovery from (a) individuals responsible for misappropriation of Indenture Funds and (b) any crime insurance maintained by the Authority in connection with misappropriation of Indenture Funds. Port District shall use commercially reasonable efforts to pursue recovery from (a) individuals employed by the Port District who are responsible for misappropriation of Indenture Funds and (b) any crime insurance maintained by the Port District in connection with misappropriation of Indenture Funds. City shall use commercially reasonable efforts to pursue recovery from (a) individuals employed by the City who are responsible Page 83 of 237 EAttachment B 76 4825-3218-1203v24/024036-0079 for misappropriation of Indenture Funds and (b) any crime insurance maintained by the City in connection with misappropriation of Indenture Funds. The City and the Port District’s only obligation to pay the Specified Obligations is set forth in this Section 21.7. ARTICLE XXII ASSIGNMENT PARTICIPATION FEE 22.1. Assignment Participation Fee. Upon each (a) Assignment of the Sublease pursuant to Section 10.7 of the Sublease, (b) a change in the composition of the direct or indirect ownership of RIDA, and (c) a sublease under the Sublease of all or Substantially All of the Facility (defined in the Sublease), RIDA shall pay to the Port District, as the owner of the Site, a fee (the “Assignment Participation Fee”) in an amount equal to one percent (1%) of the Assignment Proceeds of such transaction; provided, however, that RIDA shall not pay the Assignment Participation Fee (i) if one or more of the members of RIDA (as of the date of Completion of the Convention Center and the City’s issuance of the final certificate of occupancy for the Convention Center) which shall include, as applicable (A) each sibling of such Person, the spouse of such Person, and each parent, child, grandchild or great-grandchild of such Person (including relatives by marriage); (B) any trust for the benefit of such Person or any of the foregoing members of his or her family; (C) where such Person is a trust, any beneficiary of the trust of any of the foregoing family members of a beneficiary of the trust, or any other trust established for the benefit of any of the foregoing; and (D) each Person that Controls, is Controlled by, or in under common Control of, such Person or any of the foregoing Persons (each, an “Original Member”), collectively, directly or indirectly, owns at least a ten percent (10%) ownership interest in the Initial Project Improvements (including through direct or indirect ownership in RIDA), (ii) in the case of any Transfer in connection with any foreclosure on the Permitted Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate or the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate to any other Person consented to by the Port District, (iii) in the case of a change in the composition of the direct or indirect ownership of RIDA as a result of an Equity Collateral Enforcement Action by a Permitted Mezzanine Lender or (iv) in the case of a change in the composition of the direct or indirect ownership of RIDA resulting from a transfer of ownership interests traded on a recognized public exchange. Prior to any Public Agency’s consent to any transaction subject to an Assignment Participation Fee, RIDA shall deliver to the Port District a written statement showing the calculation of the Assignment Participation Fee owed to the Port District from RIDA based on the terms of the transaction and an organizational chart showing all Persons holding at least a twenty percent (20%) direct or indirect ownership interest in the Initial Project Improvements prior to such transaction and after such transaction. The statement of the calculation of the Assignment Participation Fee shall contain such detail as may be reasonably requested by the Port District to verify the calculation of the Assignment Participation Fee. Developer shall pay in full to the Port District the Assignment Participation Fee that is due to the Port District concurrent with the completion of the transaction. The obligation to pay the Assignment Participation Fee shall be a joint and several obligation of the transferee and transferor. For the purposes of this Section 22.1, the term “Assignment Proceeds” shall mean the purchase price or other consideration that is: (a) paid (either in cash or by an assumption of debt or other consideration and, if paid over time, the present value of the total consideration using the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (1%)) to the RIDA and/or holders of direct or indirect interests in RIDA and (b) fairly attributable to RIDA’s interest in the Sublease and the Initial Project Improvements in connection with the subject Page 84 of 237 EAttachment B 77 4825-3218-1203v24/024036-0079 transaction less the sum of (x) any reasonable prorations, closing costs or other customary deductions to the purchase price for which the seller is responsible, (y) the certified cost of designing, developing and constructing the Initial Project Improvements as of the time of the Completion of the Initial Project Improvements and (z) one hundred (100) times the amount of any Assignment Proceeds that have been previously paid to the Port District, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements. Notwithstanding the foregoing, if at any time an Assignment Participation Fee is payable pursuant to this Agreement and an Assignment Participation Fee (as defined in the Ground Lease) is payable pursuant to the Ground Lease, then RIDA shall, in its reasonable discretion, determine the allocation of the assignment proceeds between the Assignment Proceeds with respect to this Agreement and the Assignment Proceeds (as defined in the Ground Lease) with respect to the Ground Lease. Upon the request of the Port District from time to time (which request shall not be made more frequently than once per year), except in the case of Completion of the Convention Center, in which case RIDA shall deliver to the Port District such schedule, and such evidence, without request from the Port District, within five (5) days of Completion of the Convention Center, RIDA shall provide the Port District with a schedule listing the name and mailing address of each Person holding at least twenty percent (20%) of the direct or indirect ownership interests in RIDA or the Initial Project Improvements and, if then true, evidence that one or more Original Members collectively holds at least ten percent (10%) of the direct or indirect ownership interest in RIDA or the Initial Project Improvements. In the event that such Person is a trust, RIDA shall include in such schedule the name and mailing address of each trustee of said trust, together with the name and mailing address of each beneficiary of said trust. 22.2. Assignment and Collateral Assignment. No Party shall assign its interest in this Agreement except to a permitted assignee to which such Party has assigned all of its interests in the Convention Center Leases entered into by such Party. No Party shall assign its interest in any of the Convention Center Leases unless the assignee assumes all of such Party’s obligations under this Agreement pursuant to an assignment and assumption agreement reasonably acceptable to the other Parties. Notwithstanding anything to the contrary in this Section 22.2, the Developer may assign all or a part of its entire rights, interests and obligations hereunder, or create a security interest over its rights and interests hereunder, to the Permitted Lenders to whom Developer has assigned or collaterally assigned, or granted a lien or leasehold deed of trust in, the Sublease and the Ground Lease for the purpose of securing financing for the Convention Center, Parking Improvements, and the Resort Hotel. The Public Agencies hereby consent to the granting by the Developer to such Permitted Lenders of security interests in this Agreement. Each Public Agency acknowledges that a Permitted Lender may require that each Public Agency execute a consent to collateral assignment of this Agreement in connection with the Public Agency’s consent or deemed consent to a Permitted Financing Encumbrance. As part of such collateral assignment, each Public Agency shall agree, in a manner materially and substantially consistent with the rights afforded to Permitted Lenders under Article IX of the Sublease and Article X of the Ground Lease, (i) to provide such Permitted Lenders notice of and opportunity to cure the Developer’s defaults hereunder, (ii) to allow such Permitted Lenders or SPE Lender Affiliates or any successful bidder that is not a Permitted Lenders or SPE Lender (each, a “Foreclosure Purchaser”) to assign and reassign all of the Developer’s rights hereunder, (iii) to provide for the Public Agencies and the Foreclosure Purchaser to enter into a new agreement on the terms and conditions set forth in this Agreement in connection with a New Lease pursuant to Section 10.3.2 of the Ground Lease or a New Sublease pursuant to Section 9.3(b) of the Sublease; and (iv) to provide for other customary lender protection provisions that are not in Page 85 of 237 EAttachment B 78 4825-3218-1203v24/024036-0079 violation of applicable laws or regulations. Each Public Agency shall, upon reasonable request of the Developer, shall execute such consents to or acknowledgements of such assignments by the Developer and other customary documents as Developer or its Permitted Lenders reasonably require in connection with this Agreement and the financing of the Convention Center, Parking Improvements, and the Resort Hotel provided they are materially and substantially consistent with the provisions of Article X of the Ground Lease and Article IX of the Sublease and do not conflict with, modify, or amend any of the terms of this Agreement, the Sublease, or the Ground Lease. As a condition to acquiring title in connection with a foreclosure proceeding (or assignment in lieu thereof) or any assignment following a foreclosure of the tenant’s interest under the Ground Lease, sub-sublessee’s interest in the Sublease, or Developer’s interest in the Project Implementation Agreement, Permitted Lender, SPE Lender Affiliate or Foreclosure Purchaser, as and if applicable, shall assume in writing the Ground Lease, Sublease, and this Agreement, and such Ground Lease, Sublease, and this Agreement, shall continue in full force and effect. Without limiting the forgoing provisions of this Section 22, a foreclosure (or assignment in lieu thereof) of the tenant’s interest in the Ground Lease, sub-subtenant’s interest in the Sublease, or Developer’s interest in this Agreement by the Permitted Lender must be accompanied by a foreclosure (or assignment in lieu thereof) of all such interests, and following such foreclosure (or assignment in lieu thereof), tenant’s interest in the Ground Lease, sub-subtenant’s interest in the Sublease, or Developer’s interest in this Agreement may only be assigned to the same Person. Following a foreclosure of Developer’s interest in the Site, Developer’s interest in this Agreement may only be assigned to a permitted assignee that has acquired Developer’s interest in the Sublease and who expressly assumes the Developer’s obligations under the Sublease and this Agreement in an assumption agreement reasonable acceptable to the City and the Port District. 22.3. Non-Disturbance Agreement. With regard to the Hotel Management Agreement with Marriott International, Inc. that has been consented to by the Port District and consented to or deemed to be consented to by the City, on the Commencement Date, and prior to or concurrently with the execution of any other Hotel Management Agreement consented to by the Port District and consented to or deemed to be consented to by the City, the Port District, the City and the Authority shall enter into a non-disturbance agreement with the Hotel Operator substantially in the form attached hereto as Exhibit Y and, if the Hotel Operator is not Marriott, based on terms reasonably acceptable to the Port District, the City, the Authority and Hotel Operator at that time. ARTICLE XXIII NONDISTURBANCE 23.1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Site Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Facility Lease as, and the Facility Lease shall be deemed to be, a direct lease between the Port District, as lessor, and the City, as lessee, and the Port District shall not disturb the City’s leasehold interest or possession of the Site (as defined in the Facility Lease) or the Convention Center under, and on the terms and conditions set forth in, the Facility Lease, and the Port District shall continue to recognize and treat the Sublease as a sublease between the City, as sublessor, and the Developer, as sublessee, and the City shall attorn to and recognize the Port District as the City’s lessor under, and on the terms and conditions set forth in, the Facility Lease. In the event the Facility Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Sublease as, and Page 86 of 237 EAttachment B 79 4825-3218-1203v24/024036-0079 the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Developer shall attorn to and recognize the Authority as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. In the event both the Site Lease and the Facility Lease terminate prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), (i) the Port District shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Port District, as lessor, and the Developer, as lessee, and the Port District shall not disturb the Developer’s leasehold interest or possession of the Site (as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Port District as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 23.1 and is entitled to enforce this Section 23.1. 23.2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Facility Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Authority shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Authority shall not disturb the Developer’s leasehold interest or possession of the Site (as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Authority as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 23.2 and is entitled to enforce this Section 23.2. ARTICLE XXIV OPERATION OF THE SITE AND THE CONVENTION CENTER 24.1. Approved Agreements. Pursuant to the Sublease, Developer shall take possession of the Site subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit S attached hereto and incorporated herein by reference (“Approved Agreements”). 24.2. Reservations. The Port District Parties and any third party requested by Port District shall have the right to enter the Site and the Improvements for the purpose of constructing, installing, maintaining, repairing, replacing or removing monitoring wells during normal business hours and upon a three (3) Business Days’ prior notice to Developer (except in the case of an emergency in which case no prior notice shall be required but each of such Port District Parties and each of such third parties shall notify Developer and, prior to the Completion of the Resort Hotel, Developer’s Risk Construction Manager thereof by phone prior to entering the Site) and Port District shall, and shall cause each of such Port District Parties and each of such third parties to: (a) comply with all applicable security and safety procedures of Developer of which Developer informs Port District in writing and with which such Port District Party and such third party can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with Developer’s operation and use of the Site, the Improvements, the Resort Hotel and the Ground Lease Property, while on the Site and at the Improvements, and, so long as such Port District Parties and such third parties comply with such requirements and do not cause damage to the Site or any Improvements, separate and apart from the construction, installation, maintenance, repairing, replacing, and removal of the monitoring well in or from the Site, Developer shall not be entitled to any monetary payment or other remuneration for incidental costs imposed on Developer resulting from, any such access to the Site or the Improvements by such Port District Parties or such third parties. The Port District Parties shall not Page 87 of 237 EAttachment B 80 4825-3218-1203v24/024036-0079 cause any damage to the Site or any Improvements in connection with the construction, installation, maintenance, repairing, replacing and removal of any monitoring wells in or from the Site that adversely affects the use, operation or appearance of the Site or any of the Improvements. Port District shall reasonably cooperate with Developer in determining the location of any new monitoring well that is required by an order of the SDRWQCB. Except in the case of an emergency, Port District shall consult with Developer to ensure that the interference with Developer’s operation and use of the Site, the Improvements, the Resort Hotel and the Ground Lease Property is minimized to the extent commercially reasonable efforts permit. Port District and Developer shall independently have the right to grant on reasonable terms and notice to the other, a license or easement or other access agreement to Rohr, Inc., a United Technologies Aerospace Systems Company (together with its successors and assigns, “Rohr”) for Rohr and its authorized contractors and agents to access the Site upon reasonable prior notice to Developer for sampling, operation, maintenance, relocation, replacement, removal and closure of groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement); provided, however, that if Port District grants a license or easement or other access agreement to Rohr, it shall first consult with Developer to attempt reasonably and in good faith, and shall use reasonable efforts, to avoid interference with Developer’s day-to-day operations on the Site which interference is (a) unreasonable or (b) both material and reasonably avoidable. Developer shall have the right to coordinate with Rohr to install, relocate, and/or remove any Remediation Facilities (as defined in the Relocation Agreement), subject to (a) Rohr securing any necessary approvals from the SDRWQCB and (b) Developer providing advance notice to Port District that describes the proposed installation, relocation and/or removal of the Remediation Facilities and requests Port District’s approval thereof (“Remediation Facilities Notice”) and receiving Port District’s written approval thereof (which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that, within twenty (20) days after Developer provides any Remediation Facilities Notice to Port District, Port District shall provide notice to Developer (“Remediation Facilities Response”) that (i) approves the activities described in such Remediation Facilities Notice or (ii) denies Port District’s approval of some or all of the activities described in such Remediation Facilities Notice and describes in reasonable detail the reasonable basis for such denial; and provided, further, that if Port District fails to provide a Remediation Facilities Response to Developer within such twenty- (20-) day period, then Developer may re- deliver its Remediation Facilities Notice to Port District and, if Port District fails to provide a Remediation Facilities Response thereto within ten (10) days after Developer provides such re- delivered Remediation Facilities Notice to Port District, then Port District’s approval of such Remediation Facilities Notice shall be deemed granted. Developer and Port District acknowledge and agree that neither Developer nor Port District shall be responsible to the other for any incidental costs or expenses (e.g., security, overtime, inspection, or management-related expenses) incurred by the other Party arising from or related to providing Site access to Rohr and its authorized contractors and agents for the sampling, operation, maintenance, relocation, replacement, removal and closure of the groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement). Port District shall present to the BPC for its reasonable consideration any reasonable request by Developer in writing for an easement on, over, under or across the Site to others, including, without limitation, any Governmental Authority, for the purpose of constructing, installing, maintaining, repairing, replacing and removing utility systems in connection with the development, construction, use or operation of the Site and the Improvements; provided, however, that, in each case, (A) the term of such easement shall not exceed the Term; (B) Port District shall not be Page 88 of 237 EAttachment B 81 4825-3218-1203v24/024036-0079 responsible for any cost or expense relating to such easement, including without limitation, maintenance thereof; (C) Port District shall have the right to terminate such easement at no cost or expense to Port District in the event of an early termination of this Agreement; (D) Port District shall have the right to relocate such easement, at any time, in Port District’s sole and absolute discretion, at the grantee’s sole cost and expense with respect to the first relocation of such easement and at Port District’s sole cost and expense with respect to any subsequent relocation of such easement, unless agreed to otherwise by Port District and the grantee (provided that Port District shall not consider whether the prospective grantee has agreed to bear such costs for any relocation of such easement after the first relocation in determining whether to grant such an easement); (E) Port District shall have the right to approve the location and dimensions of the easement in Port District’s reasonable discretion; and (F) at Port District’s election, the grantee shall (at the grantee’s own cost and expense) remove any utility system constructed or installed pursuant to such easement at the expiration or earlier termination of the Ground Lease. The City and the Authority hereby consent to any such easement granted by the Port District. No Public Agency shall, without the prior written consent of Developer and, while any Permitted Financing Encumbrance remains outstanding or during any New Lease Period, each Permitted Lender, which consent shall not be unreasonably withheld, conditioned or delayed, encumber the Site or the Improvements during the Term or during any New Lease Period, except for (i) any documents effectuating public financing by the Port District, the City, and the JEPA, including any refinancing thereof, of the Site or the Developer’s Phase 1A Infrastructure Improvements that Developer has agreed to prior to the Commencement Date, or the Convention Center that Developer has agreed to prior to the Expansion Date, or that Developer agrees to, in Developer’s reasonable discretion, during the Term, except for any such document that may impose any new obligation, limitation or prohibition on Developer, the Site, the Improvements, the Convention Center prior to the Expansion Date, the Developer’s Phase 1A Infrastructure Improvements, this Agreement or any Contemporaneous Agreement, in which case Developer’s consent shall be in Developer’s sole discretion, (ii) the Special Tax District and any modifications thereto that Developer agrees to, in Developer’s reasonable discretion, (iii) as permitted under this Section 24.2, or (iv) with respect to Port District only, as required by Laws (provided, that, any such encumbrance under this subsection (iv) shall not result in an encumbrance that is senior in right of priority to that of any Convention Center Lease). 24.3. Cooperation in connection with Condemnation. Each Party shall cooperate in good faith to ensure an award of fair market value is obtained in the event of any taking by eminent domain or condemnation with respect to the Convention Center. Each Party shall use commercially reasonable efforts to perform its respective obligations under the Convention Center Leases related to condemnation and casualty proceeds. ARTICLE XXV “AS-IS” LEASE AND WAIVERS 25.1. Developer’s Acknowledgment. Developer acknowledges that prior to entering into this Agreement and the Sublease, Port District has given Developer sufficient opportunity to consider, inspect and review, to Developer’s complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; (2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; (3) the risk of climate change and the possible adverse Page 89 of 237 EAttachment B 82 4825-3218-1203v24/024036-0079 consequences thereof, including, without limitation, rises in sea level and possible damage to and destruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; (6) the financial prospects of the Site and local market conditions; (7) Developer’s determination of the feasibility of Developer’s intended use and enjoyment of the Site; (8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater, water adjacent to San Diego Bay and sediment adjacent to San Diego Bay; and (9) all other facts, circumstances, and conditions affecting, concerning or relating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; the feasibility of Developer’s intended use and enjoyment of the Site; and such other facts, circumstances and conditions being collectively referred to herein as the “Condition of the Site”; and, without limitation on any other provision of this Agreement or the Sublease, Developer expressly assumes the risk that adverse conditions affecting the Site have not been revealed by Developer’s investigations. 25.2. Only Port District’s Express Written Agreements Binding. Developer acknowledges and agrees that no Person acting on behalf of Port District is authorized to make, and that except as expressly set forth in this Agreement and the Contemporaneous Agreements, neither Port District nor anyone acting for or on behalf of Port District has made, any representation, warranty, agreement, statement, guaranty or promise to Developer, or to anyone acting for or on behalf of Developer, concerning the Condition of the Site or any other aspect of the Site. Developer further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of Port District which is not expressly set forth in this Agreement and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on Port District. Port District acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of Developer which is not expressly set forth in this Agreement and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on Developer. 25.3. As-Is. Developer further acknowledges and agrees that Developer’s execution of this Agreement shall constitute Developer’s representation, warranty and agreement that the Condition of the Site has been independently verified by Developer to its full satisfaction, and that, except to the extent of the express covenants of the City set forth in the Sublease, Developer will be developing the Site and subleasing the Site based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of Developer’s representatives; and that DEVELOPER IS DEVELOPING THE SITE AND SUBLEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS” CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE DEVELOPER’S EXECUTION OF THIS AGREEMENT AND THE SUBLEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, Developer expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect. 25.4. Waivers, Disclaimers and Indemnity. 25.4.1. Waiver and Disclaimer. Developer hereby fully and forever waives, and Port District hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. Page 90 of 237 EAttachment B 83 4825-3218-1203v24/024036-0079 25.4.2. Port District’s Materials. Developer acknowledges that any information and reports, including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which Developer has received or may hereafter receive from Port District Parties (collectively, the “Port District’s Materials”) have been furnished without warranty of any kind (other than that Port District has delivered true and correct copies of each of the items set forth on Exhibit T attached hereto as filed in the Office of the Port District Clerk (“District Documents”)) and on the express condition that Developer will make its own independent verification of the accuracy, reliability and completeness of such Port District’s Materials and that Developer will not rely thereon. Accordingly, subject to terms of Section 25.4.3 below, Developer agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Port District Parties or any of the Persons that prepared or furnished any of the Port District’s Materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such Port District’s Materials, and Developer hereby fully and forever releases, acquits and discharges Port District Parties and each Person furnishing such Port District’s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown (other than in connection with Port District’s breach of its representation and warranty set forth in this Section 25.4.2 that Port District has delivered to Developer true and correct copies of each of the District Documents. 25.4.3. Release and Waiver. 25.4.3.1. Release. Except to the extent of Claims (as defined below) against Port District arising from any breach by Port District of its covenants and obligations expressly provided in this Agreement or the Site Lease, or Port District’s representation and warranty set forth in Section 22.4.2 of the Ground Lease or Section 18(d)(ii) of the Site Lease, Developer, on behalf of Developer, its successors and assigns, hereby fully and forever releases, acquits and discharges Port District of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, “Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that any Developer Party, Hotel Operator or any of Developer’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of Port District (or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable), whether or not such act be the active, passive or sole negligence of Port District (or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable), in connection with prior ownership, maintenance, operation or use of the Site; (ii) any condition of environmental contamination or pollution at the Site (including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean-up or abatement order effecting the Site); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Site (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Site or into any soils, subsoils, surface waters or ground waters at the Site); (iv) the violation of, or noncompliance with, any Environmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Site; (vi) the Condition of Page 91 of 237 EAttachment B 84 4825-3218-1203v24/024036-0079 the Site, including, without limitation, the condition of any improvements located on the Site including, without limitation, the structural integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Site (including, without limitation, all existing easements and encroachments, if any); (viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Site; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Site by Port District (or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable) or any predecessor(s)-in-interest in the Site of Port District. 25.4.3.2. Waiver of Civil Code Section 1542. With respect to all releases made by Developer under or pursuant to Section 6.12 of the Sublease and this Article XXV, Developer hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Developer: _____________________ 25.5. Survival. The terms of this Article XXV shall survive the expiration or earlier termination of this Agreement. ARTICLE XXVI MISCELLANEOUS PROVISIONS 26.1. 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 Business 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. Each Party to this Agreement shall be provided with a copy of each notice given to any other Party under this Agreement. Until notice of a change of address is properly given, notice shall be given at the following addresses: To the Authority: Chula Vista Bayfront Facilities Financing Authority [  ] [  ] Attention: [  ] Page 92 of 237 EAttachment B 85 4825-3218-1203v24/024036-0079 To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney To the Trustee: [  ] [  ] [  ] Attention: [  ] With a copy to: [  ] [  ] [  ] Attention: [  ] To the Port District: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With a copy to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To the Financing District: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager To RIDA: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner Page 93 of 237 EAttachment B 86 4825-3218-1203v24/024036-0079 With copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine Notices to the Trustee shall be given initially either telephonically or by written telecommunication or electronic mail and shall then be confirmed in writing delivered by first class mail, postage prepaid. The Authority, the City, the Port District, the Financing District, the Developer, and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent. 26.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do not define, describe or limit any term of this Agreement. 26.3. No Merger. At any time during the Term, if any of Port District’s, Authority’s, City’s, or Developer’s estates in the Site become vested in the same owner, none of the Site Lease, the Facility Lease, or the Sublease shall be terminated by application of the doctrine of merger except at the express consent of all remaining parties to the Convention Center Leases and with the consent of any Permitted Mortgage Lender. 26.4. Recording. Unless the Parties agree otherwise in writing in advance, on or before the Commencement Date, the Parties shall execute a Memorandum of Agreement substantially in the form of Exhibit R attached hereto (the “Memorandum of Agreement”). Any Party may cause the Memorandum of Agreement to be recorded at such Party’s sole cost and such Party shall be solely responsible for any transfer taxes or fees required to be paid in connection with the recording of the Memorandum of Agreement. 26.5. Port District Transfer. The Authority, the City, and the Developer each acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, Port District may be required by applicable law to transfer all or any portion of its interest in the Site and in the Site Lease, and the Authority, the City, and the Developer each agrees that in the event of any such transfer and the express assumption of Port District’s obligations hereunder and under each of the documents set forth on Exhibit Q attached hereto (a “Port District Transfer”) by the transferee, Port District shall automatically be released from all liability under the Site Lease and this Agreement for periods after the date of such Port District Transfer, and the Authority, the City, and the Developer each agrees to look solely to such transferee for the performance of Port District’s obligations hereunder that arise after the date of such Port District Transfer. Each Person constituting the Lessor under the Site Lease or the Port District under this Agreement shall be liable only for those obligations arising during its period of ownership of the Site and shall be released from further obligations after it completes a Port District Transfer. Page 94 of 237 EAttachment B 87 4825-3218-1203v24/024036-0079 26.6. Time of Essence. Time is of the essence with respect to this Agreement and each of its provisions. 26.7. Partial Invalidity. If any term, provision, covenant or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision, covenant or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent possible permitted by Law. 26.8. Entire Agreement. It is understood and acknowledged that there are no oral agreements between the Parties affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties with respect to the subject matter hereof, except for the Prior Agreements, the Contemporaneous Agreements and the Approved Agreements. This Agreement contains all of the terms, covenants, conditions, warranties and agreements of the Parties relating in any manner to the construction of the Convention Center, the Developer’s Phase 1A Infrastructure Improvements, and (as between the Port District and the Developer) the Remaining Phase 1A Infrastructure Improvements and shall be considered to be the only agreement between the Parties and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agreements and the applicable Approved Agreements; and none of the terms, covenants, conditions or provisions of this Agreement can be modified, deleted or added to except in writing signed by the Parties. All negotiations and oral agreements acceptable to the Parties have been merged into and are included herein. There are no other representations or warranties between the Parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Agreement. However, Developer acknowledges and agrees that other documents may restrict Developer’s use of the Project Site and the Improvements or impose other obligations not specifically referenced in this Agreement, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA. 26.9. Joint and Several. If there is more than one Person constituting Developer (i) the obligations imposed upon such persons or entities under this Agreement shall be joint and several and (ii) the act or signature of, or notice from or to, any one or more of them with respect to this Agreement shall be binding upon each and all of such persons and entities with the same force and effect as if each and all of them had so acted or signed, or given or received such notice. 26.10. Developer’s Authority. Developer hereby represents and warrants as of the Effective Date that Developer is a duly formed and existing entity qualified to do business in the state in which the Project Site is located and that Developer has full right and authority to execute and deliver this Agreement and that each Person signing on behalf of Developer is authorized to do so. 26.11. Interaction with Sewer Agreement. The Parties agree that with respect to the sewer improvements specifically described in the Sewer Agreement (“City Sewer Improvements”) only, because such City Sewer Improvements are being paid for solely out of City funds, they will be constructed by Developer within City rights of way, and will be accepted, owned, and maintained by the City, the Sewer Agreement shall govern the terms for the construction and reimbursement of such City Sewer Improvements. Notwithstanding the foregoing, Developer acknowledges and agrees that (a) Developer’s obligations under Section 3.1 (Term – as it relates to the Developer’s Phase 1A Infrastructure Improvements Site), Section 5.1.1.1 (Construction of Project), Section 5.7 Page 95 of 237 EAttachment B 88 4825-3218-1203v24/024036-0079 (Entitlements), Section 7.2 (Compliance with Laws (except Section 7.2.1)), Section 8.1.2 (Other), Section 8.1.3 (Environment), Section 8.1.4 (Access to Project Site), Section 8.2 (Public Right-of- Way), Article XIV (as to Port District and Authority only), Article XV (as to Port District and Authority only), Article XVIII (as to the Port District and Authority only), Article XX (as to Port District and Authority only), and Article XXI (as to Port District and Authority only), shall govern and control as to the Port District and Authority with respect to the City Sewer Improvements and any portion of the Project Site upon which the City Sewer Improvements shall be constructed and the Port District and Authority shall have all of its rights to enforce such rights herein; (2) the Completion of the City Sewer Improvements shall not be considered in the definition of Developer’s Phase 1A Infrastructure Improvements for purposes of determining the Outside Construction Completion Date for purposes of assessing Construction Late Charges; (3) with respect to the City Sewer Improvements only, Developer shall comply with the applicable requirements of the Sewer Agreement to provide payment bonds, performance bonds, and/or warranty bonds; and (4) this provision shall not restrict, modify, or amend, any rights of the Port District pursuant to any easement with the City for any public right of way in which any of the City Sewer Improvements shall be constructed. 26.12. Resolution of Specified Disputes. 26.12.1. Specified Disputes. This Section shall only apply to, and shall be the Parties’ exclusive method of dispute resolution for the following specified disputes (“Specified Disputes”), defined as: 26.12.1.1. (a) Disputes over amounts that Developer included in a Developer’s Phase 1A Payment Request pursuant to Section 9.1.2.1 that Authority (i) did not approve per Section 9.1.2.4, (ii) contested pursuant to Section 9.1.4.3 to the extent the Developer or Authority are unable to agree or settle such dispute within the time period set forth in Section 9.1.4.3(a) or (iii) did not pay within the time set forth in Section 9.1.3, or (b) disputes regarding the Final Accounting or the Authority’s Phase 1A Final Review pursuant to Section 9.1.6 and 9.1.6.1. 26.12.1.2. Disputes over the amount of any reduction in the costs payable to Developer as a result of Authority’s correction, removal or replacement of Defective Work pursuant to Section 12.2.1 or Section 12.2.2. 26.12.1.3. (a) Disputes over amounts that Developer included in a Convention Center Payment Request pursuant to Section 9.2.1 that Authority (a) did not approve per Section 9.2.2.3, (b) contested pursuant to Section 9.2.4.2 to the extent the Developer or Authority are unable to agree or settle such dispute within the time period set forth in Section 9.2.4.2(a) or (c) did not pay within the time set forth in Section 9.2.3 or (b) disputes regarding the Final Accounting or the Authority’s Convention Center Final Review pursuant to Section 9.2.6 and 9.2.6.1. 26.12.1.4. Disputes over any amounts that Authority has paid to Developer that Authority alleges were not properly paid to Developer, except that this Section does not preclude Authority or any other Public Agency from bringing an action in court under the False Claims Act, or for fraud, or for similar actions. 26.12.1.5. Disputes pursuant to Section 26.12.4 as to whether a Demand is subject to arbitration. Page 96 of 237 EAttachment B 89 4825-3218-1203v24/024036-0079 26.12.2. Notice. Developer and Authority shall endeavor to reasonably inform the other Party of any Specified Disputes that they respectively believe may be the subject of formal dispute resolution proceedings. 26.12.3. Initiation of Dispute Resolution. Developer or Authority may initiate the dispute resolution process by providing notice and making a written demand to the other Party to initiate formal dispute resolution (“Demand”). The Demand shall include documentation supporting the claimed right to payment, or if the documentation has already been provided, a specific reference to the documents and their location. Upon the filing of a Demand, Developer and Authority shall engage in good faith in executive-level negotiations to attempt to resolve the Specified Dispute. Negotiation shall occur within three (3) Business Days from Developer’s or Authority’s Demand (or, with respect to disputes under Sections 26.12.1.1(b) or 26.12.1.3(b), five (5) Business Days from Developer’s or Authority’s Demand). Developer and Authority may mutually agree to mediation of the Demand in lieu of or in addition to negotiation of a Specified Dispute. The reasonable costs of mediation will be shared evenly between Developer and Authority. 26.12.4. Binding Arbitration. Specified Disputes that remain unresolved within six (6) Business Days after the Demand (the “Negotiation Deadline”) shall be submitted to binding arbitration. The arbitration shall be inclusive of all Specified Disputes that have been initiated pursuant to Section 26.12.3 at the time Developer or Authority initiates arbitration, unless the Developer and Authority stipulate otherwise. The complaint in arbitration shall identify all Specified Disputes that are part of the arbitration as well as the amount in controversy. To the extent that the Developer and Authority do not agree in good faith whether a Demand is a Specified Dispute subject to arbitration, the question of whether a Demand is subject to arbitration shall be resolved by the arbitrator. Developer or Authority shall initiate arbitration of a Demand no later than six (6) months after the Cutoff Date. 26.12.5. Selection of Arbitrator. The Parties have approved each of the arbitrators (the “Approved Arbitrators”) listed on Exhibit N-1 (the “Approved Arbitrator List”). After the Negotiation Deadline, Developer or Authority may contact the Approved Arbitrator that is highest on the Approved Arbitrator List to determine whether he/she is available to serve as the arbitrator. If such Approved Arbitrator responds that he/she is unavailable or does not indicate that he/she is available to serve as the arbitrator within three (3) Business Days after the date on which contacted, then such Approved Arbitrator shall be deemed unavailable. Developer or Authority may then contact the Approved Arbitrator that is next on the Approved Arbitrator List, and such process shall continue on an iterative basis until an Approved Arbitrator has confirmed their availability or until all of Approved Arbitrators on the Approved Arbitrator List are deemed unavailable. If none of the Approved Arbitrators is available, then Developer and Authority shall, within two (2) Business Days after Developer or Authority determines that none of the Approved Arbitrators is available, exchange a list of five preferred arbitrators, each of whom must be experienced in construction law and resolving construction claims, and each of whom shall be a retired judge or an attorney, located in Southern California. The Developer and Authority shall mutually agree on an arbitrator. In the event that an agreement cannot be reached within two (2) Business Days after receipt of such lists, each side shall strike one of the other parties’ arbitrators until only four names remain. Any of the remaining four who are unable to take on the Specified Dispute shall be stricken. If an agreement still cannot be reached, the arbitrator shall be selected by lot from the remaining names. 26.12.6. Selection of Arbitration Rules. The arbitration shall proceed in accordance with the JAMS Expedited Construction Arbitration Rules (the “JAMS Rules”). The JAMS Rules Page 97 of 237 EAttachment B 90 4825-3218-1203v24/024036-0079 shall apply except to the extent inconsistent with this Section 26.12, and even though the amount of the dispute may be greater than $100,000. Any arbitration pursuant to this Section 26.12 shall be completed (whether by settlement or the issuance of an award by the arbitrator) within twenty (20) Business Days after the arbitrator is selected. 26.12.7. Arbitrator’s Jurisdiction. The arbitrator’s jurisdiction shall be limited to determining whether a Demand is subject to arbitration as well as the amount due from one Party to other under this Agreement and ordering the payment of such amounts due from one Party to the other Party by a date certain. 26.12.7.1. For a Specified Dispute arising from a Demand involving a Developer’s Phase 1A Payment Request, the arbitrator shall only have jurisdiction to determine whether any amount is owed to Developer in accordance with this Agreement and to order payment to Developer of the amount owed. 26.12.7.2. For a Specified Dispute arising from a Demand involving Defective Work, the arbitrator shall only have jurisdiction to determine the amount of the reduction, if any, in costs payable to Developer and to order payment to allocate such costs. 26.12.7.3. For a Specified Dispute arising from a Demand involving a Convention Center Payment Request, (a) the arbitrator shall only have jurisdiction to determine whether any amount is owed to Developer in accordance with this Agreement and to order payment to Developer of the amount owed, and (b) the arbitrator shall have no power to order the Authority or any other Public Agency to pay any amount to Developer in excess of the sum of the Project Public Investment Amount (not paid to Developer pursuant to this Agreement (other than default interest in accordance with this Agreement)) and the proceeds of Advance Rent (to the extent received by any Public Agency and not paid to Developer pursuant to this Agreement), to order any adjustment to the Project Public Investment Amount, or to order any payment of the Project Public Investment Amount before it is due and payable under this Agreement. 26.12.7.4. For a Specified Dispute arising from a Demand involving an overpayment by Authority, the arbitrator shall only have jurisdiction to determine whether any amount is owed to Authority in accordance with this Agreement and to order payment to Authority of the amount owed. 26.12.7.5. For all Specified Disputes, the costs necessary to retain and commence arbitration shall be shared evenly between Developer and Authority, but the arbitrator may order the non-prevailing party to pay the reasonable attorney’s fees and costs of the prevailing party as part of an award. 26.12.7.6. For all Specified Disputes, the arbitrator shall have no authority or power to do any of the following: (i) award payment of any amount that is not consistent with this Agreement or expressly authorized within the terms of this Agreement; (ii) award any consequential, incidental or punitive damages or any amounts relating to lost profits, lost business opportunity or similar damages; (iii) commit errors of law; (iv) decide any matter related to this Agreement that is not specifically identified as a Specified Dispute arising from a Demand; (v) order injunctive relief or (vi) order any Public Agency to perform any discretionary act. Page 98 of 237 EAttachment B 91 4825-3218-1203v24/024036-0079 26.12.7.7. For the resolution of Demands arising under all Specified Disputes, the arbitrator shall issue a written determination containing the arbitrator’s findings and the basis of the award. 26.12.8. Judgment. Judgment on any award rendered by an arbitrator may be entered in any court having jurisdiction thereof. 26.12.9. Interpretation. This procedure for resolution of Specified Disputes shall not limit the rights of the Public Agencies to initiate a claim against Developer or any other person: (a) arising from latent and/or patent deficiencies in workmanship, equipment or materials; (b) arising from guarantees to repair or warranty obligations; (c) for defense and indemnity pursuant to Article XIV of this Agreement (d) under any security for Developer’s performance, including calling a bond per Article XIII of this Agreement or enforcing the Completion Guaranty per Section 5.6; or (e) for any remedy under any other agreement between Developer and any of the Public Agencies. 26.12.10. Resolution of Other Disputes. Any dispute, controversy or claim arising out of or relating to this Agreement or any Convention Center Lease, or the breach hereof or thereof, shall be subject to a non-binding mandatory mediation, other than (i) a Specified Dispute; (ii) any action of a Party to seek emergency, immediate, or preliminary relief; (iii) any action of a Public Agency in its governmental or regulatory capacity; or (iv) any action involving fraud, false claims or similar actions. The mediator shall be a qualified mediator mutually acceptable to the Parties involved in the dispute. The Parties have approved each of the mediators (the “Approved Mediators”) listed on Exhibit N-2 (the “Approved Mediator List”). The Port District and Developer may elect to use the Approved Mediator List for any non-binding mediation elected or required under the Ground Lease. The Parties involved in the dispute shall each pay an equal share of the cost of the mediation and each such Party shall pay its own costs and expenses, including any attorneys’ fees, related to the mediation. 26.13. Attorneys’ Fees. Should any suit or action be commenced to enforce, protect, or establish any right or remedy of any of the terms and conditions hereof or under the Convention Center Subleases to which a Party hereto is a party or a third party beneficiary, including without limitation a summary action commenced by the Parties under the laws of the state of California relating to the unlawful detention of property, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys’ fees and costs of suit, including, without limitation, any and all costs incurred in enforcing, perfecting and executing such judgment. 26.14. Transaction Costs. To the extent Developer requests any approval, consent or other action by Port District, Authority, or the City under this Agreement, or Port District, Authority, or City, need to approve, consent, or perform another action for any of the Port District, Authority, or City, to process an approval, consent, or other action for Developer, Developer shall pay or reimburse Port District, Authority, or City, as applicable, upon written demand therefor, all of Port District’s, Authority’s, or City’s, as applicable, reasonable attorneys’ fees and other third party costs incurred by Port District, Authority, or City in connection therewith, together with Port District’s, Authority’s, and City’s, then current processing or cost recovery fee for, Port, Authority, or City similar transactions consistent with any schedule of such fees then utilized by Port District, Authority, or City. Port District, Authority, or City, as applicable, shall provide Developer with a copy of any such fee schedule following written request therefor from Developer. Such costs and fees shall be payable to Port District, Authority, or City, as applicable, whether or not Port District, Authority, or City, as applicable, grants such approval or consent, or undertakes the action requested Page 99 of 237 EAttachment B 92 4825-3218-1203v24/024036-0079 by Developer or performed by Port District, Authority, or City, to approve, consent, or perform another action for any of the Port District, Authority, or City, to process such approval, consent, or action for Developer. Notwithstanding anything to the contrary in this Section, (i) Section 19.2 and not this Section 26.14 shall apply to any Tax Claim, (ii) Developer shall have the right to seek reimbursement of any amount paid under this Section 26.14 that qualifies as a Developer’s Phase 1A Infrastructure Improvements Costs and the Authority shall process such request in the same manner as any other payment request under Section 9.1, and (iii) Developer shall have no obligation to pay Port District, Authority, or City for any cost that the Port District, Authority, or City has expressly agreed to pay in this Agreement or Contemporaneous Agreement. 26.15. Provisions Regarding Authority Operations. Until the earlier of (a) Full Payment or (b) the earlier termination of the Sublease and this Agreement, the Authority agrees to comply with the following: 26.15.1. The Authority will not engage in any transactions or operations other than (i) issuing the Authority Bonds, and (ii) engaging in the transactions described in this Agreement, the Convention Center Leases and the Indenture. 26.15.2. The Authority will neither incur nor guaranty any indebtedness other than the Authority Bonds. 26.15.3. The Authority will have a mailing address separate from the Public Agencies. 26.15.4. The Authority will maintain financial books and records separate from those of any other Person. 26.16. Replacement Trustees. Until Full Payment or the earlier termination of this Agreement, Authority shall not approve or effect the replacement of the Trustee under the Authority Indenture unless the Developer first provides its written consent, which consent shall not unreasonably withheld, conditioned or delayed, and such approval shall not be required if US Bank National Association or The Bank of New York Mellon Trust Company, N.A., will be the replacement Trustee. Authority will provide Developer with written notice of any proposed replacement of the Trustee under the Authority Indenture promptly after Authority learns of such proposed replacement. 26.17. Effect of Section 365(h)(1) Election. If Port District elects to treat the Site Lease as terminated under Section 365(h)(1) of the Bankruptcy Code, then the Authority shall exercise its right under Section 365(h)(1) of the Bankruptcy Code to remain in possession of the Site under and as defined in the Site Lease. If the Authority elects to treat the Facility Lease as terminated under Section 365(h)(1) of the Bankruptcy Code, then the City shall exercise its right under Section 365(h)(1) of the Bankruptcy Code to remain in possession of the Site and the Improvements, in each case under and as defined in the Facility Lease. 26.18. Financial Information Regarding Continuous Operations. To assist Developer in making any determination described in 6.1(c)of the Sublease, the Authority, the other Public Agencies and the Financing District shall deliver to Developer, within fifteen (15) Business Days after Developer’s reasonable request therefor, (i) a written and reasonably detailed forecast of the sources and amounts of Revenues (as defined in the Indenture) that will accrue during the next Page 100 of 237 EAttachment B 93 4825-3218-1203v24/024036-0079 twelve (12) month period, (ii) a description of all funds and accounts established pursuant to the Indenture (including the amounts deposited therein) and (iii) such other financial information as Developer shall reasonably request regarding revenues held, paid or to be paid by any Public Agency or the Financing District to the Authority or the Trustee pursuant to the terms of this Agreement, the Convention Center Leases and the Indenture, as applicable. If the Public Agencies or Financing District do not provide information reasonably requested by Developer within such fifteen (15) Business Day period, the Developer will provide written notice to the Public Agency or Financing District, as applicable, describing the information that was not provided and the applicable Public Agency or Financing District shall provide such information to Developer within five (5) Business Days from the date such notice was received (or, with respect to information reasonably requested by Developer under clause (iii) in the immediately preceding sentence, such additional time as may reasonably be required by the Public Agencies or Financing District to compile and provide such information). 26.19. Governing Law. Venue for any legal proceeding shall be in San Diego County, California. This Agreement shall be construed and enforced in accordance with the Laws of the State of California. 26.20. Modification. This Agreement may not be amended, 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. Neither the Facility Lease nor the Site Lease shall be terminated or rescinded, or amended or otherwise modified in any manner that could reasonably be expected to have an adverse effect on Developer or any Permitted Lender, without Developer’s prior written consent and the consent of each Permitted Lender. 26.21. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. 26.22. Drafting Presumption; Review Standard. The parties acknowledge that this Agreement has been agreed to by each of the Parties, that each of the Parties have consulted with attorneys with respect to the terms of this Agreement and that no presumption shall be created against the drafting Party. Any deletion of language from this Agreement prior to its execution by the Parties shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Agreement, any approval or consent to be given by Port District, BPC, City, or the City Council, may be given or withheld in Port District’s, BPC’s, City’s, or the City Council’s, sole and absolute discretion. 26.23. Administrative Claims. No suit or arbitration (other than arbitration pursuant to Section 26.12) shall be brought arising out of this Agreement against the Authority or the Port District unless a claim has first been presented in writing and filed with the Authority or the Port District, as applicable, and acted upon by the Authority or the Port District, as applicable, in accordance with the procedures set forth in Section 910, et seq., of the California Government Code, 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 the Authority or the Port District, as applicable, in the implementation of same. No suit or arbitration (other than arbitration pursuant to Section 26.12) 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 Page 101 of 237 EAttachment B 94 4825-3218-1203v24/024036-0079 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 the City in the implementation of same. For the avoidance of doubt, this Section 26.22 shall not apply to prevent or delay the initiation of mediation or arbitration as permitted by Section 26.12. 26.24. Non-liability of Public Agency Officials and Employees. No officer, director, member, official, employee, consultant, or member of the governing board of any Public Agency shall be personally liable to Developer in the event of any default or breach by such Public Agency, or for any amount which may become due to Developer, or on any obligations under the terms of this Agreement. 26.25. Authority Executive Director; Authority Approvals and Actions. Authority shall maintain authority of this Agreement and the authority to implement this Agreement on behalf of Authority through Authority’s Executive Director (or his/her duly authorized representative). The Executive Director and his/her duly authorized representative(s) shall have the authority to make approvals, issue interpretations, waive provisions, request issuance of warrants and make payments authorized hereunder, make and execute further agreements and/or enter into amendments of this Agreement on behalf of Authority so long as such actions do not materially or substantially change or modify the uses or development permitted on the Project Site, or materially or substantially add to the costs, responsibilities, or liabilities incurred or to be incurred by Authority as specified herein, and such interpretations, waivers and/or amendments may include extensions of time to perform. All material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the Authority Board. Further, the Executive Director shall maintain the right to submit to the Authority Board for consideration and action any non-material or non- substantive interpretation, waiver or amendment, if in his/her reasonable judgment he/she desires to do so.] 26.26. Further Assurances. From time to time upon the request of a Party, the other Parties shall, at the requesting Party’s expense, promptly execute, acknowledge and deliver such further documentation and do such other acts and things as the requesting Party may reasonably request in order to effect fully the purposes of this Agreement in such a manner that is consistent with and does not contradict, modify, or amend this Agreement. CONTRACTOR’S LICENSE NOTICE. CONTRACTORS ARE REQUIRED BY LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS STATE LICENSE BOARD, WHICH HAS JURISDICTION TO INVESTIGATE COMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT REGARDING A PATENT ACT OR OMISSION IS FILED WITHIN 4 YEARS OF THE DATE OF THE ALLEGED VIOLATION. A COMPLAINT REGARDING A LATENT ACT OR OMISSION PERTAINING TO STRUCTURAL DEFECTS MUST BE FILED WITHIN 10 YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY QUESTIONS CONCERNING A CONTRACTOR MAY BE REFERRED TO THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX 26000, SACRAMENTO, CA 95826. [End of page. Signature page follows this page.] Page 102 of 237 EAttachment B S-1 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, this Project Implementation Agreement is executed as of the day and year first set forth above. CITY DEVELOPER CITY OF CHULA VISTA, a California charter city and municipal corporation RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number: 1039979 By: Maria Kachadoorian, City Manager By: * ATTEST: By: Kerry Bigelow, City Clerk APPROVED AS TO FORM: By: Glen R. Googins, City Attorney [Signatures continue on following page] Page 103 of 237 EAttachment B S-2 4825-3218-1203v24/024036-0079 [Signatures continue from previous page.] PORT DISTRICT AUTHORITY SAN DIEGO UNIFIED PORT DISTRICT, a public corporation CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint exercise of powers authority By: By: APPROVED AS TO FORM AND LEGALITY: APPROVED AS TO FORM AND LEGALITY: By: Thomas A. Russell, General Counsel By: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District By: Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista FINANCING DISTRICT BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: * Signatories to provide signature authority for signatory Page 104 of 237 EAttachment B 1 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 Definitions Addendum This Definitions Addendum constitutes a part of that certain Project Implementation Agreement (the “Agreement”) entered into as of _______________, 20__ by and among the City, acting on its behalf and for and on behalf the Financing District, the Port District, the Authority, and Developer and by reference to the same in the Agreement, the following definitions are incorporated into and constitute a part of the Agreement. DEFINITIONS ADDENDUM 2010 TITLE 24: the Building Energy Efficiency Standards, Title 24, Part 6, of the California Code of Regulations in effect as of May 4, 2010. 2021A CONSTRUCTION ACCOUNT: the 2021A Account of the Construction Fund maintained by the Trustee pursuant to the Authority Indenture. 2021B BOND PROCEEDS SUBACCOUNT: the 2021B Bond Proceeds Subaccount established within the 2021B Construction Account and maintained by the Trustee pursuant to the Indenture. 2021B CONSTRUCTION ACCOUNT: 2021B Account of the Construction Fund maintained by the Trustee pursuant to the Authority Indenture. 50% ENERGY STANDARD: the requirement in Section 15 of the Settlement Agreement that requires all Developments within the Proposed Project (as defined in the Settlement Agreement) area achieve, in the aggregate, a fifty percent (50%) reduction in annual energy compared to that allowed under 2010 Title 24. 75% COMPLETION: the date on which Developer’s Phase 1A Infrastructure Improvements (other than Harbor Park) are seventy-five percent (75%) Complete, as reasonably determined by the Developer. ACCEPT / ACCEPTANCE / ACCEPTED: With respect to the Developer’s Phase 1A Infrastructure Improvements or any component thereof, acceptance of the Developer’s Phase 1A Infrastructure Improvements or such component by the City and the Port District, as applicable, which shall occur pursuant to Section 10.1 of the Agreement. With respect to the Convention Center, acceptance of the Convention Center by the Authority, which shall occur pursuant to Section 10.2 of the Agreement and shall be evidenced by a certificate of the Authority confirming the Authority’s Acceptance of the Convention Center. ACCEPTANCE NOTICE: defined in Section 10.2.1. ADA: the Americans with Disabilities Act, 42 U.S.C. §12101 (et seq.) and the regulations promulgated thereunder, as the same may be amended from time to time. Page 105 of 237 EAttachment B 2 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 ADDITIONAL ENERGY SAVINGS MEASURES: energy savings measures, programs or credits available to achieve the 50% Energy Standard. Such Additional Energy Savings Measures may include, without limitation, Developer’s participation in renewable or “time of use” energy purchase programs, and/or other measures identified in Section 15.2 of the Settlement Agreement. ADEQUATE INSURANCE: insurance that using standards customary in the insurance industry provides adequate protection for the Site and Improvements (other than the Existing Improvements) and for the Port District Parties and/or members of the public using the Site or Improvements (other than the Existing Improvements) or using services connected with the use, operation or occupancy of the Site and Improvements (other than the Existing Improvements) by Developer Parties and Hotel Operator. ADVANCE RENT: the rent payable by RIDA pursuant to Section 3.4 of the Sublease to the extent the right to such payment has been assigned by the City to the Authority under the Facility Lease. ADVANCE RENT SIDE LETTER: the letter agreement, dated as of the Effective Date, by and among the Parties. AFFILIATE: with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person. AGREEMENT: this Project Implementation Agreement between the Authority, the City, the Financing District, the Port District and the Developer. The term “Agreement” shall include any amendment to the Agreement properly approved and executed pursuant to the terms of the Agreement. ALTERATIONS: any alterations, additions, installations, removals, demolitions, improvements or other physical changes to the Site and the Improvements following the Completion of the Convention Center, including the addition, installation or removal of any fixtures (other than trade fixtures) but excluding installation, maintenance, replacement or refreshing of any furniture, trade fixtures or equipment. ANTICIPATED ASSISTANCE COSTS: with respect to any assistance that Developer requests that Port District provide to Developer, the total amount of Assistance Costs that Port District reasonably anticipates to incur in connection with such assistance. APPROVED AGREEMENTS: defined in Section 24.1. Page 106 of 237 EAttachment B 3 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 APPROVED DRAWINGS AND SPECIFICATIONS: with respect to the Developer’s Phase 1A Infrastructure Improvements means the drawings and specifications for the Developer’s Phase 1A Infrastructure Improvements attached as Exhibit X-1, as amended or otherwise modified from time to time in accordance with Section 2.1.6 of the Agreement; and (b) with respect to the Remaining Phase 1A Infrastructure Improvements means the drawings and specifications for the Remaining Phase 1A Infrastructure Improvements attached as Exhibit X-2, as revised by the Port District from time to time before Developer exercises a Sweetwater Park Option. ARCHITECT: HKS Inc. d/b/a HKS Architects Inc. or any other architect or engineer selected by Developer and approved by Authority (such approval not to be unreasonably withheld, conditioned or delayed). ARCHITECT’S CERTIFICATE: a certification from Architect in the form of the Certificate of Architect attached as Exhibit 1 to the Developer Phase 1A Payment Request or the Convention Center Payment Request, as applicable. ASSIGNMENT: any disposition, assignment, sale, conveyance, exchange or other transfer of all or any portion of Developer’s interest in the Sublease (including without limitation any easements), the leasehold estate created thereby, the Site or the Improvements, whether by operation of law or otherwise, but, for the avoidance of doubt, excluding any Sublease (as defined in the Sublease). ASSIGNMENT PARTICIPATION FEE: defined in Section 22.1. ASSIGNMENT PROCEEDS: defined in Section 22.1. ASSISTANCE COSTS: with respect to any assistance that Developer requests that Port District provide to Developer, the amount of costs and expenses reasonably incurred or to be incurred by Port District in providing such assistance. AUTHORITY: defined in the preamble to the Agreement. AUTHORITY ACCOUNT: defined in Section 9.1.1.3(b). AUTHORITY BOARD: the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority. AUTHORITY BONDS: the Authority Tax-Exempt Bonds and the Authority Taxable Bonds. AUTHORITY BYLAWS: the Bylaws of the Chula Vista Bayfront Facilities Financing Authority adopted by the Authority Board on July 25, 2019. AUTHORITY COUNSEL: the Port District General Counsel and the City Attorney acting as co- counsel to the Authority. Page 107 of 237 EAttachment B 4 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 AUTHORITY EMAIL ADDRESSES: [Insert initial Authority Email Addresses for Payment Request notices/links], and such other electronic mail addresses as shall be provided or substituted by Authority from time to time by written notice to Developer. AUTHORITY EVENT OF DEFAULT: defined in Section 21.5. AUTHORITY INDENTURE: the Indenture of Trust, dated as of _____________, 2021, by and between the Authority and ____________. AUTHORITY PARTIES: the Authority and the officers, directors, members of the Authority Board, employees, partners, affiliates, agents, contractors, successors and assigns of the Authority, City employees and agents, and Port District employees and agents, in each case, when acting only in the capacity of an Authority Party. AUTHORITY PROCUREMENT POLICY: the “Chula Vista Bayfront Facilities Financing Authority Procurement Policy for Developer-Performed Public Works” ratified by the Authority Board by the adoption of Authority Resolution 2020-002. AUTHORITY RESOLUTION 2020-002: the final form of such resolution as ratified by Authority Resolution 2020-007. AUTHORITY SURPLUS FUND: defined in the Authority Indenture. AUTHORITY TAXABLE BONDS: the $_____________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) issued to finance a portion of the Project Costs. AUTHORITY TAX- EXEMPT BONDS: the $_____________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) issued to finance a portion of the Developer’s Phase 1A Infrastructure Improvements Costs and a portion of the Remaining Phase 1A Infrastructure Improvements. AUTHORITY’S CONVENTION CENTER FINAL REVIEW: defined in Section 9.2.6.1. AUTHORITY’S PHASE 1A FINAL REVIEW: defined in Section 9.1.6.1. BANKRUPTCY CODE: the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended, and any successor statute. Page 108 of 237 EAttachment B 5 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 BANKRUPTCY EVENT: the occurrence with respect to Developer, any Completion Guarantor(s) or any other Person liable for Developer’s obligations hereunder (including without limitation any member or manager of Developer) of any of the following: (a) appointment of a receiver or custodian for any property of such Person; (b) filing by such Person of a voluntary petition under the provisions of the Bankruptcy Code; or (c) such Person making or consenting to an assignment for the benefit of creditors or a composition of creditors. BFDIF / BFDIF PROGRAM: the Bayfront Transportation Development Impact Fee program, as authorized by Chula Vista Municipal Code Chapter 3.54. BMP: defined in Section 8.1.3. BPC: Board of Port Commissioners of the San Diego Unified Port District. BUSINESS DAY(S): Monday through Friday, excluding Holidays. CASUALTY PROCEEDS: defined in Section 5.2(a) of the Sublease. CCC: defined in Section 7.2.2. CDP: defined in Section 7.2.2. CEQA: defined in Section 7.2.2. CERTIFICATES: defined in Section 15.3.1. CHULA VISTA BUILDING CODE: Chula Vista Building Standards Code (Title 15 of the Chula Vista Municipal Code), as amended, and any successor statute. CHULA VISTA STANDARD SPECIAL PROVISIONS Section 1-2 of Part 1, Part 2, Part 3, and Part 4 of the City of Chula Vista Standard Special Provisions. CITY: the City of Chula Vista, a charter city and municipal corporation. Unless specifically provided otherwise, whenever the Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement. CITY ATTORNEY: the City Attorney of the City or that person’s duly authorized deputy set forth in Schedule 1 of the Authority Bylaws. CITY COUNCIL: The City Council of the City of Chula Vista. CITY MANAGER: the City Manager of City or his or her designee. Page 109 of 237 EAttachment B 6 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 CITY PARTIES: the City and the officers, directors, members of the City Council, employees, partners, affiliates, agents, contractors, successors and assigns of the City, in each case, when acting only in the capacity of a City Party. CLAIMS: defined in Section 25.4.3.1. CODE: the Internal Revenue Code of 1986, as amended. COMMENCEMENT DATE: the date on which the term of the Site Lease commences. COMPLETE AND COMPLETION: (a) with respect to the Convention Center, means that the Developer has obtained and delivered to Authority a certificate of occupancy or temporary certificate of occupancy for the Convention Center from the City, (b) with respect to the Developer’s Phase 1A Infrastructure Improvements, means that the Developer’s Phase 1A Infrastructure Improvements are sufficiently complete in accordance with the Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Developer’s Phase 1A Infrastructure Improvements can be utilized for their intended use, (c) with respect to the Remaining Phase 1A Infrastructure Improvements, means that the Remaining Phase 1A Infrastructure Improvements are sufficiently complete in accordance with the Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Remaining Phase 1A Infrastructure Improvements can be utilized for their intended use; and (d) with respect to the Resort Hotel, as defined in the Ground Lease. COMPLETION GUARANTOR(S): defined in each Completion Guaranty. COMPLETION GUARANTY: defined in Section 5.6. CONDEMNATION AND CONDEMNED: defined in Section 5.1 of the Sublease. CONDITION OF THE SITE: defined in Section 25.1. CONSTRUCTION LATE CHARGES: defined in Section 5.1.2. CONSTRUCTION FUND: defined in the Authority Indenture. Page 110 of 237 EAttachment B 7 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 CONSTRUCTION PERIOD: the period between the Commencement Date and the date when the Project is Complete. CONSTRUCTION REQUIREMENTS: those requirements, conditions and procedures regulating the installation, construction, modification and repair of applicable Improvements and Alterations as described in Exhibit “E” attached to the Agreement. CONSULTANT SERVICES: defined in Section 5.7.1. CONTEMPORANEOUS AGREEMENTS: Agreements executed on or around the date hereof by the Parties or their Affiliates with respect to the Development, including but not limited to the Ground Lease, the Convention Center Leases, the Completion Guaranty, the Port Support Agreement and [the Offsite Parking Right of Use Agreement]. CONTRACT DOCUMENTS: the following to the extent applicable to the construction of the Project: 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 the Authority, City and/or, the Port District, as applicable, or other agencies, the special provisions, the plans, standard plans, standard specifications and reference specifications that are incorporated into such prime contract(s) or subcontract(s), the Approved Drawings and Specifications, and all modifications issued after the execution of the subcontract(s), in each case, in connection with the Project or the Remaining Phase 1A Infrastructure Improvements, as applicable. CONTROL, CONTROL, CONTROLLED AND CONTROLLING: shall be deemed, with respect to any Person, to be either or both (i) the ownership of more than fifty percent (50%) of the stock, membership interests or other voting interest of such Person or the ownership of beneficial interests in such Person, or (ii) the power to direct the management of such Person with respect to major decisions of such Person, whether through voting interests or by way of agreement. CONVENTION CENTER: defined in Recital B. CONVENTION CENTER BUDGET: a budget for all anticipated Convention Center Costs, including a contingency reserve, broken down by line item, as amended from time to time. CONVENTION CENTER CONTESTED CHARGES: defined in Section 9.2.4.2. Page 111 of 237 EAttachment B 8 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 CONVENTION CENTER CONTRACT SUM: the sum of (i) the Convention Center Costs, plus (ii) the Total Convention Center Development Fee, plus (iii) the Stipulated Convention Center Overhead Amount. CONVENTION CENTER COSTS: the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction, maintenance and permitting of the Convention Center; provided, that Convention Center Costs shall not include Non-Project Costs. CONVENTION CENTER FINAL AMOUNT: defined in Section 9.2.6.1. CONVENTION CENTER LEASES: defined in Recital D. CONVENTION CENTER PAYMENT REQUEST: the Convention Center Payment Request in the form set forth in Exhibit K-2. CONVENTION CENTER PLANS: the plans and specifications described in Exhibit F-1 attached to the Agreement, as amended or otherwise modified from time to time in accordance with Section 5.1 of the Agreement. COUNTY: the County of San Diego. COUNTY FUNDED BAYFRONT IMPROVEMENTS SUBACCOUNT: the County Funded Bayfront Improvements Subaccount established within the 2021B Construction Account and maintained by the Trustee pursuant to the Indenture. COUNTY FUNDED DEVELOPER’S PHASE 1A SUBACCOUNT: the County Funded Developer’s Phase 1A Subaccount established within the 2021B Construction Account and maintained by the Trustee pursuant to the Indenture. COUNTY FUNDING AGREEMENT: defined in Recital F. COUNTY FUNDS: the amount actually paid by the County to the Authority pursuant to the County Funding Agreement. COUNTY FUNDS RELEASE DATE: the latest to occur of (i) the Cutoff Date; (ii) the date on which all claims with respect to Developer’s Phase 1A Infrastructure Improvements Costs have been finally resolved; and (iii) the date on which all amounts that are owing to Developer in respect of the Developer’s Phase 1A Infrastructure Improvements Costs have been paid to Developer. COUNTY SWEETWATER PARK FUNDS: defined in Section 9.1.1.3(a) of this Agreement. Page 112 of 237 EAttachment B 9 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 CPM: defined in Section 5.4.2. CUTOFF DATE: with respect to each of the Developer’s Phase 1A Infrastructure Improvements, two (2) years from the date of Completion, and with respect to the Convention Center, two (2) years from the date of Completion. CVBMP: defined in Recital J. CVBMP DOCUMENTS: the following documents: (i) the Settlement Agreement; (ii) Chula Vista Bayfront Development Policies (District Clerk No. 59407); (iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan (District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016-79, and the City Council on June 14, 2016, by Resolution No. 2016-119; (iv) Chula Vista Bayfront Master Plan Public Access Program (District Clerk No. 59408); (v) Chula Vista Bayfront Design Guidelines (District Clerk No. 67959); (vi) Integrated Planning Vision (District Clerk No. 63989); (vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment (District Clerk Nos. 59406); and (viii) Mitigation Monitoring and Reporting Program for the Chula Vista Bayfront Master Plan (District Clerk No. 56555). CVMC: the Chula Vista Municipal Code. DEFAULT RATE: an annual rate equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release Publication H.15(519), published weekly (or such other comparable index as Port District and Developer shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and (ii) the highest rate permitted by applicable Law. DEFECTIVE WORK: all work, material, or equipment that does not substantially conform to the Contract Documents. DESIGN AND CONSTRUCTION STANDARDS: the edition of the Design and Construction Standards adopted by the City 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, acting on behalf of the Authority, and on the City’s website. DEVELOPER: RIDA Chula Vista, LLC, a Delaware limited liability company. DEVELOPER ART INVESTMENT: $4,774,400. DEVELOPER FUNDING: defined in Section 19.4. Page 113 of 237 EAttachment B 10 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 DEVELOPER MEMBER / DEVELOPER MEMBERS: defined in Section 20.3. DEVELOPER PARTY: RIDA, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors and assigns of RIDA, and Subtenants, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Subtenants, in each case, when acting only in the capacity of a Developer Party. DEVELOPER’S PHASE 1A CONTESTED CHARGES: defined in Section 9.1.4.3. DEVELOPER’S PHASE 1A CONTRACT SUM: the sum of (i) the Developer’s Phase 1A Infrastructure Improvements Costs, plus (ii) the Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Costs. Amounts available to be reimbursed to Developer under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’s Phase 1A Contract Sum. DEVELOPER’S PHASE 1A FINAL AMOUNT defined in Section 9.1.6.1. DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS: the public improvements set forth in Exhibit C attached hereto. DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS BUDGET: a budget for all anticipated Developer’s Phase 1A Infrastructure Improvements Costs, including a contingency reserve, broken down by line item, as amended or otherwise modified from time to time. DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS COSTS: (a) the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction, maintenance and permitting of Developer’s Phase 1A Infrastructure Improvements and (b) the Early Work Costs; provided, that Developer’s Phase 1A Infrastructure Improvements Costs shall include neither Non-Project Costs nor Excluded Costs. DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE: the location of the Developer’s Phase 1A Infrastructure Improvements for purposes of pre-construction services and construction. DEVELOPER’S PHASE 1A PAYMENT REQUEST: the Developer Phase 1A Payment Request in the form set forth in Exhibit K-1. Page 114 of 237 EAttachment B 11 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 DEVELOPER’S PHASE 1A PROJECT ADMINISTRATION FEE: Five percent (5%) of the Developer’s Phase 1A Project Administration Fee Eligible Costs actually incurred by Developer. DEVELOPER’S PHASE 1A PROJECT ADMINISTRATION FEE ELIGIBLE COSTS: hard costs of constructing the components of the Developer’s Phase 1A Infrastructure Improvements that are eligible for reimbursement under the Sewer Agreement and improvements referenced in the Bayfront Transportation Development Impact Fee Nexus Study dated October 2014, which is on file in the office of the City Clerk. DEVELOPMENT: Developer’s development of, collectively, the Parking Improvements, the Resort Hotel, the Convention Center and Developer’s Phase 1A Infrastructure Improvements. DIR: defined in Section 7.2.3.1(d)(ii). DISCRETIONARY ENTITLEMENT: defined in Section 5.7.1. DISCRETIONARY PROJECT: defined in Section 5.7.1. DISTRICT DOCUMENTS: defined in Section 25.4.2. DISTRICT SUPPORT PAYMENT / DSP: defined in Section 5.1.2. EARLY WORK AGREEMENT: defined in Recital O. EARLY WORK COSTS: the Work Reimbursement Costs (as defined in the Early Work Agreement). EFFECTIVE DATE: the Closing Date, as defined in the Authority Indenture. EIR: final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environmental Impact Report,” (UPD# #83356-EIR-658, SCH #2005081077; Document 56562), including, but not limited to, the “Mitigation Monitoring and Reporting Program”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010. ENVIRONMENTAL CLEANUP: to investigate, remove or remediate such contamination in compliance with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority. Page 115 of 237 EAttachment B 12 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 ENVIRONMENTAL LAWS: all applicable Laws and other requirements in effect during the Term, including, without limitation, Laws and requirements that regulate Hazardous Materials or otherwise relate to public health and safety or the protection of the environment. EVENT OF DEFAULT: defined in Section 21.1. EQUITY COLLATERAL ENFORCEMENT ACTION: defined in Section 9.2 of the Sublease. ESTIMATED CONVENTION CENTER COSTS: solely as to the Convention Center, the total cost of development and construction of the Convention Center, as shown in Section 4.2.1. EXCLUDED COSTS: (a) costs incurred by the Developer in connection with the design, architectural work, and engineering work for the Developer’s Phase 1A Infrastructure Improvements for which the Developer has been reimbursed by the City pursuant to the Reimbursement Agreement and (b) costs incurred by the Developer in connection with the construction of specified sewer improvements included in the Developer’s Phase 1A Infrastructure Improvements for which the Developer has been reimbursed, or is eligible to be reimbursed, by the City pursuant to the Sewer Agreement. EXCLUDED MECHANICS LIEN WAIVERS: statutory lien/stop payment notice conditional waivers and releases that are or would be from any contractor, mechanic, subcontractor, materialman or other Person if: (a) if the expected aggregate amount to be paid to such Person in connection with the Project is less than $200,000 individually; (b) Authority has received a bond or other security that is reasonably satisfactory to the Authority with respect to mechanics lien claims and stop payment notices by such Person or (c) because of the nature of work, services, materials or supplies to be provided by such Person in connection with the Project, such Person is not, under California law, entitled to record a mechanics lien or deliver a stop payment notice in connection with the Project. EXECUTIVE DIRECTOR: the Executive Director of the Authority or his or her designees. The Executive Director, or his or her designees, may delegate the authority granted in Authority Resolution 2020-002 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 District staff members respectively. In making such a delegation, the Executive Director or his or her designees, shall provide notice of such delegation to the Parties hereto pursuant to Section 26.1 hereto. EXISTING FUNDS / EF: defined in Section 5.1.2 of the Agreement. Page 116 of 237 EAttachment B 13 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 EXISTING IMPROVEMENTS: any Improvements (including utilities, storm drains and park ways) located upon the land (and water, if applicable) that are in existence and located on, in, over or under the Site as of the Commencement Date, whether constructed by Port District, a prior tenant or another third party. EXPANDED SOFT COST COVERAGE: defined in Section 15.2.2. EXPANSION: defined in Section 1.2 of the Ground Lease. EXPANSION DATE: defined in Section 1.2 of the Ground Lease. EXPIRATION DATE: defined in Section 1.1.2 of the Ground Lease. EXTENDED CONSTRUCTION PERIOD DEADLINE: defined in Section 5.1.2. FACILITY: defined in Recital B. FACILITY LEASE: that certain Facility Lease, dated as of ____________, 2021 by and between the Authority, as sublessor, and the City as sublessee, as amended from time to time. FACILITY LEASE ADVANCE RENT NOTICE: defined in the Facility Lease. FINAL ACCOUNTING: (a) with respect to the Developer’s Phase 1A Infrastructure Improvements, the final accounting of costs prepared in accordance with Section 9.1.6, and (b) with respect to the Convention Center the final accounting of costs prepared in accordance with Section 9.2.6. FINANCING DISTRICT: the Chula Vista Bayfront Project Special Tax Financing District. FINANCING TRANSACTION: defined in Section 9.1 of the Sublease. FIRST DEVELOPER COMPLETION NOTICE: defined in Section 2.3.2.1. FIRST SWEETWATER PARK END DATE: defined in Section 2.3.2. FIRST SWEETWATER PARK OPTION: defined in Section 2.3.2. FISCAL YEAR: a fiscal year of the City ending on June 30 of each calendar year. Page 117 of 237 EAttachment B 14 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 FORCE MAJEURE EVENT: defined in Section 5.5(a). FORCE MAJEURE NOTICE: defined in Section 5.5(e). FORCE MAJEURE PARTY: defined in Section 5.5(a). FORCE MAJEURE RESPONSE: defined in Section 5.4(e). FORECLOSURE PURCHASER: defined in Section 9.3(c)(iv) of the Sublease. FULL PAYMENT: shall be deemed to have occurred when the following conditions are satisfied: (a) the Port District, the City and the Authority shall have confirmed in writing to RIDA that the Completion Guaranty has terminated and (b) Developer shall have confirmed in writing to Authority that Developer has received payment of (i) the Project Public Investment Amount, (ii) the Developer’s Phase 1A Contract Sum, (iii) and all interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Agreement, and (iv) the Payment and Performance Bond Reimbursement Amount. For the avoidance of doubt, the occurrence of “Full Payment” does not require completion of the Final Accounting with respect to the Convention Center or the Developer’s Phase 1A Infrastructure Improvements. GENERAL CONTRACT: each of the construction contract between the Developer and the General Contractor for the Developer’s Phase 1A Infrastructure Improvements and the construction contract between the Developer and the General Contractor for the Convention Center. GENERAL CONTRACTOR: with respect to Developer, a party or parties under any contract with the Developer to perform the work or provide supplies for the Developer’s Phase 1A Infrastructure Improvements and/or the Convention Center. GOVERNMENTAL AUTHORITY: each and every governmental agency, authority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Site (or any activity this Exhibit B allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable Government Agencies, governmental authorities, and subdivisions thereof. GREENBOOK: the 2012 edition of the Standard Specifications for Public Works Construction. GROUND LEASE: defined in Recital E. Page 118 of 237 EAttachment B 15 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 GROUND LEASE PROPERTY: defined in Recital E. GROUND LEASE TERM: means the Term (as defined in the Ground Lease). GUARANTEED MAXIMUM PRICE: The Guaranteed Maximum Price under the General Contract. HARBOR PARK: a park contemplated to be constructed pursuant the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements as of the Effective Date. HARBOR PARK BUDGET: defined in Section 5.4.4. HARBOR PARK PLANS: defined in Section 5.4.4. HAZARDOUS MATERIAL: any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any applicable Law (including, but not limited to, hazardous substances as defined by Cal. Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance. Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws. HAZARDOUS MATERIALS ACTIVITY: generation, transportation, use, storage, emission, release, or disposal of any Hazardous Material, or products or materials which include any hazardous substance as a component by any Developer Party. HOLIDAY: 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): Page 119 of 237 EAttachment B 16 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 Holiday Observed On New Year’s Day January 1 Martin Luther King, Jr. Day Third Monday in January Caesar Chavez Day March 31 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 HOTEL MANAGEMENT AGREEMENT: management agreement for the Resort Hotel the Convention Center and the Parking Improvements between Developer and the Hotel Operator. HOTEL OPERATOR: Marriott or its successor in accordance with the Sublease and the Ground Lease. ILLEGAL DISCHARGE: defined in Section 14.4. IMPROVEMENTS: those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now or hereafter located on, in, over or under the Site. INDENTURE FUNDS: defined in Section 21.7. INITIAL DEVELOPMENT FEE PAYMENT: an amount equal to ten percent (10%) of the Total Convention Center Development Fee based on all anticipated Convention Center Costs as set forth in the Convention Center Budget. INITIAL FORCE MAJEURE NOTICE: defined in Section 5.5(e). INITIAL PROJECT IMPROVEMENTS: the Improvements that are located on the Site and are initially developed by Developer and described by the Convention Center Plans referred to in Exhibit F to the Agreement. INSURANCE AND CONDEMNATION PROCEEDS FUND: defined in the Authority Indenture. JEPA: defined in the preamble to the Agreement Page 120 of 237 EAttachment B 17 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 LAWS: all of the following to the extent (i) applicable to the Project Site, the Phase 1A Infrastructure Improvements, the Convention Center, or any activity under the Agreement, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, without limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Unified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; the Chula Vista Municipal Code and any applicable ordinances of the City, including the building code thereof, and any permits and approvals by any Governmental Authority and the Port District, including, without limitation, any California Coastal Development Permit, applicable to the Project Site and Sweetwater Park or the use or development thereof. LEASE PAYMENTS: the lease payments paid by the City pursuant to the terms of the Facility Lease. LEASE YEAR: defined in the Sublease. LOAN: the loan made by the Authority to the Financing District pursuant to the terms of the Loan Agreement. LOAN AGREEMENT: the Loan Agreement dated as of [dated date] made and entered into by the Financing District and the Authority, as amended from time to time. MARRIOTT: Marriott Hotel Services, Inc. and any of its Affiliates. MATERIAL EXACERBATION: any material increase in the cost or amount of investigation, removal or remediation action required. MAXIMUM CONVENTION CENTER AMOUNT: the sum of the Project Public Investment Amount plus the amount of Advance Rent paid or deemed to be paid, plus all interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Agreement. Page 121 of 237 EAttachment B 18 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 MEET & CONFER PERIOD: defined in Section 5.5(e). MINIMUM ENERGY EFFICIENCY DESIGN STANDARD: the requirement that each building operate at an energy consumption level equal to or better than the more stringent of the following two standards: (i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted to consume under 2010 Title 24; or (ii) the minimum energy efficiency performance standard adopted by the City at the time a building permit application is submitted for each building. MMJV: Mortenson/McCarthy Chula Vista Resort, A Joint Venture comprised of M.A. Mortenson Company and McCarthy Building Companies, Inc. NEGOTIATION DEADLINE: defined in Section 26.12.4. NEW LEASE PERIOD: defined in Section 9.3(b)(iv) of the Sublease. NET PROCEEDS: defined in the Authority Indenture. NON-PROJECT COSTS: as to the Project Costs, the following costs that shall not be eligible for payment as part of the Project Costs under this Agreement: (i) salaries and other compensation of the Developer’s personnel; (ii) bonuses, profit sharing, incentive compensation, and any other discretionary payments, paid to General Contractor or any Subcontractor or vendor, unless the Authority has provided prior approval; (iii) overhead and general expenses; (iv) Developer’s capital expenses, including interest on the Developer’s capital employed for the Project (provided, that for the avoidance of doubt, this clause (iv) shall not restrict payment of interest to the Developer at the Specified Default Rate as and when required by the Agreement); (v) costs due to the gross negligence of, or willful misconduct by, the Developer, its General Contractor or Subcontractors, or any of their respective subcontractors, material suppliers, equipment providers, employees, or agents and (vi) any costs incurred by Developer, the General Contractor, Subcontractors or their respective agents to remedy Defective Work, unless the Contract Documents require the Developer to reimburse for such costs (except to the extent such costs have been recovered from an alternate source (e.g. insurance or bond)). NOTICE OF COMPLETION: the standard document recorded by the City upon completion of a public works project in accordance with standard and customary practices of the City as adopted by the Authority. OFAC: defined in Section 20.3. ORIGINAL MEMBER: defined in Section 22.1. Page 122 of 237 EAttachment B 19 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 ORIGINAL OUTSIDE CONSTRUCTION COMPLETION DATE: the latest of (a) forty-eight (48) months after the Outside Construction Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer exercises the Sweetwater Park Option) or (y) a breach by JEPA, City, Financing District, or Port District under the Agreement (except for a breach of the Port District’s obligations that are set forth in Section 2.3, which is governed by Section 21.3), a breach by City under the Sublease, a breach by the City or the JEPA under the Facility Lease, a breach by Port District or the JEPA under the Site Lease, or a breach by Port District under the Ground Lease, in each case, delays Completion of the Project pursuant to the terms of the Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise the Sweetwater Park Option) only if Developer has already Completed the Resort Hotel, the Convention Center, the Parking and Improvements and Developer’s Phase 1A Infrastructure Improvements, or (c) the Resort Hotel and Parking Improvements Outside Construction Completion Date (as such date is defined in the Ground Lease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements. OTHER GROUND LEASES: defined in Section 5.1.2. OUTSIDE CONSTRUCTION COMMENCEMENT DATE: ten (10) days after the Commencement Date. Page 123 of 237 EAttachment B 20 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 OUTSIDE CONSTRUCTION COMPLETION DATE: the latest of (a) forty-eight (48) months after the Outside Construction Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer exercises the Sweetwater Park Option) or (y) a breach by JEPA, City, Financing District, or Port District under the Agreement (except for a breach of the Port District’s obligations that are set forth in Section 2.3, which is governed by Section 21.3), a breach by City under the Sublease, a breach by the City or the JEPA under the Facility Lease, a breach by Port District or the JEPA under the Site Lease, or a breach by Port District under the Ground Lease, in each case, delays Completion of the Project pursuant to the terms of the Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise the Sweetwater Park Option) only if Developer has already Completed the Resort Hotel, the Convention Center, the Parking and Improvements and Developer’s Phase 1A Infrastructure Improvements, (c) if a Foreclosure Purchaser acquires the subleasehold interest under Section 9.6 of the Sublease the New Convention Center Outside Construction Completion Date, as such date is defined in the Sublease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Sublease) delays Completion (as defined in the Sublease) of the Project, (d) the Resort Hotel and Parking Improvements Outside Construction Completion Date (as such date is defined in the Ground Lease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements, or (e) if a Foreclosure Purchaser acquires the leasehold interest under Section 10.6.2 of the Ground Lease, the New Resort Hotel and Parking Improvements Outside Construction Completion Date (as defined in the Ground Lease), as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements. PARKING IMPROVEMENTS: defined in Section 1.3 of the Ground Lease. PARTY; PARTIES: defined in the preamble to the Agreement. PAYMENT AND PERFORMANCE BOND REIMBURSEMENT AMOUNT: the lesser of (a) the actual incurred by the Developer in procuring any payment bond(s) and any performance bond(s) with respect to the Convention Center pursuant to Section 13.1 of the Agreement and (b) One Million Dollars ($1,000,000). Page 124 of 237 EAttachment B 21 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 PAYMENT DATE: ten (10) days following the date on which Developer submits a complete Developer’s Phase 1A Payment Request or a complete Construction Costs Payment Request (in each case, as reasonably determined by the Executive Director). PERMITTED ENCUMBRANCE: defined in Section 9.2 of the Sublease. PERMITTED FINANCING ENCUMBRANCE: defined in Section 10.2 of the Ground Lease. PERMITTED MEZZANINE LENDER: (a) any Person that is approved by Port District (including pursuant to Section 10.1.3) and that is a party to a security agreement, pledge agreement or similar instrument or agreement that creates any security interest in the Mezzanine Interests securing Developer’s payment and performance in connection with any Financing Transaction and (b) from and after the date that is the later of (i) the date when the Resort Hotel is Complete and (ii) the date when the Parking Improvements are Complete, any Person that holds an interest in a loan that is secured by any security interest in the Mezzanine Interests in circumstances where a permitted syndication has occurred and such security interest is held by, and the administration of such loan is done by, an agent that is approved by Port District. PERMITTED MORTGAGE LENDER: defined in Section 9.2 of the Sublease. PERMITTED LENDER: defined in Section 9.2 of the Sublease. PERMITTED USE: defined in Section 6.1(a) of the Sublease. PERSON/PERSONS: any individual, partnership, firm, joint venture, association, corporation, limited liability company, government agency or any other form of business entity. PHASE 1A INFRASTRUCTURE IMPROVEMENTS: (a) the Developer’s Phase 1A Infrastructure Improvements and (b) the Remaining Phase 1A Infrastructure Improvements. PLAN SUBMISSION DATE: [  ] PLANNED COMPLETION DATE: defined in Section 5.4.1. PMPA: defined in Section 5.7.1. PMP: the Port Master Plan. Page 125 of 237 EAttachment B 22 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 PORT DISTRICT: the San Diego Unified Port District, a district formed pursuant to California Harbors and Navigation Code APPENDIX I, Section 1 et seq. and a public corporation. Unless specifically provided otherwise, whenever the Agreement requires an action or approval by the Port District, that action or approval shall be performed by the Port District representative designated by the Agreement. PORT DISTRICT GENERAL COUNSEL: the General Counsel to the Port District or such person’s duly authorized deputy set forth in Schedule 1 of the Authority Bylaws. PORT DISTRICT PARTIES: Port District and the officers, directors, members of the BPC, employees, partners, affiliates, agents, contractors, architects, successors and assigns of Port District, in each case, when acting only in the capacity of a Port District Party. PORT DISTRICT TRANSFER: defined in Section 26.5. PORT DISTRICT’S MATERIALS: defined in Section 25.4.2. PRE-EXISTING HAZARDOUS MATERIAL: any Hazardous Material located on or under the Project Site prior to the Effective Date, whether known or unknown, or any Hazardous Material located outside the Project Site (including any premises owned by the City and/or the Port District) prior to the Effective Date that migrates to the Project Site thereafter. PORT SUPPORT AGREEMENT: the Support Agreement between the Authority and the Port District dated as of _________, as amended from time to time. PRIOR AGREEMENTS: the agreements listed on Exhibit U. PROHIBITED PERSON / PROHIBITED PERSONS: defined in Section 20.3. PROJECT: the Developer’s Phase 1A Infrastructure Improvements and the Convention Center. PROJECT COSTS: the Convention Center Costs and the Developer’s Phase 1A Infrastructure Improvements Costs. PROJECT PUBLIC INVESTMENT AMOUNT: Two Hundred Sixty-Five Million Dollars ($265,000,000). PROJECT SITE: the location of the Project for purposes of pre-construction services and construction. PROPERTY TAX CONTEST: defined in the Sublease or Ground Lease, as the context may require. Page 126 of 237 EAttachment B 23 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 PROPERTY TAX EXPENSES: property taxes with respect to the Site and the Initial Project Improvements (including, without limitation, real estate taxes, possessory interest taxes, general and special assessments, leasehold taxes or taxes based upon Developer’s receipt of rent, but excluding all taxes imposed upon net income or gain). PUBLIC AGENCY/PUBLIC AGENCIES: individually or collectively, for purposes of the Agreement, the Authority, the City and the Port District. PUBLIC AGENCY PARTIES: collectively, the Authority Parties, the City Parties and the Port District Parties PUBLIC AGENCY’S ESTIMATED DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS COST: the total cost of development and construction of the Developer’s Phase 1A Infrastructure Improvements, as shown in Exhibit C-1-A attached to the Agreement. PUBLIC DEBT SERVICE OBLIGATION / PDSO: defined in Section 5.1.2. PWL: defined in Section 7.2.3.1. REIMBURSEMENT AGREEMENT: defined in the Recital P. REIMBURSEMENT PROCEDURE: defined in Section 3.5(d) of the Sublease or Section 5.8 of the Ground Lease. RELATED COSTS: any costs, damages (of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. RELOCATION AGREEMENT: that certain Relocation Agreement, dated as of July 13, 1999, by and among the City, Redevelopment Agency of the City of Chula Vista, Port District, and Rohr, as amended by the Amendment to Relocation Agreement, dated as of November 1, 1999, the Second Amendment to Relocation Agreement, dated as of February 2, 2010, and the Third Amendment to Relocation Agreement, dated as of September 10, 2013. Page 127 of 237 EAttachment B 24 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 REMAINING CONVENTION CENTER DEVELOPMENT FEE: two and seven-tenths percent (2.7%) of the Convention Center Costs. The Remaining Convention Center Development Fee will accrue on the last day of each month beginning with the month in which the Commencement Date occurs in the amount of $[  ] per month until Total Convention Center Development Fee based on all anticipated Convention Center Costs as set forth in the Convention Center Budget has accrued. REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS: Sweetwater Park. REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS COSTS: the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction and permitting of the Remaining Phase 1A Infrastructure Improvements. REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE: the location of the Remaining Phase 1A Infrastructure Improvements for purposes of pre-construction services and construction. RENT: defined in Section 3.5 of the Sublease. REPAIR/RESTORATION COSTS: the direct and indirect costs incurred with respect to the repair, restoration, reconstruction or redevelopment of the Convention Center or any portion thereof in connection with a casualty or condemnation event pursuant to Article V of the Sublease. RESORT HOTEL: a single-branded resort hotel with at least 1,570 Rooms but not more than 1,600 Rooms on the Hotel Land generally as shown on Exhibit “B- 1” attached hereto, with an Acceptable Brand. RIDA: RIDA Chula Vista, LLC, a Delaware limited liability company. ROHR: defined in Section 24.2. RPFP: defined in Section 5.1.2. RV PARK LEASE: defined in Section 5.1.2. RV PARK LESSEE: defined in Section 5.1.2. RV PARK TUOP: defined in Section 5.1.2. SDRWQCB: San Diego Regional Water Quality Control Board. SECOND DEVELOPER COMPLETION NOTICE: defined in Section 2.3.3.1. Page 128 of 237 EAttachment B 25 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 SECOND SWEETWATER PARK END DATE: the date that is twenty-two (22) months after the Outside Construction Commencement Date; provided, that the Sweetwater Park End Date shall not be extended due to any Force Majeure Event except to the extent that such Force Majeure Event causes an extension of the Outside Construction Completion Date. SECOND SWEETWATER PARK OPTION: defined in Section 2.3.3. SETTLEMENT AGREEMENT: Chula Vista Bayfront Master Plan Settlement Agreement, dated May 4, 2010, among the Bayfront Coalition Member Organizations identified therein, Port, the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista (District Clerk No. 56523). SEWER AGREEMENT: defined in the Recital O. SITE: defined in Recital B. SITE LEASE: defined in Recital B. SPE LENDER AFFILIATE: defined in Section 9.3(c)(iv) of the Sublease. SPECIFIED DEFAULT RATE: (a) prior to Completion (defined in the Ground Lease) of the Resort Hotel and Parking Improvements and Completion of the Convention Center and Developer’s Phase 1A Infrastructure Improvements, an annual rate equal to ten percent (10%) per annum and (b) commencing upon Completion (defined in the Ground Lease) of the Resort Hotel and Parking Improvements and Completion of the Convention Center and Developer’s Phase 1A Infrastructure Improvements, an annual rate equal to fifteen percent (15%) per annum. SPECIFIED DISPUTE: defined in Section 26.12.1. STAFFING AND PROCESSING AGREEMENT: RIDA Hotel and Convention Center Project Staffing and Processing Agreement between City and RIDA dated effective June 3, 2020. STANDARD SPECIFICATIONS: the Greenbook and the local standard special provisions referenced in the Approved Drawings and Specifications, in each case, as in effect on the Plan Submission Date, and any amendments thereto that are approved by the Developer, the City, the District and the Authority. STIPULATED CONVENTION CENTER OVERHEAD AMOUNT: $[  ]. The Stipulated Convention Center Overhead Amount will accrue on the last day of each month beginning with the month in which the Commencement Date occurs in the amount of $[  ] per month until $[  ] has accrued. Page 129 of 237 EAttachment B 26 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 STIPULATED DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS OVERHEAD AMOUNT: $3,000,000. The Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount will accrue on the last day of each month beginning with the month in which the Commencement Date occurs in the amount of $[  ] per month until $3,000,000 has accrued. SUBCONTRACTOR: a party or parties under any subcontract with the General Contractor to perform the work or provide supplies for the Developer’s Phase 1A Infrastructure Improvements and/or the Convention Center, as applicable. SUBLEASE: defined in Recital D. SUBLEASE ADVANCE RENT NOTICE: defined in the Facility Lease. SUBLEASE TERM: the Term (as defined in the Sublease). SUBSTANTIALLY ALL: at least eighty percent (80%) of rentable square footage. SUBTENANT: any subtenant (or sub-subtenant or other level of subtenant), occupant, franchisee, licensee, or concessionaire under any Sub-Sublease; provided, however, that “Subtenant” shall exclude the Hotel Operator. SWEETWATER PARK: the improvements described in Exhibit D, attached to the Agreement. SWEETWATER PARK CONTRACTS: collectively, the Sweetwater Park Design Contracts and the Sweetwater Park Construction Contracts. SWEETWATER PARK CONSTRUCTION CONTRACT: the construction agreement with respect to Sweetwater Park to which Port District is a party, as amended, restated, supplemented, modified or replaced from time to time. SWEETWATER PARK DESIGN CONTRACT: the design services agreement, including services for administration of the design during construction, with respect to Sweetwater Park to which Port District is a party, as amended, restated, supplemented, modified or replaced from time to time; provided, however, “Sweetwater Park Design Contract” shall apply to each such design services agreement if more than one but shall exclude the Sweetwater Park Construction Contract. SWEETWATER PARK MATERIALS: from time-to-time, the Sweetwater Park Contracts and the permits, entitlements, approvals, plans, drawings, and specifications for the Remaining Phase 1A Infrastructure Improvements that are reasonably necessary for the Developer to Sufficiently Complete Sweetwater Park. SWEETWATER PARK SUBACCOUNT: the Sweetwater Park Subaccount established within the 2021B Construction Account and maintained by the Trustee pursuant to the Indenture. Page 130 of 237 EAttachment B 27 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 SWPPP: defined in Section 8.1.3. TAX CLAIM: defined in Section 19.2. Page 131 of 237 EAttachment B 28 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 TAX EXPENSES: without limitation, all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordinary or extraordinary (including, without limitation, real estate taxes, possessory interest taxes, use taxes, general and special assessments, leasehold taxes or taxes based upon Developer’s receipt of rent, including gross receipts or sales taxes applicable to Developer’s receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by Developer in connection with the Project Site and the Improvements) and any taxes and assessments relating to the business or other activities of Developer upon or in connection with the Project Site and the Improvements. Tax Expenses also shall include, without limitation: (i) Any tax on a Public Agency’s receipt of Rent (as defined herein or under the Ground Lease), right to Rent (as defined herein or under the Ground Lease) or other revenue from the Project Site and the Improvements other than any tax on the income of a Public Agency; (ii) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, possessory interest tax or use tax or other Tax Expenses, and any assessments, taxes, fees, levies and charges that may be imposed by a Governmental Authority for services such as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of the Parties that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses; and (iii) Any assessment, tax, fee, levy, or charge, which is levied or assessed based upon the area of the Project Site or the Improvements or the Rent payable hereunder, including, without limitation, any gross receipts tax upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by Developer of the Project Site, the Improvements, or any portion thereof. Notwithstanding anything to the contrary, Tax Expenses shall not include any income taxes imposed upon Developer, the Public Agencies, the direct or indirect owners of Developer, Hotel Operator or the Affiliates of Hotel Operator, whether based upon the taxable income generated by Developer, the Public Agencies, Hotel Operator or otherwise. Page 132 of 237 EAttachment B 29 4845-4814-1790v16/024036-0079 US-DOCS\121663316.18 TENANT HAZARDOUS MATERIAL: any Hazardous Material either (i) brought onto the Site or Improvements during the Term by any Person or (ii) brought onto the Site, Improvements or any other property by Developer, Developer Party, or Hotel Operator or generated by any of the same. TERM: defined in Section 3.1. TOT: defined in Section 5.1.2. TOTAL CONVENTION CENTER DEVELOPMENT FEE: three percent (3%) of the Convention Center Costs. TRANSFER: defined in Section 10.7(a) of the Sublease. TRANSFEREE: defined in Section 10.7(b) and 10.7(e) of the Sublease, as applicable. USA PATRIOT ACT: defined in Section 20.3. WARRANTY PERIOD: defined in Section 11.2. Page 133 of 237 EAttachment B A-1-1 4825-3218-1203v24/024036-0079 Exhibit A-1 Legal Description of the Site Page 134 of 237 EAttachment B A-1-2 4825-3218-1203v24/024036-0079 Page 135 of 237 EAttachment B A-2-1 4825-3218-1203v24/024036-0079 Exhibit A-2 Legal Description of the Ground Lease Property [To come prior to Closing.] Page 136 of 237 EAttachment B A-3-1 4825-3218-1203v24/024036-0079 Exhibit A-3 Legal Description of Developer’s Phase 1A Site [To come prior to Closing.] Page 137 of 237 EAttachment B B-1-1 4825-3218-1203v24/024036-0079 Exhibit B-1 Depiction of the Site Page 138 of 237 EAttachment B B-1-2 4825-3218-1203v24/024036-0079 Page 139 of 237 EAttachment B B-1-3 4825-3218-1203v24/024036-0079 Page 140 of 237 EAttachment B B-1-4 4825-3218-1203v24/024036-0079 Page 141 of 237 EAttachment B B-1-5 4825-3218-1203v24/024036-0079 Page 142 of 237 EAttachment B B-1-6 4825-3218-1203v24/024036-0079 Page 143 of 237 EAttachment B B-2-1 4825-3218-1203v24/024036-0079 Exhibit B-2 Depiction of the Ground Lease Property [To come prior to Closing.] Page 144 of 237 EAttachment B B-3-1 4825-3218-1203v24/024036-0079 Exhibit B-3 Depiction of the Developer’s Phase 1A Infrastructure Improvements Site [To come prior to Closing.] Page 145 of 237 EAttachment B C-1-A-1 4825-3218-1203v24/024036-0079 Exhibit C-1-A Public Agency’s Estimated Developer’s Phase 1A Infrastructure Improvements Cost [To be provided by Developer prior to Closing.] Note: Amounts available to be reimbursed to Developer under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’s Phase 1A Contract Sum. Page 146 of 237 EAttachment B C-1-B-1 4825-3218-1203v24/024036-0079 Exhibit C-1-B Sources for Developer’s Phase 1A Infrastructure Improvements Cost [Amounts to be filled in prior to Closing.] Source Amount 2021B Bond Proceeds $ County Funds BFDIF Program Credit Sewer Agreement Reimbursement Total $ Page 147 of 237 EAttachment B C-2-1 4825-3218-1203v24/024036-0079 Exhibit C-2 Developer’s Phase 1A Infrastructure Improvements Budget [To be provided by Developer prior to Closing.] Page 148 of 237 EAttachment B D-1 4825-3218-1203v24/024036-0079 Exhibit D Remaining Phase 1A Infrastructure Improvements (Sweetwater Park) Sweetwater Park [A 21-acre signature park on Parcel S-2 (defined in the PMP) with passive use, meadow-type open space with amenities such as: landscaping, lighting, restrooms, drinking fountains, bicycle racks, children play areas, picnic areas, benches, trash receptacles, interpretive signage, landscaped berms, public art, decomposed granite paving, and parking. The park is to be passive in nature, be low- impact and contain minimal structures. Allowed structures include restrooms, picnic tables, shade structures and overlooks, and are limited to single-story heights. No athletic field amenities or unattended food vending will be allowed. The park will utilize low water-use ground cover alternatives where possible and trails will not be paved. Due to the immediate adjacency to sensitive habitat areas, amplified sound equipment and issuance of park use permits for group events will be prohibited. Development of the park also includes the development within the Transition Buffer Areas and Limited Use zones of parcel SP-1 and the fencing of the No Touch Buffer Area of parcel SP-1, all as described in the certified PMP.] Page 149 of 237 EAttachment B E-1 4825-3218-1203v24/024036-0079 Exhibit E Construction Requirements 1. GENERALLY. DEVELOPER SHALL COMPLY WITH THE PROVISIONS OF THIS EXHIBIT E AS FOR THE CONVENTION CENTER AND DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS (AS APPLICABLE), THOSE CERTAIN CONDITIONS OF PROJECT APPROVAL FOR THE CONVENTION CENTER AND DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS (AS APPLICABLE) (District Clerk No. [  ]) (AS APPLICABLE), AND THE PROVISIONS OF THE PROJECT IMPLEMENTATION AGREEMENT IN CONNECTION WITH ALL CONSTRUCTION OR DEMOLITION WORK FOR THE CONVENTION CENTER AND DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS (AS APPLICABLE) (“CONSTRUCTION WORK”). 2. Contractors. Authority shall have the right to approve the general contractor for Construction Work, in its reasonable discretion. All contractors and subcontractors performing any Construction Work must be licensed in the State of California. 3. Architects and Engineers. All architects and engineers must have an active license to practice in the State of California. 4. Reserved. 5. Construction Barricades. Developer shall install a construction barricade around the area of Construction Work, and erect such other protective measures as may be reasonably required by Authority. 6. Dust and Trash Control. Developer shall take commercially reasonable steps to minimize dust resulting from any Construction Work, and shall promptly dispose of all trash generated from the Construction Work. 7. Performance Bond and Payment Bond. Article XIII of the Agreement shall govern requirements relating to Performance and Payment Bonds for the Convention Center and Developer’s Phase 1A Infrastructure Improvements. 8. Financial Assurances. At least ten (10) days prior to commencing any Construction Work, Developer shall deliver to Authority evidence reasonably demonstrating to Authority that Developer has obtained or retains financial resources and capabilities in an amount sufficient to complete the Construction Work. 9. Construction Schedule. The Agreement governs provisions relating to the schedule for the Construction Work. 10. Contractor Insurance. Developer shall ensure that all contractors and subcontractors performing Construction Work shall obtain and thereafter maintain so long as such Construction Work is occurring, at least the minimum insurance coverages set forth below, which insurance coverages may be modified by Authority from time to time in its reasonable discretion: (i) Workers’ compensation and employer’s liability insurance: Page 150 of 237 EAttachment B E-2 4825-3218-1203v24/024036-0079 (a) Workers’ compensation insurance as required by any applicable law or regulation. (b) Employer’s liability insurance in the amount of $1,000,000 each accident/employee/disease. (ii) General liability insurance: Commercial General Liability insurance covering all operations by or on behalf of the contractor, which shall include the following minimum limits of liability and coverages: (a) Required coverages: (1) Premises and Operation; (2) Products and Completed Operations; (3) Contractual Liability; (4) Broad Form Property Damage (including Completed Operations); (5) Explosion, Collapse and Underground Hazards; and (6) Personal Injury Liability. (b) Minimum limits of liability: (1) $2,000,000 each occurrence (for bodily injury and property damage); (2) $2,000,000 for Personal Injury Liability; (3) $2,000,000 aggregate for Products and Completed Operations (which shall be maintained for a three (3) year period following final completion of the Work); and (4) $2,000,000 general aggregate applying separately to this Project. (iii) Automobile Liability Insurance: Automobile liability insurance including coverage for owned, leased, rented, hired, and/or non-owned automobiles. The limits of liability shall not be less than $1,000,000 for each accident limit for bodily injury, death and property damage. (iv) Umbrella/Excess Liability Insurance: The General Contractor shall also carry umbrella/excess liability insurance in the amount of $5,000,000. If there is no per project aggregate under the Commercial General Liability policy, the limit shall be $10,000,000. (v) Contractor’s Pollution Liability Coverage: If either the City or the Port District determines, in its sole and reasonable discretion, that Developer performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, Developer shall obtain or cause its contractor to obtain Contractor’s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or Page 151 of 237 EAttachment B E-3 4825-3218-1203v24/024036-0079 Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $10,000,000 aggregate per policy period of one year. Any and all of the insurance described above may be obtained and maintained by Developer through an owner-controlled insurance program instead of by a contractor and/or a subcontractor. Public Agency Parties shall be named as an additional insured on the forgoing insurance, and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the requirements of this Agreement, nor shall it be allowed to expire, without at least thirty (30) days prior written notice to Authority. The foregoing insurance shall include a waiver of subrogation in favor of Public Agency Parties. 11. Notice of Completion. Within ten (10) days after Completion of any Construction Work, Developer shall record a Notice of Completion in the office of the San Diego County Recorder and furnish a copy thereof to Authority upon such recordation. 12. Copy of Record Set of Plans and Certificate of Completion. Following the conclusion of any Construction Work, deliver to Authority (i) with respect to the Convention Center, a set of “as-built drawings” and (ii) a copy of the certificate of completion issued by the applicable government agency, if any such certificate of completion must be issued. 13. Conflict. In the event of conflict between the terms of these Construction Requirements and terms of the Agreement, the terms of the Agreement shall control. Page 152 of 237 EAttachment B F-1 4825-3218-1203v24/024036-0079 Exhibit F Convention Center Plans [List of Convention Center Plans to be provided by Developer prior to Closing.] Page 153 of 237 EAttachment B G-1-1 4825-3218-1203v24/024036-0079 Exhibit G-1 Approved Subcontractor Bid and Award Process I. GENERAL CONTRACTOR RIDA has selected as the general contractor for the construction of the Developer’s Phase 1A Infrastructure Improvements a joint venture (“MMJV”) comprising M.A Mortenson Company (“Mortenson”) and McCarthy Building Companies, Inc. (“McCarthy”). Mortenson, a leader in the industry with a wealth of experience in similar large scale projects, was a natural fit for the construction of Gaylord Rockies Resort and Convention Center (the “Rockies Project”), a project developed by RIDA’s affiliate (“RIDA Rockies”). Throughout the construction of the Gaylord Rockies Project, RIDA Rockies gained extensive experience with Mortenson. When possible, RIDA’s development process involves bringing forward the general contractor who constructed a prior similar project (with the experience gained), and teaming them up with a general contractor that has a strong local presence. McCarthy’s presence is strong locally, as well as within the sub- contractor community. In addition to McCarthy’s local presence and positive reputation, McCarthy’s resume of large scale developments make MMJV an ideal partner for the Project. II. SUBCONTRACTORS A brief description of the process to be followed for the selection of subcontractors follows: Initial Invitation to Propose  MMJV conducts research on potentially qualified subcontractors. This includes review of both Mortenson and McCarthy relationships and databases for local and regional subcontractors. For larger packages this may include major national subcontractors.  Consultants that are retained by RIDA and/or MMJV to assist in the preparation of bids or contract documents (including, without limitation, preliminary / concept designs), or to assist in the solicitation, may submit a bid for or be awarded a subcontract, subject to the satisfaction of the other criteria set forth in this Exhibit G-1.  RIDA may designate specific persons or entities from whom MMJV will obtain bids or competitive proposals, subject to those persons or entities entering into written subcontracts acceptable to MMJV and RIDA.  Direct contact is made with identified potential subcontractors to gauge their interest and brief them on the opportunity. In many cases this is a continuation of on-going discussions related to subcontractor input for budget estimates based on earlier design packages. RFQ stage  Identified potential subcontractors (typically minimum of five for each package) are invited to submit qualifications data. This includes information regarding 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-build subcontracts).  MMJV and RIDA review RFQ responses to identify those subs to be invited to RFP stage. Page 154 of 237 EAttachment B G-1-2 4825-3218-1203v24/024036-0079 RFP stage  Where practical, MMJV will obtain a minimum of three bids/competitive proposals from all subcontractors and from suppliers of materials or equipment directly to MMJV, for subcontracts or purchase orders in excess of $75,000, and a minimum of two bids from the subcontractors, and from suppliers of materials or equipment (but only materials and equipment which will be incorporated into the work) for the work, for such subcontracts or purchase orders having a value less than $75,000.00, and will deliver such bids to RIDA.  Subcontractors deemed qualified are invited to submit detailed proposals including – o Qualitative factors  Supervisory personnel commitments and organization chart  Schedule management plan  Quality management plan  Plan for providing adequate qualified trades personnel  Pre-construction / design phase services approach and staffing (for “early- engagement” subs) o Quantitative factors  Pricing for the detailed subcontract package scope of work description as provided by MMJV. This includes further breakdown as directed by MMJV to allow for detailed pricing evaluation.  Estimated trades work-hours  Schedule detail and projected trades crew size graphs  Proposed rates for labor, equipment, insurance etc. (for use in future change order negotiations, or for billing purposes in the case of cost-plus/GMP subcontracts) o Contract terms – Subcontractors are required to identify any exceptions to the subcontract documents and project manual provided by MMJV, as well as any clarifications or exceptions to the scope of work definition provided.  Proposals are evaluated jointly by MMJV and RIDA. In general, quantitative factors are given the most weight, but significant differences in evaluation of qualitative factors could overcome a difference in pricing. MMJV and RIDA may also consider other factors such as the maintenance of labor peace.  The highest rated proposers (typically target three each) are invited for in-depth interviews. Interview & BAFO stage  In-depth interviews are conducted with the short-listed subcontractors. The interviews are focused on proposed supervisory personnel qualifications, the subcontractors’ project plan, and insuring there is a complete understanding of the required scope and schedule for the subject package as well as regulatory requirements (i.e. prevailing wage, DDA and Coastal Development Permit constraints, etc.).  Following interviews, subcontractors are provided with a list of MMJV and RIDA comments or questions to be addressed, feedback on any proposed exceptions to the contract documents, and are invited to provide a “best and final offer” price proposal. Page 155 of 237 EAttachment B G-1-3 4825-3218-1203v24/024036-0079 Final selection & award process  MMJV and RIDA jointly review updated, final proposals and make tentative selection for award based on their determination of the overall value for the Project.  Selected subcontractor is informed of their status, and any additional conditions for award by MMJV, in consultation with RIDA.  After confirmation of the selected subcontractor’s acceptance of any additional conditions, unsuccessful subcontractors are notified and provided a debrief regarding evaluation of their proposal.  No subcontract will be awarded if either MMJV (in its reasonable determination) or RIDA objects thereto.  MMJV will provide to RIDA, prior to commencement of the work and updated as changes may occur, a listing of all subcontractors and suppliers who MMJV has retained to complete the work.  From time to time after any subcontracts have been awarded, RIDA will deliver a notice to the Authority with a list of such subcontracts and a confirmation that the subcontractors have been selected in accordance with the procedure set forth in this Exhibit G-1. If any subcontractor is not expected to be selected in accordance with the procedure set forth in this Exhibit G-1, then, prior to awarding the relevant subcontract, RIDA will deliver a request to the Authority for the Authority to waive the relevant provisions of the Authority Procurement Policy with respect to the selection of such subcontractor in accordance with the waiver process set forth in the Authority Procurement Policy. Clarifications and exceptions to the subcontractor selection process:  The portions of the work that will be identified on an exhibit to the construction contract and the contract amount for which will not, in the aggregate, exceed $12 million, will not be required to be bid to others.  MMJV will not be required to obtain bids for work that contractors customarily self-perform (which is traditionally referred to as “General Conditions”, “General Requirements” or “Site Support Service” work), such as management, quality assurance, scheduling, security, traffic control, safety, supervision and accounting, etc.  Except for subcontracts and work that are covered by another exception, if bids are received from Mortenson, McCarthy or any company affiliated with any of them, all bids for the portion of the work involved, including bids from Mortenson, McCarthy or such affiliated company, will be sealed bids which are to be opened in the presence of RIDA. Whenever with RIDA’s prior written consent MMJV plans to self-perform any aspect of the work without using the sealed bid procedure stated in the preceding sentence, including a sealed bid from Mortenson, McCarthy or an affiliated company, then MMJV, as a condition precedent, will provide RIDA a detailed cost and fee estimate for such planned self- performed work together with two bids from subcontractors, or an independent estimate from a third-party cost estimating firm as selected by RIDA. In advance of any such self- performed work, and within sufficient time so as not to create schedule delays, MMJV will review all such pricing with RIDA and obtain RIDA’s informed written consent for such self- performed work. Page 156 of 237 EAttachment B G-1-4 4825-3218-1203v24/024036-0079  MMJV may self-perform minor or incidental portions of the work without bidding such work to other subcontractors so long as MMJV only charges MMJV’s cost of such work and no additional fee, overhead or general conditions for such self-performed work.  Other work self-performed by MMJV will be treated as lump sum subcontracted work under the contract documents for the purposes of bidding, award and payment except as mutually agreed by MMJV and RIDA. If the parties agree that such self-performed work is to be completed on a “cost plus a fee” basis, the applicable fee percentage will be 15%. Page 157 of 237 EAttachment B G-2-1 4825-3218-1203v24/024036-0079 Exhibit G-2 Subcontractor Bids Awarded Prior To Effective Date [To be provided by Developer prior to Closing.] Page 158 of 237 EAttachment B G-3-1 4825-3218-1203v24/024036-0079 Exhibit G-3 Approved Construction Contracts [To be provided by Developer prior to Closing.] Page 159 of 237 EAttachment B H-1 4825-3218-1203v24/024036-0079 Exhibit H Form of Completion Guaranty THIS COMPLETION GUARANTY (“Guaranty”), is made as of _______________, by _______________ (“Guarantor”), to and for the benefit of the San Diego Unified Port District, a public corporation (“Port District”), the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers authority (“Authority”), and the City of Chula Vista, a chartered municipal corporation (the “City,” and, together with the Port District and the Authority, the “Public Entities”). RECITALS A. RIDA Chula Vista, LLC, a Delaware limited liability company (together with any successors and assigns, “RIDA”), is party to that certain ground lease, dated as of the date hereof, by and between Port District and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Hotel Ground Lease”). B. The Hotel Ground Lease requires RIDA to develop and construct the “Resort Hotel” (as defined in the Hotel Ground Lease) and the “Parking Improvements” (as defined in the Hotel Ground Lease) in accordance with the Hotel Ground Lease. C. RIDA is a party to that certain Sublease Agreement (Chula Vista Bayfront Convention Center), dated as of the date hereof, by and between the City and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Convention Center Sublease”). D. RIDA is a party to that certain Project Implementation Agreement, dated as of the date hereof, by and among Authority, City, Port District and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PIA” and, collectively with the Hotel Ground Lease and the Convention Center Sublease, the “Project Documents” and each, a “Project Document”). E. The PIA requires RIDA to develop and construct (i) the “Convention Center” (as defined in the PIA) in accordance with the PIA and (ii) “Developer’s Phase 1A Infrastructure Improvements” (as defined in the PIA, and collectively with the Resort Hotel, the Parking Improvements and the Convention Center, the “Project”) in accordance with the PIA, for the benefit of the Public Entities. F. Guarantor is [an affiliate of RIDA] and thus will benefit from the development of the Project in accordance with the terms of the Project Documents. G. Each Public Entity has relied on the statements and agreements contained herein in agreeing to enter into the Project Documents to which it is a party. GUARANTY NOW, THEREFORE, intending to be legally bound, Guarantor in consideration of the matters described in the foregoing Recitals, which Recitals are incorporated herein and made a part Page 160 of 237 EAttachment B H-2 4825-3218-1203v24/024036-0079 hereof, hereby covenants and agrees for the benefit of the Public Entities and their successors and assigns as follows: 1.1 Guaranty. Guarantor hereby warrants and guarantees to the Public Entities RIDA’s obligation to: (a) Complete (as defined in the Hotel Ground Lease) the Resort Hotel and the Parking Improvements, and procure and install furniture, fixtures and equipment and operating supplies and equipment that is generally necessary to open the Resort Hotel and the Parking Improvements for business (i) within the corresponding time allowed by the Hotel Ground Lease, including any time extensions authorized thereunder; (ii) in accordance with the terms and conditions of the Hotel Ground Lease that are applicable to the construction of the Resort Hotel and the Parking Improvements, including without limitation the procurement of a certificate of occupancy for the Resort Hotel and the Parking Improvements and delivery and acceptance by the Port District; (iii) substantially in accordance, in all material respects, with the Plans (as defined in and revised in accordance with the Hotel Ground Lease) with respect to the Resort Hotel and the Parking Improvement Plans (as defined in and revised in accordance with the Hotel Ground Lease); and (iv) free of any mechanics’ liens and materialmen’s’ liens with respect to the Resort Hotel and the Parking Improvements; (b) Complete (as defined in the PIA) the Convention Center and procure and install furniture, fixtures and equipment and operating supplies and equipment that is generally necessary to open the Convention Center for business (i) within the corresponding time allowed by the PIA, including any time extensions authorized thereunder; (ii) in accordance with the terms and conditions of the PIA that are applicable to the construction of the Convention Center, including without limitation the procurement of a certificate of occupancy for the Convention Center and delivery and acceptance by the applicable Public Entities; (iii) substantially in accordance, in all material respects, with the Convention Center Plans (as defined in and revised in accordance with the PIA); and (iv) free of any mechanics’ liens and materialmen’s’ liens with respect to the Convention Center; (c) Complete (as defined in the PIA) the Developer’s Phase 1A Infrastructure Improvements and procure acceptance of the Developer’s Phase 1A Infrastructure Improvements by the applicable Public Entity (i) within the corresponding time allowed by the PIA, including any time extensions authorized thereunder; (ii) in accordance with the terms and conditions of the PIA that are applicable to the construction of the Developer’s Phase 1A Infrastructure Improvements, including without limitation delivery and acceptance by the applicable Public Entities; (iii) substantially in accordance, in all material respects, with the Contract Documents (as defined in and revised in accordance with the PIA); and (iv) free of any mechanics’ liens and materialmen’s’ liens with respect to Developer’s Phase 1A Infrastructure Improvements; and (d) Pay any amounts owed by RIDA in connection with its “Election to Terminate” pursuant to the terms set forth in Sections [  ] of the Convention Center Sublease (collectively, the “Guaranteed Obligations”). RIDA’s satisfaction of Section 1.1(a) – (d) shall constitute “Completion of the Project”. 1.2 Consideration. Guarantor acknowledges that it has made this Guaranty to induce each Public Entity to enter into the Project Documents to which it is a party and contribute to the Project, either directly or indirectly through one of the other Public Entities, a portion of the Page 161 of 237 EAttachment B H-3 4825-3218-1203v24/024036-0079 development costs of the Convention Center and Developer’s Phase 1A Infrastructure Improvements as set forth in the PIA (the “Project Public Investment”), and each Public Entity is entering into such Project Documents and contributing directly or indirectly to the Project Public Investment in reliance upon this Guaranty, and the Public Entities would not have agreed to enter into such Project Documents and would not have agreed to contribute the Project Public Investment without the Guarantor’s execution and delivery of this Guaranty. 1.3 Obligations of Guarantor Upon Default. In the event RIDA fails to perform any part of the Guaranteed Obligations when due, after any cure period applicable to RIDA and the first priority Permitted Mortgage Lender (as defined in the Hotel Ground Lease) has expired, or the Foreclosure Purchaser that assumes the Project Documents elects not to complete the Resort Hotel, Parking Improvements, Convention Center, or Phase 1A Infrastructure Improvements, Guarantor shall, upon demand of the Port District, as it relates to the Resort Hotel and the Parking Improvements, and the Authority, as it relates to the Convention Center and Developer’s Phase 1A Infrastructure Improvements, and the City and Port District as it relates to the proposed ownership of each in Developer’s Phase 1A Infrastructure Improvements: (i) promptly cure such failure to perform the applicable part of the Guaranteed Obligations by performing or causing the performance of such obligation; and (ii) pay to the Public Entities (A) all reasonable costs and expenses, including reasonable attorneys’ fees and expenses, they incur in enforcing the performance of the Guaranteed Obligations, and (B) any amounts owing under Section 5.1.2 of the PIA. In the event RIDA defaults in the performance of its obligations under any Project Document, provided Guarantor undertakes to cure such defaults, each Public Entity agrees to accept the performance by Guarantor of such obligations under such Project Document, and accord Guarantor all of the rights and benefits due to RIDA under such Project Document to the extent necessary for the Guarantor to fully satisfy its obligations hereunder. 1.4 RIDA Acknowledgment. RIDA hereby acknowledges that any payment made by any Public Entity to Guarantor of any amount that such Public Entity owes to RIDA shall satisfy such Public Entity’s obligation to pay such amount to RIDA. 2. CHARACTER OF GUARANTY. 2.1 Guarantee of Performance. This Guaranty is not a guarantee of collection, but rather of performance. Guarantor hereby covenants and agrees that Guarantor is liable for the Guaranteed Obligations as primary obligor. Any Guaranteed Obligation may be enforced by any Public Entity that is entitled to enforce such Guaranteed Obligation separately without enforcing compliance with any other Guaranteed Obligation to which such Public Entity is entitled to enforce and without waiving its right or the right of any other of the Public Entities to subsequently enforce or concurrently enforce any other Guaranteed Obligation hereunder. 2.2 Other Guaranties; Joint and Several Obligations. For purposes of this Guaranty, “Net Worth” shall mean, with respect to any Person, such Person’s total assets less the amount of such Person’s total liabilities, determined in accordance with the Guarantor’s standard accounting principles, as presented in the form attached hereto as Exhibit A. For purposes of this Guaranty, “Liquidity” shall mean, with respect to any Person, such Person’s (a) assets that are specified in clauses (1) through (10) of the definition of Permitted Investments set forth in the Indenture of Trust dated as the date hereof between the Authority and Wilmington Trust, National Association, without giving effect to the introductory clause of such definition and (b) without duplication of (a), publicly traded securities. The Guarantor and each of the Public Entities Page 162 of 237 EAttachment B H-4 4825-3218-1203v24/024036-0079 acknowledge and agree that a guaranty of the Guaranteed Obligations (an “Other Guaranty”) may be provided to the Public Entities by any other guarantor (“Other Guarantors”) in accordance with the terms of this Guaranty. If at any time the Guarantor (which may include an Other Guarantor) has a Net Worth (“Guarantor Net Worth”), when taken together with the Net Worth of each Other Guarantor at such time (collectively, “Other Guarantor Net Worth”), of less than $200,000,000 or the Guarantor has a Liquidity (“Guarantor Liquidity”), when taken together with the Liquidity of each Other Guarantor at such time (collectively, “Other Guarantor Liquidity”), of less than $40,000,000, then the Guarantor shall promptly notify the Public Entities thereof and shall do one or more of the following to achieve a Minimum Net Worth and Minimum Liquidity for the Guarantor, no later than 60 days, or 10 Business Days if there is an ongoing Event of Default (under and as defined in the Hotel Ground Lease or the PIA, as applicable), after the date that the Guarantor notifies the Public Entities thereof, (a) (i) increase the Guarantor Net Worth so that the increased Guarantor Net Worth, when taken together with the Other Guarantor Net Worth at such time, shall be equal to or be greater than $200,000,000 (the “Minimum Net Worth”) and/or (ii) increase the Guarantor Liquidity so that the increased Guarantor Liquidity, when taken together with the Other Guarantor Liquidity at such time, shall be equal to or be greater than $40,000,000 (the “Minimum Liquidity”), or (b) cause a Qualified Guarantor to execute an Other Guaranty substantially and materially in the form of this Guaranty; provided, however, that there shall be no more than three Other Guaranties outstanding at any time. Should any Other Guaranty be provided to the Public Entities by any Other Guarantor, Guarantor and the Other Guarantors agree that the liability of the Guarantor and Other Guarantors hereunder shall be joint and several and that each provision hereof shall apply to the Guarantor and each Other Guarantor individually and to Guarantor and all Other Guarantors collectively, and the Public Entities may seek to enforce this Guaranty against Guarantor or the Other Guarantors (and less than all of the Guarantor and Other Guarantors) without impairing the rights of the Public Entities against Guarantor or any of the Other Guarantors. 2.3 Continuing Guaranty. This is a continuing guaranty, and shall apply to all of the Guaranteed Obligations and all renewals and extensions thereof, and the fact that at any time, and from time to time, such Guaranteed Obligations may be performed in full or RIDA shall no longer be party to one or more of the Project Documents, shall not affect the obligations of the Guarantor hereunder which arise thereafter. In the event that RIDA is no longer a party to one or more of the Project Documents, the term “RIDA” herein shall be automatically interpreted to mean the person or entity that has succeeded RIDA under such Project Document(s), or if RIDA is still a party to one or more of the Project Documents, the term “RIDA” herein shall mean RIDA and the new entity that has succeeded RIDA under the Project Documents, without any further action of the Public Entities or Guarantor. 2.4 Independent Obligation. The obligations of Guarantor hereunder are independent of the obligations of RIDA, and Other Guarantor(s) or any other Person (as hereinafter defined), and each of the Public Entities may enforce any of their rights hereunder independently of any other right or remedy that such Public Entity may at any time hold with respect to the Guaranteed Obligations, independently or collectively with the other Public Entities. 2.5 Unsecured Obligation. Except as otherwise provided in this Guaranty, this Guaranty is not secured. 3. RELATIONSHIP OF PARTIES. Guarantor hereby represents and warrants as of the date hereof that: (a) this Guaranty is executed at the request of the Public Entities; (b) Guarantor has reviewed all the terms and provisions of the Plans (as defined in the Hotel Ground Lease) for the Page 163 of 237 EAttachment B H-5 4825-3218-1203v24/024036-0079 Resort Hotel, the Preliminary Parking Improvement Plans (as defined in the Hotel Ground Lease) for the Parking Improvements, the Convention Center Plans (as defined in the PIA) for the Convention Center, and the Contract Documents (as defined in the PIA) for Developer’s Phase 1A Infrastructure Improvements, in each case as revised in accordance with the applicable Project Document (collectively, the “Project Plans”), and the Project Documents; (c) the Public Entities have made no representations to Guarantor with regard to the Project Plans or the Project Documents; and (d) Guarantor has established adequate means of obtaining from RIDA and from other sources, on a continuing basis, financial and other information pertaining to RIDA’s financial condition, the progress of construction of the Project and the status of RIDA’s performance of its obligations under the Project Documents. Guarantor hereby covenants for the term of this Guaranty that: (i) Guarantor is and shall continue to be a Person which is not a Prohibited Person (as defined below), which, in the aggregate with the Other Guarantor Net Worth, has a Guarantor Net Worth of at least the Minimum Net Worth and which, in the aggregate with the Other Guarantor Liquidity, has a Guarantor Liquidity of at least the Minimum Liquidity (“Qualified Guarantor”); and (ii) Guarantor has not and will not, without the prior written consent of all of the Public Entities in each of their sole and absolute discretion, sell, lease, assign, encumber, hypothecate, transfer or otherwise dispose of any of Guarantor’s assets, whether in one transaction or a series of transactions, which will result in Guarantor having a Guarantor Net Worth, together with the Other Guarantor Net Worth, of less than the Minimum Net Worth or Guarantor having a Guarantor Liquidity, together with the Other Guarantor Liquidity, of less than the Minimum Liquidity. For purposes of this Guaranty, “Prohibited Person” shall have the same meaning as the Hotel Ground Lease. 4. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR. 4.1 Subject to Section 4.2, Guarantor agrees that neither the rights or remedies of the Public Entities nor any of Guarantor's obligations under the terms of this Guaranty, including without limitation, the Guaranteed Obligations, shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances; Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances; and the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of: (a) any limitation on the liability of, or recourse against, any other person or entity (collectively, “Person”) under the Project Documents or arising under any Laws (as defined in the Hotel Ground Lease), except for the limitations on liability set forth in Section 5.1.2 of the PIA as it applies to delay damages only; provided, that the limitations in Section 5.1.2 shall not apply to any amounts payable under Section 1.3(ii) above; (b) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of RIDA under the Project Documents; (c) the release or taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; (d) the operation of any statutes of limitations (unless each of the Public Entities had written notice of a claim and failed to pursue their remedies in the legally prescribed time periods) or other Laws regarding the limitation of actions, all of which are hereby waived as a Page 164 of 237 EAttachment B H-6 4825-3218-1203v24/024036-0079 defense to any action or proceeding brought by any of the Public Entities against Guarantor, to the fullest extent permitted by Laws; (e) any homestead exemption or any other exemption under any Laws; (f) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment of Guarantor's recourse against any Person or collateral; (g) whether express or by operation of Laws, any partial release of the liability of Guarantor hereunder (except to the extent expressly so released) or any complete or partial release of RIDA or any other Person liable, directly or indirectly, for the performance of any or all of the Guaranteed Obligations; (h) the death, insolvency, bankruptcy, disability, incapacity, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations; (i) either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or the Project Documents, including material alterations of the terms of payment or performance (including changes with respect to the construction of the Project) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from any of the Project Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by any of the Public Entities to RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations; (j) any neglect, lack of diligence, delay, omission, failure, or refusal of any of the Public Entities to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with the Project Documents, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; (k) any failure of any of the Public Entities to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Project Document, or of any release of or change in any security, or of the occurrence or existence of any default or event of default under any Project Document (each, an “Event of Default”), or of any other action taken or refrained from being taken by any of the Public Entities against RIDA or any security or other recourse, or of any new agreement between any of the Public Entities and RIDA, it being understood that none of the Public Entities shall be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Page 165 of 237 EAttachment B H-7 4825-3218-1203v24/024036-0079 Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding RIDA and any collateral, including any changes in the business or financial condition of RIDA or any collateral, and Guarantor acknowledges and agrees that the Public Entities shall have no duty to notify Guarantor of any information which the Public Entities may have concerning RIDA, the Project, the Project Documents, or any collateral; (l) the existence of any claim, counterclaim, setoff or other right that Guarantor may at any time have against RIDA, any of the Public Entities, or any other Person, whether or not arising in connection with this Guaranty or any Project Document; (m) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to RIDA or any other Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by any of the Public Entities, or any action taken or omitted by any of the Public Entities in any such proceedings, including any election to have any of the Public Entities' claim allowed as being secured, partially secured or unsecured, any extension of credit by any of the Public Entities in any such proceedings or the taking and holding by any of the Public Entities of any security for any such extension of credit; (n) any other condition, event, omission, action or inaction that would in the absence of this Section 4.1(n) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement; or (o) enforcement or forbearance by any of the Public Entities from enforcement of the Guaranteed Obligations on a net or gross basis. 4.2 Notwithstanding anything to the contrary in this Guaranty, with respect to the Public Entities obligations to Guarantor under Section 1.3 hereof under the Project Documents: (a) To the extent any of the Public Entities fails to perform any of their respective obligations under any of the Project Documents for Guarantor and such failure to perform any of their respective obligations under any of the Project Documents materially and adversely interferes with or prevents Guarantor’s performance of any of the Guaranteed Obligations (a “Material Failure to Perform”), then Guarantor’s time to perform with respect to the impacted Guaranteed Obligation(s) shall be extended by one day for each day that such Material Failure to Perform delays Guarantor’s performance of such Guaranteed Obligation(s), if: such Material Failure to Perform is notified by Guarantor to the Public Entities within sixty (60) days of such Failure to Perform. A Material Failure to Perform shall include any alleged failure by the Public Entities under Section 1.3 to make payments to Guarantor of amounts owed under the Project Documents, but shall not include any alleged failure by the Public Entities to make payments to RIDA of amounts owed under the Project Documents. The parties agree upon the written request of either party to submit any dispute regarding whether or not a Material Failure to Perform exists permitting a Guarantor delay under this Section 4.2(a) to mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. Such mediation shall be held within San Diego County within thirty (30) days after delivery of written notice requesting same. Each party shall bear its own costs in such mediation and shall split 50/50 the costs of the mediator. Page 166 of 237 EAttachment B H-8 4825-3218-1203v24/024036-0079 (b) If a court of competent jurisdiction determines that a breach under the applicable Project Document(s) was a Material Failure to Perform and that such Material Failure to Perform was not the result of the breach of a Tenant Party or the Guarantor under the Project Documents or any material and adverse interference by the Hotel Operator (a “Material Failure to Perform Determination”), and the underlying Material Failure to Perform continues for at least ninety (90) days from the date of the applicable Material Failure to Perform Determination (the “Cure Period”), then, from and after the date that the applicable Cure Period expires unless (i) any Public Entity files an action to appeal the Material Failure to Perform Determination no later than forty five (45) days from the date of the applicable Material Failure to Perform Determination and diligently prosecutes such action, in which case, from and after the date that is the later of (x) the date that the applicable Cure Period expires and (y) thirty (30) days after the date that the applicable appellate court of competent jurisdiction awards such Public Entity(ies) relief); or (ii) the Material Failure to Perform is reasonably capable of cure and the Public Entities have either (x) cured the Material Failure to Perform, or (y) if the Material Failure to Perform is not capable of cure within the Cure Period, have commenced taking appropriate steps to cure such failure and are diligently prosecuting same to completion, then the liability of the Guarantor in respect of the Guaranteed Obligation(s) with respect to which such Material Failure to Perform Determination was made shall automatically terminate, the Guarantor shall be automatically released from its obligations under this Guaranty with respect to such Guaranteed Obligation(s), except for any obligations that have accrued and have not been discharged prior to such date, and this Guaranty shall automatically terminate. (c) If RIDA terminates the Hotel Ground Lease due to a Condemnation (as defined in the Hotel Ground Lease) or any damage to or destruction of the Resort Hotel or any part thereof, as permitted in the Hotel Ground Lease and in accordance with the terms thereof (the “Hotel Ground Lease Termination”), then, from and after the date that the Hotel Ground Lease Termination occurs (the “Hotel Ground Lease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Obligations with respect to the Resort Hotel shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Resort Hotel, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date. If RIDA terminates the Convention Center Sublease due to a Condemnation (as defined in the Convention Center Sublease) or any damage to or destruction of the Convention Center or any part thereof, in each case, as permitted in the Convention Center Sublease and in accordance with the terms thereof (the “Convention Center Sublease Termination”), then, from and after the date that the Convention Center Sublease Termination occurs (the “Convention Center Sublease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Obligations with respect to the Convention Center shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Convention Center, except for any obligations that have accrued and have not been discharged prior to the Convention Center Sublease Termination Date. If the Hotel Ground Lease Termination occurs, and the Convention Center Sublease Termination occurs, and Guarantor does not have any amounts owing to the Public Entities under this Guaranty (“Outstanding Payments”), then, from and after the date that is the later of (x) the Hotel Ground Lease Termination Date, (y) the Convention Center Sublease Termination Date and (z) the payment to the Public Entities of any Outstanding Payments, the liability of the Guarantor in respect of the Guaranteed Obligations shall automatically terminate, the Guarantor shall be automatically released from its obligations under this Guaranty, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date or the Convention Center Sublease Termination Date, whichever is later, and this Guaranty shall automatically terminate. Page 167 of 237 EAttachment B H-9 4825-3218-1203v24/024036-0079 4.3 In the event any payment by RIDA or any other Person to any of the Public Entities that is made to satisfy any of the Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar Law, or if for any other reason any of the Public Entities are required to refund such payment or pay the amount thereof to any other party, such payment by RIDA or any other party to the Public Entities shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by the Public Entities of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts that were so paid by RIDA or any other Person to satisfy any of the Guaranteed Obligations and so refunded by the Public Entities or paid by the Public Entities to another Person (which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by the Public Entities and any attorneys’ fees, costs and expenses paid or incurred by the Public Entities in connection with any such event. 4.4 It is the intent of Guarantor and the Public Entities that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid and performed, and not subject to refund or disgorgement, but except as set forth in Section 4.9, the obligations and liabilities of Guarantor hereunder shall not be discharged or released in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor. 4.5 [Reserved.] 4.6 Guarantor waives notice of acceptance of this Guaranty, any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the Laws of any other jurisdiction, and all other suretyship defenses Guarantor would otherwise have under the Laws of California or any other jurisdiction. 4.7 No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor. 4.8 This Guaranty may be replaced by a guaranty that is substantially and materially in the same form as this Guaranty, covers all of the same terms and Guaranteed Obligations as this Guaranty whether arising prior to, on or after the date it becomes effective, does not affect the public financing of the Convention Center and Developer’s Phase 1A Infrastructure Improvements, and is executed by a Person (such Person, a “Replacement Guarantor”) that (a) holds, directly or indirectly, not less than ten percent (10%) of the membership interests in RIDA, (b) when taken together with (i) each Other Guarantor under an Other Guaranty that is not being replaced and (ii) each new Other Guarantor under a new Other Guaranty, has a Guarantor Net Worth of at least the Minimum Net Worth, (c) when taken together with (i) each Other Guarantor under an Other Guaranty that is not being replaced and (ii) each new Other Guarantor under a new Other Guaranty, has a Guarantor Liquidity of at least the Minimum Liquidity, (d) is not a Prohibited Person, (e) assumes any liabilities that exist or may exist under the Guaranty (including without limitation those arising under Sections 1.3 and 6, unless such liabilities are discharged prior to the effectiveness of the Replacement Guaranty), and (f) is acceptable to each of the Public Entities in their reasonable discretion (collectively, the “Replacement Guaranty”). If (x) all of the conditions and requirements set forth in this Section 4.8, including without limitation, clauses (a) through (f) Page 168 of 237 EAttachment B H-10 4825-3218-1203v24/024036-0079 above are satisfied to the reasonable satisfaction of each of the Public Entities, and (y) the proposed replacement Guarantor is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference), and has no reputation for, either discriminatory employment practices which violate any Laws or non-compliance with applicable Environmental Laws (as defined in the Hotel Ground Lease), then each of the Public Entities shall administratively grant consent to any such proposed Replacement Guarantor. If Guarantor requests in writing that the Public Entities consent to a Replacement Guarantor, and after receipt of all information set forth in this Section 4.8, all of the Public Entities do not within forty-five (45) days after such request provide a response consenting to the request, then such consent will be deemed rejected and upon request, the Public Entities shall provide a reasonably detailed explanation of the reason for rejecting such request. Guarantor’s request to the Public Entities to consent to a Replacement Guaranty shall include financial statements with respect to such prospective Replacement Guarantor and a certification by such prospective Replacement Guarantor (with any supporting documentation reasonably requested by the Public Entities) that: (1) such proposed Replacement Guarantor holds, directly or indirectly, not less than ten percent (10%) of the membership interests in RIDA, (2) such proposed Replacement Guarantor, when taken together with (i) each Other Guarantor under an Other Guaranty, if any, that is not being replaced and (ii) each new Other Guarantor, if any, under a new Other Guaranty, has a Guarantor Net Worth of at least the Minimum Net Worth, (3) such proposed Replacement Guarantor, when taken together with (i) each Other Guarantor under an Other Guaranty, if any, that is not being replaced and (ii) each new Other Guarantor, if any, under a new Other Guaranty, has a Guarantor Liquidity of at least the Minimum Liquidity and (4) such proposed Replacement Guarantor is not a Prohibited Person. 4.9 Provided that there are no Outstanding Payments, the liability of Guarantor in respect of the Guaranteed Obligations shall automatically terminate and Guarantor shall be automatically released from its obligations under this Guaranty and this Guaranty shall automatically terminate upon the earliest of the following dates: (i) the date that is six (6) months after the Completion of the Project (as defined in Section 1.1), (ii) the effective date of a Replacement Guaranty pursuant to and in accordance with Section 4.8 hereof where the Replacement Guarantor has replaced the Guarantor and assumed all of Guaranteed Obligations, and (iii) the date on which all of the following has occurred: (a) Hotel Ground Lease Termination Date and (b) the Convention Center Sublease Termination Date. Provided that the necessary conditions under this Section 4.9 have been satisfied, each Public Entity shall execute an acknowledgement that this Guaranty has terminated promptly after the receipt by the Public Entities of a written request therefore from Guarantor. 5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to the Public Entities that: 5.1 Authority; Execution, Delivery and Performance of Guaranty. Guarantor has all requisite power and authority to execute, deliver and perform all of its obligations under this Guaranty. The execution, delivery and performance by Guarantor of all of the obligations under this Guaranty has been duly authorized by all necessary action and do not and will not: (a) result in or require the creation or imposition of any lien, right of others, or other encumbrance of any nature (other than under this Guaranty) upon or with respect to any property now owned or leased or hereafter acquired by the Guarantor; or Page 169 of 237 EAttachment B H-11 4825-3218-1203v24/024036-0079 (b) violate any provision of any Laws; or (c) result in a breach of, constitute a default under, or cause or permit the acceleration of any obligation owed under any agreement or instrument to which Guarantor is a party or by which Guarantor or any of its property is bound or affected; or (d) require any consent or approval not heretofore obtained; or (e) violate any provision of, or require any consent under, any operating agreement, certificate of formation, partnership agreement, articles of incorporation, by-laws or any other governing document or charter applicable to Guarantor. 5.3 Enforceability. This Guaranty, when executed and delivered, shall constitute the valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to bankruptcy laws and other Laws and equitable principles affecting creditors rights generally if applicable to Guarantor. 5.4 Financial Information2. The statement of financial condition made available to the Public Entities for review with respect to the Guarantor in connection with the Project Documents and this Guaranty, and to demonstrate that Guarantor is a Qualified Guarantor to the Public Entities, is a true, complete, and correct copy of such statement, such statement has been prepared in accordance with the Guarantor’s standard accounting principles, and fairly and accurately represents the financial condition of the Guarantor in accordance with such accounting principles , as of the date it was delivered to the Public Entities. 5.5 No Default. To the best of Guarantor’s knowledge, there is no condition, event, act or omission that exists which, with the giving of notice or the passage of time, or both, would be an Event of Default under the Project Documents. 6. REMEDIES. If Guarantor shall fail to perform or satisfactorily commence performance of its obligations hereunder within fourteen (14) days of a demand by any of the Public Entities for performance thereof, the Public Entities shall have the following remedies, in addition to and cumulative of any other remedies it may have hereunder, under the Project Documents or at law or in equity: (a) [reserved;] (b) at its option and without any obligation to do so, complete all or any portion of the Project either before or after the termination of the Project Documents or before or after exercising any other remedy against RIDA or Guarantor, with such changes or modifications in the Project Plans as are necessary for completion of the Project. The amount of any and all expenditures made by the Public Entities for the foregoing purposes shall be immediately due and payable to the Public Entities by Guarantor; and (c) from time to time and without first requiring performance on the part of RIDA and without being required to exhaust any or all security held by the Public Entities, to look to 2 NTD: Guarantor to provide updated financial information prior to close of escrow. Page 170 of 237 EAttachment B H-12 4825-3218-1203v24/024036-0079 and require performance by Guarantor of any obligation on the part of Guarantor to be performed pursuant to the terms of this Guaranty by action at law or in equity, or both. 7. NOTICE OF CERTAIN EVENTS. Guarantor shall give written notice to each of the Public Entities promptly (and in any event within five (5) days) after Guarantor learns of any of the following: (a) the institution of any litigation or legal or administrative proceeding or investigation which has a reasonable probability of being adjudicated adversely to RIDA, Guarantor, the Project or any of RIDA’s or Guarantor’s properties and which would reasonably be expected, if so adjudicated, to materially and adversely affect RIDA, Guarantor or the Project, or cause Guarantor to no longer be a Qualified Guarantor; and (b) the occurrence of any Event of Default or event or condition which, with the giving of notice or the passage of time, or both, would be an Event of Default under the Project Documents. 8. REASONABLENESS AND EFFECT OF WAIVERS. Guarantor warrants and agrees that each of the waivers set forth in this Guaranty is made with full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or Laws. If any of such waivers are determined to be contrary to any applicable Laws or public policy, such waivers shall be effective only to the maximum extent permitted by Laws. 9. MISCELLANEOUS PROVISIONS. 9.1 Costs of Enforcement. The prevailing party in any legal proceedings concerning the enforcement of this Guaranty shall be entitled to recovery of its costs and attorneys’ fees from the party that did not prevail. 9.2 Binding Effect. This Guaranty and all the terms, provisions and conditions hereof shall be binding upon the Guarantor and its heirs, legal representatives, successors and assigns, and this Guaranty shall inure to the benefit of the Public Entities and their successors and assigns and all subsequent holders of the Guaranteed Obligations. 9.3 Financial Information. Guarantor shall deliver to the Public Entities, as soon as available, but in no event later than one hundred twenty (120) days after the end of Guarantor’s fiscal year-end, a copy of Guarantor’s statement of financial condition, in the form attached hereto as Exhibit A, as of the end of such calendar year, together with a certification that such statement (1) is complete and correct to the best of Guarantor’s knowledge, (2) presents the financial condition of the entity, (3) presents all liabilities that are required to be reflected, and those liabilities are presented at historical cost, and (4) is prepared in accordance with the Guarantor’s standard accounting principles. Additionally, Guarantor shall make available for inspection (but not copying) by any of the Public Entities such other information regarding Guarantor’s assets, liabilities and financial condition generally as (a) the Public Entities may from time to time reasonably request so that the Public Entities can verify the veracity of the certifications set forth in the preceding sentence and (b) exists (unless generation of such financial information will not result in any material additional expense to the Guarantor, in which case the Guarantor will request that such financial information be generated and provided to the Public Entities), at the Project, RIDA’s main business Page 171 of 237 EAttachment B H-13 4825-3218-1203v24/024036-0079 office, any of Hotel Operator’s (as defined in the Hotel Ground Lease) business offices in San Diego County, California or at such other location in San Diego County, California as is reasonably acceptable to the Public Entities, upon such Public Entity’s written notice, which shall specify in reasonable detail the financial information the Public Entities are requesting be made available for inspection and the date when such inspection will take place, which date shall not be less than ten business days after the date of such notice. Notwithstanding the foregoing, if any of the Public Entities are required to include any of the financial information shared by Guarantor in connection with its respective board or council meetings, Guarantor agrees to provide the Public Entities with a redacted version of such financial information at no cost to the Public Entities and a certification that, except for such redactions, such redacted version of financial information is a true, correct, and complete copy of the unredacted version of the financial information reviewed by the Public Entities. 9.4 Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of California. 9.5 Notices. All notices demands, approvals and other communications provided for herein shall be in writing and shall be delivered by overnight air courier, personal delivery or registered or certified U.S. mail with return receipt requested, postage prepaid, to the appropriate party at its address as follows: If to Port District: Executive Director San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With a copy to: Port Attorney San Diego Unified Port District 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) Page 172 of 237 EAttachment B H-14 4825-3218-1203v24/024036-0079 If to City: City of Chula Vista Attention: City Manager 276 Fourth Avenue Chula Vista, California 91910 With a copy to: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 If to the Authority: To the City: City of Chula Vista Attention: City Manager 276 Fourth Avenue Chula Vista, California 91910 With a copy to: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 To the Port District: Executive Director San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) With copy to: Director, Real Estate San Diego Unified Port District Administration Building 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) Page 173 of 237 EAttachment B H-15 4825-3218-1203v24/024036-0079 With a copy to: Port Attorney San Diego Unified Port District 3165 Pacific Highway San Diego, California 92101-1128 (Mailing Address: P.O. Box 120488 San Diego, California 92112-0488) If to Guarantor: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner With copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine Addresses for notice may be changed from time to time by written notice to all other parties. Any communication given by mail will be effective upon the earlier of (a) three (3) business days following deposit in a post office or other official depository under the care and custody of the United States Postal Service or (b) actual receipt, as indicated by the return receipt; if given by telephonic facsimile, when sent; and if given by personal delivery or by overnight air courier, when delivered to the appropriate address set forth above. 9.6 No Waiver. Any failure by the Public Entities to insist, or any election by the Public Entities not to insist, upon strict performance by Guarantor of any of the terms, provisions or conditions of this Guaranty shall not be deemed to be a waiver of the same or of any other terms, provisions or conditions thereof. 9.7 Severability. If any provision of this Guaranty or the application thereof to any Person or circumstance shall be invalid or unenforceable, then, neither the remainder of this instrument nor the application of such provision to other persons or circumstances shall be affected thereby, but rather shall be enforced to the greatest extent permitted by Laws. 9.8 Entire Agreement and Modification. This Guaranty contains the entire agreement between the Guarantor and the Public Entities relating to the subject matter hereof, except for the Project Plans and the Project Documents. This Guaranty may not be amended, revised, Page 174 of 237 EAttachment B H-16 4825-3218-1203v24/024036-0079 waived, discharged, released or terminated orally, but only by a written amendment, revision, waiver, discharge, release or termination. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any party to this Guaranty. 9.9 Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Guaranty and the consummation of the transactions contemplated hereby. [Signature Page Follows.] Page 175 of 237 EAttachment B H-17 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first written above. GUARANTOR Print Name: Print Title: Page 176 of 237 EAttachment B H-18 4825-3218-1203v24/024036-0079 Accepted and agreed by: SAN DIEGO UNIFIED PORT DISTRICT APPROVED AS TO FORM AND LEGALITY: Print Name: Thomas A. Russell, General Counsel Print Title: CHULA VISTA BAYFRONT FACILITIES APPROVED AS TO FORM AND LEGALITY: FINANCING AUTHORITY Print Name: Thomas A. Russell, Co-Counsel, General Counsel Print Title: San Diego Unified Port District Glen R. Googins, Co-Counsel, City Attorney City of Chula Vista CITY OF CHULA VISTA Print Name: Print Title: RIDA CHULA VISTA, LLC Print Name: Print Title: Page 177 of 237 EAttachment B H-19 4825-3218-1203v24/024036-0079 EXHIBIT A FORM OF STATEMENT OF FINANCIAL CONDITION (to be attached prior to execution.) Page 178 of 237 EAttachment B I-1 4825-3218-1203v24/024036-0079 Exhibit I Other Ground Leases 1. Amended, Restated and Combined Lease between the San Diego Unified Port District (the “District”) and The Marine Group LLC for property at the North Side of G Street at the terminus of both Quay Avenues and Sandpiper Way in Chula Vista, which lease is on file in the Office of the District Clerk as Document No. 54509, as amended and may be amended from time to time. 2. Lease between the District and Chula Vista Marina, LP, dba Chula Vista Marina, for property located at 550 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 14244, as amended and may be amended from time to time. 3. Lease between the District and California Yacht Marina-Chula Vista, LLC, for property located at 640 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 23924, as amended and may be amended from time to time. 4. Lease between the District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 70407, as amended and may be amended from time to time (“RV Park Lease”). Page 179 of 237 EAttachment B J-1 4825-3218-1203v24/024036-0079 EXHIBIT J Public Debt Service Obligation (PDSO) [To be provided by Bond Counsel prior to Closing.] Page 180 of 237 EAttachment B K-1-1 4825-3218-1203v24/024036-0079 Exhibit K-1 Form of Developer’s Phase 1A Payment Request [_______], 202[_] Chula Vista Bayfront Facilities Financing Authority c/o City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager Re: Developer’s Phase 1A Payment Request No. [___] under Project Implementation Agreement (the “Agreement”), dated as of [  ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority” and also sometimes referred to herein as the “JEPA”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer” or “RIDA”). Payment Request of $[_________] Requested Payment Date: [_________], 20[__]3 Ladies and Gentlemen: The Developer submits this Developer’s Phase 1A Payment Request No. [___] (the “Payment Request”) pursuant to Section 9.1.2 of the Agreement with respect to the Developer’s Phase 1A Infrastructure Improvements. Capitalized terms used herein without definition shall have the meanings assigned in the Agreement. The Developer hereby requests that the Authority, on the requested payment date set forth above (the “Requested Payment Date”), direct the Trustee to transfer $ [_____] (the “Requested Payment Amount”) from the [Account] to the [Account]. The Requested Payment Amount is calculated as set forth on Schedule 1. In connection with the requested payment, the Developer hereby represents, warrants and certifies as of the date hereof as follows: (a) Schedule 2 accurately lists each Person to whom any of the Developer’s Phase 1A Infrastructure Improvements Costs have been or will be paid and, for each line item in such schedule 3 To be not less than 10 business days after the date of the Developer’s Phase 1A Payment Request. Page 181 of 237 EAttachment B K-1-2 4825-3218-1203v24/024036-0079 and for each such Person, the following: (i) the name of the payee paid or to be paid, (ii) the amount that Developer has paid to such Person, (iii) the amount that Developer intends to pay to such Person during the next 30 days, (iv) a description of the purpose of such payment, specifying the line item relating to each such payment, (v) amounts withheld as retainage pursuant to applicable requirements of applicable contracts or subcontracts, (vi) amounts eligible for reimbursement under the Sewer Agreement, and (vii) amounts eligible for credit under the BFDIF Program. The amounts listed in Schedule 2 do not include any Non-Project Costs or Excluded Costs. The information set forth in Schedule 2 as noted above is true, correct and complete in all material respects. (b) The Developer has delivered or caused to be delivered to the Authority: (i) copies of true and complete invoices that have been tendered for all Developer’s Phase 1A Infrastructure Improvements Costs pursuant to any Payment Request, and (ii) statutory lien/stop payment notice conditional waivers and releases associated with all work performed, or supplies provided, for the Developer’s Phase 1A Infrastructure Improvements and for which payment is requested in the appropriate statutory form, other than Excluded Mechanics Lien Waivers, and (iii) copies of all change orders executed prior to the date of this Payment Request. (c) To Developer’s actual knowledge, after inquiring with Developer’s architect or engineer who has a representative at the Project Site, the construction performed for the Developer’s Phase 1A Infrastructure Improvements as of the date hereof has been performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements, or to the extent any such construction has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications, the amount to be disbursed under this payment request has been reduced by $[_____] pursuant to the Architect’s Certificate (as defined below) to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements. (d) To the actual knowledge of Developer (after enquiring with Developer’s General Contractor), except as described in (c) above, no work or component of work has been rejected or disapproved by an inspector or other authorized representative of the City’s building or public works departments or a stormwater inspector representing the Port District. (e) The amount of the Payment Request reflects a reduction of $[_____], being the amount for which the Developer does not intend to pay any General Contractor or any Subcontractor. (f) The Developer’s Phase 1A Infrastructure Improvements Budget presently in effect is dated [__________] [and has not been amended] [and includes all amendments through Developer’s Phase 1A Infrastructure Improvements Budget Amendment No. [___]]. Said budget (i) is based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, (ii) has been prepared in good faith and with due care, (iii) accurately sets forth, for each line item in the Developer’s Phase 1A Infrastructure Improvements Budget, the total costs anticipated to be Page 182 of 237 EAttachment B K-1-3 4825-3218-1203v24/024036-0079 incurred to achieve Completion, and (iv) fairly represents in all material respects the Developer’s reasonable expectation as to the matters covered thereby as of its date. (g) As of the date hereof, no Event of Default exists. (h) All proceeds of all previous Payment Requests, except for $[_____] and amounts paid in respect of the Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount, have been expended and have been applied to pay Developer’s Phase 1A Infrastructure Improvements Costs in accordance with Contract Documents and the Agreement (or, with respect to the Early Work Costs, in accordance with the Early Work Agreement). Schedule 3 accurately lists the foregoing costs that have been paid since the last Requested Payment Date, in each case, segregated by line item. The information set forth on Schedule 3 is true, correct and complete. (i) As of the date hereof, Developer has complied with all applicable provisions of Section 7.2.3.1 of the Agreement. Attached to this Payment Request as Exhibit 1 is a certificate from the Architect (the “Architect’s Certificate”). [SIGNATURE PAGE FOLLOWS] Page 183 of 237 EAttachment B K-1-4 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, the undersigned has executed this Developer’s Phase 1A Payment Request as of this [___] day of [_________], 202[_]. DEVELOPER RIDA CHULA VISTA, LLC, a Delaware limited liability company By: * Page 184 of 237 EAttachment B K-1-5 4825-3218-1203v24/024036-0079 Schedule 1 to Developer’s Phase 1A Payment Request Line # Description Amount 1 The Developer’s Phase 1A Infrastructure Improvements Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Developer’s Phase 1A Payment Request: $ 2 The Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount that has accrued as of the date of the Developer’s Phase 1A Payment Request: $ 3 Total of Lines 1 and 2: $ 4 Amount withheld pursuant to clause (b) of Architect’s Certificate: $ 5 Amounts previously paid by the Authority in respect of the Developer’s Phase 1A Contract Sum: $ 6 Amounts that Developer does not intend to pay General Contractor or any Subcontractor (except to the extent the applicable work has been performed by others the Developer intends to pay): $ 7 Total of Lines 4, 5 and 6: $ 8 Requested Payment Amount (Line 3 minus Line 7): $ Page 185 of 237 EAttachment B K-1-6 4825-3218-1203v24/024036-0079 Schedule 2 to Developer’s Phase 1A Payment Request (i) Payee (ii) Amount Paid (iii) Amount Intended to be Paid within 30 days (iv) Description of Purpose of Expense (v) Retainage Withheld Line Item: Total for Line Item The foregoing payment / credit is requested from: (circle one) Bond Proceeds Sewer Agreement BFDIF Page 186 of 237 EAttachment B K-1-7 4825-3218-1203v24/024036-0079 Schedule 3 to Developer’s Phase 1A Payment Request (i) Payee (ii) Amount Paid since last Requested Payment Date (iii) Description of Purpose of Expense Line Item: Total for Line Item Page 187 of 237 EAttachment B K-1-8 4825-3218-1203v24/024036-0079 EXHIBIT 1 Certificate of Architect [_______], 20[__] Chula Vista Bayfront Facilities Financing Authority c/o City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner; Luke Charlton Re: Developer’s Phase 1A Payment Request No. [___] under Project Implementation Agreement (the “Agreement”), dated as of [  ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority” and also sometimes referred to herein as the “JEPA”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer” or “RIDA”). Payment Request of $[_________] Requested Payment Date: [_________], 20[__] Ladies and Gentlemen: Capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement. [  ] (the “Architect”) hereby certifies as follows: (a) The Architect has reviewed the above referenced Developer’s Phase 1A Payment Request No. [___] (the “Payment Request”) and the Agreement, to the extent necessary to understand the defined terms contained herein and in the Payment Request that are incorporated by reference from the Agreement and to provide the certification contained herein. (b) The Architect hereby certifies and confirms that, pursuant to the observation of the work as required by the [describe Architect Agreement] and in accordance with applicable professional standards, the construction performed for the Developer’s Phase 1A Infrastructure Improvements as of the date hereof has been performed substantially in accordance in all material Page 188 of 237 EAttachment B K-1-9 4825-3218-1203v24/024036-0079 respects with the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements, or to the extent any such construction has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements, the amount to be disbursed under this payment request has been reduced by $[_____] to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements. The foregoing certification is subject to an evaluation of the Developer’s Phase 1A Infrastructure Improvements for conformance with the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements upon Completion, to results of subsequent tests and inspections, and to correction of minor deviations from the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements prior to Completion. This certificate is not a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers, or (4) made examination to ascertain how or for what purpose the Developer has used money previously paid on account of the Developer’s Phase 1A Contract Sum. (c) Except as described in (b) above, no work or component of work has been rejected or disapproved by an inspector or other authorized representative of the City’s building or public works departments or a stormwater inspector representing the Port District. (d) Any representations or certifications by the Architect herein shall mean an expression of the Architect’s professional opinion to the best of its information, knowledge and belief, and does not constitute a warranty or guarantee by the Architect. The Authority is entitled to rely on the foregoing representations, warranties and certifications in authorizing and making the disbursement requested in the Payment Request. [SIGNATURE PAGE FOLLOWS] Page 189 of 237 EAttachment B K-1-10 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Architect as of this [___] day of [_________], 201[__]. [  ] By: _____________________________________ Name: Title: Page 190 of 237 EAttachment B K-2-1 4825-3218-1203v24/024036-0079 Exhibit K-2 Form of Convention Center Payment Request [_______], 202[_] Chula Vista Bayfront Facilities Financing Authority c/o City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager Re: Convention Center Payment Request No. [___] under Project Implementation Agreement (the “Agreement”), dated as of [  ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority” and also sometimes referred to herein as the “JEPA”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer” or “RIDA”). Payment Request of $[_________] Requested Payment Date: [_________], 20[__]4 Ladies and Gentlemen: The Developer submits this Convention Center Payment Request (the “Payment Request”) pursuant to Section 9.2.2 of the Agreement with respect to the Convention Center. Capitalized terms used herein without definition shall have the meanings assigned in the Agreement. The Developer hereby requests that the Authority, on the requested payment date set forth above (the “Requested Payment Date”), direct the Trustee to transfer $ [_____] (the “Requested Payment Amount”) from the [Account] to the [Account]. The Requested Payment Amount is calculated as set forth on Schedule 1. In connection with the requested payment, the Developer hereby represents, warrants and certifies as of the date hereof as follows: (a) Schedule 2 accurately lists each Person to whom any of the Convention Center Costs have been or will be paid and, for each line item in such schedule and for each such Person, the following: (i) the name of the payee paid or to be paid, and, (ii) amount that Developer has paid to 4 NTD: To be not less than 10 business days after the date of the Convention Center Payment Request. Page 191 of 237 EAttachment B K-2-2 4825-3218-1203v24/024036-0079 such Person, (iii) the amount that Developer intends to pay to such Person during the next 30 days, (iv) a description of the purpose of such payment, specifying the line item relating to each such payment, and (v) amounts withheld as retainage pursuant to the applicable contract or subcontract. The amounts listed on Schedule 2 do not include any Non-Project Costs. The information set forth in Schedule 2 as noted above is true, correct and complete in all material respects. (b) The Developer has delivered or caused to be delivered to the Authority: (i) copies of true and complete invoices that have been tendered for all Convention Center Costs pursuant to any Payment Request, and (ii) statutory lien/stop payment notice conditional waivers and releases associated with all work performed, or supplies provided, for the Convention Center and for which payment is requested in the appropriate statutory form, other than Excluded Mechanics Lien Waivers, and (iii) copies of all change orders executed prior to the date of the Payment Request. (c) To Developer’s actual knowledge, after inquiring with Developer’s architect or engineer who has a representative at the Project Site, the construction performed for the Convention Center as of the date hereof has been performed substantially in accordance in all material respects with the Convention Center Plans, or to the extent any such construction has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications, the amount to be disbursed under this payment request has been reduced by $[_____] pursuant to the Architect’s Certificate (as defined below) to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with the Convention Center Plans. (d) [Reserved]. (e) The amount of the Payment Request reflects a reduction of $[_____], being the amount for which the Developer does not intend to pay General Contractor or any Subcontractor (except to the extent the applicable work has been performed by others the Developer intends to pay). (f) The Convention Center Budget presently in effect is dated [__________] [and has not been amended] [and includes all amendments through Convention Center Budget Amendment No. [___]]. Said budget (i) is based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, (ii) has been prepared in good faith and with due care, (iii) accurately sets forth, for each line item in the Convention Center Budget, the total costs anticipated to be incurred to achieve Completion, and (iv) fairly represents in all material respects the Developer’s reasonable expectation as to the matters covered thereby as of its date. (g) As of the date hereof, no Event of Default exists. (h) All proceeds of all previous Payment Requests, except for $[_____] and amounts paid in respect of the Development Fees and Stipulated Convention Center Overhead Amount, have been expended and have been applied to pay Convention Center Costs in accordance with Contract Documents and the Agreement. Schedule 3 accurately lists the foregoing costs that have been paid since the last Requested Payment Date, in each case, segregated by line item. The information set forth on Schedule 3 is true, correct and complete. Page 192 of 237 EAttachment B K-2-3 4825-3218-1203v24/024036-0079 (i) As of the date hereof, Developer has complied with all applicable provisions of Section 7.2.3.1 of the Agreement. Attached to this Payment Request as Exhibit 1 is a certificate from the Architect (the “Architect’s Certificate”). [SIGNATURE PAGE FOLLOWS] Page 193 of 237 EAttachment B K-2-4 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, the undersigned has executed this Convention Center Payment Request as of this [___] day of [_________], 202[_]. DEVELOPER RIDA CHULA VISTA, LLC, a Delaware limited liability company By: * Page 194 of 237 EAttachment B K-2-5 4825-3218-1203v24/024036-0079 Schedule 1 to Convention Center Payment Request Line # Description Amount 1 The Convention Center Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Convention Center Payment Request: $ 2 The Initial Convention Center Development Fee: $ 3 The Remaining Convention Center Development Fee that has accrued as of the date of the Convention Center Payment Request: $ 4 The Stipulated Convention Center Overhead Amount that has accrued as of the date of the Convention Center Payment Request: $ 5 Total of Lines 1, 2, 3 and 4: $ 6 Amount withheld pursuant to clause (b) of Architect’s Certificate: $ 7 Amounts previously paid in respect of the Convention Center Contract Sum: $ 8 Amounts that Developer does not intend to pay General Contractor or any Subcontractor (except to the extent the applicable work has been performed by others the Developer intends to pay): $ 9 Total of Lines 6, 7 and 8: $ 10 Requested Payment Amount (Line 5 minus Line 9): $ Page 195 of 237 EAttachment B K-2-6 4825-3218-1203v24/024036-0079 Schedule 2 to Convention Center Payment Request (i) Payee (ii) Amount Paid (iii) Amount Intended to be Paid within 30 days (iv) Description of Purpose of Expense (v) Retainage Withheld Line Item: Total for Line Item Page 196 of 237 EAttachment B K-2-7 4825-3218-1203v24/024036-0079 Schedule 3 to Convention Center Payment Request (i) Payee (ii) Amount Paid since last Requested Payment Date (iii) Description of Purpose of Expense Line Item: Total for Line Item Page 197 of 237 EAttachment B K-2-8 4825-3218-1203v24/024036-0079 EXHIBIT 1 Certificate of Architect [_______], 20[__] Chula Vista Bayfront Facilities Financing Authority c/o City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner; Luke Charlton Re: Convention Center Payment Request No. [___] under Project Implementation Agreement (the “Agreement”), dated as of [  ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority” and also sometimes referred to herein as the “JEPA”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer” or “RIDA”). Payment Request of $[_________] Requested Payment Date: [_________], 20[__] Ladies and Gentlemen: Capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement. [  ] (the “Architect”) hereby certifies as follows: (a) The Architect has reviewed the above referenced Convention Center Payment Request No. [___] (the “Payment Request”) and the Agreement, to the extent necessary to understand the defined terms contained herein and in the Payment Request that are incorporated by reference from the Agreement and to provide the certification contained herein. (b) The Architect hereby certifies and confirms that, pursuant to the observation of the work as required by the [describe Architect Agreement] and in accordance with applicable professional standards, the construction performed for the Convention Center as of the date hereof has been performed substantially in accordance in all material respects with the Convention Center Page 198 of 237 EAttachment B K-2-9 4825-3218-1203v24/024036-0079 Plans, or to the extent any such construction has not been performed substantially in accordance in all material respects with Convention Center Plans, the amount to be disbursed under this payment request has been reduced by $[_____] to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with Convention Center Plans. The foregoing certification is subject to an evaluation of the Convention Center for conformance with the Convention Center Plans upon Completion, to results of subsequent tests and inspections, and to correction of minor deviations from the Convention Center Plans prior to Completion. This certificate is not a representation that the Architect has (1) made exhaustive or continuous on-site inspections to check the quality or quantity of the work, (2) reviewed construction means, methods, techniques, sequences or procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers, or (4) made examination to ascertain how or for what purpose the Developer has used money previously paid on account of the Convention Center Contract Sum. (c) [Reserved] (d) Any representations or certifications by the Architect herein shall mean an expression of the Architect’s professional opinion to the best of its information, knowledge and belief, and does not constitute a warranty or guarantee by the Architect. The Authority is entitled to rely on the foregoing representations, warranties and certifications in authorizing and making the disbursement requested in the Payment Request. [SIGNATURE PAGE FOLLOWS] Page 199 of 237 EAttachment B K-2-10 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, the undersigned has executed this Certificate of Architect as of this [___] day of [_________], 201[__]. [  ] By: _____________________________________ Name: Title: Page 200 of 237 EAttachment B L-1 4825-3218-1203v24/024036-0079 Exhibit L Sole Source Subcontract Award Approval (Developer’s Phase 1A Infrastructure Improvements) Request No. Reference is made to that certain Project Implementation Agreement (the “Agreement”), dated as of [ ● ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer”). Capitalized terms used herein without definition shall have the meanings assigned in the Agreement. The Developer hereby provides notice of intent to award a sole-source subcontract to [insert dba] for Developer’s Phase 1A Infrastructure Improvements. A draft of such subcontract is attached as Exhibit 1 hereto. In connection with this Sole Source Subcontract Award Approval Request, the undersigned hereby certifies, represents and warrants to the Authority, in each case, solely in his or her capacity as [insert title] of Developer and not in his or her individual capacity, as follows: A. He (she) is a duly authorized representative or signatory of Developer, qualified to execute this Sole Source Subcontract Award Approval Request on behalf of Developer and is knowledgeable as to the matters set forth herein. B. The proposed subcontractor is as follows: a. [Corporate Name] b. [dba] c. [Mailing Address] d. [Contact Phone Number] e. [Contact Email] f. [California Contractor License Number] g. [City of Chula Vista Business License Number] C. The proposed subcontract includes the following scope of work: [insert scope] D. The proposed sole source subcontract is in the amount of $ . E. The Developer recommends a sole source contract. F. The proposed sole source subcontract has been awarded in accordance with the Agreement, including Exhibit G-1, and the Authority Procurement Policy. G. The subject commodity or service is reasonably available in a manner consistent with the timely completion of the Developer’s Phase 1A Infrastructure Improvements in accordance with the Page 201 of 237 EAttachment B L-2 4825-3218-1203v24/024036-0079 Agreement from only one known source as the result of unique performance capabilities, manufacturing processes, compatibility requirements or market conditions. By the Authority’s execution of this Sole Source Subcontract Award Approval Request, the Authority hereby waives the provisions of the Authority Procurement Policy to the extent necessary to enable the sole source subcontract described in this Sole Source Subcontract Award Approval Request by Developer’s General Contractor. [Signature Pages Follow] Page 202 of 237 EAttachment B L-3 4825-3218-1203v24/024036-0079 I hereby declare, solely in my capacity set forth below and not in my individual capacity, that the above representations are true and correct. DEVELOPER: RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number: 1039979 By: [Name], [Title] Dated: Page 203 of 237 EAttachment B L-4 4825-3218-1203v24/024036-0079 By the Authority’s execution of this Sole Source Subcontract Award Approval Request, and in reliance upon the Developer’s representations and certifications set forth in the above request for approval of Sole Source Subcontract Award, the Authority hereby approves such award. APPROVED: AUTHORITY: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint exercise of powers authority By: [Name], [Title] Dated: Page 204 of 237 EAttachment B L-5 4825-3218-1203v24/024036-0079 Exhibit 1 Draft Subcontract [See attached] Page 205 of 237 EAttachment B M-1 4825-3218-1203v24/024036-0079 Exhibit M Best Qualified Contractor Subcontract Award Approval (Developer’s Phase 1A Infrastructure Improvements) Request No. Reference is made to that certain Project Implementation Agreement (the “Agreement”), dated as of [ ● ], 2021, by and among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance, the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer”). Capitalized terms used herein without definition shall have the meanings assigned in the Agreement. The Developer hereby provides notice of intent to award a subcontract to [insert dba] as a “best qualified” contractor (as described in the Authority Procurement Policy). A draft of such subcontract is attached as Exhibit 1 hereto. In connection with this Best Qualified Contractor Subcontract Award Approval Request, the undersigned hereby certifies, represents and warrants to the Authority, in each case, solely in his or her capacity as [insert title] of Developer and not in his or her individual capacity, as follows: A. He (she) is a duly authorized representative or signatory of Developer, qualified to execute this Subcontract Award Approval Request on behalf of Developer and is knowledgeable as to the matters set forth herein. B. The proposed subcontractor is as follows: a. [Corporate Name] b. [dba] c. [Mailing Address] d. [Contact Phone Number] e. [Contact Email] f. [California Contractor License Number] g. [City of Chula Vista Business License Number] C. The proposed subcontract includes the following scope of work: [insert scope] D. The proposed subcontract is in the amount of $ . E. The Developer or its General Contractor conducted a qualification process that considered, among other things, any or all of the following: past relevant/similar project experience, construction experience and capability, labor relations, customer feedback from those projects, current backlog, available trades personnel resources, proposed supervisory/management personnel, financial capability, and design capabilities (for design-build subcontracts). Page 206 of 237 EAttachment B M-2 4825-3218-1203v24/024036-0079 F. (select 1 option, delete the other options) For work estimated to be equal to or in excess of $75,000, [the Developer or its General Contractor solicited three competitive proposals from the pre-qualified list of subcontractors] OR [the Developer determined that soliciting proposals for such work was not practical under the circumstances]. OR For work estimated to be less than $75,000, [the Developer or its General Contractor solicited two competitive proposals from the pre-qualified list of subcontractors] OR [the Developer determined that soliciting proposals for such work was not practical under the circumstances]. G. The Developer or its General Contractor considered, among other things, any or all of the following: qualitative factors (i.e. personnel, schedule management, construction experience and capability, labor relations, 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 rate for labor, equipment, and insurance). H. The Developer conducted a pre-selection in-depth interview with potential “best qualified” subcontractors. I. [The Developer offered a pre-selection process for potential subcontractors to present a “best and final offer”.] [Insert if applicable] J. The Developer determined that the proposed subcontractor provided the best value for the Project. K. The proposed subcontract has been awarded in accordance with the Agreement, including Exhibit G-1, and the Authority Procurement Policy. [The Developer hereby requests a waiver pursuant to Section 2(d)(ii) of the Authority Procurement Policy with respect to the proposed subcontractor, and by the Authority’s execution of this Best Qualified Contractor Subcontract Award Approval Request, the Authority hereby grants such waiver.] [NTD: Include if the proposed subcontractor is not the lowest responsive and responsible bidder for a unit of work and the proposed subcontractor’s bid exceeds the engineer’s estimate or other approved estimate for the work by more than ten percent.] [Signature Pages Follow] Page 207 of 237 EAttachment B M-3 4825-3218-1203v24/024036-0079 I hereby declare, solely in my capacity set forth below and not in my individual capacity, that the above representations are true and correct. DEVELOPER: RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number: 1039979 By: [Name], [Title] Dated: Page 208 of 237 EAttachment B M-4 4825-3218-1203v24/024036-0079 By the Authority’s execution of this Best Qualified Contractor Subcontract Award Approval Request, and in reliance upon the Developer’s representations and certifications set forth in the above request for approval of Best Qualified Contractor Subcontract Award, the Authority hereby approves such award. APPROVED: AUTHORITY: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint exercise of powers authority By: [Name], [Title] Dated: Page 209 of 237 EAttachment B M-5 4825-3218-1203v24/024036-0079 Exhibit 1 Draft Subcontract [See attached] Page 210 of 237 EAttachment B N-1-1 4825-3218-1203v24/024036-0079 Exhibit N-1 List of Approved Arbitrators [To be agreed upon by Developer, Port District, and City prior to Closing.] Page 211 of 237 EAttachment B N-2-1 4825-3218-1203v24/024036-0079 Exhibit N-2 List of Approved Mediators [To be agreed upon by Developer, Port District, and City prior to Closing.] Page 212 of 237 EAttachment B O-1 4825-3218-1203v24/024036-0079 Exhibit O Energy Requirements The Parties acknowledge that Section 15 of the Settlement Agreement requires that all “Developments” within the Proposed Project (as defined in the Settlement Agreement) area achieve, in the aggregate, a fifty percent (50%) reduction in annual energy use (the “50% Energy Standard”) compared to that allowed under the Building Energy Efficiency Standards, Title 24, Part 6, of the California Code of Regulations in effect as of May 4, 2010 (“2010 Title 24”). To implement Section 15 of the Settlement Agreement with respect to the Project, the Parties agree as follows: (a) Developer represents and warrants that it has prepared the Plans (as defined in the Ground Lease) and the Convention Center Plans (collectively, the “Energy Requirement Plans”) in such a manner that each building will operate at an energy consumption level equal to or better than the more stringent of the following two standards, which shall be referred to herein as, the “Minimum Energy Efficiency Design Standard”: (i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted to consume under 2010 Title 24; or (ii) the minimum energy efficiency performance standard adopted by the City at the time a building permit application is submitted for each building. (b) No later than thirty (30) days prior to the date when the first building in the Project is open for business, Developer shall deliver to Authority for Authority’s approval, a measurement and verification plan for energy efficiency for the Project based on the Energy Requirement Plans (as approved by Authority in accordance with this Agreement or the Port District in accordance with the Ground Lease, as applicable) (the “M&V Plan”). Developer shall also provide a courtesy copy of the M&V Plan to the City and Port District concurrently with its delivery to Authority. (c) Developer shall implement and maintain the M&V Plan throughout the Term. (d) Developer shall cause the performance of, and deliver to Port District and City, an energy consumption audit for each of the buildings in the Project no less frequently than every three (3) years after the Completion of the Resort Hotel and the Completion of the Parking Improvements, as applicable, as more particularly set forth in Section 15.2.2.4 of the Settlement Agreement (the “Required Energy Audits”). (e) If the City and Port District ultimately determine that the Energy Requirement Plans do not achieve the 50% Energy Standard as applied to the Project (as defined in the Ground Lease), Developer, the City and Port District shall work together to identify additional energy savings measures, programs or credits (collectively, “Additional Energy Savings Measures”) available to achieve the 50% Energy Standard. Such Additional Energy Savings Measures may include, without limitation, Developer’s participation in renewable or “time of use” energy purchase programs, and/or other measures identified in Section 15.2 of the Settlement Agreement. Developer agrees to participate in and/or implement the Additional Energy Savings Measures so identified at Developer’s cost, to the extent “commercially reasonable” (as defined below), in order to maximize energy use reduction at the Project (as defined in the Ground Lease), in the aggregate, up to the 50% Energy Standard. If, despite Developer’s efforts, Developer cannot reduce the energy use standard at the Project (as defined in the Ground Lease) to achieve the 50% Energy Standard, either because it is Page 213 of 237 EAttachment B O-2 4825-3218-1203v24/024036-0079 not commercially reasonable to do so, or Developer’s participation in and/or implementation of the Additional Energy Savings Measures identified by the City and Port District do not result in the 50% Energy Standard, the City and Port District agree to identify additional energy savings measures or credits that the City and Port District could implement (at a cost to be shared equally by the City and Port District) or cause third parties to implement (without a public subsidy or rent reduction), throughout the Proposed Project (as defined in the Settlement Agreement) area, to achieve the 50% Energy Standard for the Project (as defined in the Ground Lease). For purposes of this Exhibit O, “commercially reasonable” Additional Energy Savings Measures are the Additional Energy Savings Measures that Developer reasonably determines can be implemented practicably and cost- effectively at the Project (as defined in the Ground Lease) and that the implementation of which will not interfere with the operation of any portion of the Project. Developer shall cooperate with the City and Port District in good faith to identify locations for the commercially reasonable Additional Energy Savings Measures on the Premises and shall enter into any agreements with Port District and/or the City, as reasonably required, to effectuate the construction of such commercially reasonable Additional Energy Savings Measures on the Premises. (f) Developer shall indemnify and defend the Authority, the City, and the Port District, at Developer’s sole cost and expense and with counsel reasonably selected by the Public Agencies and reasonably approved by Developer, and hold harmless the Authority, the City , and the Port District for any and all claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of any breach by Developer of its obligations under this Exhibit O, except for claims or litigation arising through the sole gross negligence or willful misconduct of any Public Agency Party (but subject to Section 15.4 of this Agreement); provided, that the sole gross negligence or willful misconduct of one Public Agency Party with respect to any Public Agency shall not be attributed to or affect the rights of any Public Agency Party with respect to any other Public Agency under this clause (f). If a Public Agency determines in its reasonable discretion that there is a conflict of interest with Developer’s counsel representing such Public Agency and Developer, or that there is a conflict of interest with counsel representing such Public Agency and the other Public Agencies, then such Public Agency, at its election, may conduct its own defense with its own counsel that is reasonably selected by the Public Agency, reasonably approved by Developer, and independent from Developer’s counsel (and in that event Developer will select its own counsel) and the reasonable costs incurred by the applicable Public Agency in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The terms of this clause (f) shall survive the expiration or earlier termination of this Agreement. Nothing in this Exhibit O shall limit Developer’s obligations to indemnify Port District and the City with regard to the Convention Center Plans, the Improvements, or other Developer’s Phase 1A Infrastructure Improvements if and to the extent required under this Agreement. (g) For purposes of the Settlement Agreement, Developer’s obligations to comply with Section 15 of the Settlement Agreement are limited to the requirements set forth herein. So long as Developer has complied with its obligations under this Exhibit O and Section 4.10, Developer will not be in default and will not be in breach under this Lease or the Settlement Agreement based upon any alleged failure to comply with the terms of Section 15 of the Settlement Agreement in the design of the Project. (h) For purposes of this Exhibit O, “Project” shall mean Project as defined in the Ground Lease. Page 214 of 237 EAttachment B P-1 4825-3218-1203v24/024036-0079 Exhibit P Form of Developer’s Convention Center Budget [To be provided by Developer prior to Closing.] Page 215 of 237 EAttachment B Q-1 4825-3218-1203v24/024036-0079 Exhibit Q Port District Transfer Documents Ground Lease Site Lease Project Implementation Agreement Support Agreement CVBMP Documents [parties to determine which CVBMP documents will be transferred prior to execution of lease.] [Insert any other documents that qualify as Port District Transfer Documents prior to Closing.] Page 216 of 237 EAttachment B R-1 4825-3218-1203v24/024036-0079 Exhibit R Form of Memorandum Agreement RECORDING REQUESTED BY: ___________________________ ___________________________ ___________________________ (Above Space for Recorder’s Use Only) MEMORANDUM OF AGREEMENT This Memorandum of Agreement, hereinafter “Memorandum,” is dated ____________, 20__, among the City of Chula Vista, a chartered municipal corporation (“City”), acting on its behalf and for and on behalf of the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance (the “Financing District”), the San Diego Unified Port District, a public corporation (the “Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to the Joint Exercise of Powers Act (defined herein below), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer”) (collectively, together with their successors and assigns, the “Parties” and, individually, a “Party”), concerning that certain real property described in Exhibits “A-1”, “A-2” and “A-3” and depicted in Exhibits “B-1”, “B-2” and “B-3”, attached hereto and by this reference made a part hereof. The Parties have entered into that certain Project Implementation Agreement of even date herewith (the “Agreement”), which contains various covenants, obligations and rights of the Parties, all as more specifically set forth in said Agreement (including, without limitation, the provisions set forth in Annex “I” attached hereto and by this reference made a part hereof). The Agreement is incorporated in this Memorandum by this reference. The term of the Agreement begins __________, 20__ and ends __________, 20__, as set forth in Section 3.1 of the Agreement. In no event shall the Term extend beyond sixty-six (66) years from the Effective Date. This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement provisions. In the event of conflict between the terms of this Memorandum and terms of the Agreement, the terms of the Agreement shall control. [Signature Pages Follows] Page 217 of 237 EAttachment B R-2 4825-3218-1203v24/024036-0079 IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement as of the date first set forth above. CITY DEVELOPER CITY OF CHULA VISTA, a California charter city and municipal corporation RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number: 1039979 By: Maria V. Kachadoorian, City Manager By: * ATTEST: By: Kerry Bigelow, City Clerk APPROVED AS TO FORM: By: Glen R. Googins, City Attorney Page 218 of 237 EAttachment B R-3 4825-3218-1203v24/024036-0079 PORT DISTRICT AUTHORITY SAN DIEGO UNIFIED PORT DISTRICT, a public corporation CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint exercise of powers authority By: By: APPROVED AS TO FORM AND LEGALITY: APPROVED AS TO FORM AND LEGALITY: By: Thomas A. Russell, General Counsel By: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District By: Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista FINANCING DISTRICT BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: * Signatories to provide signature authority for signatory Page 219 of 237 EAttachment B R-4 4825-3218-1203v24/024036-0079 EXHIBIT A-1 TO MEMORANDUM OF AGREEMENT LEGAL DESCRIPTION OF SITE (to be attached prior to execution.) Page 220 of 237 EAttachment B R-5 4825-3218-1203v24/024036-0079 EXHIBIT A-2 TO MEMORANDUM OF AGREEMENT LEGAL DESCRIPTION OF GROUND LEASE PROPERTY (to be attached prior to execution.) Page 221 of 237 EAttachment B R-6 4825-3218-1203v24/024036-0079 EXHIBIT A-3 TO MEMORANDUM OF AGREEMENT LEGAL DESCRIPTION OF DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE (to be attached prior to execution.) Page 222 of 237 EAttachment B R-7 4825-3218-1203v24/024036-0079 EXHIBIT B-1 TO MEMORANDUM OF AGREEMENT DEPICTION OF SITE (to be attached prior to execution.) Page 223 of 237 EAttachment B R-8 4825-3218-1203v24/024036-0079 EXHIBIT B-2 TO MEMORANDUM OF AGREEMENT DEPICTION OF GROUND LEASE PROPERTY (to be attached prior to execution.) Page 224 of 237 EAttachment B R-9 4825-3218-1203v24/024036-0079 EXHIBIT B-3 TO MEMORANDUM OF AGREEMENT DEPICTION OF DEVELOPER’S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE (to be attached prior to execution.) Page 225 of 237 EAttachment B R-10 4825-3218-1203v24/024036-0079 ANNEX I TO MEMORANDUM OF AGREEMENT NONDISTURBANCE PROVISIONS 1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Site Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Facility Lease as, and the Facility Lease shall be deemed to be, a direct lease between the Port District, as lessor, and the City, as lessee, and the Port District shall not disturb the City’s leasehold interest or possession of the Site (as defined in the Facility Lease) or the Convention Center under, and on the terms and conditions set forth in, the Facility Lease, and the Port District shall continue to recognize and treat the Sublease as a sublease between the City, as sublessor, and the Developer, as sublessee, and the City shall attorn to and recognize the Port District as the City’s lessor under, and on the terms and conditions set forth in, the Facility Lease. In the event the Facility Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Developer shall attorn to and recognize the Authority as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. In the event both the Site Lease and the Facility Lease terminate prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), (i) the Port District shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Port District, as lessor, and the Developer, as lessee, and the Port District shall not disturb the Developer’s leasehold interest or possession of the Site (as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Port District as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 1 and is entitled to enforce this Section 1. 2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Facility Lease terminates prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Authority shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Authority shall not disturb the Developer’s leasehold interest or possession of the Site (as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Authority as the Developer’s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 2 and is entitled to enforce this Section 2. 3. Defined Terms. Capitalized terms used but not defined in this Annex I shall have the meanings set forth in the Agreement. Page 226 of 237 EAttachment B R-11 4825-3218-1203v24/024036-0079 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF _________________________ ) On ___________________ before me, ____________________________________, Notary Public, personally appeared _____________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC Page 227 of 237 EAttachment B S-1 4825-3218-1203v24/024036-0079 Exhibit S Approved Agreements CVBMP Documents Approved Title Exceptions Convention Center Plans Plans Early Work Agreement Reimbursement Agreement Sewer Agreement [Insert all other documents, including financings documents, that are approved prior to the Commencement Date.] (to be revised / completed prior to execution.) Page 228 of 237 EAttachment B T-1 4825-3218-1203v24/024036-0079 Exhibit T District Documents [Insert list of documents that were provided by the Office of the District Clerk to Chicago Title Company that are part of the Approved Title Exceptions (as defined in the DDA).] [To come prior to Closing.] Page 229 of 237 EAttachment B U-1 4825-3218-1203v24/024036-0079 Exhibit U Prior Agreements Disposition and Development Agreement (Sections 4.1(f), 4.7(c), 4.7(d), 4.17, 8.2, and 8.3) Right of Entry for Pre-Closing Phase 1A Improvements [Insert any other documents that qualify as Prior Agreements prior to execution of this Lease.] [To be attached prior to execution.] Page 230 of 237 EAttachment B V-1-1 4825-3218-1203v24/024036-0079 Exhibit V-1 Approved Drawings and Specifications for Developer’s Phase 1A Infrastructure Improvements [To come prior to Closing.] Page 231 of 237 EAttachment B V-2-1 4825-3218-1203v24/024036-0079 Exhibit V-2 Approved Drawings and Specifications for Remaining Phase 1A Infrastructure Improvements [To come prior to Closing.] Page 232 of 237 EAttachment B W-1 4825-3218-1203v24/024036-0079 Exhibit W Form of Equal Opportunity Employment Certification EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION The bidder ____________________________________________________, proposed subcontractor ________________________________________, hereby certifies that he has ___ , has not ___, participated in a previous contract or subcontract subject to the equal opportunity clauses, as required by Executive Orders 10925, 11114, or 11246, and that, where required, he has filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President’s Committee on Equal Employment Opportunity, all reports due under the applicable filling requirements. Note: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7(b) (1)), and must be submitted by bidders and proposed subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. (Generally only contracts or subcontracts of $10,000 or under are exempt.) Currently, Standard Form 100 (EEO-1) is the only report required by the Executive Orders or their implementing regulations. Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b) (1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S. Department of Labor. By: [BIDDER / CONTRACTOR] Its: Printed Name: Page 233 of 237 EAttachment B X-1-1 4825-3218-1203v24/024036-0079 Exhibit X-1 Form of Early Work Agreement [To come prior to Closing.] Page 234 of 237 EAttachment B X-2-1 4825-3218-1203v24/024036-0079 Exhibit X-2 Reimbursement Agreement [To be attached prior to execution.] Page 235 of 237 EAttachment B X-3-1 4825-3218-1203v24/024036-0079 Exhibit X-3 Sewer Agreement [To be attached prior to execution.] Page 236 of 237 EAttachment B Y-1 4825-3218-1203v18/024036-0079 Exhibit Y Hotel Operator Non-Disturbance Agreement [To be attached prior to execution.] Page 237 of 237 EAttachment B 4823-5564-5297v18/024036-0079 SITE LEASE (CHULA VISTA BAYFRONT CONVENTION CENTER) by and between SAN DIEGO UNIFIED PORT DISTRICT, as Lessor and CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, as Lessee Dated as of ___________, [2021] Relating to CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT CONVENTION CENTER) $__________ [Series 2021A (Federally Taxable)] $__________ [Series 2021B (Tax-Exempt] Page 1 of 54 FAttachment C TABLE OF CONTENTS Page i 4823-5564-5297v18/024036-0079 SECTION 1. DEFINITIONS ......................................................................................................... 2 SECTION 2. TERMS AND LIMITATIONS ON LEASE OF SITE ............................................ 2 SECTION 3. TERM ...................................................................................................................... 2 SECTION 4. CONSIDERATION FOR LEASE OF THE SITE ................................................... 3 SECTION 5. PURPOSE ................................................................................................................ 3 SECTION 6. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS . 5 SECTION 7. ASSIGNMENTS, SUBLEASES AND OTHER TRANSFERS .............................. 6 SECTION 8. ENCUMBRANCES NO RIGHT TO BIND PORT ................................................ 7 SECTION 9. QUIET ENJOYMENT ............................................................................................. 7 SECTION 10. ACTIONS ON TERMINATION; RELEASE OF ENCUMBRANCE ................... 7 SECTION 11. EFFECT OF DISCHARGE OF ALL BONDS AND ADDITIONAL BONDS ...... 8 SECTION 12. INSPECTION OF FACILITY AND ACCESS TO RECORDS ............................. 9 SECTION 13. EMINENT DOMAIN .............................................................................................. 9 SECTION 14. DAMAGE OR DESTRUCTION ............................................................................. 9 SECTION 15. HAZARDOUS MATERIALS ................................................................................. 9 SECTION 16. EVENTS OF DEFAULT ....................................................................................... 10 SECTION 17. REMEDIES ON DEFAULT .................................................................................. 11 SECTION 18. “AS-IS LEASE AND WAIVERS.” ....................................................................... 11 SECTION 19. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC ..................................................................................................................... 14 SECTION 20. WAIVER ................................................................................................................ 15 SECTION 21. END OF TERM ..................................................................................................... 15 SECTION 22. BINDING EFFECT ............................................................................................... 15 SECTION 23. NO MERGER ........................................................................................................ 15 SECTION 24. PARTIAL INVALIDITY ...................................................................................... 15 Page 2 of 54 FAttachment C ii 4823-5564-5297v18/024036-0079 SECTION 25. GOVERNING LAW; COMPLIANCE WITH LAW; VENUE ............................ 15 SECTION 26. LANDLORD TRANSFER .................................................................................... 16 SECTION 27. TIME OF ESSENCE ............................................................................................. 16 SECTION 28. REPRESENTATIVES ........................................................................................... 16 SECTION 29. LIMITATION ON LIABILITY............................................................................. 16 SECTION 30. NOTICES ............................................................................................................... 17 SECTION 31. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS .................. 19 SECTION 32. AMENDMENT ...................................................................................................... 19 SECTION 33. ENTIRE AGREEMENT ........................................................................................ 19 SECTION 34. BROKERS ............................................................................................................. 19 SECTION 35. CAPTIONS ............................................................................................................ 20 SECTION 36. EXECUTION IN COUNTERPARTS ................................................................... 20 SECTION 37. DRAFTING PRESUMPTION; REVIEW STANDARD ...................................... 20 SECTION 38. TRANSACTION COSTS ...................................................................................... 20 SECTION 39. CONSTITUTIONAL RIGHTS ............................................................................. 20 SECTION 40. CONSENTS ........................................................................................................... 20 SECTION 41. MEMORANDUM OF LEASE .............................................................................. 20 SECTION 42. PROJECT IMPLEMENTATION AGREEMENT ................................................ 21 EXHIBIT A Legal Description of Site EXHIBIT B Plat Map of Site EXHIBIT C Facility Lease EXHIBIT D Sublease EXHIBIT E Definitions Addendum EXHIBIT F Port Documents EXHIBIT G Port Documents to be Assumed on Landlord Transfer EXHIBIT H Approved Documents EXHIBIT I Prior Agreements EXHIBIT J Memorandum of Lease Page 3 of 54 FAttachment C 4823-5564-5297v18/024036-0079 SITE LEASE THIS SITE LEASE (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Site Lease”) is made and entered into as of ___________, [2021], by and between the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (the “Port”), as lessor, and the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority (the “JEPA”) established and existing pursuant to an Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “JEPA Agreement”) by and between the City of Chula Vista, a California charter city (the “City”) and the Port, as lessee. WITNESSETH: WHEREAS, the JEPA, the Port and the City have determined it to be beneficial, for the JEPA to acquire a leasehold interest in certain real property described in Exhibit A hereto and depicted in Exhibit B hereto (the “Site”) and the Existing Improvements (defined herein) theron upon which the Convention Center (defined herein) to be owned by the JEPA will be constructed and operated; and WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns as the tenant under the Sublease, “RIDA”) holds a leasehold interest in certain real property which is immediately adjacent to the Site (the “Ground Lease Property”) described in and pursuant to a Lease, entered into as of ______, 202_ (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and between the Port, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and WHEREAS, given the proximity of the proposed Hotel to the Site, the JEPA, the Port and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the JEPA and operate the Convention Center; and WHEREAS, the Port and the City have agreed to cause the JEPA to pay for the costs of the Convention Center and for certain infrastructure benefiting the Hotel and Convention Center, and a portion of such costs will be financed by the JEPA through the issuance of the Bonds (defined herein); and WHEREAS, such financing will be accomplished through the issuance of the Bonds by the JEPA which will be payable, in part, from lease payments made by the City to the JEPA under a Facility Lease, dated as of the date hereof, in the form attached hereto as Exhibit C (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Lease”), by and between the JEPA, as lessor, and the City, as lessee, pursuant to which the City will sublease from the JEPA the Site and the Existing Improvements (defined herein) and lease from the JEPA the Convention Center (the Convention Center, the Site and the Existing Improvements are referred to collectively herein as the “Facility”); and WHEREAS, the City will sub-sublease the Site and Existing Improvements to RIDA and sublease the Convention Center to RIDA in accordance with the terms of a Sublease dated the date Page 4 of 54 FAttachment C 2 4823-5564-5297v18/024036-0079 hereof, in the form attached hereto as Exhibit D (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Sublease”), by and between the City, as sublessor, and RIDA, as sublessee; and WHEREAS, the JEPA, Port, City, and RIDA are entering into that certain Project Implementation Agreement (Chula Vista Bayfront Resort Hotel and Convention Center), dated concurrently herewith (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Implementation Agreement”); and WHEREAS, the parties hereto intend that, during the Term, the Convention Center will be owned by the JEPA and operated and maintained by RIDA pursuant to the Sublease so long as the Sublease is in effect; and NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other valuable consideration, it is hereby mutually agreed as follows: Section 1. Definitions. Capitalized terms used but not defined herein shall have the meanings set forth in Exhibit E hereto and if not defined therein then shall have the meaning set forth in the Indenture, dated as of the date hereof (the “Indenture”), by and between the JEPA and Wilmington Trust, N.A., as trustee (the “Trustee”), pursuant to which the Bonds are issued. Section 2. Terms and Limitations on Lease of Site. (a) Lease of the Site/Commencement of the Lease Term. The Port consents to the terms of the Facility Lease and the Sublease in the form attached as Exhibit C and Exhibit D, respectively. The Port hereby leases the Site and the Existing Improvements to the JEPA and the JEPA hereby leases the Site and the Existing Improvements from the Port, on the terms and conditions set forth herein. For purposes of Section 1938 of the California Civil Code, the Port hereby discloses to the JEPA and the JEPA hereby acknowledges, the Site has not undergone an inspection by a Certified Access Specialist. (b) Reservations. The JEPA shall take possession of the Site subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit H attached hereto and incorporated herein by reference (“Approved Agreements”). (c) Limitation on Port Encumbrances. The Port shall not, without the prior written consent of the JEPA, the subtenant under the Facility Lease and the sub-subtenant under the Sublease and, while any Permitted Financing Encumbrance remains outstanding or during any New Lease Period (as defined in the Sublease), each Permitted Lender, which consent shall not be unreasonably withheld, conditioned or delayed, encumber the Facility during the Term or during any New Lease Period, except for (i) the Financing District and any modifications thereto to which each of the JEPA, the subtenant under the Facility Lease and the sub-subtenant under the Sublease agrees, in each of their reasonable discretion, (ii) as permitted under this Section 2(c), or (iii) as required by Laws; provided, that no lien or encumbrance pursuant to this clause (iii) shall be senior in priority to this Site Lease, the Facility Lease or the Sublease. The Trustee is a third party beneficiary of this Section 2(c). Section 3. Term. Page 5 of 54 FAttachment C 3 4823-5564-5297v18/024036-0079 (a) The term of this Site Lease (the “Term”) shall commence on the Closing Date and shall remain in effect until the earlier of: (i) _____________, 20[58]; or (ii) the date of termination of the Facility Lease as provided for in Sections 4.2, 6.1(c) and 6.1(d)(ii) of the Facility Lease. (b) Notwithstanding anything to the contrary contained herein (but subject to Section 3(c) below), if (i) the Ground Lease has terminated for a reason other than (A) an Event of Default (as defined in the Ground Lease) or (B) pursuant to RIDA’s exercise of a right to terminate the Ground Lease and (ii) in accordance with Laws, RIDA remains in possession of the Ground Lease Property notwithstanding such termination, then, on the date that is the 37th anniversary of the Closing Date, this Site Lease shall be extended for 29 years on the terms and conditions set forth in this Site Lease with such modifications to the provisions with respect to the payment of rent so that for any period of time following such extension, the sum of the rent to be paid under this Site Lease and the Rent (as defined in the Ground Lease) to be paid under the Ground Lease will equal the Rent (as defined in the Ground Lease) that would have been paid under the Ground Lease as if the Expansion Date had occurred and the Ground Lease had not been terminated. (c) Notwithstanding anything to the contrary contained herein, this Site Lease shall not terminate while any of the Facility Lease or the Sublease are in effect; provided, however, in no event shall the Term be extended beyond the date which is sixty-six (66) years from the Closing Date. Section 4. Consideration for Lease of the Site. The JEPA shall pay, upon the commencement of this Site Lease, to the account of the Port as and for rental of the Site hereunder for the entire Term, the sum of $1. As additional consideration for the leasing of the Site to it hereunder, the JEPA covenants to execute and deliver the Facility Lease, the Indenture, the CFD Loan Agreement and the Project Implementation Agreement, perform its obligations thereunder and, pursuant to the Indenture, assign certain of its rights under the Project Implementation Agreement, the Facility Lease, the CFD Loan Agreement and this Site Lease to the Trustee for the benefit of the Owners of the Bonds, cause the City to enter into the Sublease, and cause RIDA to construct the Convention Center pursuant to the terms of the Project Implementation Agreement. Section 5. Purpose. The JEPA shall use the Site solely for the Permitted Use which shall be (i) the construction and operation of the Convention Center on the Site (the “Primary Use”); (ii) any use which is ancillary or incidental to the Primary Use as described in the following paragraph; and (iii) any other use of the Facility that is approved by the Port in its sole and absolute discretion in writing; provided that any such uses are not restricted or prohibited by the CDP or any Laws. The Permitted Use shall include the following uses that are ancillary or incidental to the Primary Use and that are designed primarily for Convention Center guests and visitors: (i) Rental of meeting space; (ii) Full-service restaurant and/or limited service restaurant, including cocktail lounge and any standalone bar or cocktail lounge; (iii) Snack bar, delicatessen and/or coffee shop(s); Page 6 of 54 FAttachment C 4 4823-5564-5297v18/024036-0079 (iv) Banquet and other food and beverage uses; (v) Retail shop(s); (vi) Barber and beauty shop; (vii) Spa services; (viii) Health, recreational, and tennis facilities, including recreational lessons; (ix) Bicycle rentals; (x) Rental of automobiles; (xi) Motorcycle rentals; (xii) Boat rentals, beach equipment rentals and beach-related services; (xiii) Special temporary exhibition(s), including production shows (including any and all uses in connection with the production of ICE! (including the use of the ICE! tent as temporary additional meeting space when such ICE! tent is not used for purposes of the ICE! production)) and outdoor entertainment (including ice skating and carnivals); (xiv) Vending machines, including telephones; (xv) Office and counter areas for Convention Center management and other ancillary services that are consistent with services provided by a convention center and/or a conference center comparable with the Convention Center; (xvi) Back-of-house activities consistent with services provided by a convention center and/or conference center comparable with the Convention Center, including but not limited to a shipping center, truck yard loading and unloading, sales, human resources, management, information technology management, repair and storage, employee cafeteria, employee gymnasium or other recreation space, and employee locker room or other storage and changing areas; (xvii) Office and logistics services; (xviii) Construction, operation and maintenance of central plant facilities (including to serve the Hotel); (xix) Installation and hosting of telecommunications equipment; (xx) Building maintenance and workshop area; (xxi) Parking and valet parking services; (xxii) A security office; (xxiii) A parking management office; Page 7 of 54 FAttachment C 5 4823-5564-5297v18/024036-0079 (xxiv) Storage areas consistent with services provided by a convention center or conference center comparable with the Convention Center; (xxv) Bicycle parking; (xxvi) Electronic vehicle charging stations; (xxvii) Shuttle bus loading, unloading and management areas; (xxviii) Restrooms; (xxix) Any sign or other advertising device that complies with the CDP (as may be amended with the consent of the sub-subtenant under the Sublease), the EIR and Laws and is (A) maintained or used to identify or advertise an establishment, occupancy, or service available on the Site, (B) temporarily displayed in conjunction with promotional events, (C) related to the construction or operation of the Improvements (including, for example, directional, identification and related signage) or (D) approved by the Port in its sole and absolute discretion; and (xxx) Each other use that (i) is ancillary or incidental to the Primary Use, (ii) is customary for a convention center and/or conference center operating in the United States of America that is comparable with the Convention Center and (iii) is not prohibited by the CDP or any Laws. The JEPA’s obligations and liabilities under this Section 5 are subject to Section 29(b). Subject to Section 29(b), the JEPA agrees to comply with all project conditions and all applicable mitigation measures, including, without limitation, those contained in the final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environmental Impact Report,” (UPD# #83356-EIR-658, SCH #2005081077; Document 56562), including, but not limited to, the “Mitigation Monitoring and Reporting Program”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010 (collectively, the “EIR”), and in the CVBMP Documents. Section 6. Representations, Warranties, Covenants and Agreements. (a) The Port represents and warrants to the JEPA that (i) it is duly authorized to execute, deliver and perform its obligations under this Site Lease, (ii) the execution, delivery and performance by the Port of this Site Lease will not conflict with or constitute a breach of any agreement or instrument by which the Port or its property are bound, (iii) upon execution and delivery by the Port and the JEPA, this Site Lease will constitute a legally valid and binding obligation of the Port, enforceable pursuant to its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally, and (iv) there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened against the Port in any way contesting or affecting the validity of this Site Lease or the authority of the Port to enter into this Site Lease. (b) The JEPA represents and warrants to the Port that (i) it is duly authorized to execute, deliver and perform its obligations under this Site Lease, (ii) the execution, delivery and performance by the JEPA of this Site Lease will not conflict with or constitute a breach of the JEPA Page 8 of 54 FAttachment C 6 4823-5564-5297v18/024036-0079 Agreement or any law, other agreement or instrument by which the JEPA or its property are bound, (iii) upon execution and delivery by the Port and the JEPA, this Site Lease will constitute a legally valid and binding obligation of the JEPA, enforceable pursuant to its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally, and (iv) there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened against the JEPA in any way contesting or affecting the validity of this Site Lease or the authority of the JEPA to enter into this Site Lease. (c) The JEPA covenants that it shall use the Facility solely for the purpose set forth in Section 5 above. (d) The JEPA covenants that it will enter into the Facility Lease and diligently enforce the terms of the Facility Lease against the City, including the requirement that the City enter into the Sublease, which diligence shall be satisfied by providing written notice to the City, with a copy to the Port and RIDA, of the City’s failure to comply with a term of the Facility Lease and proceeding to take such action or actions at law or in equity against the City, as are required under and pursuant to the terms of the Facility Lease. (e) The JEPA and the Port each agree that the JEPA will be the owner of the Convention Center during the Term and, the Port will be the owner of the Convention Center upon the termination of this Site Lease and all tax filings will be made consistent with this understanding; provided, that the Parties acknowledge that the Port may not be the owner of the Convention Center upon the termination of this Site Lease in the event of (i) a casualty event that would result in the demolition of the Convention Center with no replacement Convention Center being constructed, or (ii) the taking of the Convention Center in whole. (f) The JEPA and Port each represents and warrants that, simultaneously with the execution and delivery of this Site Lease, it has executed and delivered the Project Implementation Agreement pursuant to which RIDA is required to construct the Convention Center on the Site. (g) The JEPA covenants that if it receives any notice from the City of the expiration or intended cancelation of any insurance or reduction of coverage required under the Facility Lease or the Sublease, it shall promptly deliver such notice to the Port. Section 7. Assignments, Subleases and Other Transfers. (a) The Port consents to the assignment by the JEPA of the Assigned Rights under the terms of the Indenture for the benefit of the Owners of the Bonds; provided, however, in no event shall the obligations of the JEPA hereunder be assigned to the Trustee. No other assignment of any of the JEPA’s rights hereunder shall be permitted without the consent of the Port, the JEPA and the Trustee. Upon the occurrence of an event of default under the Facility Lease, the Trustee may exercise any remedies assigned to it in the Facility Lease and in this Site Lease. (b) Except for the Facility Lease and Sublease and any sublease, assignment or other transfer permitted pursuant to the terms of the Sublease, no other sublease, assignment or other transfer of the Facility or any portion thereof may be entered into or made without the written consent of the Port. Page 9 of 54 FAttachment C 7 4823-5564-5297v18/024036-0079 Section 8. Encumbrances No Right to Bind Port. (a) Limitation on Encumbrances. Except for the Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances, the JEPA shall neither directly or indirectly, create, incur assume, nor suffer to exist any mortgage, pledge, liens, charges, encumbrances, claims, or hypothecation, on, with, or of this Site Lease or with respect to the Facility, or any part thereof or interest therein, without the prior written consent of the Port as to each such transaction, which consent shall not be unreasonably withheld, conditioned or delayed. (b) Notice of Liens. Should any claims of lien be filed against the Facility or any action affecting the title to the Facility be commenced of which the JEPA has notice, the JEPA shall give the Port written notice thereof within five (5) Business Days of receipt, including any notice received by the JEPA from the City pursuant to Section 6.11 of the Sublease. (c) No Right to Bind the Port. The JEPA shall have no power or authority to do any act or thing, or to make any contract or agreement which shall bind the Port in any way whatsoever, and the Port shall have no responsibility to the JEPA or other Person who performs, causes to perform, engages in or participates in any construction of any Improvements or any work on the Facility at the request of the JEPA or such other Persons. The Port shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom. Section 9. Quiet Enjoyment. Subject to Sections 18 and 26 below, the JEPA at all times during the Term shall peaceably and quietly have, hold and enjoy all of the Site, subject to Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances. Section 10. Actions on Termination; Release of Encumbrance. (a) Upon the expiration or earlier termination of this Site Lease, the JEPA shall peaceably surrender the Site to the Port in accordance with the end of Term obligations set forth in this Site Lease, including without limitation, in the same good order and condition as of the commencement of the Term, reasonable wear and tear and any improvements permitted by this Site Lease, the Facility Lease, the Sublease or the Project Implementation Agreement excepted (subject to any demolition obligations with respect to any such improvements under the Sublease). If JEPA fails to surrender the Site at the expiration of this Site Lease or the earlier termination or cancellation thereof in the condition required under this Site Lease, in addition to Port’s other remedies, JEPA shall defend and indemnify Port from all liability and expense resulting from the delay or failure to surrender, including without limitation any succeeding tenant claims based on JEPA’s failure to surrender or Port’s failure to deliver the Site and loss of profits. (b) Immediately following the expiration or earlier termination of this Site Lease, the JEPA shall execute, deliver, and cause to be recorded in the Office of the Recorder of San Diego County, all such documents, including but not limited to a quitclaim deed, as are necessary or advisable to fully release, of record, the encumbrance on title to the Facility which is caused by the terms of this Site Lease and convey the Convention Center (excluding any trade fixtures, installed or constructed on the Site, which shall remain the personal property of RIDA) to the Port free and clear of any mechanics’ or materialmen’s liens and other encumbrances (other than any lien for taxes that Page 10 of 54 FAttachment C 8 4823-5564-5297v18/024036-0079 are not due and payable and, if the Expansion Date occurs, subject to RIDA’s interest in the Convention Center under the Ground Lease) and without compensation to the JEPA, City or RIDA. The JEPA shall thereafter take such actions and execute such documents as may further be necessary or advisable to fully evidence the termination of this Site Lease and the release of the Port and the JEPA from all of their respective obligations hereunder. Without limitation of the foregoing, JEPA hereby appoints the Port as JEPA’s attorney-in-fact to execute such deed in the name and on behalf of the JEPA and to record same in the official records of San Diego County, California. This power of attorney is irrevocable and coupled with an interest. The JEPA agrees to cause the City to deliver to the JEPA all such documents as are necessary or advisable to fully release, of record, the encumbrances on title to the Facility which are caused by the terms of the Facility Lease and the Sublease, including, without limitation, any Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances, and transfer ownership of the Convention Center to the Port, including any such documents as are required from RIDA. (c) This Site Lease shall terminate without further notice at expiration of the Term. Any holding over by the JEPA after either expiration or earlier termination of this Site Lease without Port’s prior written consent shall be tenancy at-sufferance upon all of the provisions of this Site Lease, except those pertaining to the Term, and except that the rent due hereunder shall be 150% of the Rent in effect under the Sublease prior to such expiration or termination; provided, however, that in the event of any holding over resulting from a failure by the City or RIDA to surrender the Facility to the JEPA, the JEPA’s liability to pay rent in such event will be limited as set forth in Section 29(b) herein. If the JEPA, with the Port’s consent, remains in possession of the Site after the expiration or earlier termination of this Site Lease, such possession shall be deemed a month-to- month tenancy terminable upon thirty (30) days’ notice furnished at any time by either party to the other party. All provisions of this Site Lease, except those pertaining to the Term, shall apply to the month-to-month tenancy, and the JEPA shall continue to pay all rent required by this Site Lease. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years. Section 11. Effect of Discharge of All Bonds and Additional Bonds. In the event that all Bonds and Additional Bonds issued under the Indenture shall be deemed to have been paid and discharged in accordance with Section 9.3 of the Indenture (the “Discharge of the Bonds”), then all references herein to the Bonds, Additional Bonds, Owners of the Bonds, Trustee, the Indenture and the Assigned Rights shall be of no force and effect as of the effective date of the Discharge of the Bonds. On the effective date of the Discharge of the Bonds, (i) the Assigned Rights shall revert to the JEPA without any further action on the part of the Trustee, the JEPA, the City or the Port, (ii) any amounts that were to have been paid to the Trustee shall be paid to the JEPA except for any Net Proceeds which shall be held pursuant to the terms of the Sublease and distributed in accordance with the provisions of the Facility Lease, the Sublease and the Project Implementation Agreement and, subject to the provisions of the Facility Lease, the Sublease and the Project Implementation Agreement, the Revenue Sharing Agreement, or any other agreement between the Port, the City, the JEPA and RIDA governing the distribution of such amounts, and (iii) all rights granted to the Trustee and the Owners of the Bonds hereunder, including, but not limited to, the Assigned Rights and the right to enforce any remedies, to provide consent and to receive notice, shall be of no further force and effect. Page 11 of 54 FAttachment C 9 4823-5564-5297v18/024036-0079 Section 12. Inspection of Facility and Access to Records. (a) Inspection and Right of Entry. From and after the Convention Center Delivery Date, the Port shall have the right but not an obligation to enter, view, inspect and determine the condition of the Facility, and protect its interests in the Site, during normal business hours and upon a three (3) Business Days’ prior notice to the JEPA, the subtenant under the Facility Lease and the sub-subtenant under the Sublease (except in the case of an emergency in which case no prior notice shall be required but the Port shall notify the sub-subtenant under the Sublease) and the Port shall: (a) comply with all applicable security and safety procedures of the sub-subtenant under the Sublease, of which the sub-subtenant under the Sublease informs the Port in writing and with which the Port can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with the operation and use of the Facility by the sub-subtenant under the Sublease, and by the tenant under the Ground Lease of the Ground Lease Property, the Hotel and the Parking Improvements (defined in the Ground Lease), while on the Site and at the Convention Center. If the Port determines that the Site and/or the Improvements are not in the condition required pursuant to the terms of the Facility Lease and the Sublease, the Port shall deliver written notice to the JEPA detailing the items to be corrected and the JEPA shall deliver such notice to the City and direct the City to deliver such notice to RIDA and to cause RIDA to undertake the necessary maintenance, alteration, repair, replacement and rebuilding work necessary to remedy the issues set forth in the Port’s notice to be commenced within ten (10) days after receipt of such written notice from the Port and diligently pursue such work to completion, as and to the extent required pursuant to the terms of the Sublease. (b) Records. The Port shall have the right to examine and receive electronic copies of all records of the JEPA and any records of the sub-tenant under the Facility Lease and the sub-subtenant under the Sublease required to be maintained thereunder and to which the JEPA has the right of access. Section 13. Eminent Domain. In the event the whole or any part of the Facility is taken by eminent domain proceedings, the interest of the Port shall be recognized by the JEPA and the Trustee. The JEPA shall pay, or cause the Trustee to pay, to the Port any and all awards and/or settlements or other compensation or damages which may be given for the land (and water, if applicable) comprising the Site, but the JEPA shall not pay, nor cause the Trustee to pay, to the Port any condemnation proceeds that are (a) paid or required to be paid to RIDA under the Sublease, the Facility Lease, the Project Implementation Agreement or the Indenture, or (b) used or required to be used to redeem Bonds. Section 14. Damage or Destruction. In the event that the Facility is damaged or destroyed, the interest of the Port shall be recognized by the JEPA and the Trustee. The JEPA shall pay, or cause the Trustee to pay, to the Port any insurance proceeds received as a result of such damage or destruction, but the JEPA shall not pay, nor cause the Trustee to pay, to the Port any insurance proceeds that are (a) paid or required to be paid to RIDA under the Sublease, the Facility Lease, the Project Implementation Agreement or the Indenture, or (b) used or required to be used to redeem Bonds. Section 15. Hazardous Materials. (a) Notice of Release or Inquiry. If the JEPA becomes aware of (i) any actual or threatened release that occurs during the Term of any Hazardous Material on, in, under, from, or Page 12 of 54 FAttachment C 10 4823-5564-5297v18/024036-0079 about the Facility or (ii) any Inquiry, the JEPA shall give the Port and RIDA written notice of such release or Inquiry within twenty-four (24) hours after the JEPA learns that there has been a release or Inquiry and shall simultaneously furnish to the Port, the City and RIDA copies of any notices of inquiry or investigation, claims, notices of violation, reports, warning or other writings received by the JEPA that concern such release or Inquiry. Unless the Port, the City and RIDA each receives separate notice, the JEPA shall provide the Port, the City and RIDA with advance written notice of any meeting scheduled between any Tenant Party or Hotel Operator, on the one hand, and any Government Agency, on the other hand, where a material item of discussion is directly related to the subject matter of Hazardous Materials, at least five (5) Business Days prior to such meeting or as soon as reasonably possible if the Government Agency schedules such meeting with any Tenant Party or Hotel Operator for less than five (5) Business Days from the date the meeting is proposed. The Port and the City shall be entitled to have its representatives attend and participate in any and all such meetings. If the Government Agency brings up Hazardous Material on, in, under, from, or about the Facility in any other scheduled meeting, the JEPA shall suggest that a separate meeting should be scheduled so that the Port can participate in such meeting. (b) Port Right to Inspect and Data. If Hazardous Materials Activity has occurred during the Term or is ongoing, the Port or its designated representatives, at the Port’s sole discretion, may, but are not obligated to, enter upon the Facility and make any inspections, non-intrusive tests or measurements that the Port deems necessary or desirable to determine if a release or discharge of Hazardous Materials has occurred. (c) Environmental Covenants. (i) The JEPA hereby acknowledges that excavation of soils from the Site could result in exportation of a regulated waste requiring appropriate characterization, handling, transport and disposal (collectively, “Excavated Soil Removal”). The Port takes no responsibility and assumes no liability whatsoever for Excavated Soil Removal. Accordingly, the JEPA hereby waives any claim, or potential claim, it may have to recover costs or expenses from the Port arising out of or associated with Excavated Soil Removal. (ii) The JEPA hereby RELEASES the Site Lease Landlord Parties from, COVENANTS NOT TO SUE the Site Lease Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of the JEPA under Section 18, including for claims for contribution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of the JEPA under Section 18. With respect to all releases made by the JEPA under or pursuant to this Section 15, the JEPA hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the provision of California Civil Code § 1542 set forth in Section 18. (d) The terms of this Section 15 shall survive the expiration or earlier termination of this Site Lease. Section 16. Events of Default. (a) The occurrence of the following events shall constitute an event of default by the JEPA hereunder (each, a “JEPA Event of Default”): failure by the JEPA to perform any express or implied covenants or conditions in this Site Lease, where such failure continues for thirty (30) days after written notice thereof from the Port, with a copy thereof to the City and RIDA; provided Page 13 of 54 FAttachment C 11 4823-5564-5297v18/024036-0079 that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and the JEPA diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute a JEPA Event of Default; and provided, further, that if such failure is due to a Force Majeure Event, then such failure shall not constitute a JEPA Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists. (b) The occurrence of the following events shall constitute an event of default by the Port hereunder (each, a “Port Event of Default”): failure by the Port to perform any express or implied covenants or conditions in this Site Lease, where such failure continues for thirty (30) days after written notice thereof from the JEPA, with a copy thereof to the City and RIDA; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and the Port diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute a Port Event of Default; and provided, further, that if such failure is due to a Force Majeure Event, then such failure shall not constitute a Port Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists. Section 17. Remedies on Default. (a) Upon the occurrence and during the continuance of a JEPA Event of Default, the Port may exercise any and all remedies granted by law or equity which do not adversely affect the interests of the Owners of the Bonds, provided that so long as the Bonds are Outstanding pursuant to the Indenture, the Port may not terminate this Site Lease without the consent of the Owners of a majority in the aggregate of the principal amount of the Bonds outstanding under the Indenture, and shall have no right to any Revenues pledged under the Indenture with respect to any JEPA Event of Default. The Trustee is a third party beneficiary of this Section 17(a). (b) Upon the occurrence and during the continuance of a Port Event of Default, the JEPA, or the Trustee with respect to the enforcement of any Assigned Rights, shall have the right to bring an action to compel the Port to specifically perform any of its express or implied covenants or agreements contained herein. Section 18. “As-Is Lease and Waivers.” (a) JEPA’s Acknowledgment. The JEPA acknowledges that prior to entering into this Site Lease, the Port has given the JEPA sufficient opportunity to consider, inspect and review, to the JEPA’s complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; (2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; (3) the risk of climate change and the possible adverse consequences thereof, including, without limitation, rises in sea level and possible damage to and destruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; (6) the financial prospects of the Site and local market conditions; (7) the JEPA’s determination of the feasibility of the JEPA’s intended use and enjoyment of the Site; (8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater and adjacent to Page 14 of 54 FAttachment C 12 4823-5564-5297v18/024036-0079 San Diego Bay water and sediment; and (9) all other facts, circumstances, and conditions affecting, concerning or relating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; the feasibility of the JEPA’s intended use and enjoyment of the Site; and such other facts, circumstances and conditions being collectively referred to herein as the “Condition of the Site”; and, without limitation on any other provision of this Site Lease, the JEPA expressly assumes the risk that adverse conditions affecting the Site have not been revealed by the JEPA’s investigations. (b) Only the Port’s Express Written Agreements Binding. The JEPA acknowledges and agrees that no Person acting on behalf of the Port is authorized to make, and that except as expressly set forth in this Site Lease, neither the Port nor anyone acting for or on behalf of the Port has made, any representation, warranty, agreement, statement, guaranty or promise to the JEPA, or to anyone acting for or on behalf of the JEPA, concerning the Condition of the Site or any other aspect of the Site. The JEPA further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of the Port which is not expressly set forth in this Site Lease will be valid or binding on the Port. (c) As-Is Lease. The JEPA further acknowledges and agrees that the JEPA’s execution of this Site Lease shall constitute the JEPA’s representation, warranty and agreement that the Condition of the Site has been independently verified by the JEPA to its full satisfaction, and that, except to the extent of the express covenants of the Port set forth in this Site Lease, the JEPA will be leasing the Site based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of the JEPA’s representatives; and that THE JEPA IS LEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS” CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE JEPA’S EXECUTION OF THIS SITE LEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, the JEPA expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect. (d) Waivers, Disclaimers and Indemnity. (i) Waiver and Disclaimer. The JEPA hereby fully and forever waives, and the Port hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. (ii) Port’s Materials. The JEPA acknowledges that any information and reports, including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which the JEPA has received or may hereafter receive from Site Lease Landlord Parties (collectively, the “Landlord’s Materials”) have been furnished without warranty of any kind other than that the Port has delivered true and correct copies of each of the items set forth on Exhibit F attached hereto as each is filed in the Office of the District Clerk (“Port Documents”) and on the express condition that the JEPA will make its own independent verification of the accuracy, reliability and completeness of such Landlord’s Materials and that the JEPA will not rely thereon. Accordingly, subject to terms of Section 18(d)(iii) below, the JEPA agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Site Lease Landlord Parties or any of the Persons that prepared or furnished any of the Landlord’s Materials as a result of the inaccuracy, Page 15 of 54 FAttachment C 13 4823-5564-5297v18/024036-0079 unreliability or incompleteness of, or any defect or mistake in, any such Landlord’s Materials, and the JEPA hereby fully and forever releases, acquits and discharges Site Lease Landlord Parties and each Person furnishing such Landlord’s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown (other than in connection with the Port’s breach of its representation and warranty set forth in this Section 18(d)(ii) that the Port has delivered to the JEPA true and correct copies of each of the Port Documents set forth on Exhibit F attached hereto). (iii) Release and Waiver. Except to the extent of Claims (as defined below) against the Port arising from any breach by the Port of its covenants and obligations expressly provided in this Site Lease or the Port’s representation and warranty set forth in Section 18(d)(ii), the JEPA, on behalf of the JEPA, its successors and assigns, hereby fully and forever releases, acquits and discharges the Site Lease Landlord Parties of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, “Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that the JEPA, the City, or any Tenant Party, Hotel Operator or any of the JEPA’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of the Port (or any Person acting for or on behalf of the Port or for whose conduct the Port may be liable), whether or not such act be the active, passive or sole negligence of the Port, in connection with prior ownership, maintenance, operation or use of the Site; (ii) any condition of environmental contamination or pollution at the Site (including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean-up or abatement order effecting the Site); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Site (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Site or into any soils, subsoils, surface waters or ground waters at the Site); (iv) the violation of, or noncompliance with, any Environmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Site; (vi) the Condition of the Site, including, without limitation, the condition of any improvements located on the Site including, without limitation, the structural integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Site (including, without limitation, all existing easements and encroachments, if any); (viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Site; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Site by the Port or any predecessor(s)-in-interest in the Site of the Port. The JEPA hereby RELEASES the Site Lease Landlord Parties from, COVENANTS NOT TO SUE the Site Lease Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of the JEPA under this Section 18, including any claims for contribution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of the JEPA under this Section 18. With respect to all releases made by the JEPA under or pursuant to this Section 18, the JEPA hereby waives the application and benefits of California Civil Code §1542 and hereby verifies that it has read and understands the provision of California Civil Code §1542 set forth below. Page 16 of 54 FAttachment C 14 4823-5564-5297v18/024036-0079 “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” JEPA: _____________________ (iv) Survival. The terms of this Section 18 shall survive the expiration or earlier termination of this Site Lease. Section 19. Equal Employment Opportunity/Nondiscrimination and OFAC. (a) Nondiscrimination. The JEPA shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, the JEPA shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between the Port and the JEPA. The subtenant under the Facility Lease, the sub-subtenant under the Sublease, the Hotel Operator and any sub-sub-tenant of the sub-subtenant under the Sublease (with respect to their operation of the Facility only) shall comply with the requirements of this Section 19. (b) Compliance with Employment and Labor Requirements. The JEPA shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor-Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices. The JEPA shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize. (c) OFAC Compliance. The JEPA represents and warrants that (i) the JEPA and, to the best of the JEPA’s knowledge, the Port and the City (collectively, “the JEPA’s Members”, each a “JEPA Member”) is not now a Person with whom the Port or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of the JEPA’s knowledge, none of the funds or other assets of the JEPA constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of the JEPA’s knowledge, no Prohibited Person directly or indirectly Controls the JEPA, or any of the JEPA’s Members, either individually or in the aggregate and (iv) to the best of the JEPA’s knowledge, none of the funds of the JEPA have been Page 17 of 54 FAttachment C 15 4823-5564-5297v18/024036-0079 derived from any unlawful activity with the result that the investment in the JEPA is prohibited by Laws or that this Site Lease is in violation of Laws. The JEPA covenants and agrees that at no time during the Term shall the JEPA Member with a twenty percent (20%) or more direct or indirect interest in the JEPA be a Prohibited Person. The JEPA shall reimburse the Port for all reasonable costs, including, without limitation, attorneys’ fees, resulting from the JEPA’s failure to comply with this Section 19 other than a failure caused by the Port in its capacity as a JEPA Member. If the JEPA receives written notice that any of the JEPA’s Members (other than any such Person that holds an interest in the JEPA through publicly traded securities) is a Prohibited Person, then the JEPA shall promptly use the JEPA’s best and reasonable efforts to cause such Person to divest such Person’s interests in the JEPA. Notwithstanding any limits set forth in this Section 19, any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder. Section 20. Waiver. No waiver of any provision of this Site Lease shall be implied by any failure of a party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently. Any waiver by a party of any provision of this Site Lease may only be in writing, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. Subject to Section 29, the Port shall have the power and authority to waive any requirement of the JEPA under this Site Lease. Section 21. End of Term. This Site Lease shall terminate without further notice at expiration of the Term. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years. Section 22. Binding Effect. Each of the provisions of this Site Lease shall extend to and shall, as the case may require, bind or inure to the benefit not only of the Port and of the JEPA, but also of their respective heirs, successors or assigns, provided this clause shall not permit any assignment, sublease or transfer by the JEPA contrary to the provisions of Section 7 of this Site Lease. Section 23. No Merger. During the Term, the Port’s fee interest in the Site shall never be merged with the JEPA’s leasehold interest in the Site pursuant to this Site Lease. Section 24. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Site Lease shall be affected thereby, and each and every other term, provision, covenant or condition of this Site Lease shall be valid and enforceable to the fullest extent permitted by Laws. Section 25. Governing Law; Compliance with Law; Venue. (a) This Site Lease shall be governed by and construed in accordance with the laws of the State of California. (b) The JEPA shall in all activities on or in connection with the Facility, and in all uses thereof, including without limitation the Permitted Use and any construction of the Convention Center or the making of any Alterations, abide by and comply with, and cause the City to Page 18 of 54 FAttachment C 16 4823-5564-5297v18/024036-0079 abide by and comply with, and require the City to enforce the requirement under the Sublease to have the Tenant Parties and Hotel Operator to comply with all Laws at RIDA’s sole cost and expense, and the Port shall not have any obligations or responsibilities to comply with any Laws as to the Facility or any use thereby by the JEPA, the City, the Tenant Parties or Hotel Operator. In particular and without limitation, the JEPA, subject to the limitations set forth in Section 29(b), shall have the sole and exclusive obligation and responsibility to comply with the requirements of the following: (i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control), (ii) the ADA, including but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 19, (iv) any Coastal Development Permit (“CDP”) (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act (“CEQA”)) or any other California Coastal Commission regulations or local, state or federal requirements now or hereafter affecting the Facility, including the use or development thereof, (v) the Port Master Plan (“PMP”), (vi) any other development permits or approvals accepted by the JEPA, and (vii) the policies adopted by the BPC. (c) The venue for any legal proceeding shall be in San Diego County, California. Section 26. Landlord Transfer. The JEPA acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, the Port may be required by applicable law to transfer all or any portion of its interest in the Site and in this Site Lease, and the JEPA agrees that in the event of any such transfer and the concurrent express assumption of all of the Port's obligations hereunder and under each of the documents set forth on Exhibit G attached hereto (a “Landlord Transfer”), the Port shall automatically be released from all liability under this Site Lease for periods after the date of such Landlord Transfer, and the JEPA agrees to look solely to such transferee for the performance of the Port's obligations hereunder that arise after the date of such Landlord Transfer. Each landlord hereunder shall be liable only for those obligations arising during its period of ownership and shall be released from further obligations after it completes a Landlord Transfer. Section 27. Time of Essence. Time is of the essence with respect to this Site Lease and each of its provisions. Section 28. Representatives. Whenever under the provisions of this Site Lease the approval of the JEPA or the Port is required, or the JEPA or the Port is required to take some action at the request of the other, such approval or such request shall be given for the JEPA by an Authorized Representative of the JEPA and for the Port by an Authorized Representative of the Port (except as such authority may be limited by the Port Act or BPC) from time to time; provided, however, the Port may elect to obtain approval of the BPC as a condition to exercising this authority and any party hereto shall be authorized to rely upon any such approval or request; provided, further, that any election by the Port to obtain approval of the BPC shall not affect the standard applicable to the Port’s approval under this Site Lease. Section 29. Limitation on Liability. (a) All liabilities under this Site Lease on the part of the Port shall be solely liabilities of the Port as a public corporation, and the JEPA hereby releases each and every officer, director, member of the BPC, employee, partner, affiliate, agent, or contractor of the Port of and from any personal or individual liability under this Site Lease. No officer, director, member of the BPC, Page 19 of 54 FAttachment C 17 4823-5564-5297v18/024036-0079 employee, partner, affiliate, agent, or contractor of the Port shall at any time or under any circumstances be individually or personally liable under this Site Lease to the JEPA or to any other party whomsoever for anything done or omitted to be done by the Port hereunder. (b) All liabilities under this Site Lease on the part of the JEPA shall be solely liabilities of the JEPA as a joint exercise of powers entity, and the Port hereby releases each and every member of the Board of Directors of the JEPA and any officer, employee, staff member, or agent of the JEPA, the City, or the Port, including without limitation any officer, employee, staff member or agent of the JEPA that is also an officer, employee or agent of the City or Port (collectively, the “JEPA Parties”) of and from any personal or individual liability under this Site Lease. None of the JEPA Parties shall at any time or under any circumstances be individually or personally liable under this Site Lease to the Port or to any other party whomsoever for anything done or omitted to be done by the JEPA hereunder. Notwithstanding anything to the contrary set forth in this Site Lease: (i) except for liability related to the JEPA’s negligence, willful misconduct or breach by the JEPA of its obligations under this Site Lease, liability for payment and performance of any and all of its obligations hereunder is a limited liability of the JEPA payable only from amounts paid to the JEPA by the City under the Facility Lease or by RIDA under the Sublease, and (ii) the JEPA shall have no obligation to appropriate amounts from any other source of funds to pay any amount due hereunder or to perform any covenant herein. Section 30. Notices. All notices or other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when delivered or, if mailed by first class mail, postage prepaid, on the third day after deposit in the U.S. Mail to each of the parties listed below at the addresses set forth below. Copies of any notice given to a Party shall also be given to the City, the Port, RIDA and the Trustee. To JEPA: City of Chula Vista [insert new address for JEPA] 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attention: Executive Director With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney Page 20 of 54 FAttachment C 18 4823-5564-5297v18/024036-0079 San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney To the Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800, Costa Mesa, CA 92626 Attention: Corporate Trust Services Fax No.: (714) 384-4151 To the Port: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With copies to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To RIDA: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner With copies to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine Page 21 of 54 FAttachment C 19 4823-5564-5297v18/024036-0079 The JEPA, the City, the Port, RIDA and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices or other communications will be sent. Notices to the Trustee may be given by electronic mail but shall not be deemed delivered until delivered by first class mail, postage prepaid. Section 31. Further Assurances and Corrective Instruments. The JEPA and the Port shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site hereby leased or intended to be leased or for carrying out the expressed intention of this Site Lease. Notwithstanding the foregoing, even if the Executive Director (or other applicable representative) of the Port has authority to enter into such supplements and instruments, the Executive Director (or other applicable representative) of the Port may elect to obtain the approval of the BPC as a condition to exercising such authority. Section 32. Amendment. The terms of this Site Lease shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, except by written instrument signed by the JEPA and the Port; provided any amendment shall be made in accordance with Section 5.9 of the Indenture; provided, further, that the consent of the subtenant under the Facility Lease and the sub-subtenant under the Sublease shall be required for any waiver, alteration, modification, supplement or other amendment of the terms of this Site Lease if such consent is required under the terms of the Project Implementation Agreement. The JEPA shall not consent to a waiver, alteration, modification, supplement or other amendment of the terms of the Specified Agreements without the consent of the Port. Section 33. Entire Agreement. It is understood and acknowledged that there are no oral agreements between the JEPA and the Port affecting this Site Lease and this Site Lease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the JEPA and the Port with respect to the subject matter hereof, except for the Prior Agreements (as set forth on Exhibit I, the “Prior Agreements”), the Contemporaneous Agreements and the Approved Agreements to which both are a party. This Site Lease contains all of the terms, covenants, conditions, warranties and agreements of the JEPA and the Port relating in any manner to the rental, use and occupancy of the Facility and shall be considered to be the only agreement between the JEPA and the Port and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agreements, and the applicable Approved Agreements. All negotiations and oral agreements acceptable to the JEPA and the Port have been merged into and are included herein. There are no other representations or warranties between the JEPA and the Port, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Site Lease. However, the JEPA acknowledges and agrees that other documents may restrict the JEPA’s use of the Facility or impose other obligations not specifically referenced in this Site Lease, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA. Section 34. Brokers. The Port and the JEPA each hereby warrant to each other that neither has retained or employed any real estate broker or agent in connection with the negotiation of this Site Lease. The JEPA shall be solely responsible for the payment of any fee or commission due to any broker and agrees to indemnify and defend and hold the Port harmless from any and all claims, demands, losses, liabilities, lawsuits and costs and expenses (including without limitation reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing by the Port. Page 22 of 54 FAttachment C 20 4823-5564-5297v18/024036-0079 Section 35. Captions. The captions or headings in this Site Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision or section of this Site Lease. Section 36. Execution in Counterparts. This Site Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, but all together shall constitute but one and the same instrument. Section 37. Drafting Presumption; Review Standard. The parties acknowledge that this Site Lease has been agreed to by both the parties, that both the JEPA and the Port have consulted with attorneys with respect to the terms of this Site Lease and that no presumption shall be created against the drafting party. Any deletion of language from this Site Lease prior to its execution by the JEPA and the Port shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Site Lease, any approval or consent to be given by Port or BPC may be given or withheld in Port's or BPC’s sole and absolute discretion. Section 38. Transaction Costs. To the extent the JEPA requests any approval, consent or other action by the Port (including, without limitation, in connection with any proposed encumbrance, easement, Alterations, Financing Transaction or Transfer), the JEPA shall pay or reimburse the Port, upon written demand therefor, all of the Port’s reasonable attorneys’ fees and other third party costs incurred by the Port in connection therewith, together with the Port’s then current processing or cost recovery fee for similar transactions consistent with any schedule of such fees then utilized by the Port. The Port shall provide the JEPA with a copy of any such fee schedule following written request therefor from JEPA. Such costs and fees shall be payable to the Port whether or not the Port grants such approval or consent, or undertakes the action requested by the JEPA. The JEPA’s obligation to make payments pursuant to this Section 38 is limited as set forth in Section 29(b) hereof. Section 39. Constitutional Rights. Nothing in this Site Lease is intended to limit any rights that any party has under the Constitution of the United States of America or the California State Constitution with respect to any act, including the enactment of any Law, by the Port or any other Governmental Authority, including, without limitation, any claim for a taking, and this Site Lease shall be construed as to give effect to such intent. Section 40. Consents. The Port agrees that whenever the JEPA requests the Port’s consent in connection with the City’s request for the JEPA’s consent under the Facility Lease due to RIDA’s request for the City’s consent under the Sublease, the Port will grant or deny such request using the same standard of discretion, and within the same time period, as would be applicable to the City under the Sublease with respect to such request. Section 41. Memorandum of Lease. The Port and the JEPA shall each execute and properly acknowledge a short form memorandum of this Site Lease in the form attached hereto as Exhibit J. The JEPA may record a copy of such memorandum at its cost and expense. Upon the expiration or earlier termination of this Site Lease, the JEPA agrees to execute, acknowledge and deliver to the Port a quitclaim deed in recordable form, releasing and quitclaiming to the Port all right, title and interest of JEPA in and to the Site and terminating the short form memorandum. Page 23 of 54 FAttachment C 21 4823-5564-5297v18/024036-0079 Section 42. Project Implementation Agreement. Certain rights and obligations of the Port and the JEPA with respect to the Facility are set forth in the Project Implementation Agreement. Among other provisions, the Project Implementation Agreement includes certain rights of the Port to grant easements, licenses, and access agreements with respect to the Site and such rights are expressly reserved herein by the Port. Page 24 of 54 FAttachment C S-1 4823-5564-5297v18/024036-0079 IN WITNESS WHEREOF, the parties have caused this Site Lease to be executed by their duly authorized representatives on the date and year first above written. Port: SAN DIEGO UNIFIED PORT DISTRICT, a public corporation By: Its: APPROVED AS TO FORM AND LEGALITY: Thomas A. Russell, General Counsel JEPA: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District Co-Counsel, Glen R. Googins, City Attorney of the City of Chula Vista Page 25 of 54 FAttachment C 4823-5564-5297v18/024036-0079 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed under the foregoing to the Chula Vista Bayfront Facilities Financing Authority (the “JEPA”), is hereby accepted by the undersigned officer or agent on behalf of the Board of the JEPA, pursuant to authority conferred by resolution of the said Board adopted on _____, [2021], and the grantee consents to recordation thereof by its duly authorized officer. Dated: ______, [2021] CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: Its: Executive Director Page 26 of 54 FAttachment C A-1 4823-5564-5297v18/024036-0079 EXHIBIT A LEGAL DESCRIPTION Page 27 of 54 FAttachment C A-2 4823-5564-5297v18/024036-0079 Page 28 of 54 FAttachment C B-1 4823-5564-5297v18/024036-0079 EXHIBIT B PLAT MAP OF SITE Page 29 of 54 FAttachment C B-2 4823-5564-5297v18/024036-0079 Page 30 of 54 FAttachment C B-3 4823-5564-5297v18/024036-0079 Page 31 of 54 FAttachment C B-4 4823-5564-5297v18/024036-0079 Page 32 of 54 FAttachment C B-5 4823-5564-5297v18/024036-0079 Page 33 of 54 FAttachment C B-6 4823-5564-5297v18/024036-0079 Page 34 of 54 FAttachment C C-1 4823-5564-5297v18/024036-0079 EXHIBIT C FACILITY LEASE Page 35 of 54 FAttachment C D-1 4823-5564-5297v18/024036-0079 EXHIBIT D SUBLEASE Page 36 of 54 FAttachment C E-1 4823-5564-5297v18/024036-0079 EXHIBIT E DEFINITIONS ADDENDUM Page 37 of 54 FAttachment C Stradling Draft 6/9/2021 1 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM AFFILIATE: with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person. ALTERATIONS: any alterations, additions, installations, removals, demolitions, improvements or other physical changes to the Site and the Improvements following the Completion of the Convention Center, including the addition, installation or removal of any fixtures (other than trade fixtures) but excluding installation, maintenance, replacement or refreshing of any furniture, trade fixtures or equipment. APPROVED AGREEMENTS: defined in Section 2(b) of this Site Lease. BONDS: defined in the Indenture. BPC: defined in Section 2(c) of this Site Lease. BUSINESS DAY: a day (other than a Saturday or Sunday) on which banks in San Diego County, California are open for ordinary banking business. CDP: defined in Section 25(b) of this Site Lease. CEQA: defined in Section 25(b) of this Site Lease. CITY: defined in the preamble of this Site Lease. CLAIMS: defined in Section 18(d)(iii) of this Site Lease. CLOSING DATE: the date on which the 2021 Bonds are issued under the Indenture. COMPLETE defined in the Project Implementation Agreement CONDITION OF THE SITE: defined in Section 18(a) of this Site Lease. CONTEMPORANEOUS AGREEMENTS: means agreements executed on or around the date hereof by the Parties or their Affiliates with respect to the Site, including but not limited to the Project Implementation Agreement, this Site Lease, the Facility Lease, the Ground Lease and the Sublease. CONTROL, CONTROL, CONTROLLED AND CONTROLLING: shall be deemed, with respect to any Person, to be either or both (i) the ownership of more than fifty percent (50%) of the stock or other voting interest of such Person or the ownership of beneficial interests in such Person, or (ii) the power to direct the management of such Person with respect to major decisions of such Person, whether Page 38 of 54 FAttachment C 2 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM through voting interests or by way of agreement. CONVENTION CENTER: means all Improvements located on the Site, other than the Existing Improvements. CONVENTION CENTER DELIVERY DATE means the date on which the JEPA delivers the Complete Convention Center to the City, or the date on which the JEPA delivers any portion thereof to the City in a condition which allows for use and occupancy by the City of the portion delivered to it. CVBMP DOCUMENTS: means the following documents: (i) the Settlement Agreement (defined in the Ground Lease); (ii) Chula Vista Bayfront Development Policies (District Clerk No. 59407); (iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan (District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016-79, and the City Council of the City of Chula Vista on June 14, 2016, by Resolution No. 2016-119; (iv) Chula Vista Bayfront Master Plan Public Access Program (District Clerk No. 59408); (v) Chula Vista Bayfront Design Guidelines (District Clerk No. 67959); (vi) Integrated Planning Vision (District Clerk No. 63989); (vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment (District Clerk Nos. 59406); (viii) Mitigation Monitoring and Reporting Program for the Chula Vista Bayfront Master Plan (District Clerk No. 56555), and (ix) the CDP for the Hotel, Convention Center, and Parking Improvements (as defined in the Ground Lease).. EIR: defined in Section 5 of this Site Lease. ENVIRONMENTAL LAWS: Laws and other requirements in effect during the Term that regulate Hazardous Materials or otherwise relate to public health and safety or the protection of the environment. EXCAVATED SOIL REMOVAL: defined in Section 15(c)(i) of this Site Lease. EXISTING IMPROVEMENTS: any improvements located on, in, over or under the Site (including utilities, storm drains and park ways) that are in existence as of the Closing Date, whether constructed by Port, a prior tenant or another third party. FACILITY: defined in the recitals of this Site Lease. FACILITY LEASE: defined in the recitals of this Site Lease. FACILITY LEASE PERMITTED the Permitted Encumbrances (as defined in the Facility Lease). Page 39 of 54 FAttachment C 3 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM ENCUMBRANCES FORCE MAJEURE EVENT: means the occurrence of any of the following events (and the actual collateral effects of such event), individually or in any combination, to the extent that (x) such event is beyond the reasonable control of the Port or the JEPA, as applicable and (y) such event and/or such actual collateral effect prevents the Port or the JEPA, as applicable, from the performance of its obligations under this Site Lease: (a) A strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had the Port, the JEPA, the Hotel Operator or a Tenant Party, as applicable, complied with Laws or labor agreements with respect to the Facility, if any. (b) Hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods. (c) Days of precipitation or high winds in any month in excess of ten (10) year average for the area within the Port’s jurisdiction. (d) An earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster. (e) Fires (including wildfires). (f) Inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or the Port’s or the JEPA’s acts or failure to act). (g) Acts of war or armed conflict, insurrections, riots, and acts of terrorism (including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof. (h) Extraordinary delays in the issuance of any approvals or authorizations from any Governmental Authority (excluding any non-regulatory approvals by the Port and the JEPA) that is necessary to proceed with development or operation of the Convention Center (provided that the Port or the JEPA, as applicable, has timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that the City, the Hotel Operator or a Tenant Party is not Page 40 of 54 FAttachment C 4 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM responsible for the delay in the issuance of such approvals or authorizations by such party’s actions or inactions). For purposes of this paragraph, (A) “extraordinary delays” with respect to City regulatory approvals or authorizations that are subject to the Staffing and Processing Agreement shall mean delays in City processing actions or approvals that exceed 150% of the time periods for City actions under the terms of the Staffing and Processing Agreement, excluding any such delays caused by any Tenant Party’s own actions or inactions thereunder, and (B) “extraordinary delays” with respect to any other approval or authorization from any Governmental Authority shall mean delays beyond the reasonably expected time period for such approval or authorization which reasonably expected time period shall include customary or reasonably foreseeable delays in obtaining such approvals. (i) An act of God. (j) Embargoes or blockades. (k) Pre-Existing Hazardous Material. (l) Closures ordered by any Governmental Authority that do not arise from a breach of this Site Lease or misconduct by the Port or the JEPA, as applicable. GOVERNMENTAL AUTHORITY: each and every governmental agency, authority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Site (or any activity this Site Lease allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable Government Agencies, governmental authorities, and subdivisions thereof. GOVERNMENT AGENCY: any federal, state or local government agency (including, but not limited to, the United States Environmental Protection Agency, the Regional Water Quality Control Board, Department of Toxic Substances Control or Air Resources Board). GROUND LEASE: defined in the recitals of this Site Lease. GROUND LEASE PROPERTY: defined in the recitals of this Site Lease. HAZARDOUS MATERIAL: any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any Page 41 of 54 FAttachment C 5 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM applicable Law (including, but not limited to, hazardous substances as defined by Cal. Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance. Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws. HAZARDOUS MATERIALS ACTIVITY: generation, bringing, use, storage, emission, release, or disposal of any Hazardous Material, or products or materials which include any hazardous substance as a component. HOTEL: defined in the recitals of this Site Lease. HOTEL MANAGEMENT AGREEMENT: management agreement for the Hotel and the Convention Center between RIDA and the Hotel Operator. HOTEL OPERATOR: RIDA’s counterparty to a Hotel Management Agreement that is in effect in accordance with the Sublease. IMPROVEMENTS: the Existing Improvements and those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now or hereafter (including the Convention Center, Alterations and any other ancillary improvements constructed during the Term) located on, in, over or under the Site. INDENTURE: defined in Section 1 of this Site Lease. INQUIRY: any notice, inquiry, investigation, proceeding, or claim by any Government Agency or other Person regarding the presence that occurs during the Term of any Hazardous Material on, in, under, from or about the Facility JEPA: defined in the preamble of this Site Lease. JEPA AGREEMENT: defined in the preamble of this Site Lease. JEPA EVENT OF DEFAULT: defined in Section 16(a) of this Site Lease. JEPA MEMBER / JEPA MEMBERS: defined in Section 19(c) of this Site Lease. Page 42 of 54 FAttachment C 6 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM JEPA PARTIES: defined in Section 17(b) of this Site Lease. LANDLORD’S MATERIALS: defined in Section 18(d)(ii) of this Site Lease. LANDLORD TRANSFER: defined in Section 26 of this Site Lease. LAWS: all of the following to the extent (i) applicable to the Site, the Improvements or any activity under this Site Lease, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, without limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Unified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; any applicable ordinances of the city in which the Site is located, including the building code thereof, and any permits and approvals by any Governmental Authority, the City, and the Port, including, without limitation, any California Coastal Development Permit, applicable to the Site or the use or development thereof. OFAC: defined in Section 19(c) of this Site Lease. PARTY; PARTIES JEPA or Port individually and JEPA and Port collectively. PERMITTED FINANCING ENCUMBRANCES: a Financing Transaction (as defined in the Ground Lease) or an encumbrance that secures a Financing Transaction (as defined in the Ground Lease) to which the lessor under the Ground Lease has consented. PERMITTED LENDER: defined in the Sublease. PERMITTED USE: the Primary Use and such additional uses permitted in Section 5 of Page 43 of 54 FAttachment C 7 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM this Site Lease. PERSON: any individual, partnership, firm, joint venture, association, corporation, limited liability company, Government Agency or any other form of business entity. PMP: defined in Section 25(b) of this Site Lease. PORT: defined in the preamble of this Site Lease. PORT EVENT OF DEFAULT: defined in Section 16(b) of this Site Lease. PORT ACT: defined in the Sublease PORT DOCUMENTS: defined in Section 18(d)(ii) of this Site Lease. PRE-EXISTING HAZARDOUS MATERIAL: any Hazardous Material located on or under the Site prior to the Commencement Date, whether known or unknown, and any Hazardous Material located outside the Site (including any premises owned by the Port) prior to the Commencement Date that migrates onto the Site thereafter. PRIMARY USE: defined in Section 5 of this Site Lease. PRIOR AGREEMENTS: defined in Section 33 of this Site Lease. PROHIBITED PERSONS: defined in Section 19(c) of this Site Lease. PROJECT IMPLEMENTATION AGREEMENT: defined in the recitals of this Site Lease. RENT: defined in the Sublease. RIDA: defined in the recitals of this Site Lease. SITE: defined in the recitals of this Site Lease. SITE LEASE defined in the recitals of this Site Lease. SITE LEASE LANDLORD PARTIES: the Port and its officers, directors, employees, partners, affiliates, agents, contractors, consultants, successors and assigns and the members of the Board of Port Commissioners. SITE LEASE PERMITTED ENCUMBRANCES: as of any particular time: (1) liens for general ad valorem taxes and assessments, if any, (x) not then delinquent or (y) being contested in good faith by appropriate proceedings and otherwise in accordance Page 44 of 54 FAttachment C 8 4847-2638-3310v8/024036-0079 DEFINITIONS ADDENDUM with this Site Lease; (2) the Facility Lease; (3) this Site Lease; (4) the Sublease; (5) the Indenture; and (6) the Permitted Financing Encumbrances. SPECIFIED AGREEMENTS: the Facility Lease, the Sublease, CFD Loan Agreement, and the Indenture. STAFFING AND PROCESSING AGREEMENT: RIDA Hotel and Convention Center Project Staffing and Processing Agreement between City and RIDA dated effective June 3, 2020. SUBLEASE: defined in the recitals of this Site Lease. SUBLEASE PERMITTED ENCUMBRANCES: the Permitted Encumbrances (as defined in the Sublease). TENANT PARTY: RIDA, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors and assigns of RIDA, and Subtenants, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Subtenants, in each case, when acting only in the capacity of a Tenant Party. TERM: defined in Section 3 of this Site Lease. TRUSTEE: defined in Section 1 of this Site Lease. 2021 BONDS defined in the Indenture. USA PATRIOT ACT: defined in Section 19(c) of this Site Lease. Page 45 of 54 FAttachment C F-1 4823-5564-5297v18/024036-0079 EXHIBIT F PORT DOCUMENTS [Insert list of documents that were provided by the Office of the District Clerk to Chicago Title Company that are part of the Approved Title Exceptions (as defined in the DDA).] Page 46 of 54 FAttachment C G-1 4823-5564-5297v18/024036-0079 EXHIBIT G PORT DOCUMENTS TO BE ASSUMED ON LANDLORD TRANSFER 1. Ground Lease 2. Site Lease 3. Project Implementation Agreement 4. Support Agreement 5. CVBMP Documents [parties to determine which CVBMP documents will be transferred prior to execution of this Site Lease.] [Insert any other documents that qualify as Landlord Transfer Documents.] Page 47 of 54 FAttachment C H-1 4823-5564-5297v18/024036-0079 EXHIBIT H APPROVED DOCUMENTS 1. CVBMP Documents 2. Approved Title Exceptions 3. Plans [Insert all other documents, including financings documents, that are approved prior to the Closing Date.] (to be revised / completed prior to execution.) Page 48 of 54 FAttachment C I-1 4823-5564-5297v18/024036-0079 EXHIBIT I PRIOR AGREEMENTS 1. Disposition and Development Agreement (Sections 4.1(f), 4.7(c), 4.7(d), 4.17, 8.2, and 8.3) 2. Right of Entry for Pre-Closing Phase 1A Improvements [Insert any other documents that qualify as Prior Agreements prior to execution of this Site Lease.] Page 49 of 54 FAttachment C J-1 4823-5564-5297v18/024036-0079 EXHIBIT J FORM OF MEMORANDUM OF LEASE RECORDING REQUESTED BY: ___________________________ ___________________________ ___________________________ (Above Space for Recorder’s Use Only) MEMORANDUM OF LEASE This Memorandum of Lease, hereinafter “Memorandum,” is dated ____________, 20__, between SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Landlord”) and the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority (“Tenant”) concerning that certain real property described in Exhibit “A” and depicted in Exhibit “B”, attached hereto and by this reference made a part hereof (the “Leased Premises”). For good and adequate consideration, Landlord leases the Leased Premises to Tenant, and Tenant hires them from Landlord, for the term and on the provisions contained in that certain Site Lease of even date herewith by and between Landlord and Tenant (the “Site Lease”), including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Landlord in each instance, all as more specifically set forth in said Site Lease, and, subject to the terms of Section 10(b) of the Site Lease, Landlord conveys to Tenant and Tenant accepts from Landlord, all of Landlord’s right, title and interest in and to the Existing Improvements, which said Site Lease is incorporated in this Memorandum by this reference. The term of the Site Lease is [up to] sixty-six (66) years, beginning __________, 20__, and ending __________, 20__ as set forth in Section 3 of the Site Lease. This Memorandum is not a complete summary of the Site Lease. Provisions in this Memorandum shall not be used in interpreting the Site Lease provisions. In the event of conflict between the terms of this Memorandum and terms of the Site Lease, the terms of the Site Lease shall control. IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease as of the date first set forth above. APPROVED AS TO FORM AND LEGALITY: SAN DIEGO UNIFIED PORT DISTRICT, GENERAL COUNSEL a public corporation By: ______________________________ By: _______________________________ Assistant/Deputy Tony Gordon Director, Real Estate Page 50 of 54 FAttachment C J-2 US-DOCS\114405603.414823-5564-5297v18/024036-0079 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista Page 51 of 54 FAttachment C J-3 US-DOCS\114405603.414823-5564-5297v18/024036-0079 EXHIBIT A TO MEMORANDUM OF LEASE LEGAL DESCRIPTION OF PREMISES (to be attached prior to execution.) Page 52 of 54 FAttachment C J-4 4823-5564-5297v18/024036-0079 EXHIBIT B TO MEMORANDUM OF LEASE DEPICTION OF PREMISES (to be attached prior to execution.) Page 53 of 54 FAttachment C 4823-5564-5297v18/024036-0079 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF ____________ ) On _____________________________, before me, _______________________________ , Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual Corporate Officer ____________________________________________________________ Title(s) ____________________________________________________________ Title Or Type Of Document Partner(s) Limited General Attorney-In-Fact Trustee(s) Guardian/Conservator Other: _____________________________________ Signer is representing: Name Of Person(s) Or Entity(ies) ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ Number Of Pages ____________________________________________________________ Date Of Documents ____________________________________________________________ Signer(s) Other Than Named Above Page 54 of 54 FAttachment C 4815-1599-7809v22/024036-0079 FACILITY LEASE (CHULA VISTA BAYFRONT CONVENTION CENTER) by and between CITY OF CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, as Lessor and CITY OF CHULA VISTA, as Lessee Dated as of ____________, [2021] Relating to CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT CONVENTION CENTER) $__________ [Series 2021A (Federally Taxable)] $__________ [Series 2021B (Tax-Exempt)] Page 1 of 79 GAttachment D TABLE OF CONTENTS Page i 4815-1599-7809v22/024036-0079 ARTICLE I DEFINITIONS AND EXHIBITS Section 1.1 Definitions and Rules of Construction .......................................................................... 2 Section 1.2 Exhibits ......................................................................................................................... 2 ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS Section 2.1 Representations, Warranties, Covenants of the City ..................................................... 3 Section 2.2 Representations, Warranties and Covenants of the JEPA ............................................. 5 ARTICLE III APPLICATION OF BOND PROCEEDS; CONSTRUCTION OF PROJECT Section 3.1 Deposit of Bond Proceeds ............................................................................................. 6 Section 3.2 Financing of Project ...................................................................................................... 6 Section 3.3 Construction of Convention Center; Completion Certification .................................... 7 ARTICLE IV AGREEMENT TO LEASE; TERM OF LEASE; LEASE PAYMENTS Section 4.1 Lease ............................................................................................................................. 7 Section 4.2 Term .............................................................................................................................. 7 Section 4.3 Extension of Lease Term .............................................................................................. 7 Section 4.4 Lease Payments ............................................................................................................. 8 Section 4.5 No Withholding ............................................................................................................ 9 Section 4.6 Fair Rental Value .......................................................................................................... 9 Section 4.7 Budget and Appropriation ........................................................................................... 10 Section 4.8 Payment to Trustee ..................................................................................................... 10 Section 4.9 Use and Possession; Further Assurances and Corrective Instruments ........................ 10 Section 4.10 Abatement of Lease Payments .................................................................................... 11 Section 4.11 [Reserved] ................................................................................................................... 13 Section 4.12 Pre-Completion Lease Payments ................................................................................ 13 Section 4.13 Net-Net-Net Lease ...................................................................................................... 13 Section 4.14 “As-Is Lease and Waivers.” ........................................................................................ 13 Section 4.15 End of Term ................................................................................................................ 16 ARTICLE V INSURANCE Section 5.1 Sublease Insurance Provisions .................................................................................... 16 Section 5.2 Rental Interruption Insurance...................................................................................... 17 Section 5.3 Title Insurance ............................................................................................................ 17 ARTICLE VI DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF NET PROCEEDS Section 6.1 Application of Net Proceeds ....................................................................................... 17 Page 2 of 79 GAttachment D TABLE OF CONTENTS (continued) Page ii 4815-1599-7809v22/024036-0079 ARTICLE VII COVENANTS WITH RESPECT TO THE FACILITY Section 7.1 Use of the Facility; Continuous Operation ................................................................. 20 Section 7.2 Leasehold Interest in the Facility; Actions on Termination ........................................ 20 Section 7.3 Quiet Enjoyment ......................................................................................................... 21 Section 7.4 No Demolition ............................................................................................................ 22 Section 7.5 Maintenance and Repair; Alterations .......................................................................... 22 Section 7.6 Hazardous Materials ................................................................................................... 25 Section 7.7 Liens ............................................................................................................................ 28 Section 7.8 Tax Expenses, Property Expenses and Property Tax Expenses .................................. 28 Section 7.9 Equal Employment Opportunity/Nondiscrimination and OFAC ................................ 29 Section 7.10 Consent to Naming Rights .......................................................................................... 30 Section 7.11 Prevailing Wage .......................................................................................................... 30 Section 7.12 Inspection of Facility and Access to Records ............................................................. 31 Section 7.13 JEPA’s Disclaimer of Warranties ............................................................................... 31 ARTICLE VIII ASSIGNMENT, SUBLEASING AND AMENDMENT Section 8.1 Assignment by the JEPA ............................................................................................ 32 Section 8.2 Assignment and Subleasing by the City ..................................................................... 32 Section 8.3 Amendments and Modifications ................................................................................. 32 ARTICLE IX EVENTS OF DEFAULT AND REMEDIES Section 9.1 Events of Default Defined .......................................................................................... 32 Section 9.2 Remedies on Default ................................................................................................... 33 Section 9.3 No Remedy Exclusive ................................................................................................. 34 Section 9.4 Limitation on Remedies .............................................................................................. 34 Section 9.5 No Additional Waiver Implied by One Waiver .......................................................... 34 Section 9.6 Application of the Proceeds Following Default .......................................................... 34 Section 9.7 Bankruptcy .................................................................................................................. 35 Section 9.8 Trustee and Bond Owners to Exercise Rights ............................................................ 36 ARTICLE X MISCELLANEOUS Section 10.1 Notices ........................................................................................................................ 36 Section 10.2 Limitation on Liability ................................................................................................ 40 Section 10.3 Binding Effect ............................................................................................................. 40 Section 10.4 Entire Agreement ........................................................................................................ 40 Section 10.5 Waiver ......................................................................................................................... 41 Section 10.6 Attorneys’ Fees ........................................................................................................... 41 Section 10.7 Transaction Costs ........................................................................................................ 41 Section 10.8 Drafting Presumption; Review Standard .................................................................... 41 Section 10.9 Constitutional Rights and Compliance with Laws ...................................................... 42 Section 10.10 Dispute Resolution ...................................................................................................... 42 Section 10.11 Brokers ........................................................................................................................ 42 Page 3 of 79 GAttachment D TABLE OF CONTENTS (continued) Page iii 4815-1599-7809v22/024036-0079 Section 10.12 Partial Invalidity .......................................................................................................... 42 Section 10.13 Execution in Counterparts ........................................................................................... 42 Section 10.14 Governing Law; Compliance with Laws; Venue ........................................................ 42 Section 10.15 Landlord Transfer ....................................................................................................... 43 Section 10.16 Captions ...................................................................................................................... 43 Section 10.17 No Merger ................................................................................................................... 43 Section 10.18 Time of Essence .......................................................................................................... 43 Section 10.19 Third-Party Beneficiary .............................................................................................. 44 Section 10.20 Effect of Discharge of all Bonds and Additional Bonds ............................................. 44 Section 10.21 Consents ...................................................................................................................... 44 Signatures ................................................................................................................................... S-1 EXHIBIT A LEGAL DESCRIPTION OF THE SITE .................................................................. A-1 EXHIBIT B PLAT MAP OF THE SITE ...................................................................................... B-1 EXHIBIT C SCHEDULE OF LEASE PAYMENTS .................................................................... C-1 EXHIBIT D DEFINITIONS ADDENDUM ................................................................................. D-1 EXHIBIT E JEPA DOCUMENTS ................................................................................................ E-1 EXHIBIT F FORM OF SUBLEASE ............................................................................................ F-1 EXHIBIT G SCHEDULE OF MSA PAYMENTS ....................................................................... G-1 EXHIBIT H-1 FORM OF FACILITY LEASE ADVANCE RENT NOTICE ............................. H-1-1 EXHIBIT H-2 FORM OF SUBLEASE ADVANCE RENT NOTICE ........................................ H-2-1 EXHIBIT I APPROVED AGREEMENTS…………………………………………………… I-1 EXHIBIT J MEMORANDUM OF LEASE…………………………………………………… J-1 Page 4 of 79 GAttachment D 4815-1599-7809v22/024036-0079 FACILITY LEASE (CHULA VISTA BAYFRONT CONVENTION CENTER) THIS FACILITY LEASE (CHULA VISTA BAYFRONT CONVENTION CENTER) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Lease”), dated as of ____________, [2021], is entered into by and between the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (the “JEPA”) established and existing pursuant to an Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “JEPA Agreement”), by and between the City of Chula Vista, a California charter city (the “City”), and the San Diego Unified Port District, a public corporation (the “Port”), as lessor, and the City, as lessee; WITNESSETH: WHEREAS, the JEPA, the Port and the City have determined it to be beneficial, for the JEPA to acquire a leasehold interest in certain real property described in Exhibit A hereto and depicted in Exhibit B hereto (the “Site”) and the Existing Improvements (defined herein) upon which the Convention Center (defined herein) to be owned by the JEPA will be constructed and operated; and WHEREAS, the JEPA and the Port have entered into that certain Site Lease dated as of the date hereof, (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Site Lease”), pursuant to which the Port, as landlord, has leased to the JEPA the Site; and WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns, “RIDA”) holds a leasehold interest in certain real property which is immediately adjacent to the Site (the “Ground Lease Property”) described in and pursuant to a Lease, entered into as of ______, [2021] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and between the Port, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and WHEREAS, given the proximity of the proposed Hotel to the Site, the JEPA, the Port and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the JEPA and operate the Convention Center; and WHEREAS, the Port and the City have agreed to cause the JEPA to provide financing for a portion of the costs of the Project (defined herein); and WHEREAS, such financing will be accomplished through the issuance of the Bonds (defined herein) by the JEPA which will be payable, in part, from lease payments made by the City to the JEPA under this Facility Lease, pursuant to which the City is subleasing from the JEPA the Site and the Existing Improvements and leasing from the JEPA the Convention Center (the Convention Center, the Site and the Existing Improvements are referred to collectively herein as the “Facility”); and Page 5 of 79 GAttachment D 2 4815-1599-7809v22/024036-0079 WHEREAS, the City will sublease the Convention Center to RIDA and sub-sublease the Site to RIDA in accordance with the terms of a Sublease Agreement, dated as of the date hereof, in the form attached hereto as Exhibit F (as amended, amended and restated, supplemented or otherwise modified from time to time, together with any New Sublease (as defined in the Sublease) the “Sublease”), by and between the City, as sublessor, and RIDA, as sublessee, pursuant to which RIDA will sublease the Facility from the City; and WHEREAS, to provide for certain construction requirements and other matters relating to the Project, the JEPA, Port, City, the Financing District and RIDA are entering into that certain Project Implementation Agreement (Chula Vista Bayfront Resort Hotel and Convention Center), dated the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Implementation Agreement”); and WHEREAS, the parties hereto intend that, during the Term (defined herein), the Convention Center will be owned by the JEPA and the Convention Center will be operated and maintained by RIDA pursuant to the Sublease so long as the Sublease is in effect; and WHEREAS, the City Council has determined that it is in the best interest of the City and for the common benefit of the citizens residing in the City to assist in the financing of the Project and to enter into this Facility Lease. NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereto agree as follows: ARTICLE I DEFINITIONS AND EXHIBITS Section 1.1 Definitions and Rules of Construction. Capitalized terms used but not defined herein shall have the meanings set forth in the Definitions Addendum attached as Exhibit D hereto and if not defined therein then shall have the meaning set forth in the Indenture, dated as of the date hereof (the “Indenture”), by and between the JEPA and Wilmington Trust, National Association, as trustee (the “Trustee”), pursuant to which the Bonds are issued. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa. The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms, as used in this Facility Lease, refer to this Facility Lease as a whole. Section 1.2 Exhibits. The following Exhibits are attached to, and by reference made a part of, this Facility Lease: Page 6 of 79 GAttachment D 3 4815-1599-7809v22/024036-0079 Exhibit A: Description of the Site Exhibit B: Plat Map of the Site Exhibit C: Schedule of Lease Payments Exhibit D: Definitions Addendum Exhibit E: JEPA Documents Exhibit F: Form of Sublease Exhibit G: Schedule of MSA Lease Payments Exhibit H-1: Form of Facility Lease Advance Rent Notice Exhibit H-2: Form of Sublease Advance Rent Notice Exhibit I: Approved Agreements Exhibit J Memorandum of Lease ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS Section 2.1 Representations, Warranties, Covenants of the City. The City represents, warrants and covenants to the JEPA as follows: (a) Due Organization and Existence. The City is a municipal corporation and charter city, duly organized and existing under and by virtue of the Constitution and laws of the State, with the power and authority to own, lease and acquire real and personal property and equipment. To the extent permitted by law, the City agrees that during the term hereof it will maintain its existence as a charter city, will not dissolve or otherwise dispose of all or substantially all of its assets and will not combine or consolidate with or merge into any other entity or permit one or more other entities to consolidate with or merge into it. (b) Authorization; Enforceability. The Constitution and laws of the State and the City Charter authorize the City to enter into this Facility Lease, the Sublease and the Project Implementation Agreement and to enter into the transactions contemplated by and to carry out its obligations under this Facility Lease, the Sublease and the Project Implementation Agreement and the City has duly authorized the execution and delivery of this Facility Lease, the Sublease and the Project Implementation Agreement. This Facility Lease, the Sublease and the Project Implementation Agreement constitute the legally, valid and binding obligations of the City, enforceable in accordance with their terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally. (c) No Conflicts or Default; No Liens or Encumbrances. Neither the execution and delivery of this Facility Lease, the Sublease and the Project Implementation Agreement, nor the fulfillment of or compliance with the terms and conditions hereof, nor the consummation of the transactions contemplated hereby and thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City is bound, including without limitation, the City Charter, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the City or upon the Facility, except to the extent of the encumbrance created by this Facility Lease and the Sublease. Page 7 of 79 GAttachment D 4 4815-1599-7809v22/024036-0079 (d) Execution and Delivery. The City has duly executed and delivered this Facility Lease, the Sublease and the Project Implementation Agreement in accordance with the Constitution and laws of the State and the City Charter. (e) Indemnification of the JEPA and the Trustee. To the extent permitted by law and subject to the provisions and limitations of Section 10.2 herein, the City covenants to defend, indemnify and hold harmless the JEPA and the Trustee and their respective assigns, board members, directors, officers and employees (each an “Indemnified Party”) against any and all losses, claims, damages or liabilities, joint or several, including fees and expenses incurred in connection therewith, to which an Indemnified Party may become subject under any statute or at law or in equity or otherwise in connection with the transactions contemplated by this Facility Lease arising from the City’s sole negligence, willful misconduct or breach of the City’s obligations hereunder, and shall reimburse any Indemnified Party for any legal or other expenses incurred by it in connection with investigating any claims against it and defending any actions, insofar as such losses, claims, damages, liabilities or actions arise out of the City’s sole negligence, willful misconduct or breach of the City’s obligations hereunder. Notwithstanding the foregoing, the City shall not defend, indemnify and hold harmless any Indemnified Party for claims, losses or damages, including legal fees and expenses, arising out of the willful misconduct or negligence of such Indemnified Party or to the extent such Indemnified Party is being indemnified by RIDA for such claim in accordance with Section 2.2(b) of the Sublease; provided that the City agrees that one Indemnified Party shall not be responsible for the willful misconduct or negligence of any other Indemnified Party. (f) Covenant Regarding Sales and Use Tax. During the Term, the City shall not initiate any action or voluntarily agree to (i) reduce the rate or levy of, (ii) repeal, terminate or reduce the items subject to, or (iii) suspend or terminate the collection of, the Sales and Use Tax. (g) Covenant Regarding Transient Occupancy Taxes. During the Term, the City shall not initiate any action or voluntarily agree to (i) reduce the rate or levy of, (ii) repeal, terminate or reduce the items subject to, or (iii) suspend, or terminate the collection of, the Transient Occupancy Taxes. (h) Enforcement of Sublease Terms. The City shall enter into the Sublease and subject to the limitations set forth in Section 10.2 hereof shall diligently enforce the terms of the Sublease against RIDA and any successor thereto. The City shall not amend, waive or otherwise modify any provisions of the Sublease without the prior written consent of the Port and the JEPA. (i) Advance Rent Notice. As and when required pursuant to the Project Implementation Agreement (and only at such times), the JEPA shall submit Facility Lease Advance Rent Notices to the City. Upon receipt of a Facility Lease Advance Rent Notice from the JEPA, the City shall promptly submit to RIDA a Sublease Advance Rent Notice for an equivalent amount. (j) RIDA Sublease Payments and Sublease Advance Rent. The City acknowledges and agrees that the RIDA Sublease Payments and the Sublease Advance Rent do not constitute Lease Revenues and are not available for and shall not be used by the City to make any of the Lease Payments or Pre-Completion Lease Payments. Subject to the foregoing, in the event that the City receives any payment of RIDA Sublease Payments or Sublease Advance Rent, within 10 Business Days, the City will pay such amount to the JEPA as rent in addition to the City’s obligation to make Lease Payments and Pre-Completion Lease Payments hereunder. The City shall have no liability to pay any amount to the JEPA with respect to RIDA Sublease Payments or Sublease Page 8 of 79 GAttachment D 5 4815-1599-7809v22/024036-0079 Advance Rent other than amounts actually paid to the City by RIDA. In satisfaction of the City’s obligation to pay RIDA Sublease Payments and Sublease Advance Rent to the JEPA, the City hereby assigns to the JEPA all rights that the City has to RIDA Sublease Payments and Sublease Advance Rent. Section 2.2 Representations, Warranties and Covenants of the JEPA. The JEPA represents, warrants and covenants to the City as follows: (a) Due Organization and Existence; Enforceability. The JEPA is a public body corporate and politic duly organized, existing and in good standing under and by virtue of the laws of the State and the JEPA Agreement, has the power to enter into the Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement and the Indenture; is possessed of full power to own and hold real and personal property, and to lease and sell the same and to issue the Bonds; and has duly authorized the execution and delivery of the Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement and the Indenture and the issuance of the Bonds. The Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement and the Indenture constitute the legally valid and binding obligations of the JEPA, enforceable in accordance with their respective terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally. (b) Limitation on Encumbrances. The JEPA will not pledge or encumber the Lease Payments or other Revenues derived from the Facility or from its other rights under this Facility Lease, the Loan Agreement, the Port Support Agreement or the Site Lease, except as provided under the terms of this Facility Lease, the Site Lease and the Indenture. The JEPA shall not encumber the Facility during the Term, except for any documents effectuating the issuance of the Bonds that the City has agreed to prior to the commencement of the Term, or that the City agrees to, in the City’s reasonable discretion, during the Term, which consent shall not be unreasonably withheld, conditioned or delayed. (c) No Conflicts or Defaults; No Liens or Encumbrances. Neither the execution and delivery of the Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement or the Indenture, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terms, conditions or provisions of the formation documents of the JEPA, including the JEPA Agreement, or any restriction or any agreement or instrument to which the JEPA is now a party or by which the JEPA is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the JEPA, except for the pledges contained in Section 4.1 of the Indenture, or upon the Facility, except to the extent of the encumbrance created by this Facility Lease and the Site Lease. (d) Execution and Delivery. The JEPA has duly executed and delivered the Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement and the Indenture in accordance with the Constitution and laws of the State and the JEPA Agreement. Page 9 of 79 GAttachment D 6 4815-1599-7809v22/024036-0079 (e) Maintenance of Existence. To the extent permitted by law, the JEPA agrees that during the term hereof it will maintain its existence as a joint powers authority, will not dissolve or otherwise dispose of all or substantially all of its assets, if any, will not become a general or limited partner in any partnership and will not combine or consolidate with or merge into any other entity or permit one or more other entities to consolidate with or merge into it, unless (i) such action will not cause a merger of the City’s subleasehold interest in the Site and its leasehold interest in the Convention Center and RIDA’s sub-leasehold interests in the Facility, (ii) the successor thereto is a public agency which expressly agrees to assume all rights and responsibilities of the JEPA under the Site Lease, this Facility Lease, the Project Implementation Agreement, the Loan Agreement, the Port Support Agreement and the Indenture, and (iii) the JEPA provides to the Trustee an Opinion of Bond Counsel that such combination, consolidation or merger will not, in and of itself, cause the interest on any Outstanding Tax-Exempt Bonds to be included in the gross income of the Owners thereof for federal income tax purposes; provided, that no such assignment shall have an adverse effect on the Indenture, the Loan Agreement, the Bonds, the Project Implementation Agreement, Port Support Agreement, the Financing District, the rights of RIDA under the Sublease or the receipt by the Trustee of any of the revenues pledged under the Indenture to the payment of the Bonds. Nothing herein shall prevent the JEPA from becoming a member of another joint exercise of powers authority. (f) Use of RIDA Sublease Payments and Sublease Advance Rent. The JEPA acknowledges and agrees that the RIDA Sublease Payments and the Sublease Advance Rent do not constitute Lease Revenues and are not available to be used by the City to make Lease Payments, and, therefore, will not be available to repay the Bonds and shall not be pledged by the JEPA to the repayment of the Bonds. (g) Payment of Certain City Expenses. If the City is obligated to make any expenditure, other than the payment of Lease Payments and payments under Section 2.1(e) herein (including payments to any attorneys or third parties engaged by the City with respect to claims arising under Section 2.1(e)), in order to comply with its covenants and agreements in this Facility Lease, then to the extent such expenditure is not paid for from funds made available to the City by RIDA, such amounts shall be paid or reimbursed by the JEPA, subject to the availability of funds and a separate agreement to be entered into between the Port and City (which may be the Revenue Sharing Agreement), as Priority Administrative Expenses or Additional Administrative Expenses in accordance with the Indenture and the City shall have no liability to pay any such amounts that shall not be reimbursed by the JEPA from any other source of funds. ARTICLE III APPLICATION OF BOND PROCEEDS; CONSTRUCTION OF PROJECT Section 3.1 Deposit of Bond Proceeds. On the Closing Date for the Bonds, the JEPA shall cause the net proceeds of the Bonds to be paid to the Trustee. Such funds shall be deposited by the Trustee in the funds and accounts as provided in Section 3.2 of the Indenture and shall be used pursuant to the terms of the Indenture, the Loan Agreement and the Project Implementation Agreement. Section 3.2 Financing of Project. The City and the JEPA agree that the Trustee shall disburse the net proceeds of the Bonds in accordance with Sections 3.4 and 3.10 of the Indenture and the terms of the Project Implementation Agreement. Page 10 of 79 GAttachment D 7 4815-1599-7809v22/024036-0079 Section 3.3 Construction of Convention Center; Completion Certification. As and to the extent set forth in the Project Implementation Agreement, RIDA is obligated to Complete (as defined in the Project Implementation Agreement) the Convention Center. The JEPA shall provide notice to the City of the date on which the Convention Center is Complete and the date on which the Convention Center will be available for use and occupancy by the City. ARTICLE IV AGREEMENT TO LEASE; TERM OF LEASE; LEASE PAYMENTS Section 4.1 Lease. The JEPA hereby subleases the Site and the Existing Improvements and leases the Convention Center and all appurtenant rights thereto, to the City and the City hereby subleases the Site and the Existing Improvements and leases the Convention Center and all appurtenant rights thereto from the JEPA upon the terms and conditions set forth herein, subject to the Permitted Encumbrances and subject to the reservations in Section 2(b) of the Site Lease. For purposes of Section 1938 of the California Civil Code, the JEPA hereby discloses to the City and the City hereby acknowledges, the Site has not undergone an inspection by a Certified Access Specialist. The JEPA and the City each agree that the JEPA is the owner of the Convention Center during the Term and that the Port will be the owner of the Convention Center upon the termination of the Site Lease and all tax filings will be made consistent with this understanding. Section 4.2 Term. The Term shall commence on the Commencement Date and shall end on ____________, 20[58], unless extended pursuant to Section 4.3 hereof or terminated sooner pursuant to Section 6.1(c) or (d)(ii) hereof. Notwithstanding anything to the contrary contained herein, subject only to the requirement that this Facility Lease may not extend to a date which is more than sixty-six (66) years from the Commencement Date, this Facility Lease shall not terminate during the term of the Sublease. Section 4.3 Extension of Lease Term. The initial ending date of the Term stated in Section 4.2 may be extended as follows: (a) If on the final maturity date of the Bonds all interest and principal on the Bonds shall not be fully paid as a result of an abatement of the Lease Payments as provided in Section 4.10 hereof, or a failure of the City to pay the Lease Payments when due hereunder, then the Term shall be extended until all Bonds shall be fully paid. (b) Notwithstanding the foregoing, if (i) the Ground Lease has terminated for a reason other than (A) an Event of Default (as defined in the Ground Lease) or (B) pursuant to RIDA’s exercise of a right to terminate the Ground Lease and (ii) in accordance with applicable law, RIDA remains in possession of the Ground Lease Property notwithstanding such termination, then, on the date that is the 37th anniversary of the Commencement Date, the Term of this Facility Lease shall be extended for 29 years on the terms and conditions set forth in this Facility Lease with such modifications to the provisions with respect to the payment of rent so that for any period of time following such extension, the sum of the rent to be paid under this Facility Lease and the Rent (as defined in the Ground Lease) required to be paid under the Ground Lease will equal the Rent (as defined in the Ground Lease) that would have been paid under the Ground Lease as if the Expansion Date (as defined in the Ground Lease) had occurred and the Ground Lease had not been terminated. Page 11 of 79 GAttachment D 8 4815-1599-7809v22/024036-0079 (c) Notwithstanding anything to the contrary contained herein, the Term shall in no event be extended beyond the date which is sixty-six (66) years from the Commencement Date. Section 4.4 Lease Payments. (a) Time and Amount. Subject to the provisions of and limitations contained in Sections 4.4(b), 4.10 and 6.1 hereof, the City agrees to pay to the JEPA, its successors and assigns, from moneys on deposit in the Lease Revenues Fund, as the annual rental for the use and possession of the Facility, the Lease Payments in the amounts and on the dates set forth in this Section 4.4 (a). The Lease Payments are due and payable in arrears and in immediately available funds on each Lease Payment Date. The payment due on each May 15 shall be rental for the period from the prior November 15 through the next following May 14 and shall be in an amount equal to the amount on deposit in the Lease Revenues Fund on such Lease Payment Date, and the payment due on each November 15 shall be rental for the period from the prior May 15 through the next following November 14 and shall be in an amount equal to the amount on deposit in the Lease Revenues Fund on such Lease Payment Date; provided, however, that the total Lease Payments due in a Lease Year shall not exceed the Maximum Lease Payment for such Lease Year. In the event that amounts remain on deposit in the Lease Revenues Fund on May 15 of any year after the payment of the Lease Payments due on such date, then such amounts shall remain on deposit therein and be applied to subsequent Lease Payments when due. The obligation of the City to pay Lease Payments shall commence on the first Lease Payment Date; provided, however, that, if only a portion of the Convention Center has been made available for use and occupancy by the City, then Lease Payments shall be paid only to the extent described in Section 4.10(a) hereof. Lease Payments shall be paid to the Trustee for deposit to the Revenue Fund. (b) Limitation on Lease Payments. Notwithstanding anything to the contrary set forth in the Ground Lease, the Site Lease, this Facility Lease, the Sublease, the Project Implementation Agreement, the Indenture, or any other instrument or agreement relating to the Site, the Convention Center or the Project, the City shall be obligated to make Lease Payments solely from amounts on deposit in the Lease Revenues Fund and from Lease Revenues received which should have been deposited therein in accordance with the provisions of Section 4.4(c) below. (c) Collection and Deposit of Lease Revenues. There is hereby established a “Lease Revenues Fund” to be held and maintained by the City separate and apart from all other funds and accounts of the City. During the Term, the City shall take such actions as are reasonably necessary to cause the receipt of the Lease Revenues and shall deposit all Lease Revenues received into the Lease Revenues Fund on the dates set forth below for each respective source of Lease Revenues. The City shall withdraw amounts from the Lease Revenues Fund solely to pay Pre- Completion Lease Payments and Lease Payments and not for any other purpose. Deposits to the Lease Revenues Fund shall be made as follows: (i) MSA Revenue. The City shall deposit MSA Revenue into the Lease Revenues Fund within thirty (30) days following the end of the Quarters beginning on July 1, October 1 and January 1, in an amount equal to one fourth (1/4) of the amount of MSA Revenue for the current Fiscal Year as set forth in Exhibit G hereto. Page 12 of 79 GAttachment D 9 4815-1599-7809v22/024036-0079 (ii) Sales and Use Tax Revenue. The City shall deposit all Sales and Use Tax Revenue actually received by the City during each Quarter into the Lease Revenues Fund within thirty (30) days following the end of each Quarter. (iii) Tax Increment Revenue. The City shall deposit all Tax Increment Revenue into the Lease Revenues Fund as follows: (A) on or before January 31 of each year, the City shall deposit one-half of the Tax Increment Revenue estimated to be received by the City during the current Fiscal Year as set forth in the City’s adopted Budget for such Fiscal Year; and (B) on or before June 30 of each year, the City shall deposit the Tax Increment Revenue actually received by the City during the Fiscal Year then ending, less the amount deposited in the Lease Revenues Fund with respect to the preceding January 31. In the event that the amount deposited in the Lease Revenues Fund with respect to Tax Increment Revenue for a Fiscal Year exceeds the actual amount of Tax Increment Revenue for such Fiscal Year, then the amount of the overpayment shall be credited against the amount of Tax Increment Revenue due in the next Fiscal Year until the overpayment amount has been fully credited, or with respect to any credit remaining upon the last day of the Term, such amount shall be paid to the City. (iv) Transient Occupancy Tax Revenue. The City shall deposit all Transient Occupancy Tax Revenue actually received by the City during a calendar month into the Lease Revenues Fund within thirty (30) days following the end of such calendar month. (d) Transfer of Lease Revenues to the JEPA Upon Termination. On the last day of the Term (after all Lease Payments and any other amounts required to be paid to the Trustee hereunder have been transferred to the Trustee), the City shall transfer to the JEPA all moneys remaining in the Lease Revenues Fund for deposit into the Revenue Sharing Fund pursuant to the Revenue Sharing Agreement. (e) Rate on Overdue Payments. In the event the City should fail to apply the Lease Revenues to make all or any portion of any Lease Payments required by this Section 4.4, the unpaid Lease Payments, or portion thereof unpaid, shall continue as an obligation of the City payable solely from amounts in the Lease Revenues Fund until the unpaid amount shall have been fully paid, and the City agrees to pay the same with interest thereon from the date such amount was originally due at the rate equal to ___ percent (__%) per annum. Section 4.5 No Withholding. Notwithstanding any dispute between the JEPA and the City, other than a dispute arising under Section 4.10 hereof as a result of which the City has concluded that it may not legally pay the Lease Payments in dispute, the City shall make all Lease Payments when due and shall not withhold any Lease Payments pending the final resolution of such dispute. Section 4.6 Fair Rental Value. The Lease Payments made following the Convention Center Delivery Date shall be paid by the City in consideration of the right of possession and the continued quiet use and enjoyment (as set forth in Section 7.3, but subject to Section 10.15) of, the Facility during each such period for which said rental is to be paid. The Parties hereto acknowledge and agree, and the City hereby determines, that following the delivery of the entire Facility to the City by the JEPA for use and occupancy, the Facility will have a fair rental value in each Lease Year of an amount not less than the Maximum Lease Payment for such Lease Year. In making such acknowledgment and determination, consideration has been given to the construction cost of the Convention Center, the expected useful life of the Convention Center, the uses and purposes which Page 13 of 79 GAttachment D 10 4815-1599-7809v22/024036-0079 may be served by the Facility and the public benefits from the Facility which will accrue to the City and the general public. Section 4.7 Budget and Appropriation. The City covenants to take such action as may be necessary to include all Lease Payments due hereunder in each of its proposed annual budgets and its final adopted annual budgets beginning with the Fiscal Year in which the first Lease Payment Date occurs through the Term and to make the necessary appropriations from the Lease Revenues Fund for such Lease Payments. The City shall furnish to the Trustee within 15 days following adoption of the final budget in each Fiscal Year a certificate of an Authorized Representative of the City stating that the Lease Payments were included in the final budget as adopted. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of the City to take such action and do such things as are required by law in the performance of the official duty of such officials to enable the City to carry out and perform the covenants and agreements in this Facility Lease agreed to be carried out and performed by the City. The obligation of the City to pay Lease Payments hereunder shall constitute a current expense of the City and shall not in any way be construed to be a debt of the City, or the State, or any political subdivision thereof, in contravention of any applicable constitutional or statutory limitation or requirements concerning the creation of indebtedness by the City, the State, or any political subdivision thereof, nor shall anything contained herein constitute a pledge of general revenues, funds or moneys of the City or an obligation of the City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or pledged any form of taxation. Section 4.8 Payment to Trustee. In furtherance of the assignment made in accordance with Section 8.1 hereof and in the Indenture, the JEPA hereby directs the City, and the City hereby agrees, so long as the Bonds are Outstanding under the Indenture, to pay to the Trustee at the Trustee’s corporate Trust Office, or to the Trustee at such other place as the Trustee shall direct in writing, all Pre-Completion Lease Payments, all Lease Payments, and any rental interruption insurance proceeds, title insurance proceeds and Net Proceeds payable to the Trustee pursuant to Sections 5.1, 5.2, 5.3 and 6.1 hereof that are received by the City. If the Term continues beyond the date on which Bonds are no longer Outstanding under the Indenture, then the JEPA directs the City, and the City hereby agrees, to pay all Lease Payments and any Net Proceeds and title insurance proceeds received by the City to the JEPA until the end of the Term. Except as otherwise provided pursuant to the terms of this Facility Lease and the Indenture, the JEPA will not assign or pledge the Pre-Completion Lease Payments, the Lease Payments, any Net Proceeds, any rental interruption insurance proceeds or any title insurance proceeds to any other party. Section 4.9 Use and Possession; Further Assurances and Corrective Instruments. The total Lease Payments due in any Fiscal Year shall be for the use and possession of the Facility (or portion thereof, as applicable) for such Fiscal Year. Following the Convention Center Delivery Date, the City shall be entitled to the exclusive use and possession of the Facility (or portion thereof, as applicable) and shall peaceably and quietly have, hold and enjoy all or such portion (as applicable) of the Facility delivered to it, subject only to Permitted Encumbrances and the reservations set forth in Section 2(b) of the Site Lease. The JEPA and the City shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may Page 14 of 79 GAttachment D 11 4815-1599-7809v22/024036-0079 reasonably be required for correcting any inadequate or incorrect description of the Facility hereby leased or intended to be leased or for carrying out the expressed intention of this Facility Lease. Section 4.10 Abatement of Lease Payments. (a) In the Event of Non-Delivery. To the extent that only a portion of the Facility is delivered to the City for use and occupancy on the Convention Center Delivery Date, then the Lease Payments due hereunder shall be abated proportionately, as described below. The amount of such abatement shall be such that the resulting Lease Payments in each Lease Year do not exceed the fair rental value (as determined by an independent real estate appraiser selected by the City, who shall not be an employee of the City) of the portion of the Facility made available to the City for its use and occupancy. Based on the fair rental value determined by the appraiser, the City shall provide the Trustee and the JEPA with a certificate setting forth the amount by which the Maximum Lease Payment will be abated for the current and each subsequent Lease Year until the JEPA delivers the Complete Convention Center to the City for use and occupancy. Such abatement shall continue until the JEPA delivers the Complete Convention Center to the City for use and occupancy. (b) In the Event of Damage, Destruction, Condemnation or Title Defect. (i) Abatement Upon Initial Occurrence of Event. The Lease Payments shall be abated proportionately to the extent set forth in this Section 4.10(b) during any period in which there is substantial interference with the City’s use or possession of all or a portion of the Facility as a result of condemnation, damage, destruction or title defect. If there is substantial interference with the City’s use or possession of all or a portion of the Facility as a result of condemnation, damage, destruction or title defect, then the fair rental value of any portion of the Facility for which no substantial interference has occurred shall be determined by one or more independent appraisers selected by the City, who shall not be employees of the City. If based on such appraisal the fair rental value of the remaining portion of the Facility is less than the Maximum Lease Payment in the current Lease Year, then the Lease Payments shall be abated to an amount equal to such fair rental value as determined by the appraiser unless and until the use and occupancy of the Facility is restored. The amount of such abatement shall be such that the resulting Lease Payments due in any Lease Year do not exceed the fair rental value for the use and possession of the portion of the Facility for which no substantial interference has occurred. Based on the fair rental value determined by the appraiser, the City shall provide the Trustee and the JEPA with a certificate setting forth the amount to which the Lease Payments will be abated for the current and each subsequent Lease Year unless and until the use and occupancy of the Facility is restored. Such abatement shall continue for the period of the substantial interference with the use or possession of the Facility. (ii) End of Abatement Upon Full Restoration of Use and Occupancy. If in accordance with the provisions of Section 6.1(b) the Facility is restored or repaired to substantially the same condition as existed prior to any damage or destruction of the Facility, then upon the replacement or repair of the Facility to substantially the same condition as existed prior to such event of damage or destruction, the Maximum Lease Payment in each Lease Year shall be as set forth in Exhibit C. If in accordance with the provisions of Section 6.1(d)(iii) the Facility is replaced or repaired to substantially the same condition as existed prior to any partial condemnation of the Facility, then upon the replacement or repair of the Facility to substantially the same condition as existed prior to such partial condemnation, the Maximum Lease Payment in each Lease Year shall be as set forth in Exhibit C. The Lease Payments to be made by the City in the Lease Year in which the Page 15 of 79 GAttachment D 12 4815-1599-7809v22/024036-0079 Facility is replaced or repaired shall be prorated for the actual number of days that the Facility is available for use and occupancy by the City. (iii) Determination of Any Abatement if Use and Occupancy not Fully Restored. If the Facility is not replaced or repaired to substantially the same condition as existed prior to any damage or destruction, condemnation or title defect, then a determination shall be made regarding any partial abatement of Lease Payments as set forth in this Section 4.10(b)(iii). The City shall retain one or more independent appraisers selected by the City, who shall not be employees of the City, to determine the fair rental value of the Facility, or portion thereof, available to the City for use and occupancy following such event of damage or destruction, condemnation or title defect and the redemption of all or a portion of the 2021A Bonds pursuant to Section 2.2(d) of the Indenture as a result of such event. If based on such appraisal the fair rental value of the Facility available for use and occupancy by the City is less than the Maximum Lease Payment as set forth in Exhibit C in the current Lease Year, then the Maximum Lease Payment in the current Lease Year shall be abated to an amount equal to such fair rental value as determined by the appraiser and such Maximum Lease Payment shall increase by two percent (2%) in each subsequent Lease Year. The City shall provide the Trustee and the JEPA with a new schedule in the form of Exhibit C hereto setting forth the Maximum Lease Payment for the current and each subsequent Lease Year computed in accordance with the preceding sentence. Without any further action by the JEPA or the City, such schedule shall replace Exhibit C hereto as the Maximum Lease Payment schedule in effect hereunder. Notwithstanding anything to the contrary in this Agreement, for any appraisal done in connection with the provisions of this Section 4.10(b) or Article VI, the City shall provide information to the appraiser indicating the method used and all factors that were considered in determining the initial Maximum Lease Payment in effect on the Commencement Date such that the appraiser will have all relevant information prior to commencing work on an appraisal under this Section 4.10(b) or Article VI. In addition, prior to directing an independent appraiser to commence work on an appraisal under this Section 4.10(b) or Article VI, the City shall notify RIDA that an appraisal will be conducted and will provide to the appraiser any information furnished by RIDA to the City with respect to determining the fair rental value of the Facility as described above. (c) Except as set forth in Sections 4.10(a) and (b) above, the City’s obligation to pay Lease Payments as and to the extent required by this Facility Lease shall not be abated or otherwise reduced as a result of use of the Facility by RIDA, RIDA’s performance under the Sublease or the status of the Sublease. (d) In its sole discretion the City may elect to transfer amounts from the Lease Revenues Fund to the Trustee up to the amount of the Lease Payments abated pursuant to Section 4.10(a) or (b) in any Lease Year, but any decision by the City not to authorize such a transfer shall not be an event of default hereunder and the City shall incur no liability for a decision not to authorize such a transfer. If the City elects to authorize a transfer, an Authorized Officer of the City shall provide a certificate to the Trustee stating the amount that is being transferred pursuant to this Section 4.10(d) and directing the Trustee to deposit such amount to the Revenue Fund. (e) In the event of any interference with use as described in this Section 4.10, except as provided in Sections 6.1(c) and (d)(ii), this Facility Lease shall continue in full force and effect, the City shall remain obligated to make Lease Payments in the amount determined in accordance with Section 4.10 (a) or (b) above, as applicable, and, as and to the extent permitted by law, the City waives the benefits of California Civil Code Section 1932(2) and 1933(4) and Title 11 Page 16 of 79 GAttachment D 13 4815-1599-7809v22/024036-0079 of the United States Code, and all other rights to terminate this Facility Lease by virtue of any such interference. Section 4.11 [Reserved]. Section 4.12 Pre-Completion Lease Payments. In further consideration of the JEPA entering into this Facility Lease and constructing the Convention Center, the City agrees to make “Pre-Completion Lease Payments” on each May 15 and November 15 following the Commencement Date in an amount equal to the Existing Revenues then on deposit in the Lease Revenues Fund as and to the extent that the City Council elects, in its sole discretion, to appropriate the Existing Revenues for such purpose. In the event that the City Council does not appropriate the Existing Revenues for Pre-Completion Lease Payments in any Fiscal Year, then the Pre-Completion Lease Payments shall not be made, the City shall not be in default hereunder as a result of such non-appropriation and the City shall incur no liability for a decision not to authorize such a transfer. The obligation of the City to pay Pre-Completion Lease Payments hereunder shall constitute a contingent obligation and current expense of the City and shall not in any way be construed to be a debt of the City, or the State, or any political subdivision thereof, in contravention of any applicable constitutional or statutory limitation or requirements concerning the creation of indebtedness by the City, the State, or any political subdivision thereof, nor shall anything contained in this Section 4.12 constitute a pledge of general revenues, funds or moneys of the City or an obligation of the City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or pledged any form of taxation. Section 4.13 Net-Net-Net Lease. This Facility Lease is, and shall be deemed and construed to be, a “net-net-net lease” and the City hereby agrees that Pre-Completion Lease Payments and the Lease Payments shall be an absolute net return to the JEPA, free and clear of any expenses, taxes, fees, insurance premiums, rebate payments, reserve deposits, charges, counterclaims, set-offs or other costs associated with the Facility or this Facility Lease, whatsoever. Section 4.14 “As-Is Lease and Waivers.” (a) City’s Acknowledgment. The City acknowledges that prior to entering into this Facility Lease, the JEPA has given the City sufficient opportunity to consider, inspect and review, to the City’s complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; (2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; (3) the risk of climate change and the possible adverse consequences thereof, including, without limitation, rises in sea level and possible damage to and destruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; (6) the financial prospects of the Site and local market conditions; (7) the City’s determination of the feasibility of the City’s intended use and enjoyment of the Site; (8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater, water adjacent to San Diego Bay and sediment adjacent to San Diego Bay; and (9) all other facts, circumstances, and conditions affecting, concerning or relating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; Page 17 of 79 GAttachment D 14 4815-1599-7809v22/024036-0079 the feasibility of the City’s intended use and enjoyment of the Site; and such other facts, circumstances and conditions being collectively referred to herein as the “Condition of the Premises”; and, without limitation on any other provision of this Facility Lease, the City expressly assumes the risk that adverse conditions affecting the Site have not been revealed by the City’s investigations. (b) Only the JEPA’s Express Written Agreements Binding. The City acknowledges and agrees that no Person acting on behalf of the JEPA is authorized to make, and that except as expressly set forth in this Facility Lease, neither the JEPA nor anyone acting for or on behalf of the JEPA has made, any representation, warranty, agreement, statement, guaranty or promise to the City, or to anyone acting for or on behalf of the City, concerning the Condition of the Premises or any other aspect of the Site. The City further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of the JEPA which is not expressly set forth in this Facility Lease will be valid or binding on the JEPA. (c) As-Is Lease. The City further acknowledges and agrees that the City’s execution of this Facility Lease shall constitute the City’s representation, warranty and agreement that the Condition of the Premises has been independently verified by the City to its full satisfaction, and that, except to the extent of the express covenants of the JEPA set forth in this Facility Lease, the City will be leasing the Site based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of the City’s representatives; and that THE CITY IS LEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS” CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE CITY’S EXECUTION OF THIS FACILITY LEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, the City expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect. (d) Waivers, Disclaimers and Indemnity. (i) Waiver and Disclaimer. The City hereby fully and forever waives, and the JEPA hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. (ii) JEPA’s Materials. The City acknowledges that any information and reports, including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which the City has received or may hereafter receive from the Facility Lease Landlord Parties (collectively, the “Landlord’s Materials”) have been furnished without warranty of any kind (other than that the JEPA has delivered true and correct copies of each of the items set forth on Exhibit E attached hereto (“JEPA Documents”)) and on the express condition that the City will make its own independent verification of the accuracy, reliability and completeness of such Landlord’s Materials and that the City will not rely thereon. Accordingly, subject to terms of Section 4.13(d)(iii) below, the City agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, the Facility Lease Landlord Parties or any of the Persons that prepared or furnished any of the Landlord’s Materials as a result of the inaccuracy, unreliability or Page 18 of 79 GAttachment D 15 4815-1599-7809v22/024036-0079 incompleteness of, or any defect or mistake in, any such Landlord’s Materials, and the City hereby fully and forever releases, acquits and discharges the Facility Lease Landlord Parties and each Person furnishing such Landlord’s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown (other than in connection with the JEPA’s breach of its representation and warranty set forth in this Section 4.13(d)(ii) that the JEPA has delivered to the City true and correct copies of each of the JEPA Documents set forth on Exhibit E attached hereto). (iii) Release and Waiver. (A) Release. Except to the extent of Claims (as defined below) (x) in the case of the JEPA against the JEPA arising from any breach by the JEPA of its covenants and obligations expressly provided in this Facility Lease or the JEPA’s representation and warranty set forth in Section 4.13(d)(ii) beyond any applicable cure period, or (y) in the case of the Port any breach by the Port of its covenants and obligations expressly provided in the Site Lease beyond any applicable cure period, the City, on behalf of the City, its successors and assigns, hereby fully and forever releases, acquits and discharges the Facility Lease Landlord Parties of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, “Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that the City or any of the City’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of the JEPA or the Port (or any Person acting for or on behalf of the JEPA or the Port or for whose conduct the JEPA or the Port may be liable), except for Claims arising as a result of the sole negligence of the JEPA or the Port (or any Person acting for or on behalf of the JEPA or the Port or for whose conduct the JEPA or the Port may be liable), as applicable, in connection with prior ownership, maintenance, operation or use of the Facility; (ii) any condition of environmental contamination or pollution at the Facility (including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean-up or abatement order effecting the Facility); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Facility (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Facility or into any soils, subsoils, surface waters or ground waters at the Facility); (iv) the violation of, or noncompliance with, any Environmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Site; (vi) the Condition of the Premises, including, without limitation, the condition of any improvements located on the Site including, without limitation, the structural integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Site (including, without limitation, all existing easements and encroachments, if any); (viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Facility; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Facility by the JEPA or the Port (or any Person acting for or on behalf of the JEPA or the Port or for whose conduct the JEPA or the Port may be liable) or any predecessor(s)-in-interest in the Facility of the JEPA or the Port. Page 19 of 79 GAttachment D 16 4815-1599-7809v22/024036-0079 (B) The City hereby RELEASES the Facility Lease Landlord Parties from, COVENANTS NOT TO SUE the Facility Lease Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of City under this Section 4.14, including any claims for contribution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of City under this Section 4.14. (C) Waiver of Civil Code Section 1542. With respect to all releases made by the City under or pursuant to Section 7.6, Section 10.2 and this Section 4.14, the City hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” City: _____________________ (iv) Limitations. Notwithstanding any other provision in this Section 4.14 to the contrary, City’s waiver, release and covenant not to sue obligations under this Section shall not extend to and shall not prohibit City from asserting a Claim against the Port to the extent of and in response to a claim made by any non-City Party with respect to the physical or legal condition of the Site or the development, operations, alterations or maintenance of the Project by RIDA or Tenant Party or Hotel Operator. Nothing contained in this Facility Lease (except for the limitation set forth in the immediately preceding sentence regarding non-City Party claims only) or in the Sublease, Site Lease, Ground Lease, Project Implementation Agreement, or any other agreement entered into between the City and Port regarding the Project, shall preclude or prohibit the Port from asserting any defense against, or from asserting an affirmative claim against, the City or any non-City Party with respect to the physical or legal condition of the Site or the development, operations, alterations or maintenance of the Project by RIDA or Tenant Party or Hotel Operator. A “City Party” is the City of Chula Vista, its employees, directors, officers, agents, contractors, councilmembers, successors, and assigns. (v) Survival. The terms of this Section 4.14 shall survive the expiration or earlier termination of this Facility Lease. Section 4.15 End of Term. This Facility Lease shall terminate without further notice to any party hereto or any other person or entity at expiration of the Term. ARTICLE V INSURANCE Section 5.1 Sublease Insurance Provisions. The City shall cause RIDA to comply with the obligations of the Sublease with respect to maintaining insurance throughout the Term hereof by enforcing the terms of the Sublease in the manner set forth in Section 2.1(h) hereof. If the City receives any notice of the expiration or intended cancelation of any such insurance or reduction of coverage from RIDA pursuant to Section 4.5 of the Sublease, it shall promptly deliver such notice to the JEPA. Page 20 of 79 GAttachment D 17 4815-1599-7809v22/024036-0079 Section 5.2 Rental Interruption Insurance. The City shall maintain, or cause to be maintained by the JEPA or RIDA as described below, rental interruption insurance with respect to the Facility from and after the Convention Center Delivery Date to the date on which the 2021A Bonds have been paid at maturity or redeemed (including during any period of an abatement pursuant to Section 4.10 hereof), in an amount not less than the Maximum Lease Payments payable in the next twenty-four month period during the Term hereof, to insure against loss of rental income from the Facility caused by perils covered by the all-risk insurance covering the Facility required to be maintained as provided in Section 4.1 of the Sublease (the “Facility Lease Rental Interruption Insurance”). The City may not self-insure with respect to the Facility Lease Rental Interruption Insurance. The Facility Lease Rental Interruption Insurance shall name the City as the insured, the JEPA and the Port as an additional insureds, and the Trustee as loss payee, as their interests appear. The cost of the Facility Lease Rental Interruption Insurance shall be paid out of the Administrative Expense Fund as provided in the Indenture, and any and all proceeds thereof shall be deposited into the Revenue Fund and shall be applied in accordance with Section 4.2 of the Indenture. If the City receives any notice of the expiration or intended cancelation of any such insurance or reduction of coverage from any insurer, it shall promptly deliver such notice to the JEPA and Port. As an alternative to the City obtaining the Facility Lease Rental Interruption Insurance, the City, Port, and the JEPA may determine that is in their mutual best interests to have the JEPA acquire the Facility Lease Rental Interruption Insurance as the named insured, with the City and Port named as an additional insureds and the Trustee as a loss payee. As a further alternative, such insurance may also be provided pursuant to the terms set forth in Section 4.2 of the Sublease. Section 5.3 Title Insurance. The City shall obtain on the Commencement Date, title insurance on the Site, in the form of an ALTA Owner’s/Leasehold Policy with Western Regional Exceptions. The title policy or policies in effect at any time with respect to the Site shall be in an amount at least equal to the Outstanding principal amount of the 2021A Bonds, and be issued by a company of recognized standing duly authorized to issue the same. The title policy or policies shall insure the City’s leasehold estate hereunder, subject only to Permitted Encumbrances. The City shall not maintain title insurance in the form of self-insurance. The title insurance required by this Section 5.3 shall name the City as the insured and the Trustee as loss payee as their interests appear. All proceeds of the title insurance shall be deposited into the Insurance and Condemnation Fund and shall be applied in accordance with Section 4.5 of the Indenture. ARTICLE VI DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF NET PROCEEDS Section 6.1 Application of Net Proceeds. (a) Deposit of Net Proceeds of Insurance in Insurance and Condemnation Fund. Pursuant to Section 4.5 of the Indenture, the JEPA shall direct the Trustee to deposit the Net Proceeds of any insurance paid to the Trustee in accordance with Section 4.4(b) of the Sublease in the Insurance and Condemnation Fund promptly upon receipt thereof. If there is no Trustee or if there is a Trustee but such Trustee declines to act as a trustee for the disbursement of the funds, then the Net Proceeds shall be deposited and disbursed as set forth in Section 5.2(a) of the Sublease and the Project Implementation Agreement. Notwithstanding anything in Section 6.1(a), (b) or (c) to the contrary, prior to making any determination or granting any approval required of the City pursuant to Section 5.2(a) of the Sublease with respect to the use of any Net Proceeds related to the damage or Page 21 of 79 GAttachment D 18 4815-1599-7809v22/024036-0079 destruction of the Facility, the City shall notify the JEPA and obtain the JEPA’s approval of such determination or approval by the City. (b) Disbursement for Replacement or Repair of the Facility. In the event that the JEPA receives the certifications described in paragraph (i) below within six months of the date of any damage or destruction of the Facility (or such later date as is consented to by the JEPA), and the JEPA determines that the certifications are complete in the JEPA’s reasonable discretion, the JEPA will submit a Request of Authority to the Trustee, in accordance with Section 9.2 of the Project Implementation Agreement to transfer such Net Proceeds from the Insurance and Condemnation Fund to the 2021A Account of the Construction Fund to pay for the cost of repairing or replacing the Facility in accordance with the terms of the Project Implementation Agreement and the Sublease. Such costs of repair or replacement shall be paid for first from any amounts previously on deposit or remaining on deposit in the 2021A Account of the Construction Fund and second from Net Proceeds transferred from the Insurance and Condemnation Fund to, and on deposit in, the 2021A Account of the Construction Fund. (i) Certifications. RIDA and the City, as applicable, shall have provided to the JEPA and the Trustee the following certifications: (A) Sufficiency of Net Proceeds. RIDA shall have certified to the City, the JEPA, the Port and the Trustee that based on information available to and reasonably relied upon by RIDA at the time of such certification, RIDA reasonably believes that, as of the date of such certification, the available Net Proceeds, together with any other funds and the stated amount of any Letter of Credit deposited by RIDA with the Trustee for the purpose of replacing or repairing the Facility, are sufficient to replace or repair the Facility to substantially the same condition as existed prior to the event of damage, destruction or taking, or to such other condition as the City, based on and in reliance on the information provided by RIDA, has certified to the JEPA, the Port and the Trustee will have an annual fair rental value in each Lease Year of not less than the Maximum Lease Payment (as adjusted pursuant to Section 4.10(b), if applicable) in each remaining Lease Year; provided, however, as an alternative to the Letter of Credit, RIDA may provide a completion guaranty for the work to be performed in a form acceptable to each of the City, the Port and the JEPA, in their reasonable discretion; and (B) Timely Completion. In the event that damage, destruction, or taking results in an abatement of Lease Payments pursuant to Section 4.10(b) hereof, the City shall have certified to the JEPA and the Trustee that based on and in reliance on the expected completion date provided by RIDA for such replacement or repair, such work is expected to be fully completed within a period not in excess of the period in which rental interruption insurance proceeds as described in Section 5.2 hereof, together with other legally available funds then on deposit with the Trustee in the Revenue Fund (including any amounts on deposit in the 2021A Capitalized Interest Subaccount therein and any amounts paid to the City by RIDA for deposit therein by the Trustee) and amounts that may be drawn on a Letter of Credit delivered to the Trustee by RIDA for such purpose, will be available to pay, in full, all Lease Payments coming due through the expected completion date of the replacement or repair; and (C) Payment and Performance Bonds. RIDA shall have certified to the City, the JEPA, the Port and the Trustee that it has obtained payment and performance bonds with respect to the work to be performed to repair or replace the Facility and shall have provided copies to the City, the JEPA, the Port and the Trustee. Page 22 of 79 GAttachment D 19 4815-1599-7809v22/024036-0079 (ii) Disposition of Excess Funds. Any balance of the Net Proceeds remaining after such replacement or repair has been completed will be distributed in accordance with Section 5.2(a) of the Sublease to RIDA, as reimbursement of Sublease Advance Rent, or to a Permitted Lender as provided therein. (c) Disbursement for Redemption of 2021A Bonds. If (1) the certifications required by Section 6.1(b)(i) hereof are not provided to the City, the JEPA, the Port and the Trustee within six months of the date of any damage or destruction arising with respect to the Facility (or such later date as is consented to by the JEPA), or (2) RIDA has satisfied the conditions set forth in Section 5.2 of the Sublease to terminate the Sublease as a result of damage or destruction, then the Available Casualty Amount, together with amounts paid by RIDA to the Trustee pursuant to Section 5.2(b) of the Sublease, will be applied to redeem 2021A Bonds, in whole, as set forth in Section 2.2(d) of the Indenture. Any balance of Net Proceeds remaining after such redemption of the 2021A Bonds will be distributed in accordance with Section 5.2(c) of the Sublease to RIDA, as reimbursement of Sublease Advance Rent, or to a Permitted Lender as provided therein. In the event that the Sublease has been terminated in accordance with Section 5.2 thereof and the 2021A Bonds have been redeemed in whole, then this Facility Lease shall continue in effect until the later of (1) the date on which all Bonds Outstanding under the Indenture have been paid or defeased, or (2) a date to be determined by the JEPA, the City and the Port, in their reasonable discretion, which may be [______, 2058], on which date the Term of this Facility Lease shall end. (d) Application of Net Proceeds of Condemnation. Any Net Proceeds resulting from any taking by eminent domain or condemnation with respect to the Facility shall be applied in accordance with this Section 6.1(d), Section 5.1 of the Sublease, the Project Implementation Agreement and Section 4.5 of the Indenture. The City and the JEPA shall transfer to the Trustee any Net Proceeds received by the City or JEPA in the event of any taking by eminent domain or condemnation with respect to the Facility, or if there is no Trustee or if there is a Trustee but such Trustee declines to act as a trustee for the disbursement of the funds, then the Net Proceeds shall be deposited and disbursed as set forth in Section 5.1(g) of the Sublease and the Project Implementation Agreement. Such Net Proceeds shall be applied as follows: (i) Temporary Condemnation. All Net Proceeds related to any Temporary Condemnation (as defined in Section 5.1(f) of the Sublease) shall be deposited to the Revenue Fund. (ii) Termination of Sublease; Redemption of 2021A Bonds. If as a result of any taking by eminent domain or condemnation the Sublease is terminated pursuant to Section 5.1(d) thereof, then the Available Condemnation Amount, together with any amounts paid to the Trustee by RIDA in accordance with Section 5.1(d) of the Sublease, shall be applied to redeem 2021A Bonds as set forth in Section 2.2(d) of the Indenture. Any balance of Net Proceeds remaining after the redemption of the 2021A Bonds will be distributed to RIDA as reimbursement of Sublease Advance Rent or to the Port as provided in Section 5.1(g) of the Sublease. If the whole of the Facility shall be taken under the power or threat of eminent domain, then the Term of this Facility Lease shall end on the later of the day determined under Code of Civil Procedure Section 1265.140 or the date on which the 2021A Bonds have been defeased in whole with the Available Condemnation Amount, together with any amounts paid to the Trustee by RIDA in accordance with Section 5.1(d) of the Sublease and any other amounts applied in accordance with the terms of the Indenture to redeem the 2021A Bonds. Page 23 of 79 GAttachment D 20 4815-1599-7809v22/024036-0079 (iii) Partial Permanent Condemnation. If less than the whole of the Facility shall be taken under the power or threat of eminent domain and the remainder is usable for the purposes for which it was used at the time of such taking and the Sublease has not been terminated as a result thereof, then this Facility Lease shall continue in full force and effect as to such remainder, and the parties waive the benefits of any law to the contrary. In such event, provided that the certifications required by Section 6.1(b)(i) have been delivered following such taking, all or a portion of the Net Proceeds shall be applied to replace, or to restore, the Convention Center to substantially the same condition as existed prior to the partial taking, or if such replacement or restoration is not practicable, then to such other condition as the City (based on information provided by RIDA) has certified to the Trustee will have an annual fair rental value in each Lease Year of not less than the Maximum Lease Payment in each future Lease Year after taking into account any reduction in the Maximum Lease Payment as described in Section 4.10(b) hereof. If the certifications required by Section 6.1(b)(i) cannot be made, or if only a portion of such Net Proceeds are to be applied to repair or restore the Facility, any Net Proceeds (together with other amounts required to be transferred to the Redemption Fund in accordance with the Indenture with respect to such redemption) shall be applied to redeem a portion of the 2021A Bonds as set forth in Section 2.2(d) of the Indenture. In such event the Maximum Lease Payment due in each Lease Year shall be determined in accordance with Section 4.10(b) hereof. (iv) JEPA’s Approval Required. Notwithstanding the foregoing provisions of this Section 6.1(d), prior to making any determination or granting any approval required of the City pursuant to Section 5.1(e) or g(i)(A)(1) or (2) of the Sublease with respect to the use of any Net Proceeds related to an eminent domain or condemnation of the Facility or pursuant to Section 5.2 of the Sublease with respect to the use of any Net Proceeds related to the damage or destruction of the Facility, the City shall notify the JEPA and obtain the JEPA’s approval of such determination or approval by the City. ARTICLE VII COVENANTS WITH RESPECT TO THE FACILITY Section 7.1 Use of the Facility; Continuous Operation. The City represents and warrants that it has an immediate need for all of the Facility, which need is not expected to be temporary or to diminish during the Term. The Facility shall only be used by the City or any sublessee of the City for the Permitted Use. The City agrees to cause the Facility to be in continuous operation as and to the extent required by Section 6.1(c) of the Sublease by enforcing such provision of the Sublease in accordance with the requirements of Section 2.1(h) hereof. The City shall not consent to a new or revised Permitted Use or resolve any dispute under the Sublease regarding Permitted Use without the JEPA’s consent. Unless otherwise consented to by the JEPA in writing, the Convention Center shall be operated and managed by the Hotel Operator pursuant to the terms of a Hotel Management Agreement. Section 7.2 Leasehold Interest in the Facility; Actions on Termination. (a) Actions Regarding Leasehold Interests During Term. During the term of the Site Lease, the JEPA shall hold a leasehold interest in the Site pursuant to the Site Lease and shall be the legal owner of the Convention Center and the City shall hold a leasehold interest in the Facility pursuant to this Facility Lease. The JEPA shall take any and all actions, including but not limited to executing and filing any and all documents, reasonably required to maintain and evidence the JEPA’s Page 24 of 79 GAttachment D 21 4815-1599-7809v22/024036-0079 leasehold interest in the Site and its ownership of the Convention Center at all times during the Term. The City shall take any and all actions, including but not limited to executing and filing any and all documents, reasonably required to maintain and evidence the City’s leasehold interest in the Facility at all times during the Term. (b) Peaceable Surrender; Vesting on Termination. The City agrees, upon the termination of this Facility Lease, to quit and peaceably surrender the Facility in the same good order and condition as it was in at the time of the completion of construction of the Convention Center, reasonable wear and tear and any improvements permitted by the Site Lease, the Facility Lease, the Sublease or the Project Implementation Agreement excepted (subject to any demolition obligations with respect to any such improvements under the Sublease), and agrees that on termination of this Facility Lease and the Site Lease all interest therein shall vest in the Port free and clear of any interest of the City hereunder. If the City fails to surrender the Facility at the expiration of this Facility Lease or the earlier termination or cancellation thereof in the condition required under this Facility Lease other than as a result of RIDA failing to surrender the Facility as required by the Sublease, in addition to JEPA’s other remedies, the City shall defend and indemnify the JEPA from all liability and expense resulting from the delay or failure to surrender, including without limitation any succeeding tenant claims based on the City’s failure to surrender or Port’s failure to deliver the Site and loss of profits. (c) Actions on Termination; Release of Encumbrance. Immediately following the end of the Term, the JEPA and the City shall execute, deliver, and cause to be recorded in the Office of the Recorder of San Diego County, all such documents, including but not limited to a quitclaim deed, as are necessary or advisable to fully release, of record, the encumbrance on title to the Facility which is caused by the terms of this Facility Lease and transfer ownership of the Convention Center to the Port; and shall thereafter take such actions and execute such documents as may further be necessary or advisable to fully evidence the termination of this Facility Lease and the release of the JEPA and the City from all of their respective obligations hereunder. The City agrees to cause RIDA to deliver to the City all such documents as are necessary or advisable to fully release, of record, the encumbrance on title to the Facility which is caused by the terms of this Facility Lease and the Sublease, including without limitation any Permitted Encumbrances, transfer ownership of the Convention Center to the Port, including any such documents as are required from RIDA. (d) Holdover. This Facility Lease shall terminate without further notice at expiration of the Term. Any holding over by the City after either expiration or earlier termination of this Facility Lease without the Port’s prior written consent shall be tenancy at-sufferance upon all of the provisions of this Facility Lease, except those pertaining to the Term, [and except that the rent due hereunder shall be 150% of the Rent in effect under the Sublease prior to such expiration or termination.] If the City, with the Port’s consent, remains in possession of the Facility after the expiration or earlier termination of this Facility Lease, such possession shall be deemed a month-to- month tenancy terminable upon thirty (30) days’ notice furnished at any time by either party to the other party. All provisions of this Facility Lease, except those pertaining to the Term, shall apply to the month-to-month tenancy, and the City shall continue to pay all rent required by this Facility Lease. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years. Section 7.3 Quiet Enjoyment. Subject only to the Permitted Encumbrances [and Section 10.15], during the Term, the JEPA shall provide the City with quiet use and enjoyment of the Facility, and the City shall during such Term peaceably and quietly have and hold and enjoy the Page 25 of 79 GAttachment D 22 4815-1599-7809v22/024036-0079 Facility, without suit, trouble or hindrance from the JEPA, or any person or entity claiming under or through the JEPA, except as expressly set forth in this Facility Lease or the Indenture. Section 7.4 No Demolition. During the Term hereof, the City shall not demolish or permit demolition of the Facility except as required in conjunction with the surrender of the Facility by RIDA in accordance with the terms of the Sublease. Section 7.5 Maintenance and Repair; Alterations. (a) Maintenance and Repair. At any time when any Hotel Management Agreement is in effect, the City shall at all times during the Term, comply with the maintenance and repair standards for the Facility set forth in such Hotel Management Agreement. The City shall also maintain, repair, replace and rebuild the Facility as necessary to keep the Convention Center in First- Class Condition (as defined in the Sublease) except for reasonable wear and tear. Without limitation of the foregoing, the City shall perform all maintenance and make all repairs and replacements, ordinary as well as extraordinary, foreseen or unforeseen, structural or otherwise, which may be necessary or required so that at all times the Facility (together will all equipment, trade fixtures, mechanical and utility systems, paving, landscaping, installations and appurtenances) shall be in compliance with the Hotel Management Agreement, and in First-Class Condition. The City acknowledges and agrees that, during the Term, in order to adhere to these maintenance and repair standards, certain repairs and replacements which are accounted for as capital expenditures shall be required and are bargained for by the Port in consideration of the Site Lease, by the JEPA in consideration of the Facility Lease, and that regular capital reinvestment in the Facility should therefore be anticipated by the City and that capital reinvestment for such purposes does not qualify the City for any concessions, subsidies, or other modifications of this Facility Lease during the Term. Further, the City shall provide containers for the collection of trash and garbage outside the Convention Center, which may require the JEPA’s approval, and keep the Facility in a clean, safe, healthy and sanitary condition, free and clear of rubbish, litter, and any fire hazards. The City’s maintenance shall include, without limitation, all preventive maintenance, painting and replacements necessary to maintain and preserve the Facility, and compliance with the BMPs. Except in the event where the City may need to undertake work to protect life, public health and safety, and property, or to maintain public services, which constitutes an “emergency development” as defined by the Port’s Coastal Development Permit Regulations (“CDP Regulations”) and which shall be processed by the Port in accordance with the “Emergency Developments” section of the CDP Regulations, the City shall submit to the JEPA plans and specifications with respect to such repair or replacement, as applicable, and receive the JEPA’s written approval thereof, pursuant to the procedures set forth in this Section 7.5 and Section 6.10, as if and to the extent such repair or replacement, as applicable, were an Alteration; provided, however, that the City shall not be required to do so if the City would not be required to obtain the JEPA’s approval if such repair or replacement, as applicable, were an Alteration. If such approval is administrative, the JEPA shall not unreasonably reject any plans or specifications with respect to any repair or replacement, as applicable, that, if not performed by the City, would result in an Event of Default. Should RIDA submit a request for Alterations to the City, the City shall provide them to the JEPA for review and approval. If such approval is administrative, the JEPA shall not unreasonably withhold consent. If such approval is not administrative, the City and RIDA shall cooperate in good faith with the JEPA to prepare plans or specifications with respect to any repair or replacement. Pursuant to Section 6.6 of the Sublease, if the City or BPC does not approve a request for such Alterations that RIDA has submitted to the City, then, under circumstances specified in Section 6.6 Page 26 of 79 GAttachment D 23 4815-1599-7809v22/024036-0079 of the Sublease, RIDA may challenge such decision of the City or BPC, as applicable, through Judicial Reference, as provided in the Sublease. If RIDA so challenges such decision, then (a) City’s obligation to repair or replace will be suspended during the pendency of any Judicial Reference, and (b) the JEPA shall be bound by any final, non-appealable Superior Court award confirming an award in such Judicial Reference as if the JEPA were a party in such Judicial Reference. By entering into this Facility Lease, the City expressly waives all rights to make repairs at the expense of the JEPA or the Port, as provided in Section 1942 of the California Civil Code, and all rights provided by Section 1941 of the California Civil Code. In the event of conflict between the terms of the Hotel Management Agreement and the terms of this Section 7.5(a) with respect to the City’s obligations hereunder, the terms of this Section 7.5(a) shall control. (b) Condition in Compliance with Laws. The City shall keep the Facility (together with all equipment, trade fixtures, mechanical and utility systems, paving, installations and appurtenances) in full compliance with all Laws and the requirements of any insurer providing insurance for the Facility or any part thereof. (c) Inspection Report. Within sixty (60) days after notice from the JEPA to the City requesting an Inspection Report, which notice shall not be given more than once in any five- (5) year period (unless the JEPA determines that the City may be in default of its obligations under this Section 7.5, in which event such time limitation shall not apply), the City, at the City’s sole expense, shall provide to the JEPA a detailed inspection report listing any known defects, required repairs or deferred maintenance items in the Facility and recommendations for work to be performed to ensure that the condition of the Facility is in full compliance with this Facility Lease, including the standard of condition set forth in this Section 7.5 (the “Inspection Report”). If the JEPA requests an Inspection Report more than once in any Lease Period, then the JEPA shall pay the City for any reasonable costs incurred by the City in connection with such Inspection Report unless such Inspection Report demonstrates that the City is in default of its obligations under this Section 7.5. The Inspection Report shall be (i) prepared by an unrelated third-party inspector licensed in the State of California selected by the City, (ii) certified to the JEPA, to the best knowledge of the Person conducting the inspection, as complete and accurate, and (iii) in a form reasonably acceptable to the JEPA. Without limitation of the City’s obligations or the JEPA’s remedies hereunder, the City shall commence work to comply with the recommendations set forth in such Inspection Report within thirty (30) days of receipt of same and diligently pursue such work to completion within not later than one hundred eighty (180) days of receipt of such Inspection Report. Notwithstanding the requirement in this Section 7.5(c) that the City provide the JEPA with an Inspection Report within sixty (60) days after notice from the JEPA, so long as there is no Event of Default under the Sublease and the Convention Center is operated pursuant to a Hotel Management Agreement under an Acceptable Brand, and such Hotel Management Agreement requires RIDA to maintain and repair the Facility in accordance with such Hotel Management Agreement and requires there to be established a reserve for repair and maintenance of the Facility, including without limitation, the furniture, trade fixtures and equipment, and such repair and maintenance occur in accordance with the requirements of such Hotel Management Agreement, Section 7.5(a) and Section 7.5(b), then the foregoing Inspection Reports shall not be required. Page 27 of 79 GAttachment D 24 4815-1599-7809v22/024036-0079 (d) Waste or Nuisance. The City shall not use, or fail to maintain, the Facility in a manner that constitutes waste or nuisance. (e) Reservations. The City shall take possession of the Facility subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit I attached hereto and incorporated herein by reference (“Approved Agreements”). The City acknowledges that Section 24.2 of the Project Implementation Agreement includes certain rights with respect to granting a license or easement or other access agreement to Rohr for Rohr and its authorized contractors and agents to access the Site for sampling, operation, maintenance, relocation, replacement, removal and closure of groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement (as defined in the Project Implementation Agreement)), and that such rights are reserved herein. (f) Major Alterations. The term “Major Alterations” means all Alterations other than Minor Alterations, the Initial Project Improvements and the Existing Improvements. The City shall comply with all Laws, at its sole cost and expense, including, without limitation, obtaining any permits and approvals required to be obtained for the Major Alterations from any Governmental Authority. The City may not make any Major Alterations without the prior written consent of the JEPA. The JEPA’s consent will not be unreasonably withheld. The foregoing is not intended to limit the City’s discretion when the City is exercising its police or regulatory powers as a Governmental Authority or is considering issuing any discretionary approval. The JEPA may condition its approval of a Major Alteration on compliance with the Laws and the City, or its designee, obtaining insurance coverages in addition to those required under Article 5 if such additional coverage is customarily obtained in connection with work similar in scope to the Major Alteration. All Major Alterations shall be in accordance with plans and specifications, including but not limited to working drawings (collectively, “Alteration Plans”) submitted to and approved by the JEPA in its reasonable discretion in writing prior to the commencement of the Major Alterations. Following approval by the JEPA, any changes in the Alteration Plans shall be subject to the JEPA’s approval, in the JEPA’s sole discretion. If the JEPA approves the Alteration Plans, and if the City elects to proceed with the Major Alterations, then the City shall construct and Complete all of the Major Alterations set forth in the Alteration Plans in one (1) integrated construction project with all due diligence; provided, however, that any Major Alterations may be Completed in phases if such phasing is permitted by the Laws. (g) Minor Alterations. The City may make Minor Alterations without the JEPA’s written consent except to the extent the JEPA’s prior written consent must be obtained to comply with Laws. “Minor Alterations” shall mean Alterations that do not: (i) significantly change the silhouette or appearance of the Convention Center, (ii) result in a use that is not a Permitted Use, (iii) require new subsurface utility installations, (iv) require structural modifications, (v) result in an exterior replacement that results in a substantial change to the exterior appearance of the Improvements, (vi) result in the removal of trees in violation of the CDP, (vii) pave any area greater than twenty-five (25) square feet, (viii) trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, or (ix) violate any Laws or the CDP. (h) Diligent Construction; Continuous Operations. Once construction of any Alteration is commenced, the City shall diligently prosecute construction of the Alterations to Completion. During the course of the construction of the Major Alterations, the City shall continue to use and operate the Site and the Improvements (other than the Existing Improvements) to the Page 28 of 79 GAttachment D 25 4815-1599-7809v22/024036-0079 extent required by Section 7.1. Once an Alteration is Complete, the City shall use and operate the Alteration as part of the Site and the Improvements, as applicable, throughout the Term. (i) Construction Requirements. In constructing any Alterations, the City shall comply with all Construction Requirements and all Laws, including, without limitation, any PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals of the Project and the Development from any Governmental Authority, including any CDP applicable to the Site or the use or development thereof and any conditions of approval or mitigation measures or project changes pursuant to any environmental review under CEQA. (j) Percent for Art. The City acknowledges and agrees that any requests for proposed Alterations during the Term may be conditioned on the payment of additional commissions or purchases of artwork and/or in-lieu contributions based on BPC Policies. (k) JEPA Notice to Repair. If the JEPA determines, or receives notice from the Port, that the Facility is not in the condition required pursuant to the terms of this Facility Lease and the Sublease, the JEPA shall deliver such notice to the City and the City shall deliver written notice to RIDA detailing the items to be corrected and cause RIDA to undertake the necessary maintenance, alteration, repair, replacement and rebuilding work necessary to remedy the issues set forth in the JEPA’s notice to be commenced within ten (10) days after written notice from the City to RIDA and cause RIDA to diligently pursue such work to completion, as and to the extent required pursuant to the terms of the Sublease. (l) Compliance. So long as the Sublease remains in effect, the City’s obligation under this Section 7.5 will be satisfied by the City diligently enforcing the provisions of Sections 6.6 and 6.10 of the Sublease against RIDA. In the event that RIDA fails to comply with the applicable provisions of the Sublease related to maintenance and repair or Alterations of the Facility, then the City shall notify the JEPA and the Port, in writing, within ten (10) days of learning of the RIDA’s failure to comply and enforcement thereof shall be carried out pursuant to the terms of the Sublease. Section 7.6 Hazardous Materials. (a) City’s Use of Hazardous Materials. The City shall not cause or permit any Hazardous Materials Activity in or about the Facility by the City or its agents, or any Tenant Party, during the Term unless expressly approved, at the JEPA’s sole discretion, in writing by the JEPA after submittal by the City of information requested by the JEPA regarding the Hazardous Material. Approval by the JEPA of any Hazardous Materials Activity shall not create or impose any liability or obligation on the JEPA with respect to such Hazardous Material or Hazardous Materials Activity and the City shall assume all liability and obligations related thereto. All Hazardous Materials Activity shall be in strict compliance with all applicable Laws and other requirements in effect during the Term, including, without limitation, Environmental Laws. The City shall comply at all times with all Environmental Laws. Provided that the City is in compliance with Environmental Laws, the City shall not be required to obtain the JEPA’s consent to generate, store or use reasonable and customary quantities of Hazardous Materials for cleaning materials or supplies, construction materials or supplies, food service materials or supplies, paint, auto supplies (including, without limitation, gasoline, oil and other supplies incidental to motorized vehicles) or office materials or supplies reasonably required to be used in the normal course of the Permitted Use. Page 29 of 79 GAttachment D 26 4815-1599-7809v22/024036-0079 (b) Notice of Release or Inquiry. If the City becomes aware of (i) any actual or threatened release that occurs during the Term of any Hazardous Material on, in, under, from, or about the Facility or (ii) any notice, inquiry, investigation, proceeding, or claim by any government agency or other Person regarding the presence that occurs during the Term of any Hazardous Material on, in, under, from or about the Facility (collectively, an “Inquiry”), the City shall give the JEPA and the Port written notice of such release or Inquiry within twenty-four (24) hours after the City learns that there has been a release or Inquiry and shall simultaneously furnish to the JEPA and the Port copies of any notices of inquiry or investigation, claims, notices of violation, reports, warning or other writings received by the City that concern such release or Inquiry. Unless the JEPA or the Port receives separate notice, the City shall provide the JEPA and the Port with advance written notice of any meeting scheduled between any Tenant Party and any federal, state or local government agency (including, but not limited to, the United States Environmental Protection Agency, the Regional Water Quality Control Board, Department of Toxic Substances Control or Air Resources Board) (“government agency”) where a material item of discussion is directly related to the subject matter of this Section 7.6, at least five (5) Business Days prior to such meeting or as soon as reasonably possible if the government agency schedules such meeting with any Tenant Party for less than five (5) Business Days from the date the meeting is proposed. The JEPA and the Port shall be entitled to have their representatives attend and participate in any and all such meetings. If the government agency brings up Hazardous Material on, in, under, from, or about the Facility in any other scheduled meeting, the City shall suggest that a separate meeting should be scheduled so that the JEPA and the Port can participate in such meeting. (c) Port Right to Inspect and Data. If Hazardous Materials Activity has occurred during the Term or is ongoing, the Port or its designated representatives, at the Port’s sole discretion, may, but are not obligated to, enter upon the Facility and make any inspections, non-intrusive tests or measurements that the Port deems necessary or desirable to determine if a release or discharge of Hazardous Materials has occurred. The Port shall furnish to the City a minimum of twenty-four (24) hours’ notice prior to conducting any inspections or tests, unless, in the Port’s reasonable judgment, circumstances require otherwise. If the Port reasonably suspects a possible release of Hazardous Materials or a use of Hazardous Materials in violation of Environmental Law, then the Port shall describe the concern to the City, and may require the City, at the City’s sole expense, to have additional investigation for such Hazardous Materials conducted on, under or about the Facility by an environmental consultant or engineering firm designated by the Port; provided, however, that the City’s obligation to conduct such investigation shall terminate if the City can demonstrate to the Port’s reasonable satisfaction that there was neither any release of Hazardous Materials, nor any use of Hazardous Materials during the Term in violation of Environmental Law. Such tests may include, without limitation, any area outside the Facility that may have been contaminated, including but not limited to surface and groundwater. The City shall provide to the Port, as soon as reasonable after they become available to the City, access to all non-privileged information reports and data obtained, generated or learned as a result of sampling or testing activities on the City, including raw and verified lab data and consultant reports. The City shall be permitted to have representatives present during any sampling or testing on or at the Facility, and may obtain split samples, if requested, copies of the results of on-site testing and visual inspections, and complete access to all samples and tests taken or conducted as a result of any investigations of the Facility. Access to any non-privileged consultant reports issued by or on behalf of the City concerning the Facility shall be provided to the Port as soon as reasonable after such reports are finalized. Any environmental reports issued by or on behalf of the City regarding the Facility or Hazardous Materials Activities related thereto shall first be generated in draft form and furnished to the Port for review and comment, except in the case when any resulting delay in producing a final environmental report would violate any Laws or any Page 30 of 79 GAttachment D 27 4815-1599-7809v22/024036-0079 order of any government agency. Except in the case when any resulting delay in producing a final environmental report would violate any Laws or any order of any government agency, no such report shall be made final until the Port has had reasonable opportunity to review the draft and to identify any factual inaccuracies therein; provided, however, that if Port fails to comment on a draft report within thirty (30) days after the City provides the Port with the final draft report and any information needed by the PORT to complete its review, the City shall provide the Port with notice to deliver any comments to the draft report within fifteen (15) days of the delivery of the notice. If Port does not respond after the second notice, the City may complete and submit the report. Notwithstanding the foregoing, under no circumstance shall any report submitted by the City pursuant to this Section 7.6(c) bind the Port or contain any representation from Port. The Port’s failure to inspect, test or take other actions pursuant to this Section 7.6(c) shall in no way relieve the City of any responsibility for a release of a Hazardous Material. (d) Environmental Cleanup Obligations. If, during the Term, any Hazardous Material has been released by a Tenant Party, or any Pre-Existing Hazardous Material is exacerbated by a Tenant Party and thereby violates any Environmental Laws and/or results in (i) any investigation mandated by any government agency, (ii) any clean-up order by any government agency, (iii) any third-party claim or demand against the JEPA, (iv) any material increase in the JEPA’s liability or (v) any material increase in the cost or amount of investigation, removal or remediation action required (“Material Exacerbation”, and “Materially Exacerbate” and “Materially Exacerbated” shall have correlative meanings to “Material Exacerbation”), then the City shall promptly take all necessary actions, at the City’s sole expense, to investigate, remove or remediate such contamination in compliance with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority (“Environmental Cleanup”). The City shall have no obligation to undertake any Environmental Cleanup with respect to any contamination caused by any Pre-Existing Hazardous Material unless such Environmental Cleanup is required as a result of the City’s Material Exacerbation, and the extent of the City’s obligation to undertake such Environmental Cleanup shall be limited to that required as a result of the Material Exacerbation. The City shall provide notice to the JEPA prior to performing any removal or remedial action. In the event that an Environmental Cleanup conducted or required of the City interferes with the current or future use of the Facility, or other property of the JEPA, the City shall promptly alter or amend the Environmental Cleanup (whether such is completed or not and regardless of the time period elapsed between the cleanup activities and the JEPA’s request to alter the Environmental Cleanup because of the interference), upon notice from the JEPA, as necessary to prevent and/or eliminate such interference. The City shall not propose, and the JEPA is under no obligation to agree to, any covenant of use restriction or other institutional controls as part of any removal or remediation required as a result of this Section 7.6(d). Unless otherwise agreed in writing by the JEPA, an Environmental Cleanup required under this Section 7.6(d) shall avoid and not include the use of additional restrictive covenants or other institutional controls. To the extent the JEPA incurs any costs or expenses in performing the City’s obligation to conduct an Environmental Cleanup which is the City’s obligation under this Facility Lease or under Environmental Law, the City shall reimburse the JEPA for all such costs and expenses in accordance with the Reimbursement Procedure; provided, however, that the City’s obligations to reimburse the JEPA pursuant to this provision shall be limited to the extent City receives reimbursement or payment from RIDA, on behalf of the City, pursuant to Section 6.20 of the Sublease. This provision does not limit the indemnification obligation set forth in Section 2.1(e) hereof. (e) City Compliance. The City’s obligation under this Section 7.6 will be satisfied by the City diligently enforcing the terms of the Sublease related to Hazardous Materials Page 31 of 79 GAttachment D 28 4815-1599-7809v22/024036-0079 against RIDA. In the event that RIDA has failed to comply with the Hazardous Materials provisions of the Sublease, then the City shall notify the JEPA and the Port and the enforcement terms of the Sublease shall govern. Section 7.7 Liens. (a) Encumbrances. The City shall not, directly or indirectly, create, incur, assume, suffer to exist or consent to any mortgage, pledge, liens, charges, encumbrances or claims on or with respect to the Facility, other than Permitted Encumbrances. (b) No Right to Bind the JEPA. The City shall have no power or authority to do any act or thing, or to make any contract or agreement which shall bind the JEPA in any way whatsoever, and the JEPA shall have no responsibility to the City or other Person who performs, causes to perform, engages in or participates in any construction of any work on the Facility at the request of the City or other Persons. The JEPA shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom. Nothing herein shall imply any consent on the part of the JEPA to subject the JEPA’s estate to liability under any mechanics’ lien or other lien. (c) JEPA’s Right to Pay. If the City or RIDA shall be in default in paying any charge for which a lien claim has been filed, and if such lien has not been contested in accordance with the terms of this Facility Lease or the Sublease, then the JEPA may, but shall not be so obliged to, pay said lien claim and any costs incurred in connection therewith, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due and owing from the City to the JEPA, together with interest on the full amount thereof at the Default Rate from the date of the JEPA’s payments until paid; provided, however, the City shall only be required to pay such amounts from monies paid by RIDA to the City. (d) Notice of Liens. Should any claims of lien be filed against the Facility or any action affecting the title to the Facility be commenced of which the City has notice, the City shall give the JEPA written notice thereof within five (5) Business Days of receipt. The City shall provide to the JEPA any notice of a lien given pursuant to Section 6.11 of the Sublease. Section 7.8 Tax Expenses, Property Expenses and Property Tax Expenses. (a) The City shall cause all Tax Expenses, Property Expenses and Property Tax Expenses to be paid; provided, however, subject to the last sentence of this Section 7.8, the City shall only be required to pay such amounts from monies paid to the City by RIDA pursuant to Sections 6.16, 6.18 and 6.19 of the Sublease. The City’s obligation under this Section 7.8 will be satisfied by the City diligently enforcing the terms of Sections 6.16, 6.18 and 6.19 of the Sublease related to Tax Expenses, Property Expenses and Property Tax Expenses against RIDA in accordance with the requirements of Sections 2.1(h) and 10.2 hereof. Notwithstanding anything to the contrary in this Facility Lease, the limitation on the City’s requirement to pay Tax Expenses, Property Expenses and Property Tax Expenses from monies paid to it by RIDA shall not apply to such expenses that the City has agreed to pay pursuant to Sections 6.16, 6.18 and 6.19 of the Sublease without any express right to reimbursement. (b) The City shall pay any taxes which are imposed on the City based on income or profit of the City related to the Facility. Page 32 of 79 GAttachment D 29 4815-1599-7809v22/024036-0079 (c) In the event that RIDA fails to comply with the applicable provisions of the Sublease related to Tax Expenses, Property Expenses and Property Tax Expenses, then the City shall notify the JEPA and the Port, in writing, within ten (10) days of learning of RIDA’s failure to comply and the terms of the Sublease shall govern. Section 7.9 Equal Employment Opportunity/Nondiscrimination and OFAC. (a) Nondiscrimination. The City shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, the City shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between the JEPA and the City. Each subtenant of the City of the Site shall comply with the requirements of this Section 7.9. (b) Compliance with Employment and Labor Requirements. The City shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor-Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices. The City shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize. (c) OFAC Compliance. The City represents and warrants that (i) the City is not now a Person with whom the Port, the JEPA or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or a Person (also, a “Prohibited Person”) with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of the City’s knowledge, none of the funds or other assets of the City constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of the City’s knowledge, no Prohibited Person directly or indirectly Controls (as defined in the Project Implementation Agreement) the City, and (iv) to the best of the City’s knowledge, none of the funds of the City have been derived from any unlawful activity with the result that the investment in the City is prohibited by Laws or that this Facility Lease is in violation of Laws. The City covenants and agrees that at no time during the Term shall the City be a Prohibited Person. The City shall reimburse the JEPA for all reasonable costs, including, without limitation, attorneys’ fees, resulting from the City’s failure to comply with this Section 7.9. If the City receives written notice that the City is a Prohibited Person, then the City shall promptly use the City’s best and reasonable efforts to cease being a Prohibited Person. Notwithstanding any limits set forth in this Section 7.9, any Person who is blocked under the USA Page 33 of 79 GAttachment D 30 4815-1599-7809v22/024036-0079 Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder. Section 7.10 Consent to Naming Rights. The City shall not consent to the sale of any naming rights for the Convention Center under Section 6.21 of the Sublease without the consent of the JEPA. Section 7.11 Prevailing Wage. The City acknowledges and agrees that: (a) Any construction, alteration, demolition, installation or repair work, in each case for the Facility, required or performed under this Facility Lease constitutes “public work” under California Prevailing Wage Law, including Labor Code §§ 1720 through 1861, et seq. (“PWL”), and obligates the City to cause such work to be performed as “public work,” including, but not limited to, the payment of applicable prevailing wages to all Persons subject to the PWL. (b) The City shall cause all Persons performing “public work” for the Facility under this Facility Lease to comply with all applicable provisions of the PWL and other applicable wage Laws. (c) The JEPA hereby notifies the City, and the City hereby acknowledges, that the PWL includes, without limitation, Labor Code § 1771.1(b) that provides that the following requirements described in Labor Code § 1771.1(a) shall be included in all bid invitations and “public work” contracts: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of § 4104 of the Public Contract Code, or engage in the performance of any contract for “public work,” as defined in this chapter, unless it is currently registered and qualified to perform “public work” pursuant to Section 1725.5. It is not a violation of this Section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Sections 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform “public work” pursuant to Section 1725.5 at the time the contract is awarded.” (d) The City acknowledges that its obligations under the PWL with respect to the Facility include, without limitation, ensuring that: (i) pursuant to Labor Code § 1771.1(b), a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor’s current registration to perform “public work” pursuant to § 1725.5; (ii) pursuant to Labor Code § 1771.4(a)(1), the call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”); (iii) pursuant to Labor Code § 1771.4(a)(2), it posts or requires the prime contractor to post job site notices, as prescribed by regulation; and (iv) pursuant to Labor Code § 1773.3(a)(1), it provides notice to the DIR of any “public works” contract subject to the requirements of the PWL, within thirty (30) days of the award, but in no event later than the first day in which a contractor has workers employed upon the public work. Pursuant to Labor Code § 1773.3(a)(2), the notice shall be transmitted electronically in Page 34 of 79 GAttachment D 31 4815-1599-7809v22/024036-0079 a format specified by the DIR and shall include the name and registration number issued by the DIR pursuant to §1725.5 of the contractor, the name and registration number issued by the DIR pursuant to §1725.5 of any subcontractor listed on the successful bid, the bid and contract award dates, the contract amount, the estimated start and completion dates, job site location, and any additional information that the DIR specifies that aids in the administration and enforcement of the PWL. PWC- 100 is the name of the form currently used by the DIR for providing the notice, but the City shall determine and use whatever form the DIR requires. (e) Neither the JEPA nor the Port shall be responsible for the City’s failure to comply with any applicable provisions of the PWL. (f) Notwithstanding anything in this Facility Lease to the contrary, the City shall not be responsible for any Person’s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Public Agency Party other than by the City. Section 7.12 Inspection of Facility and Access to Records. (a) The JEPA shall have the right, but not the obligation, to enter upon and inspect the portions of the Facility where the operation of the Facility and any alteration is ongoing, during normal business hours and upon three (3) Business Days’ prior notice to the City and RIDA (except in the case of an emergency in which case no prior notice shall be required but in each such case the JEPA shall notify RIDA prior to entering the Facility) and the JEPA shall, and shall cause each of its agents and representatives going to the Facility to: (a) comply with all applicable security and safety procedures of RIDA of which RIDA informs the JEPA in writing and with which such agent and representative can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with RIDA’s operation and use of the Facility while at the Facility. Notwithstanding the foregoing, nothing herein shall limit the JEPA’s right to enter the Facility at any time to exercise its police powers. (b) Records. The JEPA shall have the right to examine all records of the City related to the Facility and this Facility Lease including all records required to be maintained under the Sublease and to which the City has the right of access. Section 7.13 JEPA’s Disclaimer of Warranties. THE JEPA MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF THE FACILITY OR ANY PORTION THEREOF. THE CITY ACKNOWLEDGES THAT THE JEPA IS NOT A MANUFACTURER OF THE FACILITY OR OF ANY PORTION THEREOF, AND IS NOT A DEALER THEREIN, AND THAT THE CITY IS LEASING THE FACILITY AS IS. In no event shall the JEPA be liable for incidental, indirect, special or consequential damages, in connection with or arising out of this Facility Lease, the Project Implementation Agreement, the Site Lease, the Loan Agreement or the Indenture for the existence, furnishing, functioning or City’s use and possession of the Facility. Page 35 of 79 GAttachment D 32 4815-1599-7809v22/024036-0079 ARTICLE VIII ASSIGNMENT, SUBLEASING AND AMENDMENT Section 8.1 Assignment by the JEPA. The JEPA will be irrevocably assigning the Assigned Rights to the Trustee as and to the extent set forth in the Indenture and the City hereby consents to such assignment. Except for the foregoing assignment under the Indenture, the JEPA shall not assign this Facility Lease, or its interest in the Assigned Rights without the consent of the City, the Port, the Trustee and RIDA. Section 8.2 Assignment and Subleasing by the City. (a) Assignment. This Facility Lease may not be assigned by the City. (b) Consent to Sublease. The JEPA consents to the subleasing of the Facility by the City to RIDA pursuant to the Sublease. (c) Limitation on Additional Subleasing. Except for the Sublease and any further sublease or assignment permitted by the terms of Article X of the Sublease or Section 8.2(d) below, the City shall not consent to or permit any other sublease of the Facility or any portion thereof without the prior written consent of the Port and the JEPA. The City’s obligation under this Section 8.2 will be satisfied by the City diligently enforcing the provisions of Article X of the Sublease in accordance with the requirements of Section 2.1(h) hereof. In the event that RIDA fails to comply with the provisions of Article X of the Sublease related to subleasing the Facility, then the City shall notify RIDA, the JEPA and the Port, in writing, within ten (10) days of learning of RIDA’s failure to comply. (d) Subleasing Following Termination of Sublease. If the Sublease is terminated and the Term of this Facility Lease is continuing, then the City shall cooperate with the JEPA and the Port to find another sublessee and operator for the Facility as soon as possible and neither the City nor the JEPA shall serve as the operator of the Facility. Section 8.3 Amendments and Modifications. This Facility Lease may be amended or any of its terms modified only in writing, in accordance with Section 5.9 of the Indenture and Section 26.19 of the Project Implementation Agreement and with the written consent of the Trustee, the City, the Port, the JEPA. ARTICLE IX EVENTS OF DEFAULT AND REMEDIES Section 9.1 Events of Default Defined. The following shall be “events of default” under this Facility Lease and the terms “events of default” and “default” shall mean, whenever they are used in this Facility Lease, any one or more of the following events: (a) Payment Default. Failure by the City to apply amounts in the Lease Revenues Fund to (i) pay any Lease Payments required to be paid hereunder on the date such payments are due hereunder, and (ii) pay any Pre-Completion Lease Payments for which the City has adopted an appropriation in accordance with Section 4.12 hereof. . Page 36 of 79 GAttachment D 33 4815-1599-7809v22/024036-0079 (b) Covenant Default. Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed herein or otherwise with respect hereto, other than as referred to in clause (a) of this Section, for a period of 30 days after written notice specifying such failure and requesting that it be remedied has been given to the City by the JEPA, the Trustee or, subject to the provisions of Section 8.2 of the Indenture, the Owners of not less than a majority of the aggregate principal amount of Bonds then Outstanding; provided, however, if the failure stated in the notice can be corrected but not within the 30 days, then no event of default shall have occurred so long as corrective action is promptly instituted by the City within the 30-day period and the default is corrected within 60 days, or such longer period as is consented to by the Trustee with respect to any covenant, condition or agreement relating to the Assigned Rights and by the JEPA with respect to any other covenant, condition or agreement hereunder. (c) Bankruptcy. The occurrence of a Bankruptcy Event. Section 9.2 Remedies on Default. Whenever any event of default referred to in Section 9.1 hereof shall have happened and be continuing, the JEPA may, subject to Section 9.8 hereof, exercise any and all remedies available pursuant to Laws, equity and granted pursuant to this Facility Lease; provided, however, that notwithstanding anything herein or in the Indenture to the contrary, THERE SHALL BE NO RIGHT UNDER ANY CIRCUMSTANCES TO TERMINATE THIS FACILITY LEASE, ACCELERATE THE LEASE PAYMENTS OR OTHERWISE DECLARE ANY LEASE PAYMENTS NOT THEN DUE OR PAST DUE TO BE IMMEDIATELY DUE AND PAYABLE NOR SHALL THE JEPA OR ITS ASSIGNEE HAVE ANY RIGHT TO REENTER THE FACILITY OR RELET THE FACILITY. THE JEPA’S SOLE REMEDIES ARE DESCRIBED IN THIS ARTICLE IX. The treatment of this Facility Lease and the amounts payable hereunder under any reorganization or liquidation plan with respect to the City must be acceptable to the JEPA, the Port, and the Trustee. So long as any event of default exists hereunder, the JEPA and its assignee may exercise any and all remedies available or granted to it pursuant to law or equity, including, but not limited to, specific performance or a writ of mandamus to require the City to perform City’s obligations and comply with the covenants under this Facility Lease. Without limiting the foregoing, the JEPA and its assignee shall also have the right to require the City to enforce the City’s rights and RIDA’s obligations under the Sublease or to directly enforce the City’s rights and RIDA’s obligations under the Sublease on behalf of the City or as applicable, as a third party beneficiary of those rights and obligations as described herein. Under the Sublease: (a) the JEPA will be a third party beneficiary of certain covenants that RIDA has made for the benefit of the City, the JEPA, and the Port (the “JEPA Sublease Third Party Beneficiary Provisions”) and the Port will be a third party beneficiary of certain covenants that RIDA has made for the benefit of the City, the JEPA and the Port (the “Port Sublease Third Party Beneficiary Provisions), (b) the JEPA and/or the Port will be permitted to exercise its respective third party beneficiary rights with respect to any breach of a JEPA Sublease Third Party Beneficiary Provision or a Port Sublease Third Party Beneficiary Provision, as applicable, either in conjunction with the City or on its own behalf subject to the terms and conditions of this Section 9.2 and Section 11.8 of the Sublease. The JEPA or the Port will be permitted to exercise its respective third party beneficiary rights with respect to any breach of a JEPA Sublease Third Party Beneficiary Provision or a Port Sublease Third Party Beneficiary Provision, respectively, only if (a) the JEPA or the Port, as applicable, consults with the City regarding the exercise of their respective third party rights prior to the commencement of any action to enforce such rights and (b) the JEPA or the Port, Page 37 of 79 GAttachment D 34 4815-1599-7809v22/024036-0079 as applicable, delivers written notice to RIDA of the JEPA’s or the Port’s, as applicable, intention to exercise such rights against RIDA (such notice, the “Third Party Beneficiary Notice”), If the JEPA or the Port, as applicable, delivers a Third Party Beneficiary Notice to RIDA with respect to a breach of a Sublease Third Party Beneficiary Provision and the City exercises remedies with respect to such breach of such Sublease Third Party Beneficiary Provision, then the JEPA or the Port, as applicable, must undertake (for the benefit of RIDA and the City) to cooperate and coordinate with the City, and City shall cooperate and coordinate with the JEPA or the Port, as applicable, so that all statements and positions taken by the JEPA, the Port or the City with respect to any dispute related to such breach in communications with RIDA or in any dispute resolution procedure will be joint statements or positions, as applicable, to the maximum extent possible. The Parties recognize that to the extent the interests of the JEPA and the City, or the Port and the City, as applicable, diverge with respect to the enforcement of any remedies for breach as described in this section, it may not be feasible for the Parties to take joint positions or issue joint statements, and the Parties reserve their rights to take differing positions with regard to such enforcement of such remedies. The intention of this process is that to the maximum extent possible in connection with the breach of any covenant under the Sublease, RIDA will negotiate with the City, the JEPA and the Port jointly. The City hereby exempts and agrees to save harmless the JEPA from any costs, loss or damage whatsoever arising or occasioned by any exercise of the rights and remedies of the JEPA under this Section 9.2. The City hereby waives any and all claims for damages caused, or which may be caused, by the JEPA or its assignee exercising its rights and remedies under this Section 9.2 other than damages caused by the negligence of the JEPA, or its assignee. Upon the occurrence of an event of default under this Facility Lease, the Trustee may exercise any remedies available to the JEPA under the Site Lease or in this Facility Lease that have been assigned to the Trustee. Section 9.3 No Remedy Exclusive. No remedy conferred herein upon or reserved to the JEPA and its assignee is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Facility Lease. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle the JEPA and its assignee to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article or by law. Section 9.4 Limitation on Remedies. Notwithstanding anything to the contrary herein or in the Site Lease or the Indenture, the exercise of any remedy herein or therein shall in no event be contrary to the limitations in Section 10.2 or disturb the tenancy or occupancy of the Facility by RIDA pursuant to the Sublease, except to the extent set forth in the Sublease or the Project Implementation Agreement. Section 9.5 No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Facility Lease should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. Section 9.6 Application of the Proceeds Following Default. The JEPA shall direct the Trustee to deposit all amounts received by the City or the JEPA under this Article with respect to a Page 38 of 79 GAttachment D 35 4815-1599-7809v22/024036-0079 default in the payment of Lease Payments in the Revenue Fund for application in accordance with Section 4.2 or 8.3 of the Indenture, as applicable. Any other amounts received by the JEPA with respect to an event of default shall be applied for the reimbursement of costs and expenses incurred by the JEPA and the Trustee in connection with such event of default not previously reimbursed and thereafter shall be applied to cure any covenant default by the City hereunder and any remaining balance shall be retained by the JEPA. Section 9.7 Bankruptcy. (a) Bankruptcy Event. Upon occurrence of a Bankruptcy Event, the JEPA shall have all rights and remedies available pursuant to this Facility Lease. After the commencement of a Bankruptcy case: (i) the City shall perform all post-petition obligations of the City under this Facility Lease; and (ii) if the JEPA is entitled to damages from and after any order for relief pursuant to the terms of this Facility Lease, then all such damages shall be entitled to administrative expense priority pursuant to the Bankruptcy Code. The City acknowledges that this Facility Lease is a lease of nonresidential real property and therefore the City, as the debtor in possession, or the trustee in Bankruptcy shall not seek or request any extension of time to assume or reject this Facility Lease or to perform any obligations of this Facility Lease which arise from or after the order of relief. (b) Assignment/Assumption. Any Person to which this Facility Lease is assigned pursuant to the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Facility Lease on and after the date of such an assignment, and any such assignee shall upon request by the JEPA execute and deliver to the JEPA an instrument confirming such assumption in a form acceptable to the JEPA. If the City desires to assign this Facility Lease under the Bankruptcy Code to any Person who shall have made a bona fide offer, then the City shall give the JEPA written notice of such proposed assignment and assumption (which notice shall set forth the name and address of such Person, all of the terms and conditions of such offer, and the adequate assurance to be provided the JEPA to assure such Person’s future performance under this Facility Lease) prior to the date the JEPA shall make application to the appropriate court for authority and approval to enter into such assignment and assumption. The JEPA shall thereupon have the prior right and option, to be exercised by notice to the City given at any time prior to the effective date of such proposed assignment and assumption, to accept an assignment and assumption of this Facility Lease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions which may be payable out of the consideration to be paid by such Person for the assignment and assumption of this Facility Lease. If the City fails to assume or assume and assign this Facility Lease in accordance with the requirements of the Bankruptcy Code within the period provided by the Bankruptcy Code or allowed by the Bankruptcy Court, then this Facility Lease shall be deemed rejected and the JEPA shall have all rights and remedies available to it pursuant to this Facility Lease. (c) Adequate Assurances. In the event the City or proposed assignee under Section 9.7(b) proposes under the Bankruptcy Code to cure any default under this Facility Lease or to assume or assign this Facility Lease and is obliged to provide adequate assurance to the JEPA that (a) a default shall be cured, (b) the JEPA shall be compensated for its damages arising from any breach of this Facility Lease and (c) future performance of the City’s obligations under this Facility Lease shall occur, then such adequate assurances shall include all of the following, as designated by the JEPA in its sole and absolute discretion: Page 39 of 79 GAttachment D 36 4815-1599-7809v22/024036-0079 (i) Those acts specified in the Bankruptcy Code or other applicable laws as included within the meaning of “adequate assurance”; (ii) A prompt cash payment to compensate the JEPA for any monetary defaults or actual damages arising directly from a breach of this Facility Lease; and (iii) The assumption or assignment of all of the City’s interest and obligations under this Facility Lease. Section 9.8 Trustee and Bond Owners to Exercise Rights. The rights and remedies as are given to the JEPA under this Article IX are being assigned by the JEPA to the Trustee with respect to the Assigned Rights as and to the extent provided in the Indenture, to which assignment the City hereby consents. Such rights and remedies shall be exercised by the Trustee and/or the Bond Owners as provided in Article VIII of the Indenture, subject to Section 9.4 hereof. ARTICLE X MISCELLANEOUS Section 10.1 Notices. All notices, certificates or other communications required hereunder to the JEPA and City shall be in writing and shall be sufficiently given and shall be deemed given when delivered to the parties listed below or mailed by first class mail, postage prepaid, return receipt requested, on the third day after deposit in the U.S. Mail, to the parties listed below: To the JEPA: Bayfront Facilities Financing Authority [insert new address] Chula Vista, California 91910 Attention: Executive Director With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Page 40 of 79 GAttachment D 37 4815-1599-7809v22/024036-0079 RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine To the Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800, Costa Mesa, CA 92626 Attention: Corporate Trust Services Fax No.: (714) 384-4151 Page 41 of 79 GAttachment D 38 4815-1599-7809v22/024036-0079 With a copy to: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With a copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine To the Port: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With a copy to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 RIDA Chula Vista, LLC Page 42 of 79 GAttachment D 39 4815-1599-7809v22/024036-0079 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine To RIDA: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner With copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Page 43 of 79 GAttachment D 40 4815-1599-7809v22/024036-0079 Notices to the Trustee may be given by electronic mail but shall not be deemed delivered until delivered by first class mail, postage prepaid. The JEPA, the City, the Port, RIDA, and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent. Section 10.2 Limitation on Liability. (a) Of City. All liabilities under this Facility Lease on the part of the City shall be solely liabilities of the City, and the JEPA hereby releases each and every director, officer and employee of the City of and from any personal or individual liability under this Facility Lease. No director, officer or employee of the City shall at any time or under any circumstances be individually or personally liable under this Facility Lease to the JEPA or to any other party whomsoever for anything done or omitted to be done by the JEPA hereunder. Notwithstanding anything to the contrary set forth in this Facility Lease: (i) except for liability related to the City’s sole negligence, willful misconduct or breach by the City of its obligations under this Facility Lease, liability for payment and performance of any and all of its obligations hereunder is a limited liability of the City payable in the case of Lease Payments only from Lease Revenues deposited to the Lease Revenues Fund, and as to all other amounts payable only from amounts paid to the City by RIDA under the Sublease or paid to the City as Administrative Expenses under the Indenture, and the City shall have no obligation to appropriate amounts from any other source of funds to pay any amount due hereunder or to perform any covenant herein; (ii) where the City has an obligation herein to cause RIDA to perform under the Sublease, the City’s obligation is limited to (1) diligently enforcing the provisions of the Sublease by demanding timely performance by RIDA, (2) providing simultaneous written notice of any failure by RIDA to perform to the JEPA, the Port and the Trustee; and (3) where the Port or the JEPA is a third party beneficiary of a provision of the Sublease, cooperating with all reasonable requests made by the Port or the JEPA, as applicable, to enforce such provisions. (b) Of JEPA and Port. All liabilities under this Facility Lease on the part of the JEPA shall be solely liabilities of the JEPA as a joint powers authority, and the City hereby releases each and every officer, director, member of the BPC, employee, partner, affiliate, agent, or contractor of the Port and every officer, director, employee of the JEPA of and from any personal or individual liability under this Facility Lease. No officer, director, member of the BPC, employee, partner, affiliate, agent, or contractor of the Port or any member, officer or employee of the JEPA shall at any time or under any circumstances be individually or personally liable under this Facility Lease to the City or to any other party whomsoever for anything done or omitted to be done by the JEPA or the Port hereunder. Section 10.3 Binding Effect. Each of the provisions of this Facility Lease shall extend to and shall, as the case may require, bind or inure to the benefit not only of the City and of the JEPA, but also of their respective heirs, successors or assigns, provided this clause shall not permit any assignment by the City contrary to the provisions of Section 8.2(a) of this Facility Lease. Section 10.4 Entire Agreement. It is understood and acknowledged that there are no oral agreements between the JEPA and the City affecting this Facility Lease and this Facility Lease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the JEPA and the City with respect to the subject matter hereof, except for the Prior Agreements, the Contemporaneous Agreements, and Approved Agreements. Page 44 of 79 GAttachment D 41 4815-1599-7809v22/024036-0079 This Facility Lease contains all of the terms, covenants, conditions, warranties and agreements of the JEPA and the City relating in any manner to the rental, use and occupancy of the Facility and shall be considered to be the only agreement between the JEPA and the City and their representatives and agents, with respect to the subject matter hereof, except for the applicable Prior Agreements, the Contemporaneous Agreements and the applicable Approved Agreements. All negotiations and oral agreements acceptable to the JEPA and the City have been merged into and are included herein. However, the City acknowledges and agrees that other documents may restrict the City’s use of the Facility or impose other obligations not specifically referenced in this Facility Lease, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA. Section 10.5 Waiver. No waiver of any provision of this Facility Lease shall be implied by any failure of a party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently. Any waiver by a party of any provision of this Facility Lease may only be in writing, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt of monies by the JEPA from the City after the termination of this Facility Lease shall in any way alter the length of the Term or of the City’s right of possession hereunder or after the giving of any notice shall reinstate, continue or extend the Term or affect any notice given the City prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Facility, the JEPA may receive and collect any rent due, and the payment of said rent shall not waive or affect said notice, suit or judgment. The JEPA shall have the power and authority to waive any requirement of the City under this Facility Lease and the City shall have no authority to waive any requirement of RIDA under the Sublease without first obtaining the JEPA’s prior written consent to such waiver; provided, however, that the JEPA may elect to obtain approval of its governing board as a condition to exercising its rights under this Section 10.5. Section 10.6 Attorneys’ Fees. Should any suit or action be commenced to enforce, protect, or establish any right or remedy of any of the terms and conditions hereof, including without limitation a summary action commenced by the JEPA under the laws of the state of California relating to the unlawful detention of property, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys’ fees and costs of suit, including, without limitation, any and all costs incurred in enforcing, perfecting and executing such judgment. Section 10.7 Transaction Costs. To the extent the City requests any approval, consent or other action by the JEPA with respect to this Facility Lease, the City shall pay or reimburse the JEPA upon written demand therefor, all of such party’s reasonable attorneys’ fees and other third party costs incurred in connection therewith, together with the JEPA’s then current processing or cost recovery fee for similar transactions consistent with any schedule of such fees then utilized by the JEPA. The JEPA shall provide the City or RIDA, to the extent RIDA is responsible for payment of such fees under the Sublease, with a copy of any such fee schedule following written request therefor from the City or RIDA, as applicable. Such costs and fees shall be payable to the JEPA, whether or not the JEPA grants such approval or consent, or undertakes the action requested by the City or RIDA. The City acknowledges and agrees that the costs and fees payable by the City may include third party costs, including, without limitation, those costs of the JEPA and the Port which may be reimbursable on terms agreed to by the City, the JEPA and the Port. Section 10.8 Drafting Presumption; Review Standard. The parties acknowledge that this Facility Lease has been agreed to by both the parties, that both the JEPA and the City have Page 45 of 79 GAttachment D 42 4815-1599-7809v22/024036-0079 consulted with attorneys with respect to the terms of this Facility Lease and that no presumption shall be created against the drafting party. Any deletion of language from this Facility Lease prior to its execution by the JEPA and the City shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Facility Lease, any approval or consent to be given by the JEPA or its governing board may be given or withheld in the JEPA’s or governing board’s sole and absolute discretion. Section 10.9 Constitutional Rights and Compliance with Laws. Nothing in this Facility Lease is intended to limit any rights that the City has under the Constitution of the United States of America or the California State Constitution with respect to any act, including the enactment of any Laws, by the City or any other Governmental Authority, including, without limitation, any claim for a taking, and this Facility Lease shall be construed as to give effect to such intent. Whenever this Facility Lease requires the City to comply with the requirements of any Laws, then the City will be deemed in compliance with such Laws if each applicable Governmental Authority has provided a written variance from or waiver of compliance therewith. Section 10.10 Dispute Resolution. Except as otherwise provided in this Facility Lease to the contrary, any controversy or claim arising out of or relating to this Facility Lease, or the breach hereof, shall be determined pursuant to non-binding mandatory mediation. The mediator shall be a mediator mutually acceptable to the Parties and shall have at least twenty (20) years of experience drafting and implementing convention center ground leases within the County of San Diego. The Parties shall each pay fifty percent (50%) of the cost of the mediation and each Party shall pay its own costs and expenses, including any attorneys’ fees, related to the mediation. Section 10.11 Brokers. The City and the JEPA each hereby warrant to each other that neither has retained or employed any real estate broker or agent in connection with the negotiation of this Facility Lease. The City shall be solely responsible for the payment of any fee or commission due to any broker and agrees to indemnify and defend and hold the JEPA and the Port harmless from any and all claims, demands, losses, liabilities, lawsuits and costs and expenses (including without limitation reasonable attorneys’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing by the JEPA or the Port. Section 10.12 Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Facility Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Facility Lease shall be affected thereby, and each and every other provision, covenant or condition of this Facility Lease shall be valid and enforceable to the fullest extent permitted by Laws. Section 10.13 Execution in Counterparts. This Facility Lease may be executed in any number of counterparts, each of which shall be an original, but all together shall constitute but one and the same instrument. Section 10.14 Governing Law; Compliance with Laws; Venue. (a) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Page 46 of 79 GAttachment D 43 4815-1599-7809v22/024036-0079 (b) Compliance with Laws. The City shall in all activities on or in connection with the Facility, and in all uses thereof, including without limitation the Permitted Use and any construction of the Convention Center or the making of any Alterations, abide by and comply with, and cause RIDA to abide by and comply with, and enforce the requirement under the Sublease to have RIDA, Tenant Party and the Hotel Operator to comply with, all Laws at RIDA’s sole cost and expense, and the JEPA shall not have any obligations or responsibilities to comply with any Laws as to the Facility or any use thereby by the City, RIDA, Tenant Party or Hotel Operator. In particular and without limitation, the City shall have the sole and exclusive obligation and responsibility to comply with the requirements of the following: (i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control), (ii) the ADA, including but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 22, (iv) any CDP (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the CEQA) or any other California Coastal Commission regulations or local, state or federal requirements now or hereafter affecting the Facility, including the use or development thereof, (v) the Port Master Plan (“PMP”), (vi) any other development permits or approvals accepted by the Port, and (vii) the policies adopted by the BPC. (c) Venue. Venue for any legal proceeding shall be in San Diego County, California. Section 10.15 Landlord Transfer. The City acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, the Port may be required by applicable law to transfer all or any portion of its interest in the Site and in the Site Lease, and the City agrees that in the event of any such transfer and the express assumption of the Port's obligations under the Site Lease and under each of the documents set forth on Exhibit F attached to the Site Lease (a “Landlord Transfer”), the Port shall automatically be released from all liability under the Site Lease for periods on and after the date of such Landlord Transfer, and the City agrees to look solely to such transferee for the performance of the Port's obligations thereunder that arise on or after the date of such Landlord Transfer. The City further acknowledges that each landlord under the Site Lease shall be liable only for those obligations arising during its period of ownership of the Site and shall be released from further obligations after it completes a Landlord Transfer. Section 10.16 Captions. The captions or headings in this Facility Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Facility Lease. Section 10.17 No Merger. If both the JEPA’s and the City’s estate under this or any other lease relating to the Facility or any portion thereof shall at any time by any reason become vested in one owner, this Facility Lease and the estate created hereby shall not be destroyed or terminated by the doctrine of merger, unless (i) the City so elects as evidenced by recording a written declaration so stating, and, unless and until the City so elects, the City shall continue to have and enjoy all of its rights and privileges as to the separate estates, and (ii) RIDA, the Port, the JEPA and the Trustee have provided written consent to such election. Section 10.18 Time of Essence. Time is of the essence with respect to this Facility Lease and each of its provisions. Page 47 of 79 GAttachment D 44 4815-1599-7809v22/024036-0079 Section 10.19 Third-Party Beneficiary. To the extent that this Facility Lease confers upon or gives or grants to the Trustee any right, remedy or claim under or by reason of this Facility Lease, the Trustee is hereby explicitly recognized as being a third-party beneficiary hereunder and may enforce any such right, remedy or claim conferred, given or granted hereunder. The Port is a third party beneficiary of Sections 2.1(h), 4.1, 4.14(d)(ii) and (iii), 6.1(b)(i), 6.1(d)(ii), 7.2(b), 7.2(c), 7.2(d), 7.5(k), 7.5(l), 7.6, 7.8(c), 7.11(e) Article VIII, Section 10.2(b), 10.11 10.15 and 10.21 (the “Port Facility Lease Third Party Beneficiary Provisions”) and hereof. RIDA is a third party beneficiary of Article VI and Sections 4.10, 8.1, 8.3 and 10.20 hereof (the “RIDA Facility Lease Third Party Beneficiary Provisions”). The Parties agree that permitting any third party beneficiary under this Facility Lease to bring its own breach of contract action is consistent with the objectives of this Facility Lease and the reasonable expectations of the City and the JEPA. As such, in order to induce the Port to consent to the execution of the Sublease by the City and this Facility Lease and by the JEPA, and to induce RIDA to enter into the Sublease, (x) the Port shall be a third party beneficiary of this Facility Lease as it relates to any Port Facility Lease Third Party Beneficiary Provision and may enforce any right, remedy or claim conferred given or granted under any Port Facility Lease Third Party Beneficiary Provision, and (y) RIDA shall be a third party beneficiary of this Facility Lease as it relates to any RIDA Facility Lease Third Party Beneficiary Provision and may enforce any right, remedy or claim conferred given or granted under any RIDA Facility Lease Third Party Beneficiary Provision. Section 10.20 Effect of Discharge of all Bonds and Additional Bonds. In the event that all Bonds and Additional Bonds issued under the Indenture shall be deemed to have been paid and discharged in accordance with Section 9.3 of the Indenture (the “Discharge of the Bonds”), then all references herein to the Bonds, Additional Bonds, Owners of the Bonds, Trustee, the Indenture and the Assigned Rights shall be of no force and effect as of the effective date of the Discharge of the Bonds. On the effective date of the Discharge of the Bonds, the Assigned Rights shall revert to the JEPA without any further action on the part of the Trustee, the JEPA, the City or the Port, any amounts that were to have been paid to the Trustee shall be paid to the JEPA, except for any Net Proceeds and amounts payable by RIDA to the Trustee pursuant to Section 6.1 hereof which shall be held pursuant to the terms of the Sublease and distributed in accordance with the provisions of this Facility Lease, the Sublease and the Project Implementation Agreement and, subject to the provisions of this Facility Lease, the Sublease and the Project Implementation Agreement, the Revenue Sharing Agreement, or any other agreement between the Port, the City, the JEPA and RIDA governing the distribution of such amounts, and all rights granted to the Trustee and the Owners of the Bonds hereunder, including, but not limited to, the Assigned Rights, the right to enforce any remedies, to provide consent and to receive notice, shall be of no further force and effect. Section 10.21 Consents. Notwithstanding anything herein to the contrary, in no event shall the JEPA provide consent for any request under this Facility Lease unless such consent has been approved by the Port, in each case, not to be unreasonably withheld, conditioned or delayed unless another standard is specifically provided herein for the JEPA’s consent. Page 48 of 79 GAttachment D S-1 4815-1599-7809v22/024036-0079 IN WITNESS WHEREOF, the authorized representatives of the JEPA and the City have caused this Facility Lease to be executed, as of the date first above written. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: Executive Director APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel, San Diego Unified Port District Co-Counsel, Glen R. Googins, City Attorney, City of Chula Vista CITY OF CHULA VISTA, a charter city By: Its: City Manager ATTEST: City Clerk Page 49 of 79 GAttachment D 4815-1599-7809v22/024036-0079 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed under the foregoing to the City of Chula Vista, a body corporate and politic, is hereby accepted by the undersigned officer or agent on behalf of the City Council of the City, pursuant to authority conferred by resolution of said City Council adopted on _______, 2021, and the grantee consents to recordation thereof by its duly authorized officer. Dated: ______________, [2021] CITY OF CHULA VISTA By: Its: City Manager Page 50 of 79 GAttachment D A-1 4815-1599-7809v22/024036-0079 EXHIBIT A LEGAL DESCRIPTION OF THE SITE Page 51 of 79 GAttachment D 598015.6\22235.0039 A-2 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 52 of 79 GAttachment D B-1 4815-1599-7809v22/024036-0079 EXHIBIT B PLAT MAP OF THE SITE Page 53 of 79 GAttachment D B-2 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 54 of 79 GAttachment D B-3 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 55 of 79 GAttachment D B-4 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 56 of 79 GAttachment D B-5 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 57 of 79 GAttachment D B-6 US-DOCS\121122274.34815-1599-7809v22/024036-0079 Page 58 of 79 GAttachment D C-1 4815-1599-7809v22/024036-0079 EXHIBIT C SCHEDULE OF LEASE PAYMENTS Lease Year(1) Maximum Lease Payment 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 $26,000,000 26,520,000 27,050,400 27,591,408 28,143,236 28,706,101 29,280,223 29,865,827 30,463,144 31,072,407 31,693,855 32,327,732 32,974,287 33,633,772 34,306,448 34,992,577 35,692,428 36,406,277 37,134,402 37,877,090 38,634,632 39,407,325 40,195,471 40,999,381 41,819,368 42,655,756 43,508,871 44,379,048 45,266,629 46,171,962 47,095,401 48,037,309 (1) The first Lease Year commences on the Convention Center Delivery Date and ends on the May 14 thereafter. If such commencement date is other than May 15 of a year, the Maximum Lease Payment for the first Lease Year shall be prorated based on the number of days of use and occupancy by the City in the first Lease Year . Page 59 of 79 GAttachment D D-1 4815-1599-7809v22/024036-0079 EXHIBIT D Attachment E to Agenda File 2021-0248 S ADDENDUM1 “Affiliate” means with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person. “Approved Agreements” has the meaning set forth in Section 7.5(e) of this Facility Lease. “Assigned Rights” has the meaning set forth in the Indenture. “Authority Administrative Expenses” has the meaning set forth in the Indenture. “Authorized Officer of the City” means the City Manager or the Director of Finance of the City or any other Person authorized by the City to perform an act or sign a document on behalf of the City for purposes of this Facility Lease. “Available Condemnation Amount” has the meaning set forth in Section 5.1(d) of the Sublease. “Available Casualty Amount” has the meaning set forth in Section 5.2(b) of the Sublease. “Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended, and any successor statute. “Bankruptcy Event” means the occurrence with respect to the City of any of the following: (a) appointment of a receiver or custodian for any property of such Person, or the institution of a foreclosure or attachment action upon any property of such Person; (b) filing by such Person of a voluntary petition under the provisions of the Bankruptcy Code; or (c) such Person making or consenting to an assignment for the benefit of creditors or a composition of creditors. “Bonds” means the $_________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the “2021A Bonds”), and the $__________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) (the “2021B Bonds”), issued by the JEPA pursuant to the Indenture. “BPC” means the Board of Port Commissioners. “Business Day” means a day (other than a Saturday or Sunday) on which banks in San Diego County, California are open for ordinary banking business. “CEQA” means the California Environmental Quality Act. “CDP” means a Coastal Development Permit issued by the Port. 1 NTD: All definitions to be updated and conformed once leases are in agreed form. Page 60 of 79 GAttachment D D-2 4815-1599-7809v22/024036-0079 “Closing Date” means the date on which the Bonds are issued in accordance with the Indenture. “Commencement Date” means the Closing Date. “Complete” has the meaning set forth in the Project Implementation Agreement. “Convention Center” means all Improvements located on the Site, other than the Existing Improvements. “Convention Center Construction Outside Completion Date” means forty-eight (48) months after the Outside Convention Center Construction Commencement Date, as such date may be extended by one day for each day that a Force Majeure Event delays Completion of the Convention Center. “Convention Center Delivery Date” means the date on which the JEPA delivers the Complete Convention Center to the City, or the date on which the JEPA delivers any portion thereof to the City in a condition which allows for use and occupancy by the City of the portion delivered to it. “Contemporaneous Agreements” means agreements executed on or around the date hereof by the Parties or their Affiliates with respect to the Site, including, but not limited to, the Project Implementation Agreement, the Site Lease, the Ground Lease and the Sublease. “Default Rate” means an annual rate equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release Publication H.15(519), published weekly (or such other comparable index as JEPA and City shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and (ii) the highest rate permitted by applicable Laws. “Environmental Cleanup” has the meaning set forth in Section 7.6(d) hereof. “Environmental Laws” means Laws and other requirements in effect during the Term that regulate Hazardous Materials or otherwise relate to public health and safety or the protection of the environment. “Existing Improvements” means any improvements located on, in, over or under the Site (including utilities, storm drains and park ways) that are in existence as of the Commencement Date, whether constructed by the JEPA, the City, the Port, a prior tenant or another third party. “Existing Revenues” means the MSA Revenue and the Transient Occupancy Tax Revenue attributable to the RV Park Lease deposited to the Lease Revenues Fund prior to the Convention Center Delivery Date. “Facility” has the meaning set forth in the recitals hereto. “Facility Lease” has the meaning set forth in the first paragraph hereof. “Facility Lease Advance Rent Notice” means a notice, delivered pursuant to Section 2.1(i) of this Facility Lease, specifying the amount of Sublease Advance Rent which the City must pay to the JEPA. A form of Facility Lease Advance Rent Notice is attached here to as Exhibit H-1. Page 61 of 79 GAttachment D D-3 4815-1599-7809v22/024036-0079 “Facility Lease Landlord Parties” means the JEPA, the Port, their respective officers, directors, employees, partners, affiliates, agents, contractors, consultants, successors and assigns, the members of the Board of Port Commissioners and the members of the Board of Directors of the JEPA. “Financing District” means the Bayfront Project Special Tax Financing District created pursuant to Chapter 3.61 of the Chula Vista Municipal Code. “First Class Condition” has the meaning set forth in the Sublease. “Fiscal Year” means the fiscal year of the City, as it may be modified from time to time, currently July 1 through June 30. “Force Majeure Event” has the meaning set forth in Section 6.13 of the Sublease. “Governmental Authority” means each and every governmental agency, authority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Site (or any activity this Facility Lease allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable government agencies, governmental authorities, and subdivisions thereof. “Ground Lease” has the meaning set forth in recitals hereto. “Ground Lease Property” has the meaning set forth in recitals hereto. “Hazardous Materials” any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any applicable Law (including, but not limited to, hazardous substances as defined by Cal. Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance. Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws. “Hazardous Materials Activity” generation, bringing, use, storage, emission, release, or disposal of any Hazardous Material, or products or materials which include any hazardous substance as a component. “Hazardous Substances” means any substance, waste, pollutants, or contaminants now or hereafter included in such (or any similar) term under any federal, state or local code, statute, regulation or ordinance now in effect or hereafter enacted or amended. “Hotel” has the meaning set forth in recitals hereto. “Hotel Management Agreement” has the meaning set forth in the Sublease. Page 62 of 79 GAttachment D D-4 4815-1599-7809v22/024036-0079 “Hotel Operator” means RIDA’s counterparty to a Hotel Management Agreement that is in effect in accordance with the Sublease. “Improvements” means the Existing Improvements and those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now or hereafter (including the Convention Center, Alterations, and any other ancillary improvements constructed during the Term) located on, in, over or under the Site. “Indenture” has the meaning set forth in Section 1.1. “Independent Counsel” means an attorney duly admitted to the practice of law before the highest court of the State and who is not an employee or officer of the JEPA or the City. “Insurance and Condemnation Fund” that certain fund established by the Trustee and administered pursuant to the Indenture. “Inquiry” has the meaning set forth in Section 7.6. “Laws” means all of the following to the extent (i) applicable to the Site, the Facility, the Improvements or any activity under this Facility Lease, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, without limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Unified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; any applicable ordinances of the city in which the Site is located, including the building code thereof, and any permits and approvals by any Governmental Authority, the City, and the Port, including, without limitation, any California Coastal Development Permit, applicable to the Site, the Facility or the use or development thereof. “Lease Payment Date” means each May 15 and November 15, commencing on the first May 15 or November 15 following the Convention Center Delivery Date. “Lease Payments” means those payments made by the City to the JEPA as a portion of the annual rental for the use and possession of the Facility as set forth in Section 4.4 (a) hereof. “Lease Revenues Fund” means the fund established pursuant to Section 4.4(c) hereof. “Lease Revenues” the MSA Revenue, Sales and Use Tax Revenue, Tax Increment Revenue, and Transient Occupancy Tax Revenue. “Lease Year” the period beginning on each May 15 and ending on the following May 14. Page 63 of 79 GAttachment D D-5 4815-1599-7809v22/024036-0079 “Letter of Credit” an irrevocable stand-by letter of credit issued by Wells Fargo Bank, N.A. or another bank that has a Moody’s Long Term Letter of Credit rating of “A-” or higher and a Moody’s Long Term Deposit rating of “A-” or higher. The principal sum of the Letter of Credit shall be made payable to Trustee or order. Each Letter of Credit provided during the Term shall be valid for a minimum of twelve (12) months from date of issuance “Loan Agreement” means that certain Loan Agreement dated as of __________, [2021] by and among the Financing District, the JEPA and the Trustee with respect to the Financing District public infrastructure loan being made pursuant to the Indenture on the Closing Date. “Material Exacerbation / Materially Exacerbate/ Materially Exacerbated” has the meaning set forth in Section 7.6(d). “Maximum Lease Payment” means with respect to each Lease Year the amount set forth in Exhibit C hereto in the column entitled “Maximum Lease Payment,” or such lesser amount as is determined by the City for any Lease Year in accordance with the provisions of Section 4.10 or Section 6.1(d) hereof. “MSA Revenue” means an amount equal to $986,625, increasing 3% on July 1 of each years, commencing July 1, 2017, which amount is based on the payment made by the Port to the City in fiscal year 2016 pursuant to that certain Municipal Services Agreement No. 88-2012 between the City and the Port providing for Police, Fire and Emergency Medical Services. “Outside Convention Center Construction Commencement Date” means ten (10) days after the Commencement Date. “Permitted Encumbrances” means as of any particular time: (1) liens for general ad valorem taxes and assessments, if any, (x) not then delinquent, (y) which RIDA may, pursuant to Section 6.19 of the Sublease, permit to remain unpaid or (z) being contested in good faith by appropriate proceedings and otherwise in accordance with this Facility Lease; (2) the Sublease; (3) this Facility Lease; (4) the Site Lease; [(5) any right or claim of any mechanic, laborer, materialman, supplier or vendor filed or perfected in the manner prescribed by law after the Commencement Date which is being contested in accordance with this Facility Lease or the Sublease; (6) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record as of the Commencement Date; (7) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions established following the Commencement Date, to which the Port, the JEPA and RIDA consent, in writing, and which the City certifies will not materially impair the use of the Facility for its intended purpose and will not, in and of itself, result in abatement of Lease Payments under this Facility Lease, or any extensions, renewals or permitted replacement thereof;] and (8) any pledges contained in the Indenture; (12) the Permitted Financing Encumbrances; and (13) encumbrances on the Site of the type permitted by Section 2(d) of the Site Lease. “Permitted Financing Encumbrance” has the meaning set forth in Section 9.2 of the Sublease. “Permitted Use” has the meaning set forth in the Sublease. “Person” means any individual, partnership, firm, joint venture, association, corporation, limited liability company, Government Agency or any other form of business entity. Page 64 of 79 GAttachment D D-6 4815-1599-7809v22/024036-0079 “Phase 1A Infrastructure Improvements” means the public infrastructure set forth in the Project Implementation Agreement to be constructed with proceeds of the 2021B Bonds and the County Funds (as defined in the Project Implementation Agreement). “Port” has the meaning set forth in the first paragraph of this Facility Lease. “Port Act” has the meaning set forth in the Sublease. “Port Support Agreement” means that certain Support Agreement, dated as of __________, [2021], by and between the JEPA and the Port, as it may be amended, amended and restated, supplemented or otherwise modified from time to time. “Prior Agreements” has the meaning set forth in Section 33 of the Site Lease. “Pre-Completion Lease Payments” has the meaning set forth in Section 4.12. “Pre-Existing Hazardous Material” means any Hazardous Material located on or under the Site prior to the Commencement Date, whether known or unknown, and any Hazardous Material located outside the Site (including any premises owned by the Port) prior to the Commencement Date that migrates onto the Site thereafter. “Project” means the Convention Center and the Phase 1A Infrastructure Improvements. “Project Implementation Agreement” has the meaning set forth in recitals hereto. “Property Expenses” means, without limitation, all costs and expenses of any nature incurred or payable, or arising in connection with, the ownership, management, maintenance, construction, repair, replacement, restoration or operation of the Facility, including, without limitation, any amounts paid for: (i) the cost of supplying any utilities, the cost of operating, maintaining, repairing, renovating and managing any utility systems, mechanical systems, communications systems, sanitary and storm drainage systems, and the cost of supplies and equipment and maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, permits and inspections; (iii) intentionally omitted; (iv) the cost of landscaping, supplies, tools, equipment and materials, and all fees, charges and other costs incurred in connection with the management, operation, repair and maintenance of the Facility; (v) payments under any easement, license, permit, operating agreement, declaration, or covenant or instrument pertaining to the Site that exist as of the commencement of the Term or that are created or consented to by the City; and (vi) the cost of any Improvements, capital repairs, capital alterations, or capital equipment, required by Laws, or otherwise required under this Facility Lease. Notwithstanding anything to the contrary in this Facility Lease, Property Expenses shall not include Property Tax Expenses. “Property Tax Expenses” means property taxes and assessments with respect to the Facility including, without limitation, real estate taxes, possessory interest taxes, general and special taxes and assessments, leasehold taxes or taxes based upon the City’s receipt of rent, but excluding all taxes imposed upon net income or gain. “Quarter” means, during the Term, each three (3) calendar month period commencing January 1, April 1, July 1 and October 1, except that the first Quarter shall commence on the Closing Date and shall end on _________. Page 65 of 79 GAttachment D D-7 4815-1599-7809v22/024036-0079 “Related Costs” means any costs, damages (of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. “Reimbursement Procedure” has the meaning set forth in Section 3.5(d) of the Sublease. “Rent” has the meaning set forth in the Sublease. “Revenue Sharing Agreement” means that certain Third Amended and Restated Revenue Sharing Agreement by and between the City and Port, dated ____________, [2021] as it may be amended, amended and restated, supplemented or otherwise modified from time to time. “Revenues” has the meaning set forth in the Indenture. “RIDA” has the meaning set forth in recitals hereto. “RIDA Sublease Payments” means the Base Rent and Additional Rent required to be paid by RIDA in accordance with Sections 3.5 of the Sublease. “Rohr” means Rohr, Inc., a United Technologies Aerospace Systems Company, together with its successors and assigns. “RV Park Lease” means the Lease between the Port and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the Port’s Clerk as Document No. 70407, as amended and may be amended from time to time. “Sales and Use Tax” means that portion of use and sales taxes levied pursuant to the Bradley- Burns Uniform Local Use and Sales Tax Law (California Revenue and Taxation Code Section 7000, et seq.) and allocated to the City pursuant to applicable law which is attributable to the RV Park Lease, the Convention Center and the Hotel, exclusive of any amount so levied and allocated to the City pursuant to voter approval by the electors of the City, which portion is currently one percent (1%) of taxable transactions. “Sales and Use Tax Revenue” means revenues collected from the levy of the Sales and Use Tax.” “Site” has the meaning set forth in recitals hereto. “Site Lease” has the meaning set forth in recitals hereto. “Sublease” has the meaning set forth in recitals hereto. “Sublease Advance Rent” means the Advance Rent as defined in the Sublease to be paid by RIDA in accordance with Section 3.4 of the Sublease. “Sublease Advance Rent Notice” means an Advance Rent Notice (as defined in the Sublease). A form of Sublease Advance Rent Notice is attached hereto as Exhibit H-2. Page 66 of 79 GAttachment D D-8 4815-1599-7809v22/024036-0079 “Tax-Exempt Bonds” means the 2021B Bonds and any Additional Bonds issued under the Indenture the interest on which is excluded from gross income for federal income tax purposes. “Tax Increment Revenue” means that portion of ad valorem property taxes levied by or allocated to the City, and that are actually received by the City and available in the City’s general fund for unrestricted use, calculated by applying the tax rate levied by the City to the increase in assessed value of the Ground Lease Property over the assessed value shown upon the assessment roll last equalized prior to the effective date of this Facility Lease. Tax Increment Revenue shall include that portion of the ad valorem property tax revenue generated by the Ground Lease Property that is annually allocated to the City pursuant to Section 97.70 of the Revenue and Taxation Code. Tax Increment Revenue shall not include any moneys not actually allocated to and received by the City, such as moneys deposited into the Redevelopment Property Tax Trust Fund of the Successor Agency to the Redevelopment Agency of the City of Chula Vista (the “Successor Agency”) that are deposited into the Successor Agency’s Recognized Obligation Retirement Fund pursuant to Part 1.85 of Division 24 of the California Health and Safety Code. “Tax Expenses” means, without limitation, all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordinary or extraordinary (including, without limitation, real estate taxes, possessory interest taxes, use taxes, general and special assessments, leasehold taxes or taxes based upon the City’s receipt of rent, including gross receipts or sales taxes applicable to the City’s receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by the City in connection with the Facility) and any taxes and assessments relating to the business or other activities of the City upon or in connection with the Facility. Tax Expenses also shall include, without limitation: (i) Any tax on the JEPA’s receipt of Rent, right to Rent or other revenue from the Facility other than any tax payable based on income or profit of the JEPA; (ii) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, possessory interest tax or use tax or other Tax Expenses, and any assessments, taxes, fees, levies and charges that may be imposed by a Governmental Authority for services such as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of the City and the JEPA that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses for purposes of this Facility Lease; and (iii) Any assessment, tax, fee, levy, or charge, which is levied or assessed based upon the area of the Facility or the rent payable hereunder, including, without limitation, any gross receipts tax upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by the City of the Facility, or any portion thereof. Notwithstanding anything to the contrary in this Facility Lease, Tax Expenses shall not include any taxes payable based on income or profit of the JEPA, Port or City, and their respective Page 67 of 79 GAttachment D D-9 4815-1599-7809v22/024036-0079 officers, directors, members of their respective governing boards, employees, partners, affiliates, agents, contractors, successors and assigns of the JEPA, Port or City, as applicable, in each case, when acting only in the capacity of a Public Entity Party, whether based upon the taxable income generated by the JEPA, Port or City or otherwise. “Tenant Party” means RIDA, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors and assigns of RIDA, and Subtenants, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Subtenants, in each case, when acting only in the capacity of a Tenant Party. “Term” means the term of this Facility Lease as established by Section 4.2 hereof. “Transient Occupancy Taxes” means the transient occupancy taxes levied pursuant to Chula Vista Municipal Code Chapter 3.40, attributable to the Convention Center, the Hotel and the RV Park Lease. “Transient Occupancy Tax Revenue” means those revenues collected and actually received by the City through the imposition of the Transient Occupancy Taxes. Page 68 of 79 GAttachment D E-1 4815-1599-7809v22/024036-0079 EXHIBIT E JEPA DOCUMENTS [Insert list of documents that were provided by the Office of the Port District Clerk to Chicago Title Company that are part of the Approved Title Exceptions (as defined in the DDA).] Page 69 of 79 GAttachment D F-1 4815-1599-7809v22/024036-0079 EXHIBIT F FORM OF SUBLEASE Page 70 of 79 GAttachment D G-1 4815-1599-7809v22/024036-0079 EXHIBIT G SCHEDULE OF MSA PAYMENTS Annual Escalator 3% Fiscal Year Amount 2018 $1,046,710 2019 1,078,112 2020 1,110,455 2021 1,143,769 2022 1,178,082 2023 1,213,424 2024 1,249,827 2025 1,287,322 2026 1,325,941 2027 1,365,720 2028 1,406,691 2029 1,448,892 2030 1,492,359 2031 1,537,130 2032 1,583,243 2033 1,630,741 2034 1,679,663 2035 1,730,053 2036 1,781,954 2037 1,835,413 2038 1,890,476 2039 1,947,190 2040 2,005,605 2041 2,065,774 2042 2,127,747 2043 2,191,579 2044 2,257,327 2045 2,325,046 2046 2,394,798 2047 2,466,642 2048 2,540,641 2049 2,616,860 2050 2,695,366 2051 2,776,227 2052 2,859,514 2053 2,945,299 2054 3,033,658 2055 3,124,668 2056 3,218,408 2057 3,314,960 2058 3,414,409 Page 71 of 79 GAttachment D H-1-1 4815-1599-7809v22/024036-0079 EXHIBIT H-1 FORM OF FACILITY LEASE ADVANCE RENT NOTICE Chula Vista Bayfront Facilities Financing Authority 276 Fourth Avenue Chula Vista, California 91910 [insert date] City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager and Finance Director Re: Facility Lease Advance Rent Notice We refer to that certain Facility Lease (Chula Vista Bayfront Convention Center), dated as of ____________, [2021] (as amended, restated, supplemented or otherwise modified from time to time, the “Facility Lease”), by and among the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (the “JEPA” or “we”) established and existing pursuant to the JEPA Agreement (as defined in the Facility Lease) and the City of Chula Vista, a California charter city (the “City” or “you”). Capitalized terms used but not defined herein shall have the meanings set forth in the Facility Lease. This letter constitutes a Facility Lease Advance Rent Notice under the Facility Lease. The amount of RIDA Advance Rent to be paid pursuant to this Facility Lease Advance Rent Notice is $[  ] (the “Advance Rent Amount”). Pursuant to Section 2.1(i), you shall submit a Sublease Advance Rent Notice to RIDA for the Advance Rent Amount. [Signature Page Follows] Page 72 of 79 GAttachment D H-1-2 4815-1599-7809v22/024036-0079 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: Copies to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner and Luke Charlton Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attention: Executive Director and Director, Real Estate Department, Port Attorney Page 73 of 79 GAttachment D H-2-1 4815-1599-7809v22/024036-0079 EXHIBIT H-2 FORM OF SUBLEASE ADVANCE RENT NOTICE City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 [insert date] RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner and Luke Charlton Re: Sublease Advance Rent Notice We refer to that certain Sublease Agreement (Chula Vista Bayfront Convention Center), dated as of ____________, [2021] (as amended, restated, supplemented or otherwise modified from time to time, the “Sublease”), by and among the City of Chula Vista, a California charter city (the “City” or “we”), and RIDA Chula Vista, LLC, a Delaware limited liability company (“RIDA” or “you”). Capitalized terms used but not defined herein shall have the meanings set forth in the Sublease. This letter constitutes a Sublease Advance Rent Notice under the Sublease and a Sublease Advance Rent Notice under and as defined in the Facility Lease. The amount of Sublease Advance Rent to be paid pursuant to this Sublease Advance Rent Notice is $[  ]. [Signature Page Follows] Page 74 of 79 GAttachment D H-2-2 4815-1599-7809v22/024036-0079 CITY OF CHULA VISTA, as Sublessor By: Its: City Manager Copies to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner and Luke Charlton Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Attention: Executive Director and Director, Real Estate Department, Port Attorney Page 75 of 79 GAttachment D I-1 4815-1599-7809v22/024036-0079 EXHIBIT I APPROVED AGREEMENTS 1. CVBMP Documents 2. Approved Title Exceptions 3. Plans [Insert all other documents, including financings documents, that are approved prior to the Closing Date.] (to be revised / completed prior to execution.) Page 76 of 79 GAttachment D J-1 4815-1599-7809v22/024036-0079 EXHIBIT J MEMORANDUM OF LEASE RECORDING REQUESTED BY: ___________________________ ___________________________ ___________________________ (Above Space for Recorder’s Use Only) MEMORANDUM OF LEASE This Memorandum of Lease, hereinafter “Memorandum,” is dated ____________, 20__, between CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority (“Landlord”) and the CITY OF CHULA VISTA, a California charter city (“Tenant”) concerning that certain real property described in Exhibit “A” and depicted in Exhibit “B”, attached hereto and by this reference made a part hereof (together with all improvements located and to be located thereon, the “Leased Premises”). For good and adequate consideration, Landlord leases the Leased Premises to Tenant, and Tenant hires them from Landlord, for the term and on the provisions contained in that certain Facility Lease of even date herewith by and between Landlord and Tenant (the “Facility Lease”), including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Landlord in each instance, all as more specifically set forth in said Facility Lease, and, subject to the terms of Section 4.1 of the Facility Lease, Landlord conveys to Tenant and Tenant accepts from Landlord, all of Landlord’s right, title and interest in and to the Existing Improvements, which said Facility Lease is incorporated in this Memorandum by this reference. The term of the Facility Lease is [up to] sixty-six (66) years, beginning __________, 20__, and ending __________, 20__ as set forth in Sections 4.2 and 4.3 of the Facility Lease. This Memorandum is not a complete summary of the Facility Lease. Provisions in this Memorandum shall not be used in interpreting the Facility Lease provisions. In the event of conflict between the terms of this Memorandum and terms of the Facility Lease, the terms of the Facility Lease shall control. Page 77 of 79 GAttachment D J-2 4815-1599-7809v22/024036-0079 IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease as of the date first set forth above. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista CITY OF CHULA VISTA, a charter city By: Its: City Manager ATTEST: City Clerk Page 78 of 79 GAttachment D 4815-1599-7809v22/024036-0079 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF ____________ ) On _____________________________, before me, _______________________________ , Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual Corporate Officer ___________________________________________________________ Title(s) ___________________________________________________________ Title Or Type Of Document Partner(s) Limited General Attorney-In-Fact Trustee(s) Guardian/Conservator Other: _____________________________________ Signer is representing: Name Of Person(s) Or Entity(ies) ___________________________________________________________ ___________________________________________________________ ___________________________________________________________ Number Of Pages ___________________________________________________________ Date Of Documents ___________________________________________________________ Signer(s) Other Than Named Above Page 79 of 79 GAttachment D 1 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) BOND PURCHASE AGREEMENT [], 2021 Chula Vista Bayfront Facilities Financing Authority [Separate Authority Address to be provided pursuant to request from Developer] City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 San Diego Unified Port District P.O. Box 120488 San Diego, California 92112-0488 Bayfront Project Special Tax Financing District 276 Fourth Avenue Chula Vista, California 91910 Ladies and Gentlemen: J.P. Morgan Securities LLC (the "Underwriter") offers to enter into this Bond Purchase Agreement (this "Purchase Contract") with the Chula Vista Bayfront Facilities Financing Authority (the "Authority"), the City of Chula Vista (the "City"), the San Diego Unified Port District (the "Port District") and the Bayfront Project Special Tax Financing District ("Financing District"). This offer is made subject to the Authority’s, the City’s, the Port District's and the Financing District's acceptance by execution of this Purchase Contract and delivery of the same to the Underwriter on or before 11:59 P.M. Pacific Time on the date hereof, and, if not so accepted, will be subject to withdrawal by the Underwriter upon notice delivered to the Authority, the City, the Port District and the Financing District at any time prior to such acceptance. Upon the Authority’s, the City’s, the Port District's and the Financing District's acceptance hereof, the Purchase Contract will be binding upon the Authority, the City, the Port District, the Financing District and the Underwriter. The Authority, the City, the Port District and the Financing District acknowledge and agree that: (i) the primary role of the Underwriter, as an underwriter, is to purchase securities, for resale to investors, in an arm’s length commercial transaction among the Authority, the City, the Port District, the Financing District and the Underwriter and the Underwriter has financial and other interests that differ from those of the Authority, the City, the Port District and the Financing District; (ii) the Underwriter is acting solely as a principal and is not acting as a municipal advisor (within the meaning of Section 15B of the Securities Exchange Act of 1934, as amended (the "Exchange Act")), financial advisor, agent or fiduciary to the Authority, the City, the Port District or the Financing District, and has Page 1 of 66 DAttachment E 2 not assumed any advisory or fiduciary responsibility to the Authority, the City, the Port District, and the Financing District or any of their respective affiliates with respect to this Purchase Contract, or the offering of the Bonds, and the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto (irrespective of whether the Underwriter, or any affiliate of the Underwriter, has provided other services or is currently providing other services to the Authority, the City, the Port District or the Financing District on other matters); (iii) the only obligations the Underwriter has to the Authority, the City, the Port District and the Financing District with respect to the transactions contemplated hereby are as expressly set forth in this Purchase Contract; and (iv) the Authority, the City, the Port District and the Financing District each has consulted its own municipal, legal, accounting, tax, financial and other advisors, as applicable, to the extent each has deemed appropriate. The City and the Financing District acknowledge and represent that they have engaged Harrell & Company Advisors, LLC as their municipal advisor. The Port District acknowledges and represents that it has engaged Public Finance Energy Advisors, LLC, as its municipal advisor. Capitalized terms used in this Purchase Contract and not otherwise defined herein will have the respective meanings set forth for such terms in the Indenture of Trust, dated as of [], 2021 (the "Indenture"), between the Authority and Wilmington Trust, National Association, as trustee (the "Trustee"). Section 1. Purchase and Sale. Upon the terms and conditions and upon the basis of the representations set forth in this Purchase Contract, the Underwriter agrees to purchase from the Authority, and the Authority agrees to sell and deliver to the Underwriter, all (but not less than all) of the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center), Series 2021A (Federally Taxable) (the "2021A Bonds") at a purchase price of $[] (being an amount equal to the principal amount of the 2021A Bonds ($[]), [plus an original issue premium/less an original issue discount] of $[], and less an underwriter’s discount of $[]). The obligations of the Underwriter to purchase, accept delivery of and pay for the 2021A Bonds will be conditioned on the sale and delivery of all of the 2021A Bonds by the Authority to the Underwriter at Closing (hereafter defined). Upon the terms and conditions and upon the basis of the representations set forth in this Purchase Contract, the Underwriter agrees to purchase from the Authority, and the Authority agrees to sell and deliver to the Underwriter, all (but not less than all) of the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements), Series 2021B (Tax-Exempt) (the "2021B Bonds") at a purchase price of $[] (being an amount equal to the principal amount of the 2021B Bonds ($[]), [plus an original issue premium/less an original issue discount] of $[], and less an underwriter’s discount of $[]). The obligations of the Underwriter to purchase, accept delivery of and pay for the 2021B Bonds will be conditioned on the sale and delivery of all of the 2021B Bonds by the Authority to the Underwriter at Closing (hereafter defined). Section 2. Bond Terms; Authorizing Instruments; Purpose. (a) The 2021A Bonds and the 2021B Bonds (each a "Series of Bonds," and, collectively, the "Bonds") will be dated their date of delivery and will mature and bear interest as shown on Exhibit A. The Bonds will be as described in, and will be issued and secured under and pursuant to the Indenture. The Bonds are payable and subject to redemption as shown in Exhibit A. (b) The Bonds will be issued pursuant to Article 4 of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California, and are payable from and secured by, a pledge of Revenues (as such term is defined in the Indenture). Page 2 of 66 DAttachment E 3 (c) The Authority is issuing the Bonds to (i) provide funds to assist in the financing of the Convention Center and the Phase 1A Infrastructure Improvements, and (ii) pay the costs of issuing the Bonds. Section 3. Reserved. Section 4. Official Statement; Continuing Disclosure. (a) The Authority, the City, the Port District and the Financing District (each a "Party to this Purchase Contract") have delivered to the Underwriter the Preliminary Official Statement dated [], 2021 (the "Preliminary Official Statement") and shall deliver or cause to be delivered to the Underwriter a final official statement dated the date of this Purchase Contract relating to the Bonds (as amended and supplemented from time to time pursuant to Sections 5(i), 6(k), 7(k) and 8(k) of this Purchase Contract, the "Official Statement"). Subsequent to its receipt of the Authority’s, the City’s, the Port District's and the Financing District's 15c2-12 Certificates, in substantially the forms attached hereto as Exhibit B-1, Exhibit B-2, Exhibit B-3, and Exhibit B-4, deeming the Preliminary Official Statement final for purposes of Rule 15c2-12 of the Securities and Exchange Commission ("Rule 15c2-12"), the Underwriter has distributed copies of the Preliminary Official Statement. The Authority, the City, the Port District and the Financing District hereby ratify the use by the Underwriter of the Preliminary Official Statement and authorize the Underwriter to use and distribute in printed and/or electronic format the Official Statement (including all information previously permitted to have been omitted by Rule 15c2-12), and any supplements and amendments thereto as have been approved by the Authority, the City, the Port District, the Underwriter and Stradling Yocca Carlson & Rauth, a Professional Corporation ("Bond Counsel"). (b) The Underwriter hereby agrees to file a copy of the Official Statement, including any amendments or supplements thereto prepared by the Authority, the City, the Port District and the Financing District, with the Municipal Securities Rulemaking Board (the "MSRB") on its Electronic Municipal Marketplace Access ("EMMA") system within one (1) Business Day of receipt of the Official Statement from the Authority, and otherwise to comply with all applicable statutes and regulations in connection with the offering and sale of the Bonds, including, without limitation, MSRB Rule G-32 and Rule 15c2-12. The Authority, the City, the Port District and the Financing District agree to deliver to the Underwriter as many copies of the Official Statement as the Underwriter will reasonably request as necessary to comply with paragraph (b)(4) of Rule 15c2-12, and to meet potential customer requests for copies of the Official Statement. The Authority, the City, the Port District and the Financing District agree to deliver the Official Statement within seven (7) business days after the execution hereof, or such earlier date identified by the Underwriter to be necessary to allow the Underwriter to meet its obligations under Rule 15c2-12 and Rule G-32 of the MSRB. The Authority, the City, the Port District and the Financing District shall prepare the Official Statement, including any amendments or supplements thereto, in word-searchable PDF format as described in the MSRB's Rule G-32 and shall provide the electronic copy of the word-searchable PDF format of the Official Statement to the Underwriter no later than one (1) business day prior to Closing to enable the Underwriter to comply with MSRB Rule G-32. The Official Statement shall be in substantially the same form as the Preliminary Official Statement and, other than information previously permitted to have been omitted by Rule 15c2-12, the Authority, the City, the Port District and the Financing District shall only make other additions, deletions and revisions in the Official Statement if advised by Disclosure Counsel that such additions, deletions or revisions are required to comply with applicable securities laws and following consultation with the Underwriter. (c) In connection with issuance of the Bonds, and in order to assist the Underwriter with complying with the provisions of Rule 15c2-12, the Authority will execute a continuing disclosure certificate (the "Authority Continuing Disclosure Certificate") designating [] as dissemination agent thereunder (the "Dissemination Agent"), under which the Authority will undertake to provide, among other things, certain [financial information, construction and operating data, and notices of the Page 3 of 66 DAttachment E 4 occurrence of the specified events]1 , in each case, as required by Rule 15c2-12. The form of the Authority Continuing Disclosure Certificate is attached as an appendix to the Preliminary Official Statement and will be attached as an appendix to the Official Statement. [Note: Information, data and notices to be updated to be identified during drafting of Preliminary Official Statement.] (d) In connection with issuance of the Bonds, and in order to assist the Underwriter with complying with the provisions of Rule 15c2-12, the City will execute a continuing disclosure certificate (the "City Continuing Disclosure Certificate") designating the Dissemination Agent as dissemination agent thereunder, under which the City will undertake to provide, among other things, certain [financial information, construction and operating data, and notices of the occurrence of the specified events]2 , in each case, as required by Rule 15c2-12. The form of the City Continuing Disclosure Certificate is attached as an appendix to the Preliminary Official Statement and will be attached as an appendix to the Official Statement. [Note: Information, data and notices to be updated to be identified during drafting of Preliminary Official Statement.] (e) In connection with issuance of the Bonds, and in order to assist the Underwriter with complying with the provisions of Rule 15c2-12, the Port District will execute a continuing disclosure certificate (the "Port District Continuing Disclosure Certificate") designating the Dissemination Agent as dissemination agent thereunder, under which the Port District will undertake to provide, among other things, certain [financial information, construction and operating data, and notices of the occurrence of the specified events]3, in each case, as required by Rule 15c2-12. The form of the Port District Continuing Disclosure Certificate is attached as an appendix to the Preliminary Official Statement and will be attached as an appendix to the Official Statement. [Note: Information, data and notices to be updated to be identified during drafting of Preliminary Official Statement.] (f) [In connection with issuance of the Bonds, and in order to assist the Underwriter with complying with the provisions of Rule 15c2-12, the Financing District will execute a continuing disclosure certificate (the "Financing District Continuing Disclosure Certificate ") designating the Dissemination Agent as dissemination agent thereunder, under which the Financing District will undertake to provide, among other things, certain [financial information, construction and operating data, and notices of the occurrence of the specified events]4, in each case, as required by Rule 15c2- 12. The form of the Financing District Continuing Disclosure Certificate is attached as an appendix to the Preliminary Official Statement and will be attached as an appendix to the Official Statement.]5 [Note: Need to determine if the Continuing Disclosure Certificate of the City and the Financing District will be separate or combined. Information, data and notices to be updated to be identified during drafting of Preliminary Official Statement.] 1 NTD: To be confirmed. 2 NTD: To be confirmed. 3 NTD: To be confirmed. 4 NTD: To be confirmed. 5 NTD: To be confirmed whether this will be separate or combined with the City's CDC. Page 4 of 66 DAttachment E 5 (g) In connection with issuance of the Bonds, and in order to assist the Underwriter with complying with the provisions of Rule 15c2-12, RIDA Chula Vista, LLC (the "Developer") will execute a continuing disclosure certificate (the "Developer Continuing Disclosure Certificate") designating the Dissemination Agent as dissemination agent thereunder, under which the Developer will undertake to provide, among other things, certain [financial information, construction and operating data, and notices of the occurrence of the specified events]6, in each case, as required by Rule 15c2-12. The form of the Developer Continuing Disclosure Certificate is attached as an appendix to the Preliminary Official Statement and will be attached as an appendix to the Official Statement.7 [Note: Information, data and notices to be updated to be identified during drafting of Preliminary Official Statement.] Section 5. Representations, Warranties and Covenants of the Authority. The Authority hereby represents, warrants and agrees with the Underwriter that: (a) The Authority is a joint exercise of powers authority duly organized and existing under the laws of the State of California (the "State") and has all necessary power and authority to adopt the Authority Resolution (defined below), to enter into and perform its duties under the Indenture, the Site Lease, the Facility Lease, the Loan Agreement, the Support Agreement, the Project Implementation Agreement, the Authority Continuing Disclosure Certificate and this Purchase Contract (the "Authority Agreements"). (b) After the City Council of the City (the "City Council") conducted a public hearing, the board of directors (the "Board") of the Authority has taken official action by resolution adopted on [], 2021 (the "Authority Resolution") adopted by the Board at a regular meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance of the Authority Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on the part of the Authority to carry out, give effect to and consummate the transactions contemplated hereby. (c) By all necessary official action, the Authority has duly authorized the preparation and delivery of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the Bonds and the Authority Agreements, and the consummation by it of all other transactions contemplated to be performed by the Authority pursuant to the Authority Resolution, the Authority Agreements, the Preliminary Official Statement and the Official Statement. When executed and delivered by their respective parties, the Authority Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each will constitute legal, valid and binding agreements or obligations of the Authority, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable 6 NTD: To be confirmed. 7 NTD: Continuing Disclosure, in each case, to be developed based on the POS. Page 5 of 66 DAttachment E 6 principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State. (d) The statements and information contained in the Official Statement (other than CUSIP numbers, information relating to The Depository Trust Company ("DTC") and its book-entry only system and information provided by the Underwriter, and excluding information under the captions [the developer, the hotel project, the city, the port district, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement], as to all of which no view is expressed) do not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make such statements therein, in the light of the circumstances under which they were made, not misleading. (e) As of the date hereof, except as disclosed in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the Authority or, to the best knowledge of the Authority, threatened, wherein an unfavorable decision, ruling or finding would: (i) materially and adversely affect the creation, organization, existence or powers of the Authority, or the titles of its members or officers; (ii) in any way question or materially and adversely affect the validity or enforceability of Authority Agreements or the Bonds; or (iii) in any way question or materially and adversely affect the Authority Agreements or the transactions contemplated by the Authority Agreements, the Official Statement, or any other agreement or instrument to which the Authority is a party relating to the Bonds. (f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the Authority required for the execution and delivery of this Purchase Contract or the consummation by the Authority of the other transactions contemplated to be performed by the Authority by the Official Statement or by the Authority Agreements. (g) Any certificate signed by any official of the Authority authorized to execute such certificate will be deemed a representation and warranty by the Authority to the Underwriter as to the statements made therein. (h) Except as previously disclosed to the Underwriter in writing, the Authority is not in default, and at no time has the Authority defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding. (i) After the Closing, the Authority will not participate in the issuance of any amendment of or supplement to the Official Statement unless advised by Disclosure Counsel that such additions, deletions or revisions are required to comply with applicable securities laws and following consultation with the Underwriter and each other Party to this Purchase Contract. The Authority agrees that it will notify the Underwriter and each other Party to this Purchase Contract, if (i) between the date of the Official Statement and the date of the Closing and (ii) between the date of the Closing and the date which is twenty-five (25) days following the End of the Underwriting Period (as defined below), the Authority discovers any information, pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such case, which might cause the Official Statement (as the same may have been supplemented or amended) to contain any untrue statement of a material fact or to omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, in the judgment of the Authority (after consultation with the Underwriter and each other Party to this Purchase Contract), the preparation and publication of a supplement or amendment to the Official Statement is, as a result of such fact or event described in the preceding sentence (or any other event which becomes known to the Authority during such period), necessary so that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the Page 6 of 66 DAttachment E 7 light of the circumstances under which they were made, not misleading, the Authority will, at the sole cost and expense of the Authority to the extent that the information set forth in such supplement or amendment relates solely to information provided by the Authority, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. The Authority will furnish a sufficient number of copies of such supplement or amendment to the Underwriter as is reasonably required by the Underwriter. The Authority and the Underwriter agree that they will cooperate in the preparation and distribution of any such amendment or supplement. For purposes of this Purchase Contract, the "End of the Underwriting Period" is used as defined in Rule 15c2-12 and shall occur on the later of (i) the date of the Closing or (ii) when the Underwriter no longer retains an unsold balance of the Bonds; unless otherwise advised in writing by the Underwriter on or prior to the date of Closing, or otherwise agreed to by the Underwriter and the Authority, the City, the Port District and the Financing District, and the Authority, the City, the Port District and the Financing District may assume that the End of the Underwriting Period is the date of the Closing. If the Authority, the City, the Port District and the Financing District have been given written notice pursuant to the preceding sentence that the End of the Underwriting Period will not occur on the date of the Closing, the Underwriter agrees to notify the Authority, the City, the Port District and the Financing District in writing of the day it does occur within the meaning of Rule 15c2- 12 as soon as practicable following the End of the Underwriting Period for all purposes of Rule 15c2-12; provided, however, that if the Underwriter has not otherwise so notified the Authority, the City, the Port District and the Financing District of the End of the Underwriting Period by the 25th day after the date of the Closing, then the "End of the Underwriting Period" shall be deemed to occur on such 25th day after the date of the Closing, unless otherwise agreed to by the Underwriter and the Authority. In connection with any amendments or supplements to the Official Statement that are made pursuant to Section 5(i) hereof, the Underwriter may request, and the Authority agrees to provide, such customary additional certificates and customary opinions of counsel as the Underwriter shall reasonably deem necessary to evidence the accuracy and completeness of the Official Statement, as so amended or supplemented. (j) The Authority has not previously incurred any continuing disclosure undertaking under Rule 15c2-12. (k) The Authority covenants with the Underwriter that the Authority will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, however, that the Authority shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The Authority consents to the use by the Underwriter of the Authority Agreements, the Preliminary Official Statement and the Official Statement in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions related to the offering and sale of the Bonds. Section 6. Representations, Warranties and Covenants of the City. The City hereby represents, warrants and agrees with the Underwriter that: Page 7 of 66 DAttachment E 8 (a) The City is a chartered municipal corporation, organized and existing under the laws of the State and has all necessary power and authority to adopt its resolution adopted on [], 2021 (the "City Resolution"), to enter into and perform its duties under the Facility Lease, the Sublease Agreement, the Project Implementation Agreement, the City Continuing Disclosure Certificate and this Purchase Contract (the "City Agreements") and, when executed and delivered by the respective parties thereto, the City Agreements will each constitute a legal, valid and binding obligation of the City enforceable in accordance with its respective terms. (b) The City Council has taken official action by conducting a public hearing and adopting the City Resolution by a majority of the members of the City Council at a meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance by the City of the City Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on the part of the City to carry out, give effect to and consummate the transactions contemplated hereby. (c) By all necessary official action, the City has duly adopted the City Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the City Agreements, and the consummation by it of all other transactions contemplated by the City Resolution, the City Agreements, the Preliminary Official Statement and the Official Statement. When executed and delivered by their respective parties, the City Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each will constitute legal, valid and binding agreements or obligations of the City, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State. (d) At the time of the City’s acceptance hereof and at all times subsequent thereto up to and including the time of the Closing, the information and statements in the Official Statement (other than CUSIP numbers, any information concerning DTC and the book-entry system for the Bonds and information provided by the Underwriter, and excluding information under the captions [the developer, the hotel project, the authority, the port district, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement], as to all of which no view is expressed) do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (e) As of the date hereof, other than as disclosed in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the City or, to the best knowledge of the City, threatened, wherein an unfavorable decision, ruling or finding would: (i) materially and adversely affect the creation, organization, existence or powers of the City, or the titles of its members or officers; (ii) in any way question or materially and adversely affect the validity or enforceability of City Agreements or the Bonds; or (iii) in any way question or materially and adversely affect the Purchase Contract or the transactions contemplated by the Purchase Contract, the Official Statement, or any other agreement or instrument to which the City is a party relating to the Bonds. (f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the City required for the execution and delivery of this Purchase Contract or the consummation by the City of the other transactions contemplated by the Official Statement or the City Agreements. Page 8 of 66 DAttachment E 9 (g) Any certificate signed by any official of the City authorized to execute such certificate will be deemed a representation and warranty by the City to the Underwriter as to the statements made therein. (h) Except as previously disclosed in writing to the Underwriter, the City is not in default, and at no time has the City defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding. (i) [Except as disclosed in the Official Statement, there has not been any materially adverse change in the financial condition of the City since [], 2021, and there has been no occurrence or circumstance or combination thereof that is reasonably expected to result in any such materially adverse change.] (j) If between the date of this Purchase Contract and the date which is twenty-five (25) days following the End of the Underwriting Period, any event of which the City is aware occurs which might or would cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City will immediately notify the Underwriter and each other Party to this Purchase Contract in writing, and if, in the opinion of the City, after consultation with the Underwriter and each other Party to this Purchase Contract, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the City will, at the sole cost and expense of the City to the extent that the information set forth in such supplement or amendment relates solely to information provided by the City, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. (k) After the Closing, the City will not participate in the issuance of any amendment of or supplement to the Official Statement unless advised by Disclosure Counsel that such additions, deletions or revisions set forth in such amendment or supplement are required to comply with applicable securities laws and following consultation with the Underwriter and each other Party to this Purchase Contract. The City agrees that it will notify the Underwriter and each other Party to this Purchase Contract if (i) between the date of the Official Statement and the date of the Closing and (ii) between the date of the Closing and the date which is twenty-five (25) days following the End of the Underwriting Period, the City discovers any information, pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such case, which might cause the Official Statement (as the same may have been supplemented or amended) to contain any untrue statement of a material fact or to omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, in the judgment of the City (after consultation with the Underwriter and each other Party to this Purchase Contract), the preparation and publication of a supplement or amendment to the Official Statement is, as a result of such fact or event described in the preceding sentence (or any other event which becomes known to the City during such period), necessary so that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the City will, at the sole cost and expense of the City to the extent that the information set forth in such supplement or amendment relates solely to information provided by the City, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Page 9 of 66 DAttachment E 10 Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. The City will furnish a sufficient number of copies of such supplement or amendment to the Underwriter as is reasonably required by the Underwriter. The City and the Underwriter agree that they will cooperate in the preparation and distribution of any such amendment or supplement. In connection with any amendments or supplements to the Official Statement that are made pursuant to Section 6(k) hereof, the Underwriter may request, and the City agrees to provide, such customary additional certificates and customary opinions of counsel as the Underwriter shall reasonably deem necessary to evidence the accuracy and completeness of the Official Statement, as so amended or supplemented. (l) Except as disclosed in the Official Statement, the City has not previously failed to comply in all material respects with any undertakings under Rule 15c2-12 in the past five years. (m) The City [does not need] [has secured] the consent of its auditor to include its audited financial statements for the fiscal year ended June 30, 2020 as an appendix to the Official Statement.]8 The City covenants with the Underwriter that the City will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, however, that the City shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The City consents to the use by the Underwriter of the City Agreements, the Preliminary Official Statement and the Official Statement in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions related to the offering and sale of the Bonds. Section 7. Representations, Warranties and Covenants of the Port District. The Port District hereby represents, warrants and agrees with the Underwriter that: (a) The Port District is a public corporation, organized and existing under the laws of the State and has all necessary power and authority to adopt its resolution adopted on [] (the "Port District Resolution"), to enter into and perform its duties under the Support Agreement, the Ground Lease, the Site Lease, the Project Implementation Agreement, the Port District Continuing Disclosure Certificate and this Purchase Contract (the "Port District Agreements") and, when executed and delivered by the respective parties thereto, the Port District Agreements will each constitute a legal, valid and binding obligation of the Port District enforceable in accordance with its respective terms. Page 10 of 66 DAttachment E 11 (b) The Board of Port Commissioners ("Port Board") has taken official action by adopting the Port District Resolution by a majority of the members of the Port Board at a meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance by the Port District of the Port District Agreements and the execution and delivery by the Port District of the Official Statement and the taking of any and all such action as may be required on the part of the Port District to carry out, give effect to and consummate the transactions contemplated hereby. (c) By all necessary official action, the Port District has duly adopted the Port District Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the preparation, execution by the Port District and delivery of the Official Statement, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the Port District Agreements, and the consummation by it of all other transactions contemplated to be performed by the Port District pursuant to the Port District Resolution, the Port District Agreements, the Preliminary Official Statement and the Official Statement. When executed and delivered by their respective parties, the Port District Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each will constitute legal, valid and binding agreements or obligations of the Port District, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State. (d) At the time of the Port District’s acceptance hereof and at all times subsequent thereto up to and including the time of the Closing, the information and statements in the Official Statement (other than CUSIP numbers, any information concerning DTC and the book-entry system for the Bonds and information provided by the Underwriter, and excluding information under the captions [the developer, the hotel project, the authority, the city, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement], as to all of which no view is expressed) do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (e) As of the date hereof, other than as disclosed in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the Port District or, to the best knowledge of the Port District, threatened, wherein an unfavorable decision, ruling or finding would: (i) materially and adversely affect the creation, organization, existence or powers of the Port District, or the titles of its members or officers; (ii) in any way question or materially and adversely affect the validity or enforceability of Port District Agreements or the Bonds; or (iii) in any way question or materially and adversely affect the Purchase Contract or the transactions contemplated by the Purchase Contract, the Official Statement, or any other agreement or instrument to which the Port District is a party relating to the Bonds. (f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the Port District required for the execution and delivery of this Purchase Contract by the Port District or the consummation by the Port District of the other transactions contemplated by the Official Statement or the Port District Agreements. (g) Any certificate signed by any official of the Port District authorized to execute such certificate will be deemed a representation and warranty by the Port District to the Underwriter as to the statements made therein. Page 11 of 66 DAttachment E 12 (h) Except as previously disclosed to the Underwriter, the Port District is not in default, and at no time has the Port District defaulted in any material respect, on any bond, note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding. (i) Except as disclosed in the Official Statement, there has not been any materially adverse change in the financial condition of the Port District since [], 2021, and there has been no occurrence or circumstance or combination thereof that is reasonably expected to result in any such materially adverse change. (j) If between the date of this Purchase Contract and the date which is twenty-five (25) days following the End of the Underwriting Period, any event of which the Port District is aware occurs which might or would cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Port District will immediately notify the Underwriter and each other Party to this Purchase Contract in writing, and if, in the opinion of the Port District, after consultation with the Underwriter and each other Party to this Purchase Contract, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Port District will, at the sole cost and expense of the Port District to the extent that the information set forth in such supplement or amendment relates solely to information provided by the Port District, supplement or amend the Official Statement. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. (k) After the Closing, the Port District will not participate in the issuance of any amendment of or supplement to the Official Statement unless advised by Disclosure Counsel that such additions, deletions or revisions set forth in such amendment or supplement are required to comply with applicable securities laws and following consultation with the Underwriter and each other Party to this Purchase Contract. The Port District agrees that it will notify the Underwriter and each other Party to this Purchase Contract if (i) between the date of the Official Statement and the date of the Closing and (ii) between the date of the Closing and the date which is twenty-five (25) days following the End of the Underwriting Period, the Port District discovers any information, pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such case, which might cause the Official Statement (as the same may have been supplemented or amended) to contain any untrue statement of a material fact or to omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, in the judgment of the Port District (after consultation with the Underwriter and each other Party to this Purchase Contract), the preparation and publication of a supplement or amendment to the Official Statement is, as a result of such fact or event described in the preceding sentence (or any other event which becomes known to the Port District during such period), necessary so that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Port District will, at the sole cost and expense of the Port District to the extent that the information set forth in such supplement or amendment relates solely to information provided by the Port District, will supplement or amend the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. Page 12 of 66 DAttachment E 13 The Port District will furnish a sufficient number of copies of such supplement or amendment to the Underwriter as is reasonably required by the Underwriter. The Port District and the Underwriter agree that they will cooperate in the preparation and distribution of any such amendment or supplement. In connection with any amendments or supplements to the Official Statement that are made pursuant to Section 7(k) hereof, the Underwriter may request, and the Port District agrees to provide, such customary additional certificates and customary opinions of counsel as the Underwriter shall reasonably deem necessary to evidence the accuracy and completeness of the Official Statement, as so amended or supplemented. (l) Except as disclosed in the Official Statement, the Port District has not previously failed to comply in all material respects with any undertakings under Rule 15c2-12 in the past five years. (m) The Port District [does not need] [has secured] the consent of its auditor to include its audited financial statements for the fiscal year ended June 30, 2020 as an appendix to the Official Statement.9 (n) The Port District covenants with the Underwriter that the Port District will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, however, that the Port District shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The Port District consents to the use by the Underwriter of the Port District Agreements, the Preliminary Official Statement and the Official Statement in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions related to the offering and sale of the Bonds. Section 8. Representations, Warranties and Covenants of the Financing District. The Financing District hereby represents, warrants and agrees with the Underwriter that: (a) The Financing District is a special tax financing district duly organized and validly existing under and pursuant to Chapter 3.61 of the Chula Vista Municipal Code ("Chapter 3.61") organized and existing under the laws of the State and has all necessary power and authority to adopt its resolution adopted on [], 2021 (the "Financing District Resolution"), to enter into and perform its duties under the Loan Agreement, dated as of [], 2021 (the "Loan Agreement"), among the Financing District, the Authority, and the Trustee, the Project Implementation Agreement and the Financing District Continuing Disclosure Certificate (the “Financing District Agreements”) and, when executed and delivered by the respective parties thereto, the Financing District Agreements will each constitute a legal, valid and binding obligation of the Financing District enforceable in accordance with its respective terms. 9 NTD: Bring-down of financials to be discussed. Page 13 of 66 DAttachment E 14 (b) The City Council has taken official action by conducting a public hearing and adopting the Financing District Resolution by a majority of the members of the City Council at a meeting duly called, noticed and conducted, at which a quorum was present and acting throughout, authorizing the execution, delivery and due performance by the Financing District of the Financing District Agreements and the execution and delivery of the Official Statement and the taking of any and all such action as may be required on the part of the Financing District to carry out, give effect to and consummate the transactions contemplated hereby. (c) By all necessary official action, the Financing District has duly adopted the Financing District Resolution, has duly authorized the preparation and delivery of the Preliminary Official Statement and the preparation, execution and delivery of the Official Statement, has duly authorized and approved the execution and delivery of, and the performance of its obligations under, the Financing District Agreements, and the consummation by it of all other transactions contemplated by the Financing District Resolution, the Financing District Agreements, the Preliminary Official Statement and the Official Statement. When executed and delivered by their respective parties, the Financing District Agreements (assuming due authorization, execution and delivery by and enforceability against the other parties thereto) will be in full force and effect and each will constitute legal, valid and binding agreements or obligations of the Financing District, enforceable in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors rights generally, the application of equitable principles, the exercise of judicial discretion and the limitations on legal remedies against public entities in the State. (d) At the time of the Financing District's acceptance hereof and at all times subsequent thereto up to and including the time of the Closing, the information and statements in the Official Statement under the captions [The Financing District, the Loan Agreement, and Appendix (relating to the Financing District)—to be updated and finalized during preparation of the Preliminary Official Statement] do not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (e) As of the date hereof, other than as disclosed in the Official Statement, there is no action, suit, proceeding or investigation before or by any court, public board or body pending against the Financing District or, to the best knowledge of the Financing District , threatened, wherein an unfavorable decision, ruling or finding would: (i) materially and adversely affect the creation, organization, existence or powers of the Financing District , or the titles of its members or officers; (ii) in any way question or materially and adversely affect the validity or enforceability of Financing District Agreements or the Bonds; or (iii) in any way question or materially and adversely affect the Purchase Contract or the transactions contemplated by the Purchase Contract, the Official Statement, or any other agreement or instrument to which the Financing District is a party relating to the Bonds. (f) There is no consent, approval, authorization or other order of, or filing or registration with, or certification by, any regulatory authority having jurisdiction over the Financing District required for the execution and delivery of this Purchase Contract or the consummation by the Financing District of the other transactions contemplated by the Official Statement or the Financing District Agreements. (g) Any certificate signed by any official of the Financing District authorized to execute such certificate will be deemed a representation and warranty by the Financing District to the Underwriter as to the statements made therein. (h) Except as previously disclosed in writing to the Underwriter, the Financing District is not in default, and at no time has the Financing District defaulted in any material respect, on any bond, Page 14 of 66 DAttachment E 15 note or other obligation for borrowed money or any agreement under which any such obligation is or was outstanding. (i) [Except as disclosed in the Official Statement, there has not been any materially adverse change in the financial condition of the Financing District since [], 2021, and there has been no occurrence or circumstance or combination thereof that is reasonably expected to result in any such materially adverse change.] (j) If between the date of this Purchase Contract and the date which is twenty-five (25) days following the End of the Underwriting Period, any event of which the Financing District is aware occurs which might or would cause the Official Statement, as then supplemented or amended, to contain any untrue statement of a material fact or to omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Financing District will immediately notify the Underwriter and each other Party to this Purchase Contract in writing, and if, in the opinion of the Financing District, after consultation with the Underwriter and each other Party to this Purchase Contract, such event requires the preparation and publication of a supplement or amendment to the Official Statement, the Financing District will, at the sole cost and expense of the Financing District to the extent that information set forth in such supplement or amendment relates solely to information provided by the Financing District, prepare supplement or amendment to the Official Statement so that the Official Statement as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances they were made not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. (k) After the Closing, the Financing District will not participate in the issuance of any amendment of or supplement to the Official Statement set forth in such amendment or supplement unless advised by Disclosure Counsel that such additions, deletions or revisions set forth in such amendment or supplement are required to comply with applicable securities laws and following consultation with the Underwriter and each other Party to this Purchase Contract. The Financing District agrees that it will notify the Underwriter and each other Party to this Purchase Contract if (i) between the date of the Official Statement and the date of the Closing and (ii) between the date of the Closing and the date which is twenty-five (25) days following the End of the Underwriting Period, the Financing District discovers any information, pre-existing or subsequent fact or becomes aware of the occurrence of any event, in any such case, which might cause the Official Statement (as the same may have been supplemented or amended) to contain any untrue statement of a material fact or to omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. If, in the judgment of the Financing District (after consultation with the Underwriter and each other Party to this Purchase Contact), the preparation and publication of a supplement or amendment to the Official Statement is, as a result of such fact or event described in the preceding sentence (or any other event which becomes known to the Financing District during such period), necessary so that the Official Statement does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Financing District will, at the sole cost and expense of the Financing District to the extent that the information set forth in such supplement or amendment relates solely to information provided by the Financing District, prepare a supplement or amendment to the Official Statement so that the Official Statement, as so supplemented or amended, does not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing or any other provision of this Purchase Contract to the contrary, to the extent such misstatement or omission Page 15 of 66 DAttachment E 16 is part of the information furnished by the Underwriter in the Official Statement, the cost of the preparation of such supplement or amendment will be at the sole cost and expense of the Underwriter. The Financing District will furnish a sufficient number of copies of such supplement or amendment to the Underwriter as is reasonably required by the Underwriter. The Financing District and the Underwriter agree that they will cooperate in the preparation and distribution of any such amendment or supplement. In connection with any amendments or supplements to the Official Statement that are made pursuant to Section 8(k) hereof, the Underwriter may request, and the Financing District agrees to provide, such customary additional certificates and customary opinions of counsel as the Underwriter shall reasonably deem necessary to evidence the accuracy and completeness of the Official Statement, as so amended or supplemented. (l) The Financing District has not previously incurred any continuing disclosure undertaking under Rule 15c2-12. (m) The Financing District covenants with the Underwriter that the Financing District will cooperate with the Underwriter (at the cost and written directions of the Underwriter), in qualifying the Bonds for offer and sale under the securities or Blue Sky laws of such jurisdiction of the United States as the Underwriter may reasonably request; provided, however, that the Financing District shall not be required to consent to suit or to service of process, or to qualify to do business, in any jurisdiction. The Financing District consents to the use by the Underwriter of the Financing District Agreements, the Preliminary Official Statement and the Official Statement in the course of its compliance with the securities or Blue Sky laws of the various jurisdictions related to the offering and sale of the Bonds. Section 9. The Closing. At 8:00 A.M., Pacific Time, on [], 2021, or on such earlier or later time or date as may be mutually agreed upon by the Underwriter, the Authority, the City, the Port District and the Financing District (the "Closing"), the Authority will deliver the Bonds to the Underwriter, through the book-entry system of DTC. Prior to the Closing, the Authority, the City, the Port District and the Financing District will deliver, at the offices of Bond Counsel in Newport Beach, California, or such other place as is mutually agreed upon by the Underwriter, the Authority and each other Party to this Purchase Contract, the other documents described in this Purchase Contract. On the date of the Closing, the Underwriter will pay the purchase price of the Bonds as set forth in Section 1 of this Purchase Contract in immediately available funds to the order of the Trustee. The Bonds will be issued in fully registered form and will be prepared and delivered as one Bond for each maturity of each Series registered in the name of a nominee of DTC. It is anticipated that CUSIP identification numbers will be inserted on the Bonds, but neither the failure to provide such numbers nor any error with respect thereto will constitute a cause for failure or refusal by the Underwriter to accept delivery of the Bonds in accordance with the terms of this Purchase Contract. Section 10. Conditions to Underwriter’s Obligations. The Underwriter has entered into this Purchase Contract in reliance upon the representations and warranties of the Authority, the City, the Port District and the Financing District contained herein and to be contained in the documents and instruments to be delivered on the date of the Closing, and upon the performance by the Authority, the City, the Port District and the Financing District of their respective obligations to be performed hereunder and under such documents and instruments to be delivered at or prior to the date of the Closing. The Underwriter’s obligations under this Purchase Contract are and will also be subject to the sale, issuance and delivery of the Bonds as well as the satisfaction of the following conditions precedent as of 8:00 A.M. Pacific Time on the date of Closing or at such other time or on such earlier or later date as the Underwriter, the Authority, the City, the Port District and the Financing District shall mutually agree to: Page 16 of 66 DAttachment E 17 (a) the representations and warranties of the Authority, the City, the Port District and the Financing District contained in this Purchase Contract will be true and correct in all material respects on the date of this Purchase Contract and on and as of the date of the Closing as if made on the date of the Closing; (b) as of the date of the Closing, the Official Statement may not have been amended, modified or supplemented, except in any case as may have been agreed to by the Underwriter; (c) as of the date of the Closing, (i) the Authority Resolution, the City Resolution, the Port District Resolution, the Financing District Resolution, the Authority Agreements, the City Agreements, the Port District Agreements and the Financing District Agreements will be in full force and effect, and will not have been amended, modified or supplemented, except as may have been agreed to by the Underwriter; (ii) the Authority will perform or have performed all of its obligations required under or specified in the Authority Resolution, the Authority Agreements and this Purchase Contract to be performed at or prior to the date of the Closing; (iii) the City will perform or have performed all of its obligations required under or specified in the City Resolution, the City Agreements and this Purchase Contract to be performed at or prior to the date of the Closing; (iv) the Port District will perform or have performed all of its obligations required under or specified in the Port District Resolution, the Port District Agreements and this Purchase Contract to be performed at or prior to the date of the Closing; and (v) the Financing District will perform or have performed all of its obligations required under or specified in the Financing District Resolution, the Financing District Agreements and this Purchase Contract to be performed at or prior to the date of the Closing; (d) as of the date of the Closing, (i) all necessary official action of the Authority relating to the Authority Agreements, the Authority Resolution and the Official Statement; (ii) all necessary official action of the City relating to the City Agreements, the City Resolution, and the Official Statement; (iii) all necessary official action of the Port District relating to the Port District Agreements, the Port District Resolution, and the Official Statement; and (iv) all necessary official action of the Financing District relating to the Financing District Agreements, the Financing District Resolution, and the Official Statement, will, in each case, have been taken and will be in full force and effect and will not have been amended, modified or supplemented in any material respect, except as may have been agreed to by the Authority, the City, the Port District, the Financing District and the Underwriter, as required; and (e) as of, or prior to, the date of the Closing, the Underwriter will have received each of the following documents: (i) Certified copies of the Authority Resolution, the City Resolution, the Port District Resolution, and the Financing District Resolution. (ii) Duly executed copies of the Indenture, the Authority Agreements, the City Agreements, the Port District Agreements, the Financing District Agreements, the Authority Continuing Disclosure Certificate, the City Continuing Disclosure Certificate, the Port District Continuing Disclosure Certificate, the Developer Continuing Disclosure Certificate, Financing District Continuing Disclosure Certificate and this Purchase Contract. (iii) The Preliminary Official Statement and the Official Statement, with the Official Statement duly executed on behalf of the Authority, the City, the Port District, and the Financing District. (iv) An approving opinion of Bond Counsel, dated as of the Closing, as to the validity of the Bonds, the exclusion of interest on the Bonds from State income taxation and the exclusion of interest on the 2021B Bonds from federal gross income taxation, Page 17 of 66 DAttachment E 18 addressed to the Authority substantially in the form attached as an appendix to the Official Statement, and a reliance letter with respect thereto addressed to the Underwriter. (v) A supplemental opinion of Bond Counsel, addressed to the Underwriter, substantially in the form attached as Exhibit L. (vi) A letter from Stradling Yocca Carlson & Rauth, a Professional Corporation, as disclosure counsel to the Authority ("Disclosure Counsel"), addressed to the Underwriter, substantially in the form attached as Exhibit M. (vii) An opinion or opinions of Glen R. Googins (the "City Attorney"), in his capacity as the City Attorney to the City, dated as of the Closing addressed to the Authority, the Port District, the City, the Financing District, and the Underwriter, in form and substance acceptable to the Underwriter, to the effect that: (A) The City is a chartered municipal corporation duly organized and validly existing under the laws of the State. The City Council is the governing body of the City. (B) The City has all necessary power and authority to adopt the City Resolution, to enter into and perform its duties under the City Agreements, and, when executed and delivered by the respective parties thereto, the City Agreements will each constitute a legal, valid and binding obligation of the City enforceable in accordance with its respective terms, except as such enforcement may be limited by bankruptcy, moratorium and the exercise of equitable principles where equitable remedies are sought. (C) The City Resolution was duly adopted at a meeting of the City Council, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the City Resolution is in full force and effect and has not been modified, amended or rescinded since the date of its adoption. (D) The execution and delivery by the City of the City Agreements, the Preliminary Official Statement, the Official Statement and the other instruments contemplated by any of such documents to which the City is a party, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the City is a party or is otherwise subject or bound in a manner which would materially adversely affect the City’s performance under the City Agreements. (E) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the City of its obligations under the City Agreements have been obtained and are in full force and effect. (F) To the best of the City Attorney’s knowledge, other than as disclosed in the Preliminary Official Statement or the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public Page 18 of 66 DAttachment E 19 board or body, is pending or threatened in any way against the City (i) affecting the existence of the City or the titles of its City Council members or its officers to their respective offices, (ii) seeking to restrain or to enjoin the issuance or sale of the Bonds, (iii) in any way contesting or affecting the validity or enforceability of the City Resolution or the City Agreements, (iv) in any way contesting the City’s authority with respect to the City Resolution or the City Agreements, (v) in any way contesting or affecting any of the rights, powers, duties or obligations of the City with respect to the funds committed under the Facility Lease, or (vi) in any way questioning the accuracy of the statements in the Preliminary Official Statement or the Official Statement. (G) Nothing has come to the attention of the City Attorney which has led the City Attorney to believe that the Preliminary Official Statement or the Official Statement (excluding therefrom the financial and statistical data, information regarding compliance with continuing disclosure obligations of the City and its related entities, forecasts included therein and information about DTC or its book-entry system or information provided by the Underwriter, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (viii) An opinion or opinions of the City Attorney and the Port Attorney, acting as co-counsel to the Authority (each, "Authority Co-Counsel"), dated as of the Closing, addressed to the City, the Port District, the Financing District, the Authority and the Underwriter, in form and substance acceptable to the Underwriter, to the effect that: (A) The Authority is a joint exercise of powers authority duly organized and validly existing under the laws of the State. The Board of Directors of the Authority is the governing body of the Authority. (B) The Authority has all necessary power and authority to adopt the Authority Resolution, to enter into and perform its duties under the Authority Agreements, and, when executed and delivered by the respective parties thereto, the Authority Agreements will each constitute a legal, valid and binding obligation of the Authority enforceable in accordance with its respective terms, except as such enforcement may be limited by bankruptcy, moratorium and the exercise of equitable principles where equitable remedies are sought. (C) The Authority Resolution was duly adopted at a regular meeting of the Board, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Authority Resolution is in full force and effect and has not been modified, amended or rescinded since the date of its adoption. (D) The execution and delivery by the Authority of the Authority Agreements, the Preliminary Official Statement, the Official Statement and the other instruments contemplated by any of such documents to which the Authority is a party, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Authority is a party or is otherwise subject or bound in a manner which would materially adversely affect the Authority’s performance under the Authority Agreements. Page 19 of 66 DAttachment E 20 (E) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Authority of its obligations under the Authority Agreements have been obtained and are in full force and effect. (F) To the best of the knowledge of Authority Co-Counsel, other than as disclosed in the Preliminary Official Statement or the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Authority (i) affecting the existence of the Authority or the titles of its Board members or its officers to their respective offices, (ii) seeking to restrain or to enjoin the issuance or sale of the Bonds, (iii) in any way contesting or affecting the validity or enforceability of the Authority Resolution or the Authority Agreements, (iv) in any way contesting the powers of the Authority to issue or sell the Bonds or the Authority’s authority with respect to the Authority Resolution or the Authority Agreements, (v) in any way contesting or affecting any of the rights, powers, duties or obligations of the Authority with respect to the money or property pledged or to be pledged under the Indenture, the Facility Lease, the Loan Agreement, or the Support Agreement, or (vi) in any way questioning the accuracy of the statements in the Preliminary Official Statement or the Official Statement. (G) Nothing has come to the attention of Authority Co-Counsel which has led Authority Co-Counsel to believe that the Preliminary Official Statement or the Official Statement (excluding therefrom the financial and statistical data, information regarding compliance with continuing disclosure obligations of the Authority, forecasts included therein and information about DTC or the book-entry system or information provided by the Underwriter, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (ix) An opinion or opinions of Thomas A. Russell (the "Port Attorney"), in his capacity as counsel to the Port District, dated as of the Closing, addressed to the Authority, the Port District, the City, the Financing District and the Underwriter, in form and substance acceptable to the Underwriter, to the effect that: (A) The Port District is a public corporation duly organized and validly existing under the laws of the State. The Port Board is the governing body of the Port District. (B) The Port District has all necessary power and authority to adopt the Port District Resolution, to enter into and perform its duties under the Port District Agreements, and, when executed and delivered by the respective parties thereto, the Port District Agreements will each constitute a legal, valid and binding obligation of the Port District enforceable in accordance with its respective terms, except as such enforcement may be limited by bankruptcy, moratorium and the exercise of equitable principles where equitable remedies are sought. (C) The Port District Resolution was duly adopted at a meeting of the Port Board, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Page 20 of 66 DAttachment E 21 Port District Resolution is in full force and effect and has not been modified, amended or rescinded since the date of its adoption. (D) The execution and delivery by the Port District of the Port District Agreements, the Preliminary Official Statement, the Official Statement and the other instruments contemplated by any of such documents to which the Port District is a party, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Port District is a party or is otherwise subject or bound in a manner which would materially adversely affect the Port District’s performance under the Port District Agreements. (E) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Port District of its obligations under the Port District Agreements have been obtained and are in full force and effect. (F) To the best of the Port Attorney’s knowledge, other than as disclosed in the Preliminary Official Statement or the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Port District (i) affecting the existence of the Port District or the titles of its Port Board members or its officers to their respective offices, (ii) seeking to restrain or to enjoin the issuance or sale of the Bonds, (iii) in any way contesting or affecting the validity or enforceability of the Port District Resolution or the Port District Agreements, (iv) in any way contesting the Port District’s authority with respect to the Port District Resolution or the Port District Agreements, (v) in any way contesting or affecting any of the rights, powers, duties or obligations of the Port District with respect to the funds committed under the Support Agreement, or (vi) in any way questioning the accuracy of the statements in the Preliminary Official Statement or the Official Statement. (G) Nothing has come to the attention of the Port Attorney which has led the Port Attorney to believe that the Preliminary Official Statement or the Official Statement (excluding therefrom the financial and statistical data, information regarding compliance with continuing disclosure obligations of the Port District, forecasts included therein and information about DTC and the book-entry system or information provided by the Underwriter, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (x) An opinion or opinions of [Glen R. Googins] (the “Financing District Counsel”), in his capacity as counsel to the Financing District, dated as of the Closing, addressed to the Authority, the City, the Port District, the Financing District and the Underwriter, in form and substance acceptable to the Underwriter, to the effect that: (A) The Financing District is a special tax financing district duly organized and validly existing under and pursuant to Chapter 3.61. The City Council is the governing body of the Financing District. Page 21 of 66 DAttachment E 22 (B) The Financing District has all necessary power and authority to adopt the Financing District Resolution, and to enter into and perform its duties under the Financing District Agreements, and, when executed and delivered by the respective parties thereto, the Financing District Agreements will each constitute a legal, valid and binding obligation of the Financing District enforceable in accordance with its respective terms, except as such enforcement may be limited by bankruptcy, moratorium and the exercise of equitable principles where equitable remedies are sought. (C) The Financing District Resolution was duly adopted at a meeting of the City Council, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Financing District Resolution is in full force and effect and has not been modified, amended or rescinded since the date of its adoption. (D) The execution and delivery by the Financing District of the Financing District Agreements, the Preliminary Official Statement, the Official Statement and the other instruments contemplated by any of such documents to which the Financing District is a party, and compliance with the provisions of each thereof, will not conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Financing District is a party or is otherwise subject or bound in a manner which would materially adversely affect the Financing District’s performance under the Financing District Agreements. (E) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Financing District of its obligations under the Financing District Agreements have been obtained and are in full force and effect. (F) To the best of the Financing District Counsel’s knowledge, other than as disclosed in the Preliminary Official Statement or the Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Financing District (i) affecting the existence of the Financing District or the titles of its governing board members or its officers to their respective offices, (ii) seeking to restrain or to enjoin the issuance or sale of the Bonds, (iii) in any way contesting or affecting the validity or enforceability of the Financing District Resolution or the Financing District Agreements, (iv) in any way contesting the Financing District’s authority with respect to the Financing District Resolution or the Financing District Agreements, (v) in any way contesting or affecting any of the rights, powers, duties or obligations of the Financing District with respect to the funds committed under the Loan Agreement, or (vi) in any way questioning the accuracy of the statements in the Preliminary Official Statement or the Official Statement. (G) Nothing has come to the attention of the Financing District Counsel which has led the Financing District Counsel to believe that the Preliminary Official Statement or the Official Statement (excluding therefrom the financial and statistical data, information regarding compliance with continuing disclosure obligations of the Financing District, forecasts included therein and information about Page 22 of 66 DAttachment E 23 DTC and the book-entry system or information provided by the Underwriter, as to which no opinion need be expressed) contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (xi) A letter of Ashurst LLP ("Underwriter’s Counsel"), addressed to the Underwriter, in form and substance acceptable to the Underwriter. (xii) Executed 15c2-12 Certificates of the Authority, the City, the Port District, and the Financing District, dated as of the date of the Preliminary Official Statement, in substantially the forms attached hereto as Exhibit B-1, Exhibit B-2, Exhibit B-3, and Exhibit B-4. (xiii) An executed closing certificate of the Authority, dated as of the Closing, in the form attached as Exhibit C. (xiv) An executed closing certificate of the City, dated as of the Closing, in the form attached as Exhibit D. (xv) An executed closing certificate of the Port District, dated as of the Closing, in the form attached as Exhibit E. (xvi) An executed closing certificate of the Financing District, dated as of the Closing, in the form attached as Exhibit F. (xvii) An opinion or opinions of Latham & Watkins LLP as counsel to the Developer, dated as of the Closing, addressed to the Developer, the Authority, the City, the Port District, the Financing District and the Underwriter (the "Developer Opinion Parties"), in form and substance reasonably acceptable to the Developer Opinion Parties. (xviii) An executed letter of representations of the Developer, dated as of the date of the Preliminary Official Statement (the "Letter of Representations"), substantially in the form attached hereto as Exhibit G-1 and an executed closing certificate of the Developer, dated as of the Closing, substantially in the form attached hereto as Exhibit G-2. Page 23 of 66 DAttachment E 24 (xix) An executed Completion Guaranty, dated as of the Closing (the "Completion Guaranty") executed by __________ (the "Guarantor"), and accepted and agreed to by the Port District, the Authority, the City, and the Developer. (xx) An executed Closing Certificate of the Guarantor, dated as of the Closing. substantially in the form attached hereto as Exhibit H. (xxi) An opinion of Latham & Watkins LLP as counsel to the Guarantor, dated as of the Closing, addressed to the Guarantor, the Authority, the City, the Port District, the Financing District and the Underwriter (the "Guarantor Opinion Parties"), in form and substance reasonably acceptable to the Guarantor Opinion Parties. (xxii) The opinion of counsel of the Trustee dated as of the Closing, addressed to the Authority, the City, the Port District the Financing District and the Underwriter to the effect that: (A) The Trustee is a national banking association duly organized, validly existing and in good standing under the laws of the United States, having full powers and authority and being qualified to enter into, accept and administer the trust created under the Indenture and to enter into and perform its duties under the Loan Agreement. (B) Each of the Indenture and the Loan Agreement have been duly authorized, executed and delivered by the Trustee, and, assuming due authorization, execution and delivery by the other parties thereto, each of the Indenture and the Loan Agreement constitutes a legal, valid and binding agreement of the Trustee enforceable in accordance with its terms, subject to laws relating in bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and the application of equitable principles if equitable remedies are sought. (xxiii) An executed closing certificate of the Trustee, dated as of the Closing, in the form attached hereto as Exhibit I. (xxiv) A tax certificate relating to the 2021B Bonds duly signed on behalf of the Authority, the City, the Port District and the Financing District in the form and substance acceptable to Bond Counsel and the Underwriter. (xxv) Evidence of required filings with the California Debt and Investment Advisory Commission. (xxvi) A copy of the executed Blanket Authority Letter of Representations by and between the Authority and DTC relating to the book-entry system. (xxvii) Evidence that the Bonds have received the rating set forth on the cover of the Official Statement. (xxviii) A certificate of Harrell & Company Advisors, LLC, the City’s and the Financing District's municipal advisor, in the form and substance attached hereto as Exhibit J- 1. (xxix) A certificate of Public Finance Energy Advisors, LLC, the Port District's municipal advisor, in the form and substance attached hereto as Exhibit J-2. Page 24 of 66 DAttachment E 25 (xxx) Such additional legal opinions, certificates, proceedings, instruments and other documents as the Underwriter or Bond Counsel may reasonably request to evidence (A) compliance by the Authority, the City, the Port District, the Financing District and the Developer with legal requirements, (B) the truth and accuracy, as of the date of the Closing, of the representations of the Authority, the City, the Port District, the Financing District and the Developer contained herein, and in the Preliminary Official Statement and Official Statement, and (C) the due performance or satisfaction by the Authority, the City, the Port District, the Financing District and the Developer at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by the Authority, the City, the Port District, the Financing District and the Developer.10 All of the opinions, letters, certificates, instruments and other documents mentioned in this Purchase Contract will be deemed to be in compliance with the provisions of this Purchase Contract if, but only if, they are in form and substance satisfactory to the Underwriter. If either the Authority, the City, the Port District and the Financing District are unable to satisfy the conditions to the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds contained in this Purchase Contract or if the obligations of the Underwriter to purchase, to accept delivery of and to pay for the Bonds will be terminated for any reason permitted by this Purchase Contract, this Purchase Contract will terminate and neither the Underwriter, the Authority, the City, the Port District nor the Financing District will be under further obligations hereunder; except that the respective obligations of the Authority, the City, the Port District, the Financing District and the Underwriter set forth in Section 14 of this Purchase Contract shall survive termination and continue in full force and effect. Section 11. Conditions to Authority’s, City’s, Port District's and Financing District's Obligations. The performance by the Authority, the City, the Port District and the Financing District of their respective obligations under this Purchase Contract are conditioned upon: (i) the performance by the Underwriter of its obligations hereunder and (ii) receipt by the Authority, the City, the Financing District and the Port District of opinions addressed to the Authority, the City, the Port District and the Financing District, (iii) receipt by the Underwriter of opinions addressed to the Underwriter, and (iv) the delivery of certificates being delivered on the date of the Closing by persons and entities other than the Authority, the City, the Port District and the Financing District, respectively. Section 12. Termination Events. The Underwriter shall have the right to terminate the Underwriter’s obligations under this Purchase Contract to purchase, to accept delivery of and to pay for the Bonds by notifying the Authority, the City, the Port District and the Financing District of its election to do so if, after the execution hereof and prior to the date of Closing, any of the following events occurs: (a) the marketability of the Bonds or the market price thereof, in the opinion of the Underwriter, has been materially and adversely affected by any decision issued by a court of the United States (including the United States Tax Court) or of the State, by any ruling or regulation (final, 10 NTD: Additional deliverables, opinions and conditions to be discussed, considered and confirmed. Page 25 of 66 DAttachment E 26 temporary or proposed) issued by or on behalf of the Department of the Treasury of the United States, the Internal Revenue Service, or other governmental agency of the United States, or any governmental agency of the State, or by a tentative decision or announcement by any member of the House Ways and Means Committee, the Senate Finance Committee, or the Conference Committee with respect to contemplated legislation or by legislation enacted by, pending in, or favorably reported to either the House of Representatives or either House of the Legislature of the State, or formally proposed to the Congress of the United States by the President of the United States or to the Legislature of the State by the Governor of the State in an executive communication, affecting the tax status of the Authority, the City, the Port District or the Financing District, their property or income, their tax-exempt bonds (including the 2021B Bonds), as applicable, or the interest thereon, or any tax exemption granted or authorized by the Internal Revenue Code of 1986, as amended; (b) the United States becomes engaged in hostilities that result in a declaration of war or a national emergency, or any other outbreak of hostilities occurs, or a local, national or international calamity or crisis occurs, financial or otherwise, the effect of such outbreak, calamity or crisis being such as, in the reasonable opinion of the Underwriter, would materially and adversely affect the ability of the Underwriter to market the Bonds; (c) there occurs a general suspension of trading on the New York Stock Exchange or other major exchange shall be in force, or minimum or maximum prices for trading shall have been fixed and be in force, or maximum ranges for prices for securities shall have been required and be in force on any such exchange, whether by virtue of determination by that exchange or by order of the SEC or any other governmental authority having jurisdiction; (d) a stop order, ruling, regulation or official statement by, or on behalf of, the Securities and Exchange Commission is issued or made to the effect that the issuance, offering or sale of the Bonds is or would be in violation of any provision of the Securities Act of 1933, as then in effect, or of the Exchange Act, as then in effect, or of the Trust Indenture Act of 1939, as then in effect; (e) legislation is enacted by the House of Representatives or the Senate of the Congress of the United States of America, or a decision by a court of the United States of America is rendered, or a ruling or regulation by or on behalf of the Securities and Exchange Commission or other governmental agency having jurisdiction of the subject matter is made or proposed to the effect that the Bonds are not exempt from registration, qualification or other similar requirements of the Securities Act of 1933, as then in effect, or of the Trust Indenture Act of 1939, as then in effect; (f) in the reasonable judgment of the Underwriter, the market price of the Bonds would be materially and adversely affected because additional material restrictions not in force as of the date hereof are imposed upon trading in securities generally by any governmental authority or by any national securities exchange; (g) the Comptroller of the Currency, The New York Stock Exchange, or other national securities exchange, or any governmental authority, imposes, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, or financial responsibility requirements of the Underwriter; (h) a general banking moratorium shall have been established by federal, New York State or State authorities and shall be in force; (i) a material disruption in securities settlement, payment or clearance services affecting the Bonds shall have occurred; Page 26 of 66 DAttachment E 27 (j) any legislation, ordinance, rule or regulation is introduced in or is enacted by any governmental body, department or agency in the State or a decision of a court of competent jurisdiction within the State is rendered, which, in the opinion of the Underwriter, after consultation with the Authority, the City, the Port District and the Financing District, materially adversely affects the market price of the Bonds; (k) any withdrawal, downgrading or placement on credit watch negative of any underlying rating of any securities of the City, the Port District or the Financing District by a major credit rating agency that, in the opinion of the Underwriter, adversely affects the market price of the Bonds; or (l) any event or circumstance occurs which, in the opinion of the Underwriter, makes untrue or misleading in any material respect any statement or information contained in the Preliminary Official Statement or the Official Statement (other than any information relating to the Underwriter) or is not reflected in the Preliminary Official Statement or the Official Statement but should be reflected therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in either such event, the Authority, the City, the Port District or the Financing District refuses to permit the Preliminary Official Statement or the Official Statement to be supplemented to supply such statement or information, or the effect of the Preliminary Official Statement or the Official Statement as so supplemented is to materially adversely affect the market price or marketability of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds; or there shall have occurred any material adverse change to the Chula Vista Bayfront Project described in the Official Statement that will have a materially adverse effect on the market for the Bonds or the sale, at the contemplated offering price or prices (or yield or yields), by the Underwriter of the Bonds or the ability of the Underwriter to enforce contracts for the sale of the Bonds. Section 13. Establishment of Issue Price.11 (a) Subject to this Section 13, the Underwriter agrees to make an initial bona fide public offering of all of the Bonds at a price or prices not in excess of, or a yield or yields not lower than, the public offering price (or prices or yield or yields) set forth on Exhibit K attached hereto and incorporated herein by reference. Subsequent to the initial public offering, the Underwriter reserves the right to change such price (or prices or yield or yields) as the Underwriter deems necessary or appropriate in connection with the marketing of the Bonds, provided that the Underwriter shall not change the interest rates set forth on Exhibit K. The Bonds may be offered and sold to certain dealers at prices lower than such initial public offering prices. (b) The Underwriter agrees to assist the Authority in establishing the issue price of the Bonds and shall execute and deliver to the Authority at Closing an "issue price" or similar certificate, together with the supporting pricing wires or equivalent communications, substantially in the form attached hereto as Exhibit K, with such modifications as may be appropriate or necessary, in the 11 NTD: To be updated based on the applicability of the hold-the-offering-price to the deal. Page 27 of 66 DAttachment E 28 reasonable judgment of the Underwriter, the Authority and Bond Counsel, to accurately reflect, as applicable, the sales price or prices or the initial offering price or prices to the public of the Bonds. Any notice or report to be provided to the Authority under this Section 13 shall be provided to the municipal advisor to the City and the Financing District and to the municipal advisor to the Port District. Certain terms used in this Section 13 are defined below. (c) [Except as otherwise set forth in Schedule A to Exhibit K attached hereto,] the Authority will treat the first price at which 10% of each maturity of the Bonds (the "10% Test"), identified under the column "10% Test Used" in Schedule A to Exhibit K, is sold to the public as the issue price of that maturity. At or promptly after the execution of this Purchase Contract, the Underwriter shall report to the Authority the price or prices at which it has sold to the public each maturity of Bonds. [If at that time the 10% Test has not been satisfied as to any maturity of the Bonds, the Underwriter agrees to promptly report to the Authority the prices at which it sells the unsold Bonds of that maturity to the public. That reporting obligation shall continue, whether or not the date of Closing has occurred, until either (i) the Underwriter has sold all Bonds of that maturity or (ii) the 10% Test has been satisfied as to the Bonds of that maturity, provided that, the Underwriter’s reporting obligation after the date of Closing may be at reasonable periodic intervals or otherwise upon request of the Authority or Bond Counsel.]12 For purposes of this Section 13, if Bonds mature on the same date but have different interest rates, each separate CUSIP number within that maturity will be treated as a separate maturity of the Bonds. (d) The Underwriter confirms that it has offered the Bonds to the public on or before the date of this Purchase Contract at the offering price or prices (the “initial offering price”), or at the corresponding yield or yields, set forth in Schedule A to Exhibit K attached hereto, except as otherwise set forth therein. Schedule A to Exhibit K also sets forth, as of the date of this Purchase Contract, the maturities, if any, of the Bonds for which the 10% Test has not been satisfied and for which the Authority and the Underwriter agree that the restrictions set forth in the next sentence shall apply, which will allow the Authority to treat the initial offering price to the public of each such maturity as of the sale date as the issue price of that maturity (the “hold-the-offering price rule”). So long as the hold-the-offering-price rule remains applicable to any maturity of the Bonds, the Underwriter will neither offer nor sell unsold Bonds of that maturity to any person at a price that is higher than the initial offering price to the public during the period starting on the sale date and ending on the earlier of the following: (i) the close of the fifth (5th) business day after the sale date; or (ii) the date on which the Underwriter has sold at least 10% of that maturity of the Bonds to the public at a price that is no higher than the initial offering price to the public. 12 NTD: To be confirmed whether the 10% Test has been satisfied prior to execution. Page 28 of 66 DAttachment E 29 The Underwriter will advise the Issuer promptly after the close of the fifth (5th) business day after the sale date whether it has sold 10% of that maturity of the Securities to the public at a price that is no higher than the initial offering price to the public. (e) The Underwriter confirms that: (i) any selling group agreement and any third-party distribution agreement relating to the initial sale of the Bonds to the public, together with the related pricing wires, contains or will contain language obligating each dealer who is a member of the selling group and each broker-dealer that is a party to such third-party distribution agreement, as applicable: (A) (i) to report the prices at which it sells to the public the unsold Bonds of each maturity allocated to it, whether or not the date of Closing has occurred, until either all Bonds of that maturity allocated to it have been sold or it is notified by the Underwriter that the 10% Test has been satisfied as to the Bonds of that maturity, provided that, the reporting obligation after the date of Closing may be at reasonable periodic intervals or otherwise upon request of the Underwriter, and (ii) to comply with the hold-the-offering-price rule, if applicable, if and for so long as directed by the Underwriter; (B) to promptly notify the Underwriter of any sales of Bonds that, to its knowledge, are made to a purchaser who is a related party to an underwriter participating in the initial sale of the Bonds to the public (each such term being used as defined below); and (C) to acknowledge that, unless otherwise advised by the dealer or broker- dealer, the Underwriter shall assume that each order submitted by the dealer or broker-dealer is a sale to the public; and (ii) any selling group agreement relating to the initial sale of the Bonds to the public, together with the related pricing wires, contains or will contain language obligating each dealer that is a party to a third-party distribution agreement to be employed in connection with the initial sale of the Bonds to the public to require each broker-dealer that is a party to such third-party distribution agreement to (A) report the prices at which it sells to the public the unsold Bonds of each maturity allocated to it, whether or not the date of Closing has occurred, until either all Bonds of that maturity allocated to it have been sold or it is notified by the Underwriter or the dealer that the 10% Test has been satisfied as to the Bonds of that maturity, provided that, the reporting obligation after the date of Closing may be at reasonable periodic intervals or otherwise upon request of the Underwriter or the dealer, and (B) comply with the hold-the-offering-price rule, if applicable, if and for so long as directed by the Underwriter or the dealer and as set forth in the related pricing wires. (f) The Authority acknowledges that, in making the representations set forth in this Section 13, the Underwriter will rely on (i) in the event a selling group has been created in connection with the initial sale of the Bonds to the public, the agreement of each dealer who is a member of the selling group to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds, as set forth in a selling group agreement and the related pricing wires, and (ii) in the event that a third-party distribution agreement was employed in connection with the initial sale of the Bonds to the public, the agreement of each broker-dealer that is a party to such agreement to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds, as set forth in the third-party distribution agreement and the related pricing wires. The Authority further acknowledges that the Page 29 of 66 DAttachment E 30 Underwriter shall not be liable for the failure of any dealer who is a member of a selling group, or of any broker-dealer that is a party to a third-party distribution agreement, to comply with its corresponding agreement to comply with the requirements for establishing issue price of the Bonds, including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if applicable to the Bonds. (g) The Underwriter acknowledges that sales of any Bonds to any person that is a related party to an underwriter participating in the initial sale of the Bonds to the public (each such term being used as defined below) shall not constitute sales to the public for purposes of this Section 13. Further, for purposes of this Section 13: (i) "public" means any person other than an underwriter or a related party; (ii) "underwriter" means (A) any person that agrees pursuant to a written contract with the Authority (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the public and (B) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (A) to participate in the initial sale of the Bonds to the public (including a member of a selling group or a party to a third-party retail distribution agreement participating in the initial sale of the Bonds to the public); (iii) a purchaser of any of the Bonds is a "related party" to an underwriter if the underwriter and the purchaser are subject, directly or indirectly, to (A) more than 50% common ownership of the voting power or the total value of their stock, if both entities are corporations (including direct ownership by one corporation of another), (B) more than 50% common ownership of their capital interests or profits interests, if both entities are partnerships (including direct ownership by one partnership of another), or (C) more than 50% common ownership of the value of the outstanding stock of the corporation or the capital interests or profit interests of the partnership, as applicable, if one entity is a corporation and the other entity is a partnership (including direct ownership of the applicable stock or interests by one entity of the other); and (iv) "sale date" means the date of execution of this Purchase Contract by all parties. Section 14. Payment of Expenses. [Note: Parties are in discussion regarding allocation of expenses.] (a) The Underwriter will be under no obligation to pay [and the Authority will pay] any of the following expenses incident to the performance of the Authority’s, the City’s, the Port District's and the Financing District's obligations hereunder, which may be paid from the proceeds of the Bonds to the extent authorized pursuant to the Indenture and, with respect to the proceeds of the 2021B Bonds, the Tax Certificate, and to the extent or in the event not so paid from the proceeds of the Bonds, shall be paid by the [Authority]: (i) the fees and disbursements of the City’s and the Financing District's municipal advisor and the Port District's municipal advisor, Bond Counsel and Disclosure Counsel; (ii) the cost of printing and delivering the Bonds, the Preliminary Official Statement and the Official Statement (and any amendment or supplement prepared pursuant to Section 4 of this Purchase Contract) to the extent provided pursuant to Section 4 of this Purchase Contract; Page 30 of 66 DAttachment E 31 (iii) the fees and disbursements of accountants, advisers, attorneys and of any other consultants or experts retained by the Authority, the City, the Port District or the Financing District; and (iv) any other expenses and costs of the Authority, the City, the Port District and the Financing District incident to the performance of their respective obligations in connection with the authorization, issuance and sale of the Bonds, including out of pocket expenses and regulatory expenses, and any other expenses agreed to by the parties to this Purchase Contract. (b) The Authority, the City, the Port District and the Financing District will be under no obligation to pay, and the Underwriter will pay the cost of obtaining CUSIP numbers, the cost of preparation of any "blue sky" or legal investment memoranda and this Purchase Contract, costs of printing and delivering amendments and supplements to the Preliminary Official Statement and Official Statement, to the extent the Underwriter is required to pay such costs pursuant to Section 4 of this Purchase Contract, and all other expenses incurred by the Underwriter in connection with its public offering and distribution of the Bonds (except those specifically enumerated, above, under Section 14(a)), including the fees of Underwriter’s Counsel and disbursements of Underwriter’s Counsel (if any) and any advertising expenses. Section 15. Notices. Any notice or other communication to be given to the Authority, the City, the Port District or the Financing District under this Purchase Contract may be given by delivering the same in writing to the Authority, the City, the Port District and the Financing District at the addresses set forth on the first page of this Purchase Contract, and any notice or other communication to be given to the Underwriter under this Purchase Contract may be given by delivering the same in writing to J.P. Morgan, 560 Mission Street, 3rd Floor, San Francisco, California 94105, Attention: Taylar Hart. Section 16. Survival of Representations, Warranties, Agreements. All of the Authority’s, the City’s, the Port District's and the Financing District's representations, warranties and agreements contained in this Purchase Contract will remain operative and in full force and effect regardless of: (a) any investigations made by or on behalf of the Underwriter; or (b) delivery of and payment for the Bonds pursuant to this Purchase Contract. The agreements contained in this Section 16 and in Section 14 will survive any termination of this Purchase Contract. Section 17. Benefit; No Assignment. This Purchase Contract is made solely for the benefit of the Authority, the City, the Port District, the Financing District and the Underwriter (including its successors and assigns), and no other person will acquire or have any right hereunder or by virtue hereof. The rights and obligations created by this Purchase Contract are not subject to assignment by the Underwriter, the Authority, the City, the Port District or the Financing District without the prior written consent of the each of the other parties hereto. Section 18. Severability. In the event that any provision of this Purchase Contract is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision of this Purchase Contract. Section 19. Counterparts. This Purchase Contract may be executed in any number of counterparts, all of which taken together will constitute one agreement, and any of the parties hereto may execute the Purchase Contract by signing any such counterpart. Section 20. Governing Law. This Purchase Contract will be governed by the laws of the State. Section 21. Effectiveness. This Purchase Contract will become effective upon the execution of the acceptance hereof by an authorized representative of the Authority, the City, the Port District and the Financing District, and will be valid and enforceable as of the time of such acceptance. Page 31 of 66 DAttachment E 32 Very truly yours, J.P. MORGAN SECURITIES LLC, as Underwriter By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Page 32 of 66 DAttachment E 33 Accepted: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Time of Execution: __________Pacific Time CITY OF CHULA VISTA By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Time of Execution: __________Pacific Time SAN DIEGO UNIFIED PORT DISTRICT By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Time of Execution: __________Pacific Time BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: ________________________________________ Name: ________________________________________ Title: ________________________________________ Time of Execution: __________Pacific Time Page 33 of 66 DAttachment E 34 EXHIBIT A CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) Principal Payment Date ([June 1]) Principal Rate Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) Principal Payment Date ([June 1]) Principal Rate REDEMPTION PROVISIONS Optional Redemption. The 2021A Bonds and the 2021B Bonds are subject to optional redemption prior to their respective maturities in the manner described in [Sections 2.2(a) and 2.2(b) of the Indenture]. Page 34 of 66 DAttachment E 35 Extraordinary Redemption. The 2021 A Bonds are subject to redemption, in whole or in part, on any date, on a pro rata basis among maturities, from and to the extent Net Proceeds are deposited by the Trustee in the Redemption Fund in the manner contemplated by [Section 2.2(c) of the Indenture]. Page 35 of 66 DAttachment E 36 EXHIBIT B-1 CERTIFICATE OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REGARDING PRELIMINARY OFFICIAL STATEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) The undersigned hereby states and certifies that: 1. he is the duly appointed, qualified and acting [Treasurer and Auditor] of the Chula Vista Bayfront Facilities Financing Authority (the "Authority") and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; and 2. there has been delivered to J.P. Morgan Securities LLC, as the underwriter of the captioned bonds (the "Bonds"), a Preliminary Official Statement dated [], 2021 for the Bonds (including the cover page and all appendices thereto, the "Preliminary Official Statement"), which the Authority deems final as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12 and excluding information under the captions [the developer, the hotel project, the city, the port district, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement]. Dated: [], 2021 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: _____________________________________ [David Bilby] [Treasurer and Auditor] Page 36 of 66 DAttachment E 37 EXHIBIT B-2 CERTIFICATE OF THE CITY OF CHULA VISTA REGARDING PRELIMINARY OFFICIAL STATEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) The undersigned hereby states and certifies that: 1. he is the duly appointed, qualified and acting [Director of Finance/Treasurer] of the City of Chula Vista (the "City") and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; and 2. there has been delivered to J.P. Morgan Securities LLC, as the underwriter of the captioned bonds (the "Bonds"), a Preliminary Official Statement dated [], 2021 for the Bonds (including the cover page and all appendices thereto, the "Preliminary Official Statement"), which the City deems final as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12 and excluding information under the captions [the developer, the hotel project, the authority, the port district, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement]. Dated: [], 2021 CITY OF CHULA VISTA By: _____________________________________ [David Bilby] [Director of Finance/Treasurer] Page 37 of 66 DAttachment E 38 EXHIBIT B-3 CERTIFICATE OF THE SAN DIEGO UNIFIED PORT DISTRICT REGARDING PRELIMINARY OFFICIAL STATEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) The undersigned hereby states and certifies that: 1. [he/she] is the duly appointed, qualified and acting [Title/Role] of the San Diego Unified Port District (the "Port District") and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; and 2. there has been delivered to J.P. Morgan Securities LLC, as the underwriter of the captioned bonds (the "Bonds"), a Preliminary Official Statement dated [], 2021 for the Bonds (including the cover page and all appendices thereto, the "Preliminary Official Statement"), which the Port District deems final as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12 and excluding information under the captions [the developer, the hotel project, the authority, the city, the financing district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement]. Dated: [], 2021 SAN DIEGO UNIFIED PORT DISTRICT By: _____________________________________ [] [Title/Role] Page 38 of 66 DAttachment E 39 EXHIBIT B-4 CERTIFICATE OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT REGARDING PRELIMINARY OFFICIAL STATEMENT CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) The undersigned hereby states and certifies that: 1. [he/she] is the duly appointed, qualified and acting [Title/Role] of the Bayfront Project Special Tax Financing District (the "Financing District") and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; and 2. there has been delivered to J.P. Morgan Securities LLC, as the underwriter of the captioned bonds (the "Bonds"), a Preliminary Official Statement dated [], 2021 for the Bonds (including the cover page and all appendices thereto, the "Preliminary Official Statement"), which the Financing District deems final as of its date for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 15c2-12"), except for information permitted to be omitted therefrom by Rule 15c2-12 and excluding information under the captions [the developer, the hotel project, the authority, the city, the port district, and related appendices—to be updated and finalized during preparation of the Preliminary Official Statement]. Dated: [], 2021 BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: _____________________________________ [Name] [Title/Role] Page 39 of 66 DAttachment E 40 EXHIBIT C CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of the Chula Vista Bayfront Facilities Financing Authority (the "Authority"), and is duly authorized to execute and deliver this Certificate and further hereby certifies and reconfirms on behalf of the Authority as follows: (a) The representations and warranties of the Authority contained in the Bond Purchase Agreement dated [], 2021 (the "Purchase Contract"), executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Authority, the City of Chula Vista, the San Diego Unified Port District and the Bayfront Project Special Tax Financing District, are true and correct and in all material respects on and as of the date of the Closing with the same effect as if made on the date of the Closing. (b) The Authority Resolution is in full force and effect at the date of the Closing and has not been amended, modified or supplemented, except as agreed to by the Authority and the Underwriter. Capitalized terms used but not defined herein have the meanings given such terms in the Purchase Contract. Dated: [], 2021 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: _____________________________________ Authorized Representative Page 40 of 66 DAttachment E 41 EXHIBIT D CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF THE CITY OF CHULA VISTA The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of the City of Chula Vista (the "City"), and is duly authorized to execute and deliver this Certificate and further hereby certifies and reconfirms on behalf of the City as follows: (a) The representations and warranties of the City contained in the Bond Purchase Agreement dated [], 2021 (the "Purchase Contract"), executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Chula Vista Bayfront Facilities Financing Authority, the City, the San Diego Unified Port District and the Bayfront Project Special Tax Financing District, are true and correct and in all material respects on and as of the date of the Closing with the same effect as if made on the date of the Closing. (b) The City Resolution is in full force and effect at the date of the Closing and has not been amended, modified or supplemented, except as agreed to by the City and the Underwriter. Capitalized terms used but not defined herein have the meanings given in the Purchase Contract. Dated: [], 2021 CITY OF CHULA VISTA By: _____________________________________ Authorized Representative Page 41 of 66 DAttachment E 42 EXHIBIT E CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF THE SAN DIEGO UNIFIED PORT DISTRICT The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of the San Diego Unified Port District (the "Port District"), and is duly authorized to execute and deliver this Certificate and further hereby certifies and reconfirms on behalf of the Port District as follows: (a) The representations and warranties of the Port District contained in the Bond Purchase Agreement dated [], 2021(the "Purchase Contract"), executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Chula Vista Bayfront Facilities Financing Authority, the City of Chula Vista, the Port District and the Bayfront Project Special Tax Financing District, are true and correct and in all material respects on and as of the date of the Closing with the same effect as if made on the date of the Closing. (b) The Port District Resolution is in full force and effect at the date of the Closing and has not been amended, modified or supplemented, except as agreed to by the Port District and the Underwriter. Capitalized terms used but not defined herein have the meanings given in the Purchase Contract. Dated: [], 2021 SAN DIEGO UNIFIED PORT DISTRICT By: _____________________________________ Authorized Representative Page 42 of 66 DAttachment E 43 EXHIBIT F CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of the Bayfront Project Special Tax Financing District (the "Financing District"), and is duly authorized to execute and deliver this Certificate and further hereby certifies and reconfirms on behalf of the Financing District as follows: (a) [The representations and warranties of the Financing District contained in the Bond Purchase Agreement dated [], 2021(the "Purchase Contract"), executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Chula Vista Bayfront Facilities Financing Authority, the City of Chula Vista, the San Diego Unified Port District and the Financing District, are true and correct and in all material respects on and as of the date of the Closing with the same effect as if made on the date of the Closing.] (b) [The Financing District Resolution is in full force and effect at the date of the Closing and has not been amended, modified or supplemented, except as agreed to by the Financing District and the Underwriter.] [Capitalized terms used but not defined herein have the meanings given in the Purchase Contract.] Dated: [], 2021 BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: _____________________________________ Authorized Representative Page 43 of 66 DAttachment E 44 EXHIBIT G-1 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) LETTER OF REPRESENTATIONS OF RIDA CHULA VISTA, LLC The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of RIDA Chula Vista, LLC (the "Developer"), is duly authorized to execute and deliver this Certificate, and further represents, warrants and agrees with J.P. Morgan Securities LLC (the "Underwriter") that: (a) The Developer is a limited liability company duly organized and validly existing under the Delaware Limited Liability Company Act. (b) The Developer has [or will have at Closing] all necessary power and authority to execute, deliver and perform its obligations under the Ground Lease, the Sublease, the Project Implementation Agreement, and the Completion Guaranty (the "Developer Agreements"), and to enter into and perform its duties under the Developer Agreements, and, when executed and delivered by the respective parties thereto, the Developer Agreements will each constitute a legal, valid and binding obligation of the Developer enforceable in accordance with its respective terms, except as such enforcement may be limited by bankruptcy, moratorium and the exercise of equitable principles where equitable remedies are sought. (c) To the best of the Developer’s knowledge, other than as disclosed in the Preliminary Official Statement, no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, is pending or threatened in any way against the Developer (i) directly questioning the existence of the Developer or the titles of its officers to their respective offices, (ii) specifically contesting or affecting the validity or enforceability of the Developer Agreements, or (iii) in any way questioning the accuracy of the statements in the Preliminary Official Statement contained in the sections under the headings []. (d) Nothing has come to the attention of the Developer which has led the Developer to believe that the sections under the headings [] of the Preliminary Official Statement contains an untrue statement of a material fact or omits to state a material fact required to be stated therein or Page 44 of 66 DAttachment E 45 necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.13 (e) The Developer agrees to deliver a Closing Certificate dated the date of Closing substantially in the form attached to the Purchase Contract as Exhibit G-2. The undersigned has executed this Letter of Representations solely in his or her capacity as an authorized representative of the Developer and he or she will have no personal liability arising from or relating to this Letter of Representations. Any liability arising from or relating to this Letter of Representations may only be asserted against the Developer. Capitalized terms used but not defined herein have the meanings given in the Preliminary Official Statement. Dated: [], 202114 RIDA CHULA VISTA, LLC By: _____________________________________ Authorized Representative 13 NTD: Subject to review and development in accordance with the BPA. Rep will be limited solely to sections describing developer, project and its private side financing. 14 NTD: RIDA proposed to date the LoR as of the date of the POS. Page 45 of 66 DAttachment E 46 EXHIBIT G-2 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF RIDA CHULA VISTA, LLC The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of RIDA Chula Vista, LLC (the "Developer"), and is duly authorized to execute and deliver this Certificate and further certifies and reconfirms on behalf of the Developer as follows: (a) Each statement, representation and warranty made in the Letter of Representations is true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof, except that all references therein to the Preliminary Official Statement shall be deemed to be references to the final Official Statement. (b) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Developer of its obligations under the Developer Agreements have been obtained and are in full force and effect as of Closing. (c) The execution and delivery by the Developer of the Developer Agreements and the other instruments contemplated by any of such documents to which the Developer is a party, and compliance with the provisions of each thereof, will not, to our knowledge, conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, the Delaware Limited Liability Company Act, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order, or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Developer is a party or is otherwise subject or bound in a manner which would materially adversely affect the Developer’s performance under the Developer Agreements. The undersigned has executed this Closing Certificate solely in his or her capacity as an authorized representative of the Developer and he or she will have no personal liability arising from or relating to this Closing Certificate. Any liability arising from or relating to this Closing Certificate may only be asserted against the Developer. Capitalized terms used but not defined herein have the meanings given in the Bond Purchase Agreement dated [], 2021 (the "Purchase Contract"), executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Chula Vista Bayfront Facilities Financing Authority, the City of Chula Vista, the San Diego Unified Port District and the Bayfront Project Special Tax Financing District, or if not defined therein, in the Letter of Representations. A copy of a Letter of Representations of the Developer dated [] (the "Letter of Representations"), delivered by the Developer pursuant to the Purchase Contract, is attached hereto as Appendix A. Dated: [], 2021 Page 46 of 66 DAttachment E 47 RIDA CHULA VISTA, LLC By: _____________________________________ Authorized Representative Page 47 of 66 DAttachment E 48 APPENDIX A TO EXHIBIT G-2 [Attached] Page 48 of 66 DAttachment E 49 EXHIBIT H CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF GUARANTOR The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of __________ (the "Guarantor"), and is duly authorized to execute and deliver this Certificate and further certifies on behalf of the Guarantor as follows: (a) Each statement, representation and warranty made in the Performance Guaranty made as of [], 2021(the "Performance Guaranty"), executed by the Guarantor and accepted by the San Diego Unified Port District, the Chula Vista Bayfront Facilities Financing Authority, the City of Chula Vista and RIDA Chula Vista, LLC, are true and correct and in all material respects on and as of the date of the Closing with the same effect as if made on the date of the Closing. (b) All approvals, consents, authorizations, elections and orders of or filings or registrations with any governmental authority, board, agency or commission having jurisdiction which would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Guarantor of its obligations under the Performance Guaranty have been obtained and are in full force and effect as of Closing. (c) The execution and delivery by the Guarantor of the Performance Guaranty and compliance with the provisions thereof, will not, to our knowledge, conflict with or constitute a breach of or default under any applicable law or administrative rule or regulation of the State, under the Delaware Limited Liability Company Act, the United States or any department, division, agency or instrumentality of either thereof, or any applicable court or administrative decree or order, or any loan agreement, note, resolution, indenture, contract, agreement or other instrument to which the Guarantor is a party or is otherwise subject or bound in a manner which would materially adversely affect the Guarantor's under the Performance Guaranty. The undersigned has executed this Closing Certificate solely in his or her capacity as an authorized representative of the Guarantor and he or she will have no personal liability arising from or relating to this Closing Certificate. Any liability arising from or relating to this Closing Certificate may only be asserted against the Guarantor. Capitalized terms used but not defined herein have the meanings given in the Bond Purchase Agreement dated [], 2021 executed by J.P. Morgan Securities LLC, as underwriter, and accepted by the Chula Vista Bayfront Facilities Financing Authority, the City of Chula Vista, the San Diego Unified Port District and the Bayfront Project Special Tax Financing District. Page 49 of 66 DAttachment E 50 Dated: [], 2021 [GUARANTOR] By: _____________________________________ Authorized Representative Page 50 of 66 DAttachment E 51 EXHIBIT I CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CLOSING CERTIFICATE OF WILMINGTON TRUST, NATIONAL ASSOCIATION The undersigned hereby certifies and represents that he or she is the duly appointed and acting representative of Wilmington Trust, National Association (the "Trustee"), and is duly authorized to execute and deliver this Certificate and further hereby represents, warrants and agrees with J.P. Morgan Securities LLC, as underwriter (the "Underwriter") that: (a) the Trustee has all necessary power to enter into the Indenture of Trust, dated as of [], 2021 (the "Indenture"), between the Chula Vista Bayfront Facilities Financing Authority (the "Authority") and the Trustee, and to enter into the Loan Agreement, dated as of [], 2021 (the "Loan Agreement"), among the Bayfront Project Special Tax Financing District, the Authority, and the Trustee, and each of the Indenture and the Loan Agreement (the "Trustee Documents") has been duly authorized, executed and delivered by the Trustee, and each of the Trustee Documents constitutes the legal, valid and binding obligation of the Trustee enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other laws affecting the enforcement of creditors’ rights generally and by the application of equitable principles, if equitable remedies are sought; (b) no consent, approval, authorization or other action by any governmental or regulatory authority having jurisdiction over the Trustee that has not been obtained is or will be required for the execution and delivery of the Trustee or the performance by the Trustee of its duties and obligations under the Trustee Documents and; (c) the execution and delivery by the Trustee of the Trustee Documents and compliance with the terms thereof will not conflict with, or result in a violation or breach of, or constitute a default under, any loan agreement, indenture, bond, note, resolution or any other agreement or instrument to which the Trustee is a party or by which it is bound, or any law or any rule, regulation, order or decree of any court or governmental agency or body having jurisdiction over the Trustee or any of its activities or properties (except that no representation, warranty or agreement need be made by such representative with respect to any federal or State securities or blue sky laws or regulations); and (d) there is no action, suit, proceeding or investigation, at law or in equity, before or by any court or governmental agency, public board or body pending, or to the best knowledge of the Trustee, threatened against the Trustee which in the reasonable judgment of the Trustee would affect the existence of the Trustee or in any way contesting or affecting the validity or enforceability of the Trustee Documents, or contesting the powers of the Trustee or its authority to enter into and perform its obligations thereunder. Capitalized terms used but not defined herein have the meanings given such terms in the Bond Purchase Agreement dated [], 2021), executed by the Underwriter and accepted by the Authority, the City of Chula Vista, the San Diego Unified Port District and the Bayfront Project Special Tax Financing District. Page 51 of 66 DAttachment E 52 Dated: [], 2021 WILMINGTON TRUST, NATIONAL ASSOCIATION, as trustee By: _____________________________________ Authorized Representative Page 52 of 66 DAttachment E 53 EXHIBIT J-1 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CERTIFICATE OF HARRELL & COMPANY ADVISORS, LLC The undersigned hereby states and certifies that: (a) the undersigned is an authorized representative of Harrell & Company Advisors, LLC (the "Municipal Advisor"), which has acted as municipal advisor to the City of Chula Vista (the "City"), and the Bayfront Project Special Tax Financing District (the "Financing District") in connection with the issuance of the above-referenced bonds (the "Bonds"), and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; (b) the Municipal Advisor has participated in the preparation of the Preliminary Official Statement dated [], 2021 (the "Preliminary Official Statement") and the final Official Statement dated [], 2021 (the "Official Statement") relating to the Bonds; and (c) based on such participation and without having undertaken to determine independently or assuming any responsibility for the accuracy, completeness or fairness of the statements contained in the Preliminary Official Statement or the Final Official Statement, no information came to the attention of the Municipal Advisor in connection with the issuance of the Bonds that would lead them to believe that the Preliminary Official Statement or the Official Statement (except that no view need be expressed respect to: (i) the expressions of opinion, the assumptions, the projections, estimates and forecasts, the charts, the financial statements or other financial, numerical, economic, demographic or statistical data, assessed or appraised valuations, absorption schedules or environmental matters contained in the Preliminary Official Statement or the Official Statement; (ii) any CUSIP numbers or information relating thereto; (iii) any information with respect to The Depository Trust Company and its book-entry system; (iv) any information contained in the Appendices to the Preliminary Official Statement or the Official Statement; (v) any information incorporated by reference into the Preliminary Official Statement or the Official Statement; (vi) matters relating to the tax-exempt status of the above-referenced Series 2021B Bonds, including but not limited to the information under the caption [“TAX MATTERS”]; and (vii) any information with respect to the Underwriter (as such term is defined in the Preliminary Official Statement and the Official Statement) or underwriting matters with respect to the Bonds, including but not limited to information under the caption [“UNDERWRITING”]), as of the date thereof or as of the date hereof, contains or contained any untrue statement of a material fact or omits or omitted to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. [Note: Subsection (c) to be reviewed when draft Preliminary Official Statement is available.] Page 53 of 66 DAttachment E 54 Dated [], 2021 HARRELL & COMPANY ADVISORS, LLC, as Municipal Advisor By: _____________________________________ Authorized Representative Page 54 of 66 DAttachment E 55 EXHIBIT J-2 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) CERTIFICATE OF PUBLIC FINANCE ENERGY ADVISORS, LLC The undersigned hereby states and certifies that: (a) the undersigned is an authorized representative of Public Finance Energy Advisors, LLC (the "Municipal Advisor"), which has acted as municipal advisor to the San Diego Unified Port District (the "Port District") in connection with the issuance of the above-referenced bonds (the "Bonds"), and as such, is familiar with the facts herein certified and is authorized and qualified to certify the same; (b) the Municipal Advisor has participated in the preparation of the Preliminary Official Statement dated [], 2021 [the "Preliminary Official Statement") and the final Official Statement dated [], 2021 (the "Official Statement") relating to the Bonds; and (c) nothing has come to the attention of the Municipal Advisor which would lead it to believe that [either the Preliminary Official Statement as of its date or as of the date hereof or] the Official Statement as of its date or as of the date hereof, contained or contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements made therein, in light of the circumstances under which they were made, not misleading. Dated [], 2021 PUBLIC FINANCE ENERGY ADVISORS, LLC, as Municipal Advisor By: _____________________________________ Authorized Representative Page 55 of 66 DAttachment E 56 EXHIBIT K15 CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY $[]* Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) $[]* Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) [Note: Separate Offering Price Certificate to be completed for Series 2021A Bonds and Series 2021B Bonds] FORM OF ISSUE PRICE CERTIFICATE The undersigned, on behalf of J.P. Morgan Securities LLC ("JPM") hereby certifies as set forth below with respect to the sale and issuance of the above-captioned bonds (the "Bonds") being issued pursuant to the Indenture of Trust, dated as [], 2021 (the "Indenture"), between the Chula Vista Bayfront Facilities Financing Authority and Wilmington Trust, National Association, as trustee. Capitalized terms used and not otherwise defined in this certificate shall have the meanings assigned to such terms in the hereinafter defined Purchase Contract or in the Indenture. 1. Sale of the General Rule Maturities . As of the date of this certificate, for each Maturity of the General Rule Maturities, the first price at which at least 10% of such Maturity was sold to the Public is the respective price listed in Schedule A. 2. Initial Offering Price of the Hold-the-Offering-Price Maturities. (a) Select Maturities Use Hold-the-Offering-Price Rule: The Underwriter has offered the Hold-the-Offering-Price Maturities to the Public for purchase at the respective initial offering prices listed in Schedule A (the “Initial Offering Prices”) on or before the Sale Date. A copy of the pricing wire or equivalent communication for the Bonds is attached to this certificate as Schedule B. (b) Select Maturities Use Hold-the-Offering-Price Rule: As set forth in the Bond Purchase Agreement dated ______, 2021 (the "Purchase Contract"), among the Authority, the City of Chula Vista (the "City"), the San Diego Unified Port District (the "Port District"), the Bayfront Project Special Tax Financing District (the "Financing District") and JPM, JPM has agreed in writing that, (i) for each Maturity of the Hold-the-Offering-Price Maturities, it would neither offer nor sell any of the Bonds of such Maturity to any person at a price that is higher than the Initial Offering Price for 15 NTD: To be updated for hold-the-offering-price maturities, if applicable to the deal. Page 56 of 66 DAttachment E 57 such Maturity during the Holding Period for such Maturity (the “hold-the-offering-price rule”), and (ii) any selling group agreement shall contain the agreement of each dealer who is a member of the selling group, and any retail distribution agreement shall contain the agreement of each broker-dealer who is a party to the retail distribution agreement, to comply with the hold-the-offering-price rule. Pursuant to such agreement, no Underwriter (as defined below) has offered or sold any Maturity of the Hold-the-Offering Price Maturities at a price that is higher than the respective Initial Offering Price for that Maturity of the Bonds during the Holding Period. 3. Defined Terms. (a) General Rule Maturities means those Maturities of the Bonds listed in Schedule A hereto as the "General Rule Maturities." (b) Hold-the-Offering-Price Maturities means those Maturities of the Bonds listed in Schedule A hereto as the “Hold-the-Offering-Price Maturities.” (c) Holding Period means, with respect to a Hold-the-Offering-Price Maturity, the period starting on the Sale Date and ending on the earlier of (i) the close of the fifth business day after the Sale Date (i.e. [], 2021), or (ii) the date on which the Underwriter has sold at least 10% of such Hold-the-Offering-Price Maturity to the Public at prices that are no higher than the Initial Offering Price for such Hold-the-Offering-Price Maturity. (d) Issuer means the Authority. (e) Maturity means Bonds with the same credit and payment terms. Bonds with different maturity dates, or Bonds with the same maturity date but different stated interest rates, are treated as separate maturities. (f) Public means any person (including an individual, trust, estate, partnership, association, company, or corporation) other than an Underwriter or a Related Party to an Underwriter. (g) Related Party means any entity if an Underwriter and such entity are subject, directly or indirectly, to (i) more than 50% common ownership of the voting power or the total value of their stock, if both entities are corporations (including direct ownership by one corporation of another), (ii) more than 50% common ownership of their capital interests or profit interests, if both entities are partnerships (including direct ownership by one partnership of another), or (iii) more than 50% common ownership of the value of the outstanding stock of the corporation or the capital interests or profit interests of the partnership, as applicable, if one entity is a corporation and the other entity is a partnership (including direct ownership of the applicable stock or interests by one entity of the other). (h) Sale Date means the first day on which there is a binding contract in writing for the sale of a Maturity of the Bonds. The Sale Date of the Bonds is [], 2021. (i) Underwriter means (i) any person that agrees pursuant to a written contract with the Authority (or with the lead underwriter to form an underwriting syndicate) to participate in the initial sale of the Bonds to the Public, and (ii) any person that agrees pursuant to a written contract directly or indirectly with a person described in clause (i) of this paragraph to participate in the initial sale of the Bonds to the Public (including a member of a selling group or a party to a retail distribution agreement participating in the initial sale of the Bonds to the Public). The representations set forth in this certificate are limited to factual matters only. Nothing in this certificate represents JPM’s interpretation of any laws, including specifically Sections 103 and 148 of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. The undersigned understands that the foregoing information will be relied upon by the Authority, the City Page 57 of 66 DAttachment E 58 the Port District, and the Financing District with respect to certain of the representations set forth in the Tax Certificate (as such term is defined in the Indenture) and with respect to compliance with the federal income tax rules affecting the 2021B Bonds, and by Stradling Yocca Carlson & Rauth, a Professional Corporation, in connection with rendering its opinion that the interest on the 2021B Bonds is excluded from gross income for federal income tax purposes, the preparation of the Internal Revenue Service Form 8038-G, and other federal income tax advice that it may give to the Authority from time to time relating to the 2021B Bonds. J.P. MORGAN SECURITIES LLC, as Underwriter By: _____________________________________ Authorized [Officer/Representative] Page 58 of 66 DAttachment E 59 SCHEDULE A TO EXHIBIT K SALE PRICES OF THE GENERAL RULE MATURITIES AND INITIAL OFFERING PRICES OF THE HOLD-THE-OFFERING-PRICE MATURITIES $[]* Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) Maturity Date ([June 1]) Principal Amount Interest Rate Yield Price Hold-the Offering Price Yield to Maturity Call Date Call Price Premium (discount) 10% Test Used $[]* Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) Maturity Date ([June 1]) Principal Amount Interest Rate Yield Price Hold-the Offering Price Yield to Maturity Call Date Call Price Premium (discount) 10% Test Used Page 59 of 66 DAttachment E 60 SCHEDULE B TO EXHIBIT K PRICING WIRE OR EQUIVALENT COMMUNICATION (To Be Attached) Page 60 of 66 DAttachment E 61 EXHIBIT L FORM OF SUPPLEMENTAL OPINION OF BOND COUNSEL [], 202 J.P. Morgan Securities, LLC San Francisco, California Re: $________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) and $________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) Ladies and Gentlemen: We have examined certified copies of proceedings taken for the issuance and sale to you of the above-referenced bonds (the "Bonds"), and we have rendered our opinion to the Chula Vista Bayfront Facilities Financing Authority (the "Authority") this day regarding the validity and enforceability of the Bonds (the "Approving Opinion"). The Bonds have been issued pursuant to the Marks-Roos Local Bond Pooling Act of 1985, as amended (Article 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code) (the "Act"), and an authorizing resolution adopted by the Board of Directors of the Authority on [], 2021. You may rely upon our Approving Opinion as if it were addressed to you. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Bond Purchase Agreement dated [], 2021 (the "Purchase Agreement"), by and among the Authority, the City of Chula Vista (the "City"), the San Diego Unified Port District (the "Port District"), the Bayfront Project Special Tax Financing District ("Financing District"; and, together with the City and the Port District, the "Financing Participants"), and J.P. Morgan Securities LLC, as Underwriter (the "Underwriter"), This opinion is being delivered to you pursuant to Section 10(e)(v) of the Purchase Agreement. In connection with rendering the Approving Opinion, we examined the record of proceedings submitted to us relative to the issuance of the Bonds and originals or copies certified or otherwise identified to our satisfaction of (i) the Indenture, the Site Lease, the Facility Lease, the Support Agreement, the Loan Agreement, and the Purchase Agreement (collectively, the "Legal Documents"), (ii) the Official Statement of the Authority for the Bonds dated [], 2021 (the "Official Statement"), and (iii) the other documents, certificates, opinions of counsel, instructions and records delivered pursuant to the Purchase Agreement. We have assumed, but not independently verified, that the signatures on all documents, letters, opinions and certificates which we have examined are genuine, that all documents submitted to us are authentic and were duly and properly executed by the parties thereto and where applicable have been duly recorded with the County Recorder of the County of San Diego and that all representations made in the documents that we have reviewed are true and accurate. As to questions of fact material to our opinion, we have relied upon the representations of each party made in the aforesaid documents, and we have made no independent investigation of such matters. Based upon the foregoing and such other information and documents as we consider necessary to render this opinion, we are of the opinion that: Page 61 of 66 DAttachment E 62 1. The Purchase Agreement has been duly executed and delivered by the Authority and, assuming due execution and delivery by the Underwriter, is a legal, valid and binding obligation of the Authority enforceable in accordance with its terms. 2. The statements contained in the Official Statement on the cover page and in the sections entitled ["SUMMARY STATEMENT,"] ["INTRODUCTION,"] ["THE BONDS"] (other than the information concerning DTC and the book-entry system), ["SECURITY FOR THE BONDS,"] and ["TAX MATTERS,"] insofar as such statements expressly summarize certain provisions of the Indenture, the Legal Documents, the Bonds, and the form and content of our opinion attached as Appendix [F] to the Official Statement, are accurate in all material respects. 3. The Bonds are not subject to the registration requirements of the Securities Act of 1933, as amended and the Indenture is exempt from qualification pursuant to the Trust Indenture Act of 1939, as amended. The foregoing opinions are based upon our analysis and interpretation of existing statutes, regulations, rulings and judicial decisions and cover certain matters not directly addressed by such authorities. In rendering these opinions, we have relied upon certain representations of fact and certifications made by the Authority, the Financing Participants and others. We have not undertaken to verify through independent investigation the accuracy of the representations and certifications relied upon by us. The foregoing opinions are limited to matters governed by the laws of the State of California and federal securities laws, and we assume no responsibility with respect to the applicability or the effect of the laws of any other jurisdiction. We call attention to the fact that the rights and obligations under the Legal Documents and the Bonds are subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer and other similar laws affecting creditors' rights, to the application of equitable principles if equitable remedies are sought, to the exercise of judicial discretion in appropriate cases and to limitations on legal remedies against public agencies in the State of California. By delivering this letter, we are not expressing any opinion with respect to any indemnification, contribution, liquidated damages, penalty (including any remedy deemed to constitute a penalty), right of set-off, arbitration, judicial reference, choice of law, choice of forum, choice of venue, non-exclusivity of remedies, waiver or severability provisions contained in the Legal Documents or the Bonds, nor are we expressing any opinion with respect to the state or quality of title to or interest in any assets described in or as subject to the lien of the Legal Documents or the Bonds, or the accuracy or sufficiency of the description of such assets, or the remedies available to enforce liens on, any such assets. Except as expressly set forth in the Approving Opinion, we express no opinion regarding any tax consequences with respect to the Bonds. No opinion is expressed herein with respect to the compliance with, or applicability of, any "blue sky" laws of any state as they relate to the offer or sale of the Bonds. This letter is furnished by us as Bond Counsel to the Authority. No attorney-client relationship has existed or exists between our firm and you in connection with the Bonds or by virtue of this letter. This letter is delivered to you as the Underwriter of the Bonds, is solely for your benefit as the Underwriter and is not to be used, circulated, quoted or otherwise referred to or relied upon for any other purpose without our prior written consent. This letter is not intended to and may not be relied upon by owners of the Bonds. Our engagement with respect to the Bonds terminates as of the date hereof, and we have not undertaken any duty, and expressly disclaim any responsibility, to advise you as to events occurring after the date hereof with respect to the Bonds or other matters discussed herein or in the Official Statement. Page 62 of 66 DAttachment E 63 Respectfully submitted, Page 63 of 66 DAttachment E 64 EXHIBIT M FORM OF DISCLOSURE COUNSEL LETTER [], 2021 J.P. Morgan Securities, LLC San Francisco, California Re: $________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) and $________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) Ladies and Gentlemen: We have acted as Disclosure Counsel to the Chula Vista Bayfront Facilities Financing Authority (the "Authority") in connection with the issuance of the above-referenced bonds (the "Bonds"). The Bonds are being issued pursuant to an Indenture of Trust dated as of [], 2021 (the "Indenture"), by and between the Authority and Wilmington Trust, National Association, as trustee (the "Trustee"). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Bond Purchase Agreement dated _______, 2021 (the "Purchase Agreement"), by and among the Authority, the City of Chula Vista (the "City"), the San Diego Unified Port District (the "Port District"), the Bayfront Project Special Tax Financing District ("Financing District," and, together with the City and the Port District, the "Financing Participants"), and J.P. Morgan Securities LLC, as Underwriter (the "Underwriter"). This letter is being delivered to you pursuant to Section 10(e)(vi) of the Purchase Agreement. We have examined the record of proceedings submitted to us relative to the issuance of the Bonds and originals or copies certified or otherwise identified to our satisfaction of (i) the Indenture, (ii) the City Agreements, the Port District Agreements, and the Financing District Agreements, (iii) the Letter of Representations, (iv) the Purchase Agreement, (v) the Preliminary Official Statement for the Bonds dated [], 2021 (including any supplements or amendments thereto and any additional information or changes set forth in the Official Statement, the "Preliminary Official Statement"), (vi) Official Statement for the Bonds dated [], 2021 (the "Official Statement"), and (vii) the other documents, certificates, opinions of counsel, instructions and records delivered pursuant to the Purchase Agreement. We have assumed, but not independently verified, that the signatures on all documents, letters, opinions, certificates and instructions which we have examined are genuine, that all documents submitted to us are authentic and were duly and properly executed by the parties thereto and that all representations made in the documents that we have reviewed are true and accurate. We are not passing upon and have not undertaken to determine independently or to verify the accuracy or completeness of the statements contained in the Official Statement and are, therefore, unable to make any representation to you in that regard. Based on our participation in conferences with the Underwriter and Ashurst LLP, counsel to the Underwriter, representatives of the Authority, Co-Counsel to the Authority, the City Attorney, the Port Attorney, Harrell & Company Advisors, LLC, Municipal Advisor to the City and the Financing District, Public Finance Energy Advisors, LLC, Municipal Advisor to the Port District, representatives of the Financing Participants and their respective counsel, and others, during which conferences the content of the Official Statement and related matters were discussed, our review of the documents referred to above, our reliance on the oral and written statements of the Authority, the Financing Participants and others, the documents, certificates, Page 64 of 66 DAttachment E 65 instructions and records and the opinions of counsel described above and our understanding of applicable law, and subject to the limitations on our role as Disclosure Counsel to the Authority, we advise you as a matter of fact but not opinion that no information has come to the attention of the attorneys in the firm representing the Authority as Disclosure Counsel on this matter which caused us to believe that the Preliminary Official Statement as of its date contained, or the Official Statement as of its date contained or as of the date hereof contains, any untrue statement of a material fact, or that the Preliminary Official Statement as of its date omitted, or the Official Statement as of its date omitted or as of the date hereof omits, to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading in any material respect (except that we express no view with respect to: (i) the expressions of opinion, the assumptions, the projections, estimates and forecasts, the charts, the financial statements or other financial, numerical, economic, demographic or statistical data, or assessed valuations contained in the Preliminary Official Statement or the Official Statement; (ii) any CUSIP numbers or information relating thereto; (iii) any information with respect to The Depository Trust Company and its book-entry system; (iv) any information contained in the Appendices to the Preliminary Official Statement or the Official Statement; (v) any information incorporated by reference into the Preliminary Official Statement or the Official Statement; (vi) any information with respect to the Underwriter or underwriting matters with respect to the Bonds, including but not limited to information under the caption ["UNDERWRITING"]; (vii) compliance by the Authority, the Financing Participants, the Developer, or any related entity with their respective obligations to provide notice of the events described in part (b)(5)(i)(C) of Rule 15c2-12 promulgated under the Securities Act of 1934 ("Rule 15c2-12") or to file annual reports described in part (b)(5)(i)(A) of Rule 15c2-12; [and (viii) any information with respect to the ratings on the Bonds and the rating agencies referenced therein, including but not limited to information under the caption "RATINGS"]). We advise you that, other than reviewing the various certificates and opinions required by Section 10(e) of the Purchase Agreement regarding the Official Statement, we have not taken any steps since the date of the Official Statement to verify the accuracy of the statements contained in the Preliminary Official Statement or the Official Statement as of the date hereof. By acceptance of this letter you acknowledge that the preceding paragraph is neither a legal opinion nor a guarantee regarding the Preliminary Official Statement or the Official Statement; rather it is a statement of negative assurance regarding factual information that did not come to the attention of the attorneys in our firm working on this matter during the limited activities that we performed as Disclosure Counsel to the Authority. In accepting this letter, the Underwriter recognizes and acknowledges that: (i) the advice herein is based on certain limited activities performed by specific attorneys in our firm in our role as Disclosure Counsel; (ii) the scope of the activities performed by such attorneys in our role as Disclosure Counsel and for purposes of delivering such advice was inherently limited and does not purport to encompass all activities necessary for compliance by the Underwriter with applicable state and federal securities laws; and (iii) the activities performed by such attorneys in our role as Disclosure Counsel rely in part by representations, warranties, certifications and opinions of other parties to the transaction, including representations, warranties and certifications made by the Authority, the Financing Participants, the Underwriter and others, and are otherwise subject to the matters set forth in this letter. Our services did not include financial or other non-legal advice. This letter is furnished by us as Disclosure Counsel to the Authority. No attorney-client relationship has existed or exists between our firm and the Underwriter in connection with the Bonds or by virtue of this letter. We note the Underwriter is represented by separate counsel retained by it in connection with the transaction described in the Official Statement. This letter is delivered to you solely for your benefit and is not to be used, circulated, quoted or otherwise referred to or relied upon for any other purpose without our prior written consent. This letter is not intended to and may not be relied upon by owners of the Bonds or any beneficial interest therein. Page 65 of 66 DAttachment E 66 Our engagement with respect to the Bonds terminates as of the date hereof, and we have not undertaken any duty, and expressly disclaim any responsibility, to advise you as to events occurring after the date hereof with respect to the Bonds or other matters discussed herein or in the Official Statement. Respectfully submitted, Page 66 of 66 DAttachment E 4836-6408-6199v10/024036-0079 INDENTURE OF TRUST by and between CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY and WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee Dated as of ___________ 1, 2021[_] $_______________________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT CONVENTION CENTER) SERIES 2021A (FEDERALLY TAXABLE) $_______________________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2021B (TAX-EXEMPT) Page 1 of 77 BAttachment F TABLE OF CONTENTS Page i 4836-6408-6199v10/024036-0079 ARTICLE I DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.1 Definitions .................................................................................................................. 3 Section 1.2 Rules of Construction............................................................................................... 16 Section 1.3 Authorization and Purpose of Bonds ....................................................................... 16 Section 1.4 Equal Security .......................................................................................................... 17 Section 1.5 Special Obligations .................................................................................................. 17 Section 1.6 Validity of Bonds ..................................................................................................... 17 ARTICLE II ISSUANCE OF BONDS Section 2.1 Terms of Bonds ........................................................................................................ 18 Section 2.2 Redemption of Bonds............................................................................................... 19 Section 2.3 Form of Bonds ......................................................................................................... 23 Section 2.4 Execution of Bonds .................................................................................................. 23 Section 2.5 Transfer of Bonds..................................................................................................... 24 Section 2.6 Exchange of Bonds .................................................................................................. 24 Section 2.7 Temporary Bonds ..................................................................................................... 24 Section 2.8 Bond Register ........................................................................................................... 25 Section 2.9 Bonds Mutilated, Lost, Destroyed or Stolen ............................................................ 25 Section 2.10 Book-Entry System .................................................................................................. 25 ARTICLE III DEPOSIT AND APPLICATION OF PROCEEDS Section 3.1 Issuance of 2021 Bonds ........................................................................................... 27 Section 3.2 Application of Proceeds of Sale of 2021 Bonds ...................................................... 27 Section 3.3 Revenue Fund .......................................................................................................... 28 Section 3.4 Costs of Issuance Fund ............................................................................................ 28 Section 3.5 Establishment of Additional Funds and Accounts ................................................... 28 Section 3.6 Reserve Fund ........................................................................................................... 28 Section 3.7 Rebate Fund ............................................................................................................. 28 Section 3.8 Authority Surplus Fund ............................................................................................ 28 Section 3.9 Administrative Expense Fund .................................................................................. 28 Section 3.10 Construction Fund .................................................................................................... 29 Section 3.11 Insurance and Condemnation Fund .......................................................................... 30 Section 3.12 Redemption Fund ..................................................................................................... 30 Page 2 of 77 BAttachment F TABLE OF CONTENTS (continued) Page ii 4836-6408-6199v10/024036-0079 ARTICLE IV PLEDGE OF REVENUES AND FUNDS; FLOW OF FUNDS Section 4.1 Pledge of Revenues and Funds; Assignment of Rights ........................................... 30 Section 4.2 Receipt, Deposit and Application of Revenues; Revenue Fund .............................. 31 Section 4.3 Reserve Fund ........................................................................................................... 33 Section 4.4 Authority Surplus Fund ............................................................................................ 34 Section 4.5 Insurance and Condemnation Fund .......................................................................... 34 Section 4.6 Redemption Fund ..................................................................................................... 36 Section 4.7 Investments .............................................................................................................. 36 Section 4.8 Valuation of Permitted Investments ......................................................................... 37 Section 4.9 Purchase of Bonds .................................................................................................... 37 ARTICLE V COVENANTS OF THE AUTHORITY Section 5.1 Punctual Payment ..................................................................................................... 37 Section 5.2 Extension of Payment of Bonds ............................................................................... 37 Section 5.3 Against Encumbrances ............................................................................................. 38 Section 5.4 Power to Issue Bonds and Make Pledge and Assignment ....................................... 38 Section 5.5 Accounting Records and Financial Statements ........................................................ 38 Section 5.6 Conditions to Issuance of Additional Bonds and Other Obligations ....................... 39 Section 5.7 Tax Covenants ......................................................................................................... 39 Section 5.8 Rebate Fund ............................................................................................................. 40 Section 5.9 Local Obligations ..................................................................................................... 42 Section 5.10 Continuing Disclosure Certificates .......................................................................... 43 Section 5.11 Further Assurances ................................................................................................... 43 Section 5.12 Pledged Revenues .................................................................................................... 43 ARTICLE VI THE TRUSTEE Section 6.1 Appointment of Trustee ........................................................................................... 43 Section 6.2 Acceptance of Trusts ................................................................................................ 44 Section 6.3 Funds and Accounts ................................................................................................. 47 Section 6.4 Fees, Charges and Expenses of Trustee ................................................................... 47 Section 6.5 Notice to Bond Owners of Default .......................................................................... 47 Section 6.6 Intervention by Trustee ............................................................................................ 47 Section 6.7 Removal of Trustee .................................................................................................. 47 Section 6.8 Resignation by Trustee............................................................................................. 47 Section 6.9 Appointment of Successor Trustee .......................................................................... 48 Section 6.10 Merger or Consolidation .......................................................................................... 48 Section 6.11 Concerning any Successor Trustee .......................................................................... 48 Section 6.12 Appointment of Co-Trustee ..................................................................................... 48 Page 3 of 77 BAttachment F TABLE OF CONTENTS (continued) Page iii 4836-6408-6199v10/024036-0079 Section 6.13 Indemnification; Limited Liability of Trustee ......................................................... 49 ARTICLE VII MODIFICATION AND AMENDMENT OF THE INDENTURE Section 7.1 Amendment Hereof .................................................................................................. 50 Section 7.2 Effect of Supplemental Indenture ............................................................................ 51 Section 7.3 Endorsement or Replacement of Bonds After Amendment ..................................... 51 Section 7.4 Amendment by Mutual Consent .............................................................................. 51 ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Section 8.1 Events of Default ..................................................................................................... 51 Section 8.2 Remedies; Rights of Bond Owners .......................................................................... 52 Section 8.3 Application of Revenues and Other Funds After Event of Default ......................... 52 Section 8.4 Power of Trustee to Control Proceedings ................................................................ 53 Section 8.5 Appointment of Receivers ....................................................................................... 53 Section 8.6 Non Waiver .............................................................................................................. 53 Section 8.7 Rights and Remedies of Bond Owners .................................................................... 54 Section 8.8 Termination of Proceedings ..................................................................................... 54 ARTICLE IX MISCELLANEOUS Section 9.1 Limited Liability of Authority ................................................................................. 55 Section 9.2 Benefits of Indenture Limited to Parties .................................................................. 55 Section 9.3 Discharge of Indenture ............................................................................................. 55 Section 9.4 Successor is Deemed Included in All References to Predecessor ............................ 56 Section 9.5 Content of Certificates ............................................................................................. 56 Section 9.6 Execution of Documents by Bond Owners .............................................................. 57 Section 9.7 Disqualified Bonds ................................................................................................... 57 Section 9.8 Waiver of Personal Liability .................................................................................... 57 Section 9.9 Entire Agreement; Partial Invalidity ........................................................................ 57 Section 9.10 Destruction of Cancelled Bonds .............................................................................. 58 Section 9.11 Notices ..................................................................................................................... 58 Section 9.12 Unclaimed Moneys .................................................................................................. 59 Section 9.13 Payment Due on Other than a Business Day ........................................................... 60 Section 9.14 Governing Law ........................................................................................................ 60 Signatures ................................................................................................................................ S-1 Exhibit A Form of Bonds ....................................................................................................... A-1 Exhibit B Form of Requisition from Construction Fund ........................................................ B-1 Page 4 of 77 BAttachment F 1 4836-6408-6199v10/024036-0079 INDENTURE OF TRUST THIS INDENTURE OF TRUST (this “Indenture”), dated as of ________ 1, 2021, by and between the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California and that certain Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019, by and between the City of Chula Vista, a chartered city organized and existing under the laws of the State of California (the “City”) and the San Diego Unified Port District, a public corporation (the “Port District”) (the “Authority”) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”); RECITALS: WHEREAS, the Authority is a joint exercise of powers authority duly organized and existing under the provisions of Articles 1 through 4 (commencing with Section 6500) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”), and is authorized pursuant to Article 4 of the Act to borrow money for the purpose of financing the acquisition of bonds, notes and other obligations to provide financing and refinancing for capital improvements of member entities of the Authority and other local agencies; and WHEREAS, the Authority, the Port District and the City have determined it to be beneficial, for the Authority to acquire a leasehold interest in certain real property (the “Site”) described in the Site Lease of even date herewith and being entered into concurrently with the execution of this Indenture (as it may be amended from time to time in accordance with its terms, the “Site Lease”) by and between the Authority and the Port District upon which the Convention Center (as defined in the Site Lease) to be owned by the Authority will be constructed and operated; and WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns, “RIDA”) holds a leasehold interest in certain real property which is immediately adjacent to the Site described in and pursuant to a Lease, of even date herewith and being entered into concurrently with the execution of this Indenture (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and between the Port District, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and WHEREAS, given the proximity of the proposed Hotel to the Site, the Authority, the Port and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the Authority and operate the Convention Center; and WHEREAS, the Port District and the City have agreed to cause the Authority to pay for a portion of the costs of the Convention Center and for the costs of certain infrastructure benefiting the Hotel and Convention Center, and a portion of such costs will be financed by the Authority through the issuance of the Bonds (defined herein); and WHEREAS, concurrently with the execution of this Indenture, the Authority and the City have entered into that certain Facility Lease of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the Page 5 of 77 BAttachment F 2 4836-6408-6199v10/024036-0079 “Facility Lease”) pursuant to which the Authority has subleased the Site and leased the Convention Center (together, the “Facility”) to the City; and WHEREAS, concurrently with the execution of this Indenture, the City and RIDA have entered into that certain Sublease Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, and, together with any New Sublease (as defined therein), the “Sublease”), pursuant to which the City has sub-subleased the Site and subleased the Convention Center to RIDA; and WHEREAS, concurrently with the execution of this Indenture, the City, the Port District, the Financing District (defined below), the Authority and RIDA have entered into that certain Project Implementation Agreement (Chula Vista Bayfront Resort Hotel and Convention Center) of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Project Implementation Agreement”) pursuant to which RIDA has agreed to construct the Convention Center and certain other public improvements described below; and WHEREAS, the City caused the formation of the Bayfront Project Special Tax Financing District (the “Financing District”) pursuant to Chapter 3.61 of the Chula Vista Municipal Code (“Chapter 3.61”); and WHEREAS, the Financing District is authorized to levy Special Taxes (defined herein) on certain properties within its boundaries; and WHEREAS, concurrently with the execution of this Indenture, the Authority and the Financing District have entered into that certain Loan Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Loan Agreement”) pursuant to which the Authority will loan the proceeds of the 2021B Bonds (defined below) to the Financing District for the construction of certain public infrastructure set forth in the Project Implementation Agreement (defined herein) benefiting the Chula Vista Bayfront (“Phase 1A Infrastructure Improvements”) and the Financing District will make Loan Payments (defined in the Loan Agreement) to the Authority in the amounts and at the times set forth in the Loan Agreement; and WHEREAS, concurrently with the execution of this Indenture, the Port District and the Authority have entered into that certain Support Agreement of even date herewith (as it may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Support Agreement”), pursuant to which the Port District will make certain Port District Payments (as defined in the Support Agreement) to the Authority in the amounts and at the times set forth in the Support Agreement; and WHEREAS, to assist in the financing of the Convention Center and the Phase 1A Infrastructure Improvements (together and as further defined herein, the “Project”), the Authority has determined to issue (i) its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the “2021A Bonds”), in the initial aggregate principal amount of $_________ to finance a portion of the cost of constructing the Convention Center, and (ii) its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax- Exempt) (the “2021B Bonds”; and, together with the 2021A Bonds, the “2021 Bonds”) in the initial Page 6 of 77 BAttachment F 3 4836-6408-6199v10/024036-0079 aggregate principal amount of $_________ to finance a portion of the costs of the Phase 1A Infrastructure Improvements; and WHEREAS, payment of the Bonds will be secured by (i) the Lease Payments and Pre- Completion Lease Payments (each as defined herein) to be made by the City under the Facility Lease, (ii) the Loan Payments to be made by the Financing District under the Loan Agreement, (iii) the Port District Payments to be made by the Port District pursuant to the Support Agreement, and (iv) the amounts in certain funds and accounts maintained under this Indenture as described herein; and WHEREAS, the Bonds will be issued pursuant to and secured by this Indenture in the manner provided herein; and WHEREAS, in order to provide for the authentication and delivery of the Bonds, to establish and declare the terms and conditions upon which the Bonds are to be issued and to secure the payment of the principal thereof and interest thereon, the Authority has authorized the execution and delivery of this Indenture pursuant to Resolution No. ____ adopted by the governing body of the Authority; and WHEREAS, the Authority hereby certifies that all acts and proceedings required by law necessary to make the Bonds, when executed by the Authority, authenticated and delivered by the Trustee and duly issued, the valid, binding and legal special and limited obligations of the Authority, and to constitute this Indenture a valid and binding agreement for the uses and purposes herein set forth in accordance with its terms, have been done and taken, and the execution and delivery of this Indenture have been in all respects duly authorized; NOW, THEREFORE, THIS INDENTURE WITNESSETH, that in order to secure the payment of the principal of, redemption premium, if any, and the interest on all Bonds at any time issued and Outstanding (defined below) under this Indenture, according to their tenor, and to secure the performance and observance of all the covenants and conditions therein and herein set forth, and to declare the terms and conditions upon and subject to which the Bonds are to be issued and received, and in consideration of the mutual covenants herein contained and of the purchase and acceptance of the Bonds by the Owners (defined below) thereof, and for other valuable considerations, the receipt and sufficiency of which is hereby acknowledged, the Authority and the Trustee do hereby covenant and agree, for the benefit of the respective Owners from time to time of the Bonds, as follows: ARTICLE I DEFINITIONS; AUTHORIZATION AND PURPOSE OF BONDS; EQUAL SECURITY Section 1.1 Definitions. The terms defined in this Section shall for all purposes of this Indenture and of any Supplemental Indenture and of the Bonds and of any certificate, opinion, request or other documents herein mentioned have the meanings specified in this Section 1.1. Any capitalized term not defined herein shall have the meaning set forth in the Facility Lease. “Act” means Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the Government Code of the State, as it may hereafter be amended from time to time. Page 7 of 77 BAttachment F 4 4836-6408-6199v10/024036-0079 “Additional Bonds” means additional bonds issued pursuant to Section 5.6 and secured on a parity with the Bonds. “Additional Administrative Expenses” means (i) any third party costs and expenses paid or incurred by the City in order to comply with its covenants and agreements in the Facility Lease which are not paid for by RIDA pursuant to the terms of the Sublease, other than (A) amounts payable by the City under Section 2.1(e) of the Facility Lease, and (B) amounts paid as Priority Administrative Expenses; (ii) any third party costs and expenses paid or incurred by the JEPA, Port or City in carrying out the duties of the JEPA under the Facility Lease and Sublease on behalf of the JEPA other than amounts paid as Priority Administrative Expenses; and (iii) any third party costs and expenses paid or incurred by the Port in order to comply with its covenants and agreements in the Site Lease which are not paid for by RIDA, other than amounts payable by the Port under the Site Lease arising from the Port’s sole negligence, willful misconduct or breach of the Port’s obligations thereunder, and amounts paid as Priority Administrative Expenses. “Annual Debt Service” means, for each Bond Year, the sum of (a) the interest payable on the Outstanding Bonds in such Bond Year, and (b) the principal amount of the Outstanding Bonds scheduled to be paid in such Bond Year, whether at maturity or from sinking fund payments. “Assigned Rights” means (i) all right, title and interest of the Authority in and to the Lease Payments, Pre-Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance payable under the Facility Lease, (ii) the Authority’s right to enforce the obligations of the City with respect to the Lease Revenues (as defined in the Facility Lease), Lease Payments, Pre-Completion Lease Payments, Net Proceeds, and rental interruption and title insurance under Article IX of the Facility Lease, (iii) the Authority’s right to enforce the terms of the Site Lease to the extent necessary to ensure the collection of Lease Payments, Pre-Completion Lease Payments, Net Proceeds and proceeds of rental interruption insurance and title insurance in accordance with the terms of the Facility Lease, (iv) all right, title and interest of the Authority in and to the Construction Late Charges and the Authority’s right to enforce the terms of the Project Implementation Agreement to the extent necessary to ensure the collection of Construction Late Charges; (v) the rights assigned to the Trustee in Section 3.6 of the Loan Agreement; and (vi) all right, title and interest of the Authority in and to the Port District Payments under the Support Agreement and the Authority’s right to enforce the obligations of the Port with respect to the Port District Payments; provided, however, the Assigned Rights do not include any of the obligations of the Authority under the Site Lease, the Facility Lease, the Project Implementation Agreement, the Loan Agreement or the Support Agreement. “Authority” means the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers agency existing pursuant to the laws of the State and that certain Amended and Restated Joint Exercise of Powers Agreement dated as of July 25, 2019, by and between the City and the Port District, as the same may be amended, amended and restated or otherwise supplemented from time to time. “Authority Surplus Fund” means the fund by that name established pursuant to Section 3.8 hereof. “Authorized Officer” means the Executive Director of the Authority (or his or her designated representative) or Treasurer of the Authority (or his or her designated representative) or any other Page 8 of 77 BAttachment F 5 4836-6408-6199v10/024036-0079 Person authorized by the Authority to perform an act or sign a document on behalf of the Authority for purposes of this Indenture. “Beneficial Owners” means the actual purchasers of the Bonds whose ownership interests are recorded on the books of the DTC Participants. “Bond Counsel” means any attorney at law or firm of attorneys selected by the Authority, of nationally recognized standing in matters pertaining to the exclusion from gross income for federal income tax purposes of interest on bonds issued by states and political subdivisions, and duly admitted to practice law before the highest court of any state of the United States of America. “Bond Law” means the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4 of the Act (commencing with Section 6584), as it may hereafter be amended from time to time. “Bond Register” means the registration books for the Bonds maintained by the Trustee in accordance with Section 2.8 hereof. “Bond Year” means each twelve month period extending from June 2 in one calendar year to June 1 of the succeeding calendar year, except in the case of the initial Bond Year which shall be the period from the Closing Date of the Bonds to June 1, 2022, both dates inclusive. “Bonds” means, collectively, the 2021 Bonds and any Additional Bonds authorized by and at any time Outstanding pursuant to the Bond Law and this Indenture. “Business Day” means a day which is not a Saturday or Sunday or a day of the year on which the New York Stock Exchange, the Federal Reserve System, or banks or trust companies in New York, New York, Wilmington, Delaware, Los Angeles, California, or where the Trust Office is located, are not required or authorized by law, regulation or executive order to remain closed. “Certificate of the Authority” means a certificate in writing signed by an Authorized Officer of the Authority. “Chapter 3.61” means Chapter 3.61 of the Chula Vista Municipal Code as amended from time to time. “City” means the City of Chula Vista, a chartered city organized and existing under the laws of the State of California. “Closing Date” means for each Series the date on which the Bonds of such Series were executed and delivered to the Original Purchaser thereof. “Code” means the Internal Revenue Code of 1986, as amended, and the United States Treasury Regulations proposed or in effect with respect thereto. “Construction Fund” means the fund by that name established pursuant to Section 3.10 hereof. “Construction Late Charges” means amounts paid by RIDA to the Trustee pursuant to Section 5.1.2 of the Project Implementation Agreement. Page 9 of 77 BAttachment F 6 4836-6408-6199v10/024036-0079 “Continuing Disclosure Certificate” means, with respect to the 2021 Bonds, that Continuing Disclosure Certificate executed and delivered by the Authority in connection with the issuance of the 2021 Bonds, and with respect to a Series of Additional Bonds, any continuing disclosure undertaking executed in connection therewith, each as originally executed and as it may be amended from time to time in accordance with its respective terms. “Convention Center” has the meaning set forth in the foregoing Recitals. “Convention Center Costs” means the Convention Center Contract Sum (as defined in the Project Implementation Agreement), and all interest to be paid to RIDA pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Project Implementation Agreement. “Costs of Issuance” means the costs and expenses incurred in connection with the issuance and sale of the Bonds and the Local Obligations, including the acceptance and initial annual fees and expenses (including legal fees and expenses) of the Trustee, legal fees of the Authority, including Bond Counsel to the Authority and Disclosure Counsel, costs of printing the Bonds and the preliminary and final Official Statements, fees of financial consultants, rating fees, title insurance premiums, fees of the underwriter and other fees and expenses related to the issuance and sale of the Bonds and the Local Obligations set forth in a Request of the Authority. “Costs of Issuance Fund” means the fund by that name established in Section 3.4. “County Funded Bayfront Improvements Subaccount” means the account by that name established in Section 3.10. “County Funded Developer’s Phase 1A Subaccount” means the account by that name established in Section 3.10. “CV Bayfront Finance Authority Fund” means the fund of that name established and maintained by the Authority pursuant to the Revenue Sharing Agreement. “Depository” means DTC or another recognized securities depository selected by the Authority which maintains a book-entry system for the Bonds. “DTC” means The Depository Trust Company, New York, New York, and its successors and assigns. “DTC Participants” means securities brokers and dealers, banks, trust companies, clearing corporations and other organizations maintaining accounts with DTC. “Event of Default” means any of the events described in Section 8.1 hereof. “Facility” means the Site and the Convention Center. “Facility Lease” has the meaning set forth in the foregoing Recitals. “Federal Securities” means any of the following: (a) non-callable direct obligations of the United States of America (“Treasuries”), (b) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian, under which the owner of the investment is the real party in interest and has the right to proceed Page 10 of 77 BAttachment F 7 4836-6408-6199v10/024036-0079 directly and individually against the obligor and the underlying Treasuries are not available to any person claiming through the custodian or to whom the custodian may be obligated, (c) pre-refunded municipal obligations rated “AAA” and “Aaa” by S&P and Moody’s, respectively, and (d) securities eligible for “AAA” defeasance under then existing criteria of S&P. “Financing District” means the Bayfront Project Special Tax Financing District, established pursuant to Chapter 3.61. “Fiscal Year” means any twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve month period selected and designated by the Authority as its official fiscal year period. “Ground Lease” has the meaning set forth in the foregoing Recitals. “Indenture” means this Indenture of Trust, as originally executed or as it may from time to time be amended, amended and restated, supplemented or otherwise modified from time to time by any Supplemental Indenture pursuant to the provisions of Article VII hereof. “Independent Accountant” means any accountant or firm of such accountants appointed and paid by the Authority, and who, or each of whom: (a) is in fact independent and not under the control of the Authority, the City or the Port District; (b) does not have any substantial interest, direct or indirect, in the Authority, the City or the Port District; and (c) is not an officer or employee of the Authority, the City or the Port District, but who may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the Port District. “Independent Financial Consultant” means any financial consultant or firm of such consultants appointed and paid by the Authority, and who, or each of whom: (a) is in fact independent and not under the control of the Authority, the City or the Port District; (b) does not have any substantial interest, direct or indirect, in the Authority, the City or the Port District; and (c) is not an officer or employee of the Authority, the City or the Port District, but who may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the Port District. “Interest Account” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(a) hereof. “Interest Payment Date” means June 1 and December 1 in each year, beginning __________ , 202__, and continuing thereafter so long as any Bonds remain Outstanding. Page 11 of 77 BAttachment F 8 4836-6408-6199v10/024036-0079 “JP Morgan” means J.P. Morgan Securities LLC. “Lease Payments” means those payments made by the City to the Authority as annual rental for the use and possession of the Facility as set forth in Section 4.4 of the Facility Lease. “Loan Agreement” has the meaning set forth in the foregoing Recitals. “Loan Payments” means those annual payments of principal and interest made by the Financing District to the Authority under the Loan Agreement. “Local Obligations” means, collectively, the Facility Lease, the Loan Agreement, and the Support Agreement. “Maximum Annual Debt Service” means, as of the date of any calculation, the largest Annual Debt Service during the current or any future Bond Year. “Moody’s” means Moody’s Investors Service, Inc., its successors and assigns. “Net Proceeds” means any net proceeds of insurance or condemnation that are transferred to the Trustee pursuant to Section 5.3 or Section 6.1 of the Facility Lease. “Nominee” shall mean the nominee of the Depository, which may be the Depository, as determined from time to time pursuant to Section 2.10 hereof. “Original Purchaser” means, with respect to the 2021 Bonds, JP Morgan, and, with respect to a Series of Additional Bonds, the original purchaser thereof. “Outstanding” when used as of any particular time with reference to Bonds, means (subject to the provisions of Section 9.7 hereof) all Bonds theretofore executed and issued by the Authority and authenticated and delivered by the Trustee under this Indenture except: (a) Bonds theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation pursuant to Section 2.9 hereof; (b) Bonds paid or deemed to have been paid within the meaning of Section 9.3 hereof or Bonds called for redemption for which funds have been provided as described in Section 2.2(j) hereof; and (c) Bonds in lieu of or in substitution for which other Bonds shall have been executed, issued and delivered pursuant to this Indenture or any Supplemental Indenture. “Owner” or “Bond Owner”, when used with respect to any Bond, means the person in whose name the ownership of such Bond shall be registered on the Bond Register. “Permitted Investments” means any of the following that at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein (provided that the Trustee may rely upon investment direction of the Authority as a determination that such investment is a legal investment): (1) Cash. Page 12 of 77 BAttachment F 9 4836-6408-6199v10/024036-0079 (2) United States Treasury bills, notes, bonds or certificates of indebtedness, for which the full faith and credit of the United States are pledged for the payment of principal and interest. (3) Obligations, participations, or other instruments of, or issued by, a federal agency or a United States government-sponsored enterprise. (4) Eligible commercial paper shall be of “prime quality” and of the highest of ranking or of the highest letter and number rating as provided by a Rating Agency, except that split ratings (i.e., A2/P1) shall not be allowed. The commercial paper shall not exceed 270 days’ maturity and the entity that issues the commercial paper shall meet all of the following conditions in either paragraph (a) or paragraph (b): (a) Has total assets in excess of five hundred million dollars ($500,000,000), is organized and operating within the United States as a general corporation, and has debt other than commercial paper, if any, that is rated “A” or higher by a Rating Agency. (b) Is organized in the United States as a special purpose corporation, trust, or limited liability company, has program-wide credit enhancements including, but not limited to overcollateralization, letters of credit or a surety bond, and has commercial paper that is rated “A-1” or higher, or the equivalent, by a Rating Agency. (5) Negotiable certificates of deposit issued by a U.S. national or state-chartered bank, savings bank, saving and loan association, or credit union in the State or state or federal association (as defined by Section 5102 of the California Financial Code) or by a state- licensed branch of a foreign bank. Issuing banks must have a short-term rating of not less than A1/P1 and if a long-term rating has been assigned, a long-term rating of not less than “A” from a Rating Agency. (6) Investments in repurchase agreements which comply with the requirements of California Government Code Section 53601(j) pursuant to which the seller will repurchase the securities on or before a specified date and for a specified amount and will deliver the underlying securities to the Trustee by book entry, physical delivery, or by third party custodial agreement. The terms of a repurchase agreement shall not exceed one year. The term “securities,” for the purpose of repurchase agreements, means securities of the same issuer, description, issue date and maturity. To participate in repurchase agreements, a master repurchase agreement must be completed and signed by all parties involved. Repurchase agreements are required to be collateralized by securities or cash authorized under California Government Code Section 53601(j)(2) as described below: (a) To anticipate market changes and provide a level of security for all repurchase agreement transactions, the market value of securities that underlie a repurchase agreement shall be valued at 102% or greater of the funds borrowed against those securities and the value shall be adjusted no less frequently than weekly. Since the market value of the underlying securities is subject to daily market Page 13 of 77 BAttachment F 10 4836-6408-6199v10/024036-0079 fluctuations, the investments in repurchase agreements shall be in compliance if the value of the underlying securities is brought back up to 102% no later than the next business day. (b) Collateral will be limited to U.S. Treasury securities listed in paragraph (2) above and U.S. Government Agency securities listed in paragraph (3) above. Collateral will be held by an independent third party with whom the Trustee has a current custodial agreement. A clearly marked evidence of ownership (safekeeping/custody receipt) must be supplied to the Trustee and retained. The Trustee retains the right to substitute or grant substitutions of collateral. (7) Bankers acceptances, also known as time drafts (bills of exchange) that are drawn on and accepted by a commercial bank. Purchases of bankers’ acceptances shall not exceed 180 days maturity. Issuing banks must be rated by each Rating Agency and have a short-term rating of at least A1/P1 and if a long-term rating has been assigned, a long-term rating of not less than “A” from a Rating Agency. (8) Shares of beneficial interest issued by diversified management companies that are mutual funds registered with the Securities and Exchange Commission under the Investment Company Act of 1940 (15 U.S.C. Sec. 80a-1, et. seq.), which only invest in direct obligations in U.S. Treasury bills, notes and bonds, U.S. Government Agency securities and repurchase agreements with a weighted average maturity of 60 days or less. At a minimum, approved mutual funds shall have met either of the following criteria: (a) Attained the highest ranking or the highest letter or numerical rating provided by each Rating Agency. (b) Retained an investment advisor registered or exempt from registration with the Securities and Exchange Commission with not less than five years’ experience managing money market mutual funds with assets under management in excess of $500,000,000. (9) Municipal debt instruments issued by a local or state agency, including: (a) Bonds payable solely out of revenues from a revenue-producing property owned, controlled, or operated by the local agency or by a department, board, agency or authority of the local agency. (b) Registered state warrants or treasury notes or bonds, including bonds payable solely out of the revenues from a revenue-producing property owned, controlled or operated by the state or a department, board, agency or authority of the state. (c) Bonds, notes, warrants or other evidences of indebtedness of any local agency within a state, including bonds payable solely out of revenues from a revenue- producing property owned, controlled or operated by the local agency, or by a department, board, agency, or authority of the local agency. Page 14 of 77 BAttachment F 11 4836-6408-6199v10/024036-0079 Issuing municipalities must have a short-term rating of not less than A1/P1 and if a long-term rating has been assigned, a long-term rating of not less than an “A” from a Rating Agency. (10) Medium-term notes consisting of corporate and depository institution debt securities with a maximum remaining maturity of not more than 397 days for any short-term pools such as money market funds and five years for any longer-term pools such as an extended fund. Medium-terms notes must be issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Notes eligible for investment shall be rated not less than “A” or its equivalent from each Rating Agency. (11) Investment agreements: with a domestic or foreign bank or corporation the long-term debt of which, or, in the case of a guaranteed corporation the long-term debt, or, in the case of a monoline financial guaranty insurance company, claims paying ability, of the guarantor is rated at least “AA-” by S&P and “Aa3” by Moody’s at the time that the investment agreement is entered into, provided that: (a) If amounts in the Revenue Fund are invested, interest payments are to be made to the Trustee at times and in amounts as necessary to pay debt service on the Bonds; (b) The invested funds are available for withdrawal without penalty or premium, at any time upon not more than seven (7) days’ prior notice; the Authority and the Trustee hereby agree to give or cause to be given notice in accordance with the terms of the investment agreement so as to receive funds thereunder with no penalty or premium paid; (c) The provider shall send monthly reports to the Trustee and the Authority setting forth the balance the Authority or Trustee has invested with the provider and the amounts and dates of interest accrued and paid by the provider; (d) The investment agreement shall state that it is an unconditional and general obligation of the provider, and is not subordinated to any other obligation of, the provider thereof or, if the provider is a bank, the agreement or the opinion of counsel delivered pursuant to paragraph (f) below shall state that the obligation of the provider to make payments thereunder ranks pari passu with the obligations of the provider to its other depositors and its other unsecured and unsubordinated creditors; (e) The investment agreement (or guaranty, if applicable) may not be assigned or amended without the prior written consent of the Authority; (f) The Authority and the Trustee shall receive an opinion of domestic counsel to the provider that such investment agreement is legal, valid, binding and enforceable against the provider in accordance with its terms; (g) The Authority and the Trustee shall receive an opinion of foreign counsel to the provider (if applicable) that (i) the investment agreement has been duly authorized, executed and delivered by the provider and constitutes the legal, valid and binding obligation of the provider, enforceable against the provider in accordance with its terms, (ii) the choice of law of the Page 15 of 77 BAttachment F 12 4836-6408-6199v10/024036-0079 state set forth in the investment agreement is valid under that country’s laws and a court in such country would uphold such choice of law, and (iii) any judgment rendered by a court in the United States of America would be recognized and enforceable in such country; (h) The investment agreement shall provide that if during its term: (i) the provider’s rating by either S&P or Moody’s falls below “AA-” or “Aa3”, the provider shall, at its option, within ten (10) days of receipt of publication of such downgrade, either (a) provide a written guarantee acceptable to the Authority, (x) post Eligible Collateral (defined in subparagraph (i) below) with the Authority, the Trustee or a third party acting solely as agent therefore (the “Custodian”) free and clear of any third party liens or claims, or (b) assign the agreement to (1) any domestic bank, or domestic branch of a foreign bank, the long term debt of which is rated at least “A-” by S&P and ‘A3’ by Moody’s, including the Trustee and any of its affiliates; or (2) any broker-dealer with “retail customers” or a related affiliate thereof which broker-dealer has, or the parent company (which guarantees the provider) of which has, long-term debt rated at least “A-” by S&P and ‘A3’ by Moody’s, which broker-dealer falls under the jurisdiction of the Securities Investors Protection Corporation; or (3) any other entity rated at least “A-” by S&P and ‘A3’ by Moody’s acceptable to the Authority, or (z) repay the principal of and accrued but unpaid interest on the investment; (ii) the provider’s rating by either S&P or Moody’s is withdrawn or suspended or falls below “A-” or “A3”, the provider must, at the direction of the Authority or the Trustee (who shall give such direction if so directed by the Authority), within ten (10) days of receipt of such direction, repay the principal of and accrued but unpaid interest on the investment, in either case with no penalty or premium to the Authority or Trustee. (i) In the event the provider is required to collateralize, permitted collateral shall include U.S. Treasury Obligations, or senior debt obligations of GNMA, FNMA or FHLMC (no collateralized mortgage obligations shall be permitted for these providers) and collateral levels must be 102% of the total principal when the collateral type is U.S. Treasury Obligations, 103% of the total principal when the collateral type is GNMA’s and 104% of the total principal when the collateral type is FNMA and FHLMC (“Eligible Collateral”). In addition, the collateral shall be marked to market on a daily basis and the provider or Custodian shall send monthly reports to the Trustee and the Authority setting forth the type of collateral, the collateral percentage required for that collateral type, the market value of the collateral on the valuation date and the name of the Custodian holding the collateral; (j) The investment agreement shall state and an opinion of counsel shall be rendered, in the event collateral is required to be pledged by the provider under the terms of the investment agreement, at the time such collateral is delivered, that the Custodian has a perfected first priority security interest in the collateral, any substituted collateral and all proceeds thereof; (k) The investment agreement must provide that if during its term: (i) the provider shall default in its payment obligations, the provider’s obligations under the investment agreement shall, at the direction of the Authority or the Trustee (who shall give such direction if so directed by the Authority), be accelerated and amounts invested and accrued but unpaid interest thereon shall be repaid to the Authority or Trustee, as appropriate, and (ii) the provider shall become insolvent, not pay its debts as they become due, be declared or petition to be declared bankrupt, etc. Page 16 of 77 BAttachment F 13 4836-6408-6199v10/024036-0079 (“event of insolvency”), the provider’s obligations shall automatically be accelerated and amounts invested and accrued but unpaid interest thereon shall be repaid to the Authority or Trustee, as appropriate; (12) The San Diego County Investment Pool; and (13) The Local Agency Investment Fund of the State of California. The value of the investments in (1) through (13) above, which shall be determined as of the end of each month, means that the value of any investments shall be calculated as follows: (1) for the purpose of determining the amount in any fund, all Permitted Investments credited to such fund shall be valued at fair market value. The Trustee shall determine the fair market value based on accepted industry standards and from accepted industry providers; (2) as to certificates of deposit and bankers acceptances; the face amount thereof, plus accrued interest; (3) as to any investment not specified above: the value thereof established by prior written agreement between the Authority and the Trustee; and (4) as to any investment in (12) or (13), in the manner, if any, required by State law. “Person” means natural persons, firms, corporations, partnerships, limited liability companies, associations, trusts, public bodies and other entities. “Phase 1A Infrastructure Improvements Costs” means (i) the Developer’s Phase 1A Contract Sum (as defined in the Project Implementation Agreement) and all interest to be paid to the Developer pursuant to Sections 9.1.3 and 9.1.4.3(b) of the Project Implementation Agreement, and (ii) the Remaining Phase 1A Infrastructure Improvements Costs (as defined in the Project Implementation Agreement. “Phase 1A Infrastructure Improvements” has the meaning set forth in the foregoing Recitals. “Port District” means the San Diego Unified Port District, a public corporation. “Port District Payments” has the meaning set forth in the Support Agreement. “Principal Account” means the account by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2(a) hereof. “Pre-Completion Lease Payments” means those payments made by the City to the Authority as set forth in Section 4.12 of the Facility Lease. “Priority Administrative Expenses” means (i) the fees and expenses of the Trustee, including legal fees and expenses (including fees and expenses of outside counsel and the allocated costs of internal attorneys) and the out of pocket expenses incurred by the Trustee in carrying out its duties hereunder; (ii) the amounts paid or payable by the City or the Authority for the rental interruption Page 17 of 77 BAttachment F 14 4836-6408-6199v10/024036-0079 insurance required by Section 5.2 of the Facility Lease; (iii) the amounts paid or payable by the Authority to RIDA pursuant to Section 15.2.2.1 of the Project Implementation Agreement with respect to builder’s risk insurance; and (iv) amounts paid or payable to the United States pursuant to Sections 5.7 and 5.8 hereof. “Project” means, collectively, the portion of the Convention Center financed from the proceeds of the 2021A Bonds and the portion of the Phase 1A Infrastructure Improvements financed from the proceeds of the 2021B Bonds. “Project Costs” means, collectively, the Convention Center Costs to be paid with proceeds of the 2021A Bonds in accordance with the Project Implementation Agreement and the costs of the Phase 1A Infrastructure Improvements Costs to be paid with amounts on deposit in the 2021B Account of the Construction Fund (and all subaccounts thereunder) in accordance with the Project Implementation Agreement. “Project Implementation Agreement” has the meaning set forth in the foregoing Recitals. “Proportionate Share” means, as of the date of calculation, the ratio derived by dividing the Outstanding principal amount of the Bonds of a Series by the principal amount of the Outstanding Bonds. “Rating Agency” means Moody’s and S&P, or both, as the context requires. “Rebate Fund” means the fund by that name established pursuant to Section 5.8 hereof. “Rebate Regulations” means the Treasury Regulations issued under Section 148(f) of the Code. “Record Date” means, with respect to any Interest Payment Date, the fifteenth calendar day of the month preceding an Interest Payment Date, whether or not such day is a Business Day. “Redemption Fund” means the fund by that name established pursuant to Section 3.12 hereof. “Representation Letter” means the representation letter executed by the Authority and accepted by DTC. “Request of the Authority” means a written certificate or request executed by an Authorized Officer. “Reserve Fund” means the fund by that name established and held by the Trustee pursuant to Section 3.6 hereof. “Reserve Requirement” means as of the date of calculation, an amount equal to the lowest of (i) 10% of the initial principal amount of the Bonds, (ii) Maximum Annual Debt Service on the Outstanding Bonds, or (iii) 125% of Average Annual Debt Service on the Outstanding Bonds. Notwithstanding the foregoing, in no event shall the Reserve Requirement exceed the initial deposit thereto on the Closing Date for the 2021 Bonds. As applied to individual accounts of the Reserve Fund, the Reserve Requirement shall initially be allocated as set forth in Section 4.3(a) hereof. Page 18 of 77 BAttachment F 15 4836-6408-6199v10/024036-0079 “Responsible Officer” means any officer of the Trustee assigned to administer the Trustee’s duties under this Indenture. “Revenue Fund” means the fund by that name established and held by the Trustee pursuant to Sections 3.3 and 4.2 hereof. “Revenue Sharing Agreement” means that certain Third Amended and Restated Revenue Sharing Agreement dated as of _______________, 2021, by and between the City and the Port District recorded in the Office of the Port Clerk as Document No. _________, as it may be amended from time to time in accordance with its terms. “Revenues” means: (a) all Lease Payments, Pre-Completion Lease Payments, Loan Payments, Port District Payments, Construction Late Charges and other amounts paid pursuant to the terms of the Local Obligations and the Project Implementation Agreement for deposit to the Revenue Fund, (b) Net Proceeds and RIDA Insurance and Condemnation Payments transferred from the Insurance and Condemnation Fund to the Revenue Fund and the Redemption Fund in accordance with Section 4.5 hereof; (c) all other moneys received by the Trustee from time to time for deposit to the Revenue Fund, Redemption Fund or Reserve Fund as set forth in a Request of the Authority; and (d) investment income with respect to any moneys held by the Trustee in the Revenue Fund, Redemption Fund and Reserve Fund. “RIDA” means RIDA Chula Vista, LLC, a Delaware limited liability company, and any successor thereto. “RIDA Insurance and Condemnation Payments” means amounts paid by RIDA to the Trustee for deposit to the Insurance and Condemnation Fund in accordance with Sections 5.1 and 5.2 of the Sublease. “Securities Depositories” means The Depository Trust Company, 55 Water Street, 50th Floor, New York, NY 10041-0099 Attn. Call Notification Department, Fax (212) 855-7232; and, in accordance with then current guidelines of the securities and Exchange Commission, such other addresses and/or such other securities depositories as the Authority may designate in a Certificate of the Authority delivered to the Trustee. “Series” means each series of Bonds issued hereunder. “Site Lease” has the meaning set forth in the foregoing Recitals. “Special Taxes” means the special taxes pledged by the Financing District under the Loan Agreement to the repayment of the Loan Payments. “S&P” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, its successors and assigns. “State” means the State of California. “Sublease” has the meaning set forth in the foregoing Recitals. “Supplemental Indenture” means any indenture, agreement or other instrument hereafter duly executed by the Authority in accordance with the provisions of Article VII of this Indenture. Page 19 of 77 BAttachment F 16 4836-6408-6199v10/024036-0079 “Support Agreement” has the meaning set forth in the foregoing Recitals. “Sweetwater Park Subaccount” means the account by that name established in Section 3.10. “Tax Certificate” means the certificate by that name to be executed by the Authority on the Closing Date with respect to the 2021B Bonds and any other Series of Tax-Exempt Bonds to establish certain facts and expectations and which contains certain covenants relevant to compliance with the Code. “Tax-Exempt Bonds” means the 2021B Bonds and any other Series of Additional Bonds the interest on which is excluded from gross income for federal income tax purposes. “Treasury Rate” has the meaning given to such term in Section 2.2(c). “Trust Office” means the office of the Trustee at which at any particular time its corporate trust business with respect to this Indenture shall be administered, which office at the date hereof is located in Costa Mesa, California, or such other place as designated by the Trustee, except that with respect to presentation of Bonds for payment or for registration of transfer and exchange, such term shall mean the office or agency of the Trustee at which, at any particular time, its corporate trust agency business shall be conducted. “Trustee” means Wilmington Trust, National Association, a national banking association duly organized and existing under the laws of the United States of America, with a corporate trust office in Costa Mesa, California, and its successors and assigns, and any other corporation or association which may at any time be substituted in its place as provided in Article VI hereof. “2021 Bonds” means, collectively, the 2021A Bonds and the 2021B Bonds. “2021A Bonds” means the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable). “2021B Bonds” means the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt). “2021B Bond Proceeds Subaccount” means the account by that name established in Section 3.10. “Yield” has the meaning given to such term in the Code. Section 1.2 Rules of Construction. All references in this Indenture to “Articles,” “Sections,” and other subdivisions are to the corresponding Articles, Sections or subdivisions of this Indenture; and the words “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or subdivision hereof. Section 1.3 Authorization and Purpose of Bonds. The Authority has reviewed all proceedings which it has taken relative to the authorization of the Bonds and has found, as a result of such review, and hereby finds and determines, that all things, conditions and acts required by law to exist, happen and/or be performed precedent to and in the issuance of the Bonds do exist, have happened and have been performed in due time, form and manner as required by law, and the Authority is now authorized under the Bond Law and each and every other requirement of law, to Page 20 of 77 BAttachment F 17 4836-6408-6199v10/024036-0079 issue the Bonds in the manner and form provided in this Indenture. Accordingly, the Authority hereby authorizes the issuance of the 2021 Bonds pursuant to the Bond Law and this Indenture for the primary purpose of providing funds to finance the Project. Section 1.4 Equal Security. In consideration of the acceptance of the Bonds by the Owners thereof, this Indenture shall be deemed to be and shall constitute a contract between the Authority and the Owners from time to time of the Bonds; and the covenants and agreements set forth herein to be performed by or on behalf of the Authority shall be for the equal and proportionate benefit, security and protection of all Owners of the Bonds as their respective interests appear without preference, priority or distinction as to security or otherwise of any of the Bonds over other Bonds or any of the Bonds over any other Bonds by reason of the number or date thereof or the time of sale, execution or delivery thereof, or otherwise for any cause whatsoever, except as expressly provided therein or herein. Section 1.5 Special Obligations. The Bonds shall be special, limited obligations of the Authority, payable from and secured as to the payment of the principal of, redemption premium, if any, and interest thereon, in accordance with their terms and the terms of this Indenture, solely from the Revenues. The Bonds shall not constitute a charge against the general credit of the Authority or its members. Under no circumstances shall the Authority be obligated to pay principal of, redemption premium, if any, or interest on the Bonds except from the Revenues. Neither the State nor any public agency (other than the Authority) nor any member of the Authority is obligated to pay the principal of, redemption premium, if any, or interest on the Bonds. Neither the faith and credit nor the taxing power of the State or any public agency thereof, including any member of the Authority, is pledged to the payment of the principal of, redemption premium, if any, or interest on the Bonds. Neither the payment of the principal of nor any part thereof, redemption premium, if any, nor interest on the Bonds constitutes a debt, liability or obligation of the State or any public agency, including the Authority or either member of the Authority within the meaning of any constitutional debt limit or provision. No covenant or agreement contained in any Bond or this Indenture shall be deemed to be a covenant or agreement of the City or the Port District as members of the Authority, any of the directors of the Board of Directors of the Authority, or by any officer, member, agent, contractor or employee of the Authority, Port District, or City in his or her individual capacity and neither the City or the Port District as members of the Authority, nor any of the directors of the Board of Directors of the Authority, nor any officer or employee thereof executing the Bonds shall be liable personally on any Bond or be subject to any personal liability or accountability by reason of the issuance of such Bonds. Section 1.6 Validity of Bonds. The validity of the authorization and issuance of the Bonds shall not be affected in any way by any proceedings taken by the Authority, the City, the Port District or the Financing District with respect to the application of the proceeds of the Bonds, and the recital contained in the Bonds that the same are issued pursuant to the Bond Law shall be conclusive evidence of their validity and of the regularity of their issuance. Page 21 of 77 BAttachment F 18 4836-6408-6199v10/024036-0079 ARTICLE II ISSUANCE OF BONDS Section 2.1 Terms of Bonds. The 2021A Bonds authorized to be issued by the Authority under and subject to the Bond Law and the terms of this Indenture shall be dated as of their Closing Date and be designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable),” which shall be issued in the original aggregate principal amount of _____________ Dollars ($________). The 2021B Bonds authorized to be issued by the Authority under and subject to the Bond Law and the terms of this Indenture shall be dated as of their Closing Date and be designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt),” which shall be issued in the original aggregate principal amount of _______________ Dollars ($________). The 2021 Bonds shall be issued in fully registered form without coupons in denominations of $5,000 or any integral multiple thereof, so long as no 2021 Bond shall have more than one maturity date. The 2021 Bonds shall mature on June 1 in each of the years and in the amounts, and shall bear interest (calculated on the basis of a 360-day year of twelve 30-day months) at the rates, as follows: 2021A Bonds Maturity Date (June 1 ) Principal Amount Interest Rate Per Annum $ % 2021B Bonds Maturity Date (June 1 ) Principal Amount Interest Rate Per Annum $ % Interest on the Bonds shall be payable on each Interest Payment Date to the person whose name appears on the Bond Register as the Owner thereof as of the Record Date immediately preceding each such Interest Payment Date. So long as the Bonds are registered in the name of DTC or its Nominee, such interest shall be paid to DTC in accordance with its procedures. If the Bonds are no longer registered in the name of DTC or its Nominee, interest shall be paid by check of the Trustee mailed on such Interest Payment Date by first class mail, postage prepaid, to the Owner at Page 22 of 77 BAttachment F 19 4836-6408-6199v10/024036-0079 the address of such Owner as it appears on the Bond Register or by wire transfer to an account in the United States of America made on such Interest Payment Date upon written instructions of any Owner of $1,000,000 or more in aggregate principal amount of Bonds of a Series provided to the Trustee in writing at least five (5) Business Days before the Record Date for such Interest Payment Date. Principal of and redemption premium, if any, on any Bond shall be paid upon presentation and surrender thereof, at maturity or the prior redemption thereof, at the Trust Office of the Trustee. The principal of and interest and redemption premium, if any, on the Bonds shall be payable in lawful money of the United States of America. Each Bond shall bear interest from the Interest Payment Date next preceding the date of authentication thereof, unless (a) it is authenticated after a Record Date and on or before the following Interest Payment Date, in which event it shall bear interest from such Interest Payment Date; or (b) it is authenticated on or before the first Record Date, in which event it shall bear interest from the Closing Date; provided, however, that if, as of the date of authentication of any Bond, interest thereon is in default, such Bond shall bear interest from the Interest Payment Date to which interest has previously been paid or made available for payment thereon, or from the Closing Date if no interest has been paid or made available for payment. Section 2.2 Redemption of Bonds. (a) Optional Redemption of 2021A Bonds at Par. The 2021A Bonds maturing on or before June, 1, 20__ are not subject to optional call and redemption prior to maturity. The 2021A Bonds maturing on or after June 1, 20__ may be redeemed at the option of the Authority, from any source of available funds, prior to maturity on any date on or after June 1, 20__ as a whole, or in part from such maturities as are selected by the Authority, and by lot within a maturity, at a redemption price equal to the principal amount of the 2021A Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium. (b) Optional Redemption of 2021B Bonds at Par. The 2021B Bonds maturing on or before June 1, 20__ are not subject to optional call and redemption prior to maturity. The 2021B Bonds maturing on or after June 1, 20__ may be redeemed at the option of the Authority, from any source of available funds, prior to maturity on any date on or after June 1, 20__ as a whole, or in part from such maturities as are selected by the Authority, and by lot within a maturity, at a redemption price equal to the principal amount of the 2021B Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium. (c) Make-Whole Optional Redemption of 2021A Bonds. Prior to _______________the 2021A Bonds are subject to redemption prior to their respective maturity dates, at the option of the Authority, in whole or in part, at a redemption price equal to the greater of: (1) 100% of the principal amount of the 2021A Bonds to be redeemed; or (2) the sum of the present value of the remaining scheduled payments of principal and interest to the stated maturity date of such 2021A Bonds to be redeemed, not including any portion of those payments of interest accrued and unpaid as of the date on which such 2021A Bonds are to be redeemed, discounted to the date on which such 2021A Bonds are to be redeemed on a semi-annual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate (described below) plus [___] basis points Page 23 of 77 BAttachment F 20 4836-6408-6199v10/024036-0079 Plus, in each case, accrued interest on such 2021A Bonds to be redeemed to but not including the redemption date. The “Treasury Rate” is, with respect to any redemption date for a particular Bond, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity, excluding inflation indexed securities (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days, but no more than 45 calendar days, prior to the redemption date or, if such Statistical Release is no longer published, any publicly available source of similar market data) most nearly equal to the period from the redemption date to the maturity date of the 2021A Bond to be redeemed (taking into account any sinking fund installments for such 2021A Bonds); provided, however, that if the period from the redemption date to such maturity date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used. The Authority may elect to have the redemption price of the 2021A Bonds to be redeemed pursuant to this Section 2.2(c) determined by an independent accounting firm, investment banking firm or financial or municipal advisor retained by the Authority to calculate such redemption price. The Authority and the Trustee may conclusively rely on the determination of such redemption price by such independent accounting firm, investment banking firm or financial or municipal advisor and will not be liable for such reliance. (d) Extraordinary Redemption of 2021A Bonds and Additional Bonds. The 2021A Bonds and any Additional Bonds issued to refund the 2021A Bonds shall be subject to redemption, in whole or in part, on any date, on a pro rata basis among maturities, from and to the extent Net Proceeds and RIDA Insurance and Condemnation Payments are deposited by the Trustee in the Redemption Fund pursuant to Section 4.5 hereof, together with any amount transferred to the Redemption Fund from the Reserve Fund pursuant to Section 4.3(c) hereof, at a redemption price equal to the principal amount of the 2021A Bonds and Additional Bonds to be redeemed, plus accrued interest thereon to the date of redemption, without premium. (e) Extraordinary Optional Redemption of 2021B Bonds and Additional Bonds. In the event that the 2021A Bonds and any Additional Bonds issued to refund the 2021A Bonds are redeemed, in whole, pursuant to Section 2.2(d) above, then the 2021B Bonds may be redeemed, in whole, at the option of the Authority, from any source of available funds, prior to maturity on any date, at a redemption price equal to the principal amount of the 2021B Bonds and any Additional Bonds to be redeemed, together with accrued interest thereon to the date of redemption, without premium. (f) Mandatory Sinking Fund Redemption. (i) The 2021A Bonds maturing on June 1, 20__ are subject to mandatory redemption in part, by lot, on June 1, 20__, and each June 1 thereafter prior to maturity, at a redemption price equal to the principal amount thereof, together with accrued interest to the date fixed for redemption, without premium, and to payment at maturity in the amounts set forth in the following table: Page 24 of 77 BAttachment F 21 4836-6408-6199v10/024036-0079 2021A Bonds Due on June 1, 20__ Year (June 1) Principal Amount (Maturity) (ii) The 2021A Bonds maturing on June 1, 20__ are subject to mandatory redemption in part, by lot, on June 1, 20__, and each June 1 thereafter prior to maturity, at a redemption price equal to the principal amount thereof, together with accrued interest to the date fixed for redemption, without premium, and to payment at maturity in the amounts set forth in the following table: 2021A Bonds Due on June 1, 20__ Year (June 1) Principal Amount (Maturity) In the event of a partial optional redemption of the 2021A Bonds maturing on June 1, 20__ or June 1, 20__, each of the remaining mandatory sinking fund payments for the maturity so redeemed will be reduced by the amount of such optional redemption, as nearly as practicable, on a pro rata basis in the amount of $5,000 or any integral multiple thereof, as directed by the Authority. If prior to one of the mandatory sinking fund redemption dates specified above the Authority purchases any 2021A Bonds maturing on June 1, 20__ or June 1, 20__, then at least 45 days prior to the redemption date, the Authority shall notify the Trustee as to the principal amount purchased, and the amount of 2021A Bonds so purchased shall be credited at the time of purchase, to the extent of the full principal amount thereof to reduce the upcoming scheduled payment for the 2021A Bonds so purchased. All such 2021A Bonds purchased by the Authority shall be canceled by the Trustee. The Authority shall be required to give the Trustee written notice of its intention to redeem Bonds under Section 2.2(a), (b) or (e) at least forty-five (45) days prior to the date fixed for redemption (or such later date as shall be acceptable to the Trustee, in the sole determination of the Trustee). The foregoing notice is for the convenience of the Trustee and the time for the notice may be shortened or waived by the Trustee in its sole discretion without the consent the Owners. Additional redemption provisions (if any) for any Series of Additional Bonds shall be set forth and provided for in the Supplemental Indenture entered into in connection with the issuance of such Series of Additional Bonds. (g) Notice of Redemption. When Bonds are due for redemption under this Section 2.2 or under the provisions of a Supplemental Indenture, the Trustee shall give notice of redemption, in the name of the Authority, at least 30 but no more than 45 days prior to the Page 25 of 77 BAttachment F 22 4836-6408-6199v10/024036-0079 redemption date. Except for redemption notices for a mandatory sinking fund redemption of Bonds which shall be sent by the Trustee to comply with the preceding sentence, the Trustee shall give a redemption notice for any other redemption of Bonds only upon receipt of, and in accordance with the terms of a Request of the Authority. With respect to any notice of optional redemption of the Bonds, such notice may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, redemption premium if any, and interest on the Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so received and such other conditions shall not have been satisfied, said notice shall be of no force and effect and the Trustee shall not be required to redeem such Bonds. If any condition stated in the redemption notice for an optional redemption shall not have been satisfied on or prior to the redemption date: (i) the redemption notice shall be of no force and effect, (ii) the Authority shall not be required to redeem such Bonds, (iii) the redemption shall not be made, and (iv) the Trustee shall within a reasonable time thereafter give notice to the persons in the manner in which the conditional redemption notice was given that such condition or conditions were not met and that the redemption was canceled. Such notice of redemption shall (i) specify the CUSIP numbers (if any), the bond numbers and the maturity date or dates of the Bonds selected for redemption, except that where all of the Bonds are subject to redemption, or all the Bonds of one maturity, are to be redeemed, the bond numbers of such issue need not be specified; (ii) state the date fixed for redemption and surrender of the Bonds to be redeemed; (iii) state the redemption price; (iv) state the place or places where the Bonds are to be redeemed; (v) in the case of Bonds to be redeemed only in part, state the portion of such Bond which is to be redeemed; (vi) state the date of issue of the Bonds as originally issued; (vii) state the rate of interest borne by each Bond being redeemed; and (viii) state any other descriptive information needed to identify accurately the Bonds being redeemed as shall be specified by the Trustee. Such notice shall further state that on the date fixed for redemption, there shall become due and payable on each Bond or portion thereof called for redemption, the principal thereof, together with any redemption premium, and interest accrued to the redemption date, and that from and after such date, interest thereon shall cease to accrue and be payable. Such notice shall be given (i) so long as the Bonds are registered in the name of the Nominee, in such manner as complies with the requirements of DTC, or any successor thereto; and (ii) if the Bonds are no longer held in book-entry form, the Trustee shall mail a copy of such notice, by first class mail, postage prepaid, to the respective Owners thereof at their addresses appearing on the Bond Register. So long as notice has been provided as set forth in this Section 2.2(g), the actual receipt by the Owner of any Bond of notice of such redemption shall not be a condition precedent to redemption, and neither the failure to receive nor any defect in such notice shall affect the validity of the proceedings for the redemption of such Bonds, or the cessation of interest on the redemption date. A certificate by the Trustee that notice of such redemption has been given as herein provided shall be conclusive as against all parties and the Owner shall not be entitled to show that he or she failed to receive notice of such redemption. Upon the payment of the redemption price of any Bonds being redeemed, each check or other transfer of funds issued for such purpose shall to the extent practicable bear the CUSIP number identifying, by issue and maturity, the Bonds being redeemed with the proceeds of such check or other transfer. (h) Selection of Bonds of a Maturity for Redemption. Page 26 of 77 BAttachment F 23 4836-6408-6199v10/024036-0079 If the 2021A Bonds are not registered in book-entry only form, any redemption of less than all of the 2021A Bonds will be effected by the Trustee among owners on a pro-rata basis, subject to minimum Authorized Denominations. If the 2021A Bonds are registered in book-entry only form and so long as DTC or a successor securities depository is the sole registered owner of the 2021A Bonds, if less than all of the 2021A Bonds of a maturity are called for prior redemption, the particular 2021A Bonds or portions thereof to be redeemed shall be selected on a “Pro Rata Pass-Through Distribution of Principal” basis in accordance with DTC procedures, provided that, so long as the 2021A Bonds are held in book-entry form, the selection for redemption of such Bonds shall be made in accordance with the operational arrangements of DTC then in effect. It is the Authority’s intent that redemption allocations made by DTC, the DTC Participants or such other intermediaries that may exist between the Authority and the Beneficial Owners with respect to redemptions of 2021A Bonds be made on a “Pro Rata Pass-Through Distribution of Principal” basis as described above. However, the Authority can provide no assurance that DTC, the DTC Participants or any other intermediaries will allocate redemptions among Beneficial Owners on such basis. If the DTC operational arrangements do not allow for the redemption of the Bonds on a Pro Rata Pass-Through Distribution of Principal basis as discussed above, then the Bonds will be selected for redemption in accordance with DTC procedures by lot and in Authorized Denominations. Whenever provision is made in this Indenture for the redemption of less than all of the 2021B Bonds of a maturity, the Trustee shall select the 2021B Bonds to be redeemed from all 2021B Bonds of such maturity not previously called for redemption, by lot in any manner which the Trustee in its sole discretion shall deem appropriate and fair. For purposes of such selection, all 2021B Bonds shall be deemed to be comprised of separate $5,000 authorized denominations, and such separate authorized denominations shall be treated as separate Bonds which may be separately redeemed. (i) Partial Redemption of Bonds. In the event only a portion of any Bond is called for redemption, then upon surrender of such Bond the Authority shall execute and the Trustee shall authenticate and deliver to the Owner thereof, at the expense of the Authority, a new Bond or Bonds of the same maturity date, of authorized denominations in aggregate principal amount equal to the unredeemed portion of the Bond to be redeemed. (j) Effect of Redemption. From and after the date fixed for redemption, if funds available for the payment of the principal of and interest (and redemption premium, if any) on the Bonds so called for redemption shall have been duly provided, such Bonds so called shall cease to be entitled to any benefit under this Indenture other than the right to receive payment of the redemption price, and no interest shall accrue thereon from and after the redemption date specified in such notice. All Bonds redeemed pursuant to this Section 2.2 shall be cancelled and destroyed. Section 2.3 Form of Bonds. The Bonds, the form of Trustee’s certificate of authentication, and the form of assignment to appear thereon, shall be substantially in the form set forth in Exhibit A attached hereto and by this reference incorporated herein, with necessary or appropriate variations, omissions and insertions, as permitted or required by this Indenture. Section 2.4 Execution of Bonds. All the Bonds shall, from time to time, be executed on behalf of the Authority by, or bear the manual or facsimile signature of, an Authorized Officer of the Page 27 of 77 BAttachment F 24 4836-6408-6199v10/024036-0079 Authority and be attested by the manual or facsimile signature of a second Authorized Officer or the Secretary of the Authority. If any of the officers who shall have signed any of the Bonds or whose facsimile signature shall be upon the Bonds shall cease to be an Authorized Officer or the Secretary of the Authority before the Bond so signed and sealed shall have been actually authenticated by the Trustee or delivered, such Bonds nevertheless may be authenticated, issued and delivered with the same force and effect as though the person or persons who signed or sealed such Bonds or whose facsimile signature shall be upon the Bonds had not ceased to be an Authorized Officer or the Secretary of the Authority; and any such Bond may be signed and sealed on behalf of the Authority by those persons who, at the actual date of the execution of such Bonds, shall be Authorized Officers or the Secretary of the Authority, although at the date of such Bond any such person shall not have been such officer of the Authority. Only such of the Bonds as shall bear thereon a certificate of authentication in substantially the form set forth in Exhibit A, manually executed by the Trustee, shall be valid or obligatory for any purpose or entitled to the benefits of this Indenture, and such certificate of the Trustee shall be conclusive evidence that the Bonds so authenticated have been duly authenticated and delivered hereunder and are entitled to the benefits of this Indenture. Section 2.5 Transfer of Bonds. Subject to Section 2.10, any Bond may in accordance with its terms, be transferred, upon the Bond Register, by the person in whose name it is registered, in person or by his duly authorized attorney, upon surrender of such Bond for cancellation, accompanied by delivery of a written instrument of transfer in a form approved by the Trustee, duly executed. Whenever any Bond shall be surrendered for transfer, the Authority shall execute and the Trustee shall thereupon authenticate and deliver to the transferee a new Bond or Bonds of like Series, tenor, maturity and aggregate principal amount. No Bonds selected for redemption shall be subject to transfer pursuant to this Section nor shall any Bond be subject to transfer during the fifteen days prior to the selection of Bonds for redemption. The cost of printing any Bonds and any reasonable fees and expenses incurred by the Trustee in connection with any transfer shall be paid by the Authority as Priority Administrative Expenses. However, the Owners of the Bonds shall be required to pay any tax or other governmental charge required to be paid for any exchange or registration of transfer and the Owners of the Bonds shall be required to pay the reasonable fees and expenses of the Trustee and Authority in connection with the replacement of any mutilated, lost or stolen Bonds. Section 2.6 Exchange of Bonds. Subject to Section 2.10, Bonds may be exchanged at the Trust Office of the Trustee for Bonds of the same Series, tenor and maturity and of other authorized denominations. No Bonds selected for redemption shall be subject to exchange pursuant to this Section, nor shall any Bond be subject to exchange during the fifteen days prior to the selection of Bonds for redemption. The cost of printing Bonds and any reasonable fees and expenses incurred by the Trustee in connection with any transfer or exchange shall be paid by the Authority as Priority Administrative Expenses. Section 2.7 Temporary Bonds. The Bonds may be issued initially in temporary form exchangeable for definitive Bonds when ready for delivery. The temporary Bonds may be printed, lithographed or typewritten, shall be of such denominations as may be determined by the Authority and may contain such reference to any of the provisions of this Indenture as may be appropriate. Every temporary Bond shall be executed by the Authority and be registered and authenticated by the Trustee upon the same conditions and in substantially the same manner as the definitive Bonds. If Page 28 of 77 BAttachment F 25 4836-6408-6199v10/024036-0079 the Authority issues temporary Bonds, it will execute and furnish definitive Bonds without delay, and thereupon the temporary Bonds may be surrendered for cancellation, in exchange therefor at the Trust Office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Bonds an equal aggregate principal amount of definitive Bonds of authorized denominations. Until so exchanged, the temporary Bonds shall be entitled to the same benefits under this Indenture as definitive Bonds authenticated and delivered hereunder. Section 2.8 Bond Register. The Trustee will keep or cause to be kept at its Trust Office sufficient records for the registration and transfer of the Bonds, which shall be the Bond Register and shall at all times during regular business hours be open to inspection by the Authority upon reasonable notice; and, upon presentation for such purpose, the Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on said records, Bonds as hereinbefore provided. Section 2.9 Bonds Mutilated, Lost, Destroyed or Stolen. If any Bond shall become mutilated, the Authority, at the expense of the Owner of said Bond, shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor and authorized denomination in exchange and substitution for the Bond so mutilated, but only upon surrender to the Trustee of the Bond so mutilated. Every mutilated Bond so surrendered to the Trustee shall be cancelled by it and destroyed in accordance with the retention policy of the Trustee then in effect. If any Bond issued hereunder shall be lost, destroyed or stolen, evidence of such loss, destruction or theft may be submitted to the Trustee and, if such evidence be satisfactory to it and indemnity satisfactory to it shall be given, at the expense of the Bond Owner, the Authority shall execute, and the Trustee shall thereupon authenticate and deliver, a new Bond of like tenor in lieu of and in substitution for the Bond so lost, destroyed or stolen (or if any such Bond shall have matured or shall have been called for redemption, instead of issuing a substitute Bond the Trustee may pay the same without surrender thereof upon receipt of indemnity satisfactory to the Trustee). The Trustee may require payment of a reasonable fee for each new Bond issued under this Section and of the expenses which may be incurred by the Authority and the Trustee. Any Bond issued under the provisions of this Section in lieu of any Bond alleged to be lost, destroyed or stolen shall constitute an original contractual obligation on the part of the Authority whether or not the Bond alleged to be lost, destroyed or stolen be at any time enforceable by anyone, and shall be equally and proportionately entitled to the benefits of this Indenture with all other Bonds secured by this Indenture. Section 2.10 Book-Entry System. (a) All Bonds shall be initially issued in the form of a separate single certificated fully registered Bond for each maturity date of the Bonds. Upon initial issuance, the ownership of each Bond shall be registered in the Bond Register in the name of Cede & Co., as Nominee of DTC. Except as provided in Section 2.10(d) hereof, all Outstanding Bonds shall be registered in the Bond Register in the name of Cede & Co., as Nominee of DTC. (b) With respect to Bonds registered in the Bond Register in the name of Cede & Co., as Nominee of DTC, the Authority and the Trustee shall have no responsibility or obligation with respect to (i) the accuracy of the records of DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the Bonds, (ii) the delivery to any DTC Participant or any other person, other than an Owner, as shown in the Bond Register, of any notice with respect to the Bonds, including any notice of redemption, or (iii) the payment to any DTC Participant or any other person, other than an Owner, as shown in the Bond Register, of any amount with respect to principal of, Page 29 of 77 BAttachment F 26 4836-6408-6199v10/024036-0079 redemption premium, if any, or interest on the Bonds. The Authority and the Trustee may treat and consider the person in whose name each Bond is registered in the Bond Register as the holder and absolute owner of such Bond for the purpose of payment of principal, redemption premium, if any, and interest on such Bond, for the purpose of giving notices of redemption and other matters with respect to such Bond, for the purpose of registering transfers with respect to such Bond, and for all other purposes whatsoever. The Trustee shall pay all principal of, redemption premium, if any, and interest on the Bonds only to or upon the order of the respective Owners, as shown in the Bond Register, as provided in Section 2.8 hereof, or their respective attorneys duly authorized in writing, and all such payments shall be valid and effective to fully satisfy and discharge the Authority’s obligations with respect to payment of principal of, redemption premium, if any, and interest on the Bonds to the extent of the sum or sums so paid. No person other than an Owner, as shown in the Bond Register, shall receive a certificated Bond evidencing the obligation of the Authority to make payments of principal, redemption premium, if any, and interest pursuant to this Indenture. Upon delivery by DTC to the Trustee of written notice to the effect that DTC has determined to substitute a new Nominee in place of Cede & Co., and subject to the provisions herein with respect to record dates, the word “Cede & Co.” in this Indenture shall refer to such new Nominee of DTC. (c) The delivery of the Representation Letter shall not in any way limit the provisions of Section 2.10(b) hereof or in any other way impose upon the Authority or the Trustee any obligation whatsoever with respect to persons having interests in the Bonds other than the Owners, as shown on the Bond Register. The Trustee shall take all action necessary for all representations in the Representation Letter with respect to the Trustee to be complied with at all times. (d) (i) DTC may determine to discontinue providing its services with respect to the Bonds at any time by giving written notice to the Authority and the Trustee and discharging its responsibilities with respect thereto under applicable law. (ii) The Authority, in its sole discretion and without the consent of any other person, may terminate the services of DTC with respect to the Bonds if the Authority determines that: (A) DTC is unable to discharge its responsibilities with respect to the Bonds, or (B) a continuation of the requirement that all Outstanding Bonds be registered in the Bond Register in the name of Cede & Co., or any other Nominee of DTC, is not in the best interest of the beneficial owners of such Bonds. (iii) Upon the termination of the services of DTC with respect to the Bonds pursuant to subsection 2.10(d)(ii)(B) hereof, or upon the discontinuance or termination of the services of DTC with respect to the Bonds pursuant to subsection 2.10(d)(i) or subsection 2.10(d)(ii)(A) hereof after which no substitute securities depository willing to undertake the functions of DTC hereunder can be found which, in the opinion of the Authority, is willing and able to undertake such functions upon reasonable and customary terms, the Authority is obligated to deliver Bond certificates, as described in this Indenture and the Bonds shall no longer be restricted to being registered in the Bond Register in the name of Cede & Co. as Nominee of DTC, but may be registered in whatever name or names DTC shall designate to the Trustee in writing, in accordance with the provisions of this Indenture. Page 30 of 77 BAttachment F 27 4836-6408-6199v10/024036-0079 (e) Notwithstanding any other provisions of this Indenture to the contrary, as long as any Bond is registered in the name of Cede & Co., as Nominee of DTC, all payments with respect to principal or, redemption premium, if any, and interest on such Bond and all notices with respect to such Bond shall be made and given, respectively, in the manner provided in the Representation Letter. ARTICLE III DEPOSIT AND APPLICATION OF PROCEEDS Section 3.1 Issuance of 2021 Bonds. Upon the execution and delivery to the Trustee of the 2021A Bonds and the 2021B Bonds in the original aggregate principal amounts set forth in Section 2.1 hereof to the Trustee shall establish the funds and accounts set forth in this Article III and apply the proceeds received from the issuance of the 2021 Bonds as set forth in this Article III. Section 3.2 Application of Proceeds of Sale of 2021 Bonds. (a) Upon the receipt by the Trustee of payment for the 2021A Bonds in the amount of $_________ (being the principal amount of $_________, plus net original issue premium of $_________, less an underwriter’s discount of $_________,) the Trustee shall apply said funds as follows: (i) $_________ shall be deposited in the 2021A Account of the Costs of Issuance Fund for the payment of Costs of Issuance of the 2021 Bonds in accordance with Section 3.4 below. (ii) $_________ shall be deposited in the 2021A Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 below. (iii) $_________ shall be deposited in the 2021A Account of the Reserve Fund established pursuant to Section 3.6 below. (iv) $_________ shall be deposited in the 2021A Account of the Construction Fund for the payment of Convention Center Costs in accordance with Section 3.10 below. (b) Upon the receipt by the Trustee of payment for the 2021B Bonds in the amount of $_________ (being the principal amount of $_________, plus net original issue premium of $_________, less an underwriter’s discount of $_________,) the Trustee shall apply said funds as follows: (i) $_________ shall be deposited in the 2021B Account of the Costs of Issuance Fund for the payment of Costs of Issuance of the 2021B Bonds in accordance with Section 3.4 below. (ii) $_________ shall be deposited in the 2021B Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 below. (iii) $_________ shall be deposited in the 2021B Account of the Reserve Fund established pursuant to Section 3.6 below. Page 31 of 77 BAttachment F 28 4836-6408-6199v10/024036-0079 (iv) $_________ shall be deposited in the 2021B Bond Proceeds Subaccount of the 2021B Account of the Construction Fund for the payment of the Developer’s Phase 1A Contract Sum in accordance with Section 3.10 below. The application of proceeds from the sale of a Series of Additional Bonds shall be set forth in the Supplemental Indenture providing for the issuance of such Series of Additional Bonds. Section 3.3 Revenue Fund. The Trustee shall establish and maintain a separate fund to be known as the “Revenue Fund” and the following separate accounts therein: Interest Account and Principal Account. In the Interest Account, the Trustee shall also establish the 2021A Capitalized Interest Subaccount and the 2021B Capitalized Interest Account. Except as otherwise provided herein, the Trustee shall deposit all Revenues received after the Closing Date to the Revenue Fund and shall apply amounts in the Revenue Fund as described in Section 4.2 below. Section 3.4 Costs of Issuance Fund. The Trustee shall establish and maintain a fund known as the “Costs of Issuance Fund” and a “2021A Account” and a “2021B Account” into which shall be deposited the applicable amounts set forth in Sections 3.2(a) and 3.2(b) above. The moneys in the Costs of Issuance Fund shall be used to pay Costs of Issuance from time to time upon receipt by the Trustee of a Request of the Authority. Each such Request of the Authority shall state the account from which such disbursement is to be made, each payee and the amount to be disbursed to each payee. Each such Request of the Authority shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. On the date which is one hundred twenty (120) days following the Closing Date, or upon the earlier receipt by the Trustee of a Request of the Authority stating that all Costs of Issuance have been paid, the Trustee shall transfer all remaining amounts in the Costs of Issuance Fund to the Revenue Fund. Upon such transfer, the Costs of Issuance Fund shall be closed. The Authority may at any time file a Request of the Authority requesting that the Trustee retain a specified amount in the Costs of Issuance Fund and transfer to the Revenue Fund all remaining amounts, and upon receipt of such request by the Trustee, the Trustee shall comply with such request. Section 3.5 Establishment of Additional Funds and Accounts. The Trustee shall establish and maintain such additional funds and accounts as are set forth in a Request of the Authority. Section 3.6 Reserve Fund. The Trustee shall establish and maintain a separate fund to be known as the “Reserve Fund” and a “2021A Account” and a “2021B Account” therein into which shall be deposited the applicable amounts set forth in Sections 3.2(a) and 3.2(b) above. The Reserve Fund shall be administered as provided in Section 4.3 hereof. Section 3.7 Rebate Fund. The Trustee shall establish and maintain a separate fund, when needed, to be known as the “Rebate Fund” and a separate Rebate Account for each Series of Tax-Exempt Bonds. The Rebate Fund shall be administered as described in Section 5.8 hereof. Section 3.8 Authority Surplus Fund. The Trustee shall establish and maintain a separate fund to be known as the “Authority Surplus Fund” which shall be administered as described in Section 4.4 hereof. Section 3.9 Administrative Expense Fund. The Trustee shall establish and maintain a separate fund to be held by the Trustee and known as the “Administrative Expense Fund” into which Page 32 of 77 BAttachment F 29 4836-6408-6199v10/024036-0079 shall be deposited the (1) amounts to be transferred to the Administrative Expense Fund from the Revenue Fund as set forth in Section 4.2 and (2) any amounts transferred to the Trustee by the City, the Port District or the Financing District for the purpose of paying Priority Administrative Expenses or Additional Administrative Expenses which an Authorized Officer directs to be deposited in the Administrative Expense Fund. Any amounts transferred to the Administrative Expense Fund pursuant to subsection 4.2(a) and (d) hereof shall no longer constitute Revenues and amounts in the Administrative Expense Fund are not pledged to repay the Bonds. The moneys in the Administrative Expense Fund shall be used first to pay Priority Administrative Expenses and, second, to pay Additional Administrative Expenses. The priority of disbursement of proceeds of the Additional Administrative Expenses hereunder shall be subject to the Revenue Sharing Agreement or a separate agreement to be entered into between the City and the Port District, a copy of which shall be provided to the Trustee. Any Request of the Authority directing the Trustee to transfer any balance in the Administrative Expense Fund to pay Additional Administrative Expenses shall be in conformance with the Revenue Sharing Agreement or such other agreement, as applicable, and shall so state. On or after June 1 of each year and prior to June 15 of each year, the Authority may submit a Request of the Authority directing the Trustee to transfer any balance in the Administrative Expense Fund to the Surplus Fund. Section 3.10 Construction Fund. The Trustee shall establish and maintain a fund known as the “Construction Fund” and a “2021A Account” and a “2021B Account” therein. The Trustee shall establish and maintain subaccounts known as the 2021B Bond Proceeds Subaccount, the County Funded Bayfront Improvements Subaccount, the County Funded Developer’s Phase 1A Subaccount, and the Sweetwater Park Subaccount in the 2021B Account of the Construction Fund. The Trustee shall deposit the applicable amounts set forth in Section 3.2(a) above into the 2021A Account of the Construction Fund and shall deposit the applicable amounts set forth in Section 3.2(b) above into the 2021B Bond Proceeds Subaccount of the 2021B Account of the Construction Fund. The Trustee shall deposit and transfer amounts into and among the Sweetwater Park Subaccount, the County Funded Bayfront Improvements Subaccount, and the County Funded Developer’s Phase 1A Subaccount of the 2021B Account of the Construction Fund as directed from time to time in a Request of the Authority, which request shall include a certification that the deposits or transfers are in accordance with the terms of Article IX of the Project Implementation Agreement. The moneys in the 2021A Account of the Construction Fund shall be used to pay Convention Center Costs upon receipt by the Trustee of a Request of the Authority, which the Authority shall submit from time to time solely for the purposes and subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of Authority shall contain a statement to this effect. The moneys in each subaccount of the 2021B Account of the Construction Fund shall be used to pay the Phase 1A Infrastructure Improvements Costs from time to time upon receipt by the Trustee of a Request of the Authority, which the Authority shall submit from time to time solely for the purposes and subject to the terms and restrictions set forth in Article IX of the Project Implementation Agreement and the Request of Authority shall contain a statement to this effect. Each such Request of the Authority for disbursement from the Construction Fund shall state the account or subaccount from which such disbursement is to be made, each payee and the amount to be disbursed to each payee and shall be in substantially the form set forth in Exhibit B to this Indenture. Each such Request of the Authority shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such facts. Upon receipt by the Trustee of a Request of the Authority stating that all Project Costs have been paid and the Convention Center and all Phase 1A Infrastructure Improvements have been completed in accordance with the terms of the Project Implementation Agreement, the Trustee shall transfer all remaining amounts in the 2021A Account of the Construction Fund and the 2021B Bond Proceeds Page 33 of 77 BAttachment F 30 4836-6408-6199v10/024036-0079 Subaccount of the 2021B Account of the Construction Fund to the Revenue Fund and shall transfer all remaining amounts in the Sweetwater Park Subaccount, the County Funded Bayfront Improvements Subaccount, and the County Funded Developer’s Phase 1A Subaccount of the 2021B Account of the Construction Fund to the Authority. Alternatively, the Authority may file a Request of the Authority requesting that the Trustee retain a specified amount in the Construction Fund or any account therein and transfer to the Revenue Fund all remaining amounts, and upon receipt of such request by the Trustee, the Trustee shall comply with such request. Section 3.11 Insurance and Condemnation Fund. The Trustee shall establish and maintain a separate fund to be known as the “Insurance and Condemnation Fund” which shall be administered as described in Section 4.5 hereof. Section 3.12 Redemption Fund. The Trustee shall establish and maintain a separate fund to be known as the “Redemption Fund” which shall be administered as described in Section 4.6 hereof. ARTICLE IV PLEDGE OF REVENUES AND FUNDS; FLOW OF FUNDS Section 4.1 Pledge of Revenues and Funds; Assignment of Rights. Subject to the provisions of Sections 6.3 and 9.3 hereof, the Bonds shall be secured by a first lien on and pledge (which shall be effected in the manner and to the extent hereinafter provided) of all of the Revenues and amounts on deposit in the Revenue Fund, the Redemption Fund and the Reserve Fund. The Bonds shall be equally secured by a pledge, charge and lien upon the Revenues and amounts in the Revenue Fund, the Redemption Fund and the Reserve Fund without priority for any Bond over any other Bond; and the payment of the interest on and principal of the Bonds and any redemption premium due upon the redemption of any Bonds shall be and are secured by an exclusive pledge, charge and lien upon the Revenues and amounts in the Revenue Fund, the Redemption Fund and the Reserve Fund. So long as any of the Bonds are Outstanding, the Revenues shall not be used for any purpose except as is expressly permitted by this Indenture. The Authority hereby transfers in trust, grants a security interest in and assigns to the Trustee, for the benefit of the Owners from time to time of the Bonds, respectively, all of the Revenues, all amounts on deposit in the Revenue Fund, the Redemption Fund and the Reserve Fund, and all of the Assigned Rights, subject to the terms of this Indenture. The Trustee shall be entitled to and shall collect and receive all of the Revenues, and any Revenues collected or received by the Authority shall be deemed to be held, collected or received, by the Authority as the agent of the Trustee and shall forthwith be paid by the Authority to the Trustee. The Trustee also shall be entitled to and, subject to the provisions of this Indenture, the Trustee shall take all steps, actions and proceedings reasonably necessary in its judgment to enforce, either jointly with the Authority or separately, all of the obligations of the City, the Port District and the Financing District, as applicable, under the Local Obligations which are a part of the Assigned Rights. Upon the deposit with the Trustee of moneys sufficient to pay all principal of, redemption premium, if any, and interest on the Bonds, and upon satisfaction of all claims against the Authority hereunder with respect to the Bonds, including all fees, charges and expenses of the Trustee which are properly payable hereunder, or upon the making of adequate provisions for the payment of such amounts as permitted hereby, all moneys remaining in all funds and accounts pertaining to the Page 34 of 77 BAttachment F 31 4836-6408-6199v10/024036-0079 Bonds, (except any amounts on deposit in the Rebate Fund and except moneys necessary to pay principal of, redemption premium, if any, and interest on the Bonds, which moneys shall be held by the Trustee pursuant to Section 9.3), shall no longer be considered Revenues and are not pledged to repay the Bonds. Such remaining amounts shall be transferred to the Authority for application by the Authority in accordance with the terms of the Revenue Sharing Agreement and all right title and interest of the Trustee in the Local Obligations shall cease and be vested in the Authority. In the event that the Authority receives any amounts pursuant to the Local Obligations (other than Net Proceeds and RIDA Insurance and Condemnation Payments, which are to be held pursuant to the terms of the Sublease and administered pursuant to the terms of the Sublease, Facility Lease and the Project Implementation Agreement) after the Bonds have been paid or defeased, then any such amounts shall be applied by the Authority in accordance with the terms of the Revenue Sharing Agreement. Section 4.2 Receipt, Deposit and Application of Revenues; Revenue Fund. All Revenues shall be promptly deposited by the Trustee upon receipt thereof in the Revenue Fund; provided, however, all Pre-Completion Lease Payments received by the Trustee shall be deposited to the 2021A Capitalized Interest Account. Amounts shall be transferred from the Revenue Fund from time to time as set forth in this Section 4.2. (a) On any date that it receives a Request of the Authority to transfer amounts from the Revenue Fund to the Administrative Expense Fund to pay Priority Administrative Expenses, the Trustee shall transfer the amount requested to the Administrative Expense Fund. (b) On each Interest Payment Date, the Trustee shall transfer from the Revenue Fund, and deposit into the following respective funds and accounts, the following amounts in the following order of priority. The required deposit to each such account (including the making up of any deficiencies in any such account resulting from lack of Revenues sufficient to make any earlier required deposit) shall be satisfied before any transfer is made to any account subsequent in priority: (i) Interest Account. On each Interest Payment Date, the Trustee shall deposit in the Interest Account an amount required to cause the aggregate amount on deposit in the Interest Account to equal the amount of interest becoming due and payable on such Interest Payment Date on all Outstanding Bonds on such date; provided, however, no deposit shall be required to the extent that funds are on deposit in the 2021A Capitalized Interest Subaccount of the Interest Account and the 2021B Capitalized Interest Subaccount of the Interest Account to pay the interest due on such Interest Payment Date. Amounts in the 2021A Capitalized Interest Subaccount of the Interest Account shall be applied only to pay interest on the 2021A Bonds and amounts in the 2021B Capitalized Interest Subaccount of the Interest Account shall be applied only to pay interest on the 2021B Bonds in accordance with the following schedules: Page 35 of 77 BAttachment F 32 4836-6408-6199v10/024036-0079 2021 A Bonds Date Amount 2021B Bonds Date Amount All moneys in the Interest Account shall be used and withdrawn by the Trustee solely for the purpose of paying interest on the Bonds as it shall become due and payable (including accrued interest on any Bonds redeemed prior to maturity). In the event that the amounts on deposit in the Interest Account on any Interest Payment Date, after any transfers from the Reserve Fund pursuant to Section 4.3 hereof, are insufficient for any reason to pay the aggregate amount of interest then coming due and payable on the Outstanding Bonds, the Trustee shall apply such amounts to the payment of interest on each of the Outstanding Bonds on a pro rata basis. (ii) Principal Account. On each date on which principal of the Bonds shall be payable at maturity or by mandatory sinking fund redemption, the Trustee shall deposit in the Principal Account an amount required to cause the aggregate amount on deposit in the Principal Account to equal the principal amount of the Bonds coming due and payable on such date at maturity or by mandatory sinking fund redemption. All moneys in the Principal Account shall be used and withdrawn by the Trustee solely for the purpose of paying the principal of the Bonds at the maturity thereof or upon mandatory sinking fund redemption. In the event that the amounts on deposit in the Principal Account on any Interest Payment Date, after any transfers from the Reserve Fund pursuant to Section 4.3 hereof, are insufficient for any reason to pay the aggregate amount of principal then coming due and payable on the Outstanding Bonds, the Trustee shall apply such amounts to the payment of principal on each of the Outstanding Bonds then due on a pro rata basis. (iii) Reserve Fund. On each Interest Payment Date on which the balance in the Reserve Fund is less than the Reserve Requirement, after making deposits required under (i) Page 36 of 77 BAttachment F 33 4836-6408-6199v10/024036-0079 and (ii) above, the Trustee shall transfer from the Revenue Fund an amount sufficient to increase the balance in the Reserve Fund to the Reserve Requirement by depositing the amount necessary to increase the amount therein to an amount equal to the Reserve Requirement, provided the value of the moneys deposited therein, as invested, shall be valued at their cost on such transfer date for purposes of making such determination. (iv) Redemption Fund. After making deposits required under (i), (ii) and (iii) above for an Interest Payment Date, the Authority may direct the Trustee in a Request of the Authority to transfer any remaining amounts on deposit in the Revenue Fund to the Redemption Fund to be applied to effect an optional redemption of Bonds, in whole or in part; provided, however, that no amount shall be deposited to effect a partial optional redemption of Bonds unless the Trustee has first received a certificate of an Independent Accountant certifying that following such optional redemption of the Bonds, the Revenues to be received on the Local Obligations, together with any amounts that will remain in the Revenue Fund following such optional redemption, will be sufficient to make timely payment of the principal of and interest on the Bonds that will remain Outstanding following such optional redemption, assuming for such purposes that timely payments will continue to be paid on all Local Obligations not then in default. (c) If on any Interest Payment Date the amount on deposit in the Revenue Fund is inadequate to make the transfers described in subsection (b)(i), (ii), or (iii) above as a result of a payment default on any of the Local Obligations, the Trustee shall immediately notify the City, the Port District or the Financing District, as applicable, of the amount needed to make the required deposits under subsection (b) above. In the event that following such notice the Trustee receives any amounts with respect to a Local Obligation to cure such shortfall, the Trustee shall deposit such amounts to the Revenue Fund for application in accordance with subsection (b) above. (d) On each Interest Payment Date after making the transfers required under subsections (a) and (b) above, upon receipt of a Request of the Authority to do so, the Trustee shall transfer from the Revenue Fund to the Administrative Expense Fund for deposit therein the amounts specified in such Request of the Authority for the payment of Additional Administrative Expenses. (e) On June 15 of each year, after making the deposits required under subsections (a), (b), (c) and (d) above, upon receipt of a Request of the Authority to do so, the Trustee shall transfer from the Revenue Fund to the Authority Surplus Fund for deposit therein all amounts remaining in the Revenue Fund other than amounts in the 2021A Capitalized Interest Subaccount of the Interest Account and the 2021B Capitalized Interest Subaccount of the Interest Account. Section 4.3 Reserve Fund. (a) There shall be maintained in the Reserve Fund an amount equal to the Reserve Requirement which $__________ shall initially be deposited in the 2021A Account of the Reserve Fund, and $__________ shall be initially deposited in the 2021B Account of the Reserve Fund in accordance with Sections 3.2(a) and 3.2(b) above; such amounts being the initial Proportionate Share of the Reserve Requirement for each account. In the event of any partial redemption or partial defeasance of the Bonds, the amount of the Reserve Requirement and the Proportionate Share for each Reserve Account shall be recalculated and in the event that the Reserve Requirement is reduced, the Trustee shall, upon receipt of a Request of the Authority, adjust the Proportionate Share of each account to reflect the new Reserve Requirement and shall transfer any Page 37 of 77 BAttachment F 34 4836-6408-6199v10/024036-0079 amounts in the Reserve Fund in excess of the amount of the reduced Reserve Requirement for application in accordance with Section 4.3(c) below. (b) Moneys in the Reserve Fund shall be used solely for the purposes set forth in this Section 4.3. Amounts in the Reserve Fund shall be applied to pay the principal of and interest on the Bonds when the moneys in the Interest Account and the Principal Account of the Revenue Fund are insufficient to make such payments when due. Amounts shall be withdrawn from each Account in the Reserve Fund based on its Proportionate Share. Upon the transfer by the Trustee to the Reserve Fund of Revenues pursuant to Section 4.2(b)(iii) above to replenish the Reserve Fund to the Reserve Requirement, Revenues shall be deposited to each Account of the Reserve Fund based on its Proportionate Share until be amount in the Reserve Fund equals the Reserve Requirement. (c) Moneys in the Reserve Fund may be applied: (i) in connection with an optional or extraordinary redemption of Bonds pursuant to Section 2.2 or a defeasance pursuant to Section 9.3, or (ii) when the balance therein equals the principal and interest due on the Bonds to and including maturity or a redemption date selected by the Authority to pay the principal and interest on the Bonds as it comes due. In connection with an optional or extraordinary redemption of Bonds pursuant to Section 2.2 or a defeasance pursuant to Section 9.3, the Trustee shall transfer from the Reserve Fund to the Redemption Fund or the fund established pursuant to Section 9.3 to defease Bonds amounts in the Reserve Fund provided, however, that in the case of a partial redemption or defeasance the balance remaining in the Reserve Fund following such partial redemption or defeasance shall equal the Reserve Requirement upon such partial redemption. (d) On each Interest Payment Date, any amount in an account of the Reserve Fund which is in excess of the Proportionate Share for such account shall be transferred to the Revenue Fund. (e) When amounts in the Reserve Fund are sufficient to repay the remaining principal and interest due on the Bonds, such amounts will be transferred to the Interest Account and Principal Account of the Revenue Fund and shall be applied to pay the principal of and interest on the Bonds. Section 4.4 Authority Surplus Fund. Any amounts transferred to the Authority Surplus Fund pursuant to subsection 4.2(e) hereof shall no longer constitute Revenues and amounts in the Authority Surplus Fund are not pledged to repay the Bonds. Amounts in the Authority Surplus Fund shall, as set forth in a Request of the Authority, be applied first to pay any true-up payment to be paid to RIDA pursuant to Section 5.1.3 of the Project Implementation Agreement and any amount owing to RIDA pursuant to Section 9.2 of the Project Implementation Agreement. After the amounts due and owing to RIDA pursuant to Section 5.1.3 and 9.2 of the Project Implementation Agreement have been paid, as directed in a Request of the Authority amounts in the Authority Surplus Fund may be transferred to any Fund or Account herein or be transferred to the Authority for deposit in the CV Bayfront Finance Authority Fund for application in accordance with the Revenue Sharing Agreement. Section 4.5 Insurance and Condemnation Fund. The Trustee shall deposit all Net Proceeds (other than any Net Proceeds of any temporary condemnation which shall be deposited directly into the Revenue Fund) and any RIDA Insurance and Condemnation Payments in the Insurance and Condemnation Fund as provided in Section 6.1(a) and (d) of the Facility Lease and such amounts shall be applied as set forth in the Facility Lease, the Sublease and in this Section 4.5. Page 38 of 77 BAttachment F 35 4836-6408-6199v10/024036-0079 Pending such application, such Net Proceeds and RIDA Insurance and Condemnation Payments may be invested by the Trustee as directed by the Authority in Permitted Investments that mature not later than such times moneys are expected to be needed to pay the costs of repair or replacement of the Facility or to redeem 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds. (a) Casualty Insurance. Any Net Proceeds and RIDA Insurance and Condemnation Payments received in connection with any damage to or destruction of the Facility shall be applied as set forth in this Section 4.5(a). If such amounts are to be applied to the repair or replacement of the Facility as provided in Section 6.1(b) of the Facility Lease, then upon receipt of a Request of the Authority, such amounts shall be transferred by the Trustee to the 2021A Account of the Construction Fund to be disbursed pursuant to a Request of the Authority which the Authority shall deliver only in accordance with Article IX of the Project Implementation Agreement. Any amounts remaining in the Insurance and Condemnation Fund following the repair or replacement of the Facility shall be disbursed to RIDA for application in accordance with Section 6.1(b)(ii) of the Facility Lease. If such amounts are to be applied to redeem the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds in accordance with Section 6.1(c) of the Facility Lease, then upon receipt of a Request of the Authority, such amounts shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds as set forth in Section 2.2(d) herein or in any Supplemental Indenture for such Additional Bonds. If any amounts remain in the Insurance and Condemnation Fund after all such 2021A Bonds and Additional Bonds, if any, have been paid in full, or provision made for payment satisfactory to the Trustee, the Trustee shall pay any remaining moneys in the Insurance and Condemnation Fund to RIDA for application in accordance with Section 6.1(c) of the Facility Lease. (b) Title Insurance. The Net Proceeds of any policy of title insurance received by the Trustee with respect to the Facility shall be applied and disbursed by the Trustee upon the Request of the Authority as follows: (i) If the City has determined and notified the Authority that the title defect giving rise to such Net Proceeds has not substantially interfered with the City’s use and occupancy of the Facility and will not result in an abatement of Lease Payments payable by the City under the Facility Lease (such determination to be certified by the City in writing), the Authority shall provide the Trustee with written notice of such fact and such Net Proceeds shall be remitted to the Authority and used for any lawful purpose; or (ii) If the City has determined and notified the Authority that the title defect giving rise to such proceeds has substantially interfered with the City’s use and occupancy of the Facility and will result in an abatement of Lease Payments payable by the City under the Facility Lease, (such determination to be certified by the City in writing), the Authority shall provide the Trustee with written notice of such fact and the Trustee shall immediately deposit such proceeds in the Redemption Fund and such proceeds shall be applied to the extraordinary redemption the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds as set forth in Section 2.2(d) herein. (c) Condemnation Proceeds. The Net Proceeds of any condemnation and RIDA Insurance and Condemnation Payments received in connection with any condemnation of the Facility shall be applied as set forth in this Section 4.5(c). Page 39 of 77 BAttachment F 36 4836-6408-6199v10/024036-0079 (i) If all or a portion of such amounts are to be applied to the repair or replacement of the Facility as provided in Section 6.1(d)(iii) of the Facility Lease, then upon receipt of a Request of the Authority, the amount specified in such Request of the Authority shall be transferred by the Trustee to the 2021A Account of the Construction Fund to be disbursed pursuant to a Request of the Authority which the Authority shall deliver only in accordance with Article IX of the Project Implementation Agreement, and, thereafter, upon receipt of a further Request of the Authority, the remaining balance, if any, shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds as set forth in Section 2.2(d) herein or in any Supplemental Indenture for such Additional Bonds; or (ii) If such amounts are to be applied to redeem the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds in accordance with Section 6.1(d)(ii) of the Facility Lease, then upon receipt of a Request of the Authority, such amounts shall be transferred by the Trustee to the Redemption Fund and be applied to an extraordinary redemption of the 2021A Bonds and Additional Bonds that have refunded all or a portion of the 2021A Bonds as set forth in Section 2.2(d) herein or in any Supplemental Indenture for such Additional Bonds. If any amounts remain in the Insurance and Condemnation Fund after all such 2021A Bonds and Additional Bonds, if any, have been paid in full, or provision made for payment satisfactory to the Trustee, the Authority shall submit a Request of the Authority directing the Trustee to pay and the Trustee shall pay any remaining moneys in the Insurance and Condemnation Fund to RIDA and the Port for application in accordance with Section 5.1(g) of the Sublease. Section 4.6 Redemption Fund. The Trustee shall deposit to the Redemption Fund all amounts to be transferred to the Redemption Fund as set forth in Section 4.2(a)(iv), Section 4.3 and Section 4.5 together with proceeds of Additional Bonds and other amounts to be deposited therein as set forth in a Request of the Authority. Moneys in the Redemption Fund shall be used solely for the purpose of redeeming Bonds in accordance with Section 2.2 and any Supplemental Indenture for any Additional Bonds. Section 4.7 Investments. All moneys in any of the funds or accounts established with the Trustee pursuant to this Indenture shall be invested by the Trustee solely in Permitted Investments, as directed pursuant to the Request of the Authority filed with the Trustee at least two (2) Business Days in advance of the making of such investments. The Trustee shall be entitled to conclusively rely on any such Request of the Authority and shall be fully protected in relying thereon. In the absence of any such Request of the Authority the Trustee shall hold such moneys uninvested and shall provide notice to the Authority monthly of the amount held uninvested. Permitted Investments purchased as an investment of moneys in any fund or account established pursuant to this Indenture shall be deemed to be part of such fund or account. All interest or gain derived from the Permitted Investments of amounts in any of the funds or accounts established hereunder shall be deposited in the fund or account from which such Permitted Investment was made; provided, however, that all interest or gain derived from the Permitted Investment of amounts in the accounts of the Reserve Fund shall, to the extent the balance in any account thereof exceeds, on each Interest Payment Date, its Proportionate Share of the Reserve Requirement as set forth in Section 4.3(a) hereof, shall be withdrawn by the Trustee and be deposited into the Revenue Fund. Page 40 of 77 BAttachment F 37 4836-6408-6199v10/024036-0079 For purposes of acquiring any Permitted Investments hereunder, the Trustee may commingle moneys held by it in any of the funds and accounts held by it hereunder; provided, that the Trustee maintains an independent accounting of each fund or account at all times. The Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Trustee or for any third person or dealing as principal for its own account. The Trustee and its affiliates may act as advisor, sponsor, principal or agent in the acquisition or disposition of any Permitted Investment and may impose its customary charges therefor. The Trustee and its affiliates may make any and all Permitted Investments herein through its own investment department. The Trustee shall incur no liability for losses arising from any Permitted Investments made pursuant to this Section 4.7. The parties hereto acknowledge that the Trustee is not providing investment supervision, recommendations, or advice. The Authority acknowledges that to the extent regulations of the Comptroller of the Currency of the United States or other applicable regulatory entity grant the Authority the right to receive brokerage confirmations of security transactions effected by the Trustee as they occur, the Authority specifically waives receipt of such confirmations to the extent permitted by law. The Authority further understands that trade confirmations for securities transactions effected by the Trustee will be available upon request and at no additional cost and other trade confirmations may be obtained from the applicable broker. The Trustee will furnish the Authority monthly cash transaction statements which include detail for all investment transactions made by the Trustee hereunder or brokers selected by the Authority and the value of the Permitted Investments held at the end of such month with such value to be computed in the manner set forth in the definition of Permitted Investments. Upon the Authority’s election, such statements will be delivered via the Trustee’s online service and upon electing such service, paper statements will be provided only upon request. Section 4.8 Valuation of Permitted Investments. For the purpose of determining the amount in any fund or account, the value of Permitted Investments credited to such fund or account shall be valued in the manner set forth in the definition of Permitted Investments; provided that with respect to the valuation of the Reserve Fund, Permitted Investments shall be valued at the original cost thereof (excluding any brokerage commissions and excluding any accrued interest). Section 4.9 Purchase of Bonds. The Authority may use amounts in the Authority Surplus Fund or other lawfully available funds of the Authority to purchase Bonds on the open market. The Authority shall notify the Trustee as to the principal amount, maturity date and Series of any Bonds purchased and the Trustee shall cancel such Bonds. ARTICLE V COVENANTS OF THE AUTHORITY Section 5.1 Punctual Payment. The Authority shall punctually pay or cause to be paid the principal and interest and redemption premium (if any) to become due in respect of all the Bonds, in strict conformity with the terms of the Bonds and of this Indenture, according to the true intent and meaning thereof, but only out of Revenues, and other amounts pledged for such payment as provided in Section 4.1 of this Indenture. Section 5.2 Extension of Payment of Bonds. The Authority shall not directly or indirectly extend or assent to the extension of the maturity of any of the Bonds or the time of Page 41 of 77 BAttachment F 38 4836-6408-6199v10/024036-0079 payment of any claims for interest by the purchase of such Bonds or by any other arrangement, and in case the maturity of any of the Bonds or the time of payment of any such claims for interest shall be extended, such Bonds or claims for interest shall not be entitled, in case of any default hereunder, to the benefits of this Indenture, except subject to the prior payment in full of the principal of all of the Bonds then Outstanding and of all claims for interest thereon which shall have been so extended. Nothing in this Section shall be deemed to limit the right of the Authority to issue Bonds for the purpose of refunding any Outstanding Bonds, and such issuance shall not be deemed to constitute an extension of maturity of the Bonds. Section 5.3 Against Encumbrances. The Authority shall not create, or permit the creation of, any pledge, lien, charge or other encumbrance upon the Revenues, and other assets pledged or assigned under this Indenture while any of the Bonds are Outstanding, except the pledge and assignment created by this Indenture. Subject to this limitation, the Authority expressly reserves the right to enter into one or more other indentures for any of its corporate purposes, including other programs under the Bond Law, and reserves the right to issue other obligations for such purposes, subject in all cases to the restrictions set forth in Section 26.15 of the Project Implementation Agreement. Section 5.4 Power to Issue Bonds and Make Pledge and Assignment . The Authority is duly authorized pursuant to law to issue the Bonds and to enter into this Indenture and to pledge and assign the Revenues and the Assigned Rights as provided in Section 4.1 hereof and other assets purported to be pledged and assigned, respectively, under this Indenture. The Bonds and the provisions of this Indenture are and will be the legal, valid and binding special and limited obligations of the Authority in accordance with their terms. The Authority and the Trustee shall at all times, subject to the provisions of Article VI hereof and to the extent permitted by law, defend, preserve and protect the pledge and assignment of the Revenues, the Assigned Rights and other amounts and assets made hereunder and all the rights of the Bond Owners under this Indenture against all claims and demands of all persons whomsoever. Section 5.5 Accounting Records and Financial Statements. The Trustee shall at all times keep, or cause to be kept, proper books of record and account, prepared in accordance with corporate trust industry standards in which complete and accurate entries shall be made of transactions made by it relating to the proceeds of Bonds, the Revenues, the Local Obligations and all funds and accounts established pursuant to this Indenture. Such books of record and account shall be available for inspection by the Authority, the City, RIDA and the Port District upon reasonable prior notice during regular business hours and under reasonable circumstances, in each case as agreed to by the Trustee. Not later than 45 days following each Interest Payment Date, the Trustee shall prepare and file with the Authority a report in the Trustee’s standard statement format setting forth: (i) amounts withdrawn from and deposited into each fund and account maintained by the Trustee under this Indenture; (ii) the balance on deposit in each fund and account as of the date for which such report is prepared; and (iii) a brief description of all obligations held as investments in each fund and account. Copies of such reports may be mailed to any Owner upon the Owner’s written request to the Trustee at the expense of such Owner at a cost not to exceed the Trustee’s actual costs of duplication and mailing. Page 42 of 77 BAttachment F 39 4836-6408-6199v10/024036-0079 Section 5.6 Conditions to Issuance of Additional Bonds and Other Obligations. Except as set forth in this Section 5.6, the Authority covenants that no additional bonds, notes or other indebtedness shall be issued or incurred which are payable out of Revenues in whole or in part. The Authority may issue Additional Bonds in such principal amount as shall be determined by the Authority, pursuant to a Supplemental Indenture adopted or entered into by the Authority but only for the purpose of refunding all or a portion of the Outstanding Bonds. Such Additional Bonds may be issued subject to the following conditions precedent: (a) The Authority shall be in compliance with all covenants set forth in this Indenture and all Supplemental Indentures; (b) The proceeds of such Additional Bonds shall be applied to accomplish a refunding of all or a portion of the Bonds Outstanding. (c) The Supplemental Indenture providing for the issuance of such Additional Bonds shall provide that interest thereon shall be payable on June 1 and December 1, and principal thereof shall be payable on June 1 in any year in which principal is payable. (d) Prior to the delivery of any Additional Bonds, a written certificate must be provided to the Authority and the Trustee by an Independent Financial Consultant which certifies that following the issuance of such Additional Bonds, the principal and interest generated from the Local Obligations, assuming all payments due thereunder are paid as scheduled, is adequate to make the timely payment of principal and interest due on all Bonds that will be Outstanding following the issuance of such Additional Bonds. (e) The Supplemental Indenture providing for the issuance of such Additional Bonds may provide for the establishment of separate funds and accounts. (f) No Event of Default (or any event which, once all notice or grace periods have passed, would constitute an Event of Default) shall have occurred and be continuing with respect to the Bonds or any of the Local Obligations unless such Event of Default shall be cured upon the issuance of the Additional Bonds. (g) The Authority shall deliver to the Trustee a written Certificate of the Authority certifying that the conditions precedent to the issuance of such Additional Bonds set forth in subsections (a), (b), (c), (d), (e) and (f) of this Section 5.6 above have been satisfied and that, upon the issuance of such Additional Bonds an amount equal to the Reserve Requirement, as adjusted (if necessary) to reflect the issuance of such Additional Bonds will be on deposit in the Reserve Fund. Notwithstanding satisfaction of the other conditions to the issuance of Additional Bonds set forth in this Section 5.6, no such issuance may occur if the Reserve Fund is not fully funded at the Reserve Requirement. Section 5.7 Tax Covenants. Notwithstanding any other provision of this Indenture, absent an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected, the Authority covenants to comply with all applicable requirements of the Code necessary to preserve such Page 43 of 77 BAttachment F 40 4836-6408-6199v10/024036-0079 exclusion from gross income and specifically covenants, without limiting the generality of the foregoing, as follows: (a) Private Activity. The Authority will not take or omit to take any action or make any use of the proceeds of the Tax-Exempt Bonds or of any other moneys or property which would cause the Tax-Exempt Bonds to be “private activity bonds” within the meaning of Section 141 of the Code. (b) Arbitrage. The Authority will make no use of the proceeds of the Bonds or of any other amounts or property, regardless of the source, or take or omit to take any action which would cause the Tax-Exempt Bonds to be “arbitrage bonds” within the meaning of Section 148 of the Code. (c) Federal Guarantee. The Authority will make no use of the proceeds of the Bonds or take or omit to take any action that would cause the Tax-Exempt Bonds to be “federally guaranteed” within the meaning of Section 149(b) of the Code. (d) Information Reporting. The Authority will take or cause to be taken all necessary action to comply with the informational reporting requirement of Section 149(e) of the Code with respect to the Tax-Exempt Bonds. (e) Miscellaneous. The Authority will take no action inconsistent with its expectations stated in any Tax Certificate executed with respect to the Tax-Exempt Bonds and will comply with the covenants and requirements stated therein and incorporated by reference herein. This Section and the covenants set forth herein shall not be applicable to, and nothing contained herein shall be deemed to prevent the Authority from issuing Bonds which are not Tax- Exempt Bonds. Section 5.8 Rebate Fund. (a) Establishment. The Trustee shall establish a Rebate Fund, when needed, and shall maintain a separate account therein for each Series of Tax-Exempt Bonds designated the “____ Bonds Rebate Account.” Absent an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected, the Authority shall cause to be deposited in each account of the Rebate Fund such amounts as are required to be deposited therein pursuant to this Section and each Tax Certificate. All money at any time deposited in the Rebate Fund shall be held by the Trustee in trust for payment to the United States Treasury. All amounts on deposit in the Rebate Fund shall be governed by this Section 5.8 and each Tax Certificate unless and to the extent that the Authority delivers to the Trustee an opinion of Bond Counsel that the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds will not be adversely affected if such requirements are not satisfied. Notwithstanding any other provision of this Indenture, the Trustee shall be deemed conclusively to have complied with this Section 5.8 and the Tax Certificate if it follows the directions set forth in any Request of the Authority or Certificate of the Authority and shall be fully protected in so doing. The Trustee shall have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the Authority with the terms of this Section 5.8 or any Tax Certificate. Page 44 of 77 BAttachment F 41 4836-6408-6199v10/024036-0079 (b) Rebate Account. The following requirements shall be satisfied with respect to each Rebate Account: (i) Computation. Within 55 days of the end of the fifth Bond Year for each Series of Tax-Exempt Bonds and every fifth Bond Year thereafter, the Authority shall calculate or cause to be calculated the amount of rebatable arbitrage, in accordance with Section 148(f)(2) of the Code and Section 1.148-3 of the Rebate Regulations (taking into account any applicable exceptions with respect to the computation of the rebatable arbitrage, described, if applicable, in the Tax Certificate (e.g., the temporary investments exceptions of Section 148(f)(4)(B) and (C) of the Code), for this purpose treating the last day of the applicable Bond Year as a computation date, within the meaning of Section 1.148-1(b) of the Rebate Regulations (the “Rebatable Arbitrage”). The Authority shall obtain expert advice as to the amount of the Rebatable Arbitrage to comply with this Section 5.8. (ii) Transfer. Within 55 days of the end of each applicable Bond Year, upon receipt of the Request of the Authority, an amount shall be deposited to the applicable Rebate Account by the Trustee from any Revenues specified by the Authority in the Request of the Authority, if and to the extent required so that the balance in the applicable Rebate Account shall equal the amount of Rebatable Arbitrage so calculated in accordance with (i) of this Subsection (b). In the event that immediately following the transfer required by the previous sentence, the amount then on deposit to the credit of a Rebate Account exceeds the amount required to be on deposit therein, upon receipt of a Request of the Authority, the Trustee shall withdraw the excess from the applicable Rebate Account and then credit the excess to the Revenue Fund. (iii) Payment to the Treasury. The Trustee shall pay, as directed by Request of the Authority, to the United States Treasury, out of amounts in the applicable Rebate Account, (A) Not later than 60 days after the end of (A) the fifth Bond Year for a Series of Tax-Exempt Bonds, and (B) each applicable fifth Bond Year thereafter, an amount equal to at least 90% of the Rebatable Arbitrage as set forth in a Certificate of the Authority delivered to the Trustee calculated as of the end of such Bond Year; and (B) Not later than 60 days after the payment of all the Tax- Exempt Bonds of a Series, an amount equal to 100% of the Rebatable Arbitrage as set forth in a Certificate of the Authority delivered to the Trustee calculated as of the end of such applicable Bond Year, and any income attributable to the Rebatable Arbitrage, as set forth in a Certificate of the Authority delivered to the Trustee computed in accordance with Section 148(f) of the Code. In the event that, prior to the time of any payment required to be made from a Rebate Account, the amount in such Rebate Account is not sufficient to make such payment when such payment is due, the Authority shall calculate or cause to be calculated the amount of such deficiency and deposit with the Trustee an amount received from any legally available source equal to such deficiency prior to the time such payment is due. Each payment required to be made pursuant to this Subsection (b) shall be made to the Internal Revenue Service Center, Ogden, Utah 84207 on or before the date on which such payment is due, and shall be accompanied by Internal Revenue Service Form 8038 T (which form shall be completed and provided by the Authority to the Trustee), or shall be made in such other manner as provided under the Code, in each case as specified in a Request of the Authority delivered to the Trustee. Page 45 of 77 BAttachment F 42 4836-6408-6199v10/024036-0079 (c) Disposition of Unexpended Funds. Any funds remaining in a Rebate Account for a Series after redemption and payment of the Tax-Exempt Bonds of such Series and the payments of all amounts described in Subsection (b)(iii) or provision made therefor satisfactory to the Trustee, including accrued interest and payment of all applicable fees to the Trustee, may, upon Request of the Authority, be withdrawn by the Trustee and remitted to the Authority for application in accordance with the Revenue Sharing Agreement. (d) Survival of Defeasance. Notwithstanding anything in this Section to the contrary, the obligation to comply with the requirements of this Section with respect to a Series of Tax-Exempt Bonds shall survive the defeasance of such Series until all obligations under this Section have been satisfied as to such Series as set forth in an opinion of Bond Counsel. (e) Trustee. The Trustee shall have no responsibility to monitor or calculate any amounts payable to the U.S. Treasury pursuant to this Section and shall be deemed conclusively to have complied with its obligations hereunder if it follows the written instructions of the Authority given pursuant to this Section. Section 5.9 Local Obligations. Subject to the provisions of this Indenture (including Article VI), the Authority and the Trustee shall use reasonable efforts to collect all amounts due pursuant to the Local Obligations and shall enforce, and take all steps, actions and proceedings which the Authority and Trustee determine to be reasonably necessary for the enforcement of all of the rights of the Authority thereunder and for the enforcement of all of the obligations and covenants of the City, the Financing District and the Port District thereunder. The Authority, the Trustee and an entity that is a party to a Local Obligation may at any time consent to, amend or modify such Local Obligation pursuant to the terms thereof, (a) with the prior consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, or (b) without the consent of any of the Owners, if such amendment or modification is for any one or more of the following purposes: (a) to add to the covenants and agreements contained in such Local Obligation, other covenants and agreements thereafter to be observed, or to limit or surrender any rights or power therein reserved to or conferred upon the parties to such Local Obligation; or (b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in such Local Obligation, or in any other respect whatsoever as the parties thereto may deem necessary or desirable, provided under any circumstances that such modifications or amendments shall not materially adversely affect the interests of the Owners of the Bonds; or (c) to amend any provision thereof to the extent necessary, in the opinion of Bond Counsel filed with the Trustee, to maintain the exclusion from gross income for federal income tax purposes of the interest on any Series of Tax-Exempt Bonds. The Trustee may request and thereafter shall be furnished, at the expense of the Authority, an opinion of Bond Counsel that any amendment to the Local Obligations complies with the provisions of this Section 5.9 and the Trustee may conclusively rely upon such opinion and shall be fully protected in relying thereon. Page 46 of 77 BAttachment F 43 4836-6408-6199v10/024036-0079 Section 5.10 Continuing Disclosure Certificates. The Authority hereby covenants and agrees that it will comply with and carry out all of its obligations under the Continuing Disclosure Certificate to be executed and delivered by the Authority in connection with the issuance of the 2021 Bonds and any Continuing Disclosure Certificate to be delivered in connection with the issuance of any Additional Bonds. Notwithstanding any other provision of this Indenture, failure of the Authority to comply with any Continuing Disclosure Certificate shall not be considered an Event of Default; however, any Owner or Beneficial Owner of a Series may take such actions as may be necessary and appropriate, including seeking mandate or specific performance by court order, to cause the Authority to comply with its obligations under the Continuing Disclosure Certificate for such Series. For purposes of this Section, “Beneficial Owner” means any person which has or shares the power, directly or indirectly, to make investment decisions concerning ownership of any Bonds (including persons holding Bonds through nominees, depositories and other intermediaries). Section 5.11 Further Assurances. The Authority will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Indenture, and for the better assuring and confirming unto the Owners of the Bonds the rights and benefits provided in this Indenture. Section 5.12 Pledged Revenues. The Authority represents it has not heretofore made a pledge of, granted a lien on or security interest in, or made an assignment or sale of the Revenues that ranks on a parity with or prior to the pledge granted under this Indenture. The Authority shall not hereafter make any pledge or assignment of, or grant a lien on or security interest in the Revenues which is senior to or on a parity with the pledge of Revenues established under this Indenture. Subject to Section 26.15 of the Project Implementation Agreement, the Authority may grant a subordinate pledge or assignment of Revenues with the written consent of the City and the Port District. ARTICLE VI THE TRUSTEE Section 6.1 Appointment of Trustee. Wilmington Trust, National Association, with a corporate trust office presently located in Costa Mesa, California, a national banking association organized and existing under and by virtue of the laws of the United States of America, is hereby appointed Trustee by the Authority for the purpose of receiving all moneys required to be deposited with the Trustee hereunder and to allocate, use and apply the same as provided in this Indenture. The Authority agrees that it will maintain a Trustee which is a trust company, association or bank of good standing located in or incorporated under the laws of the State, duly authorized to exercise trust powers, with a combined capital and surplus of at least Seventy-Five Million Dollars ($75,000,000), and subject to supervision or examination by federal or state authority, so long as any Bonds are Outstanding. If such bank, association or trust company serving as the Trustee publishes a report of condition at least annually pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purpose of this Section 6.1, the combined capital and surplus shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. Page 47 of 77 BAttachment F 44 4836-6408-6199v10/024036-0079 The Trustee is hereby authorized to pay the principal of on the Bonds when duly presented for payment at maturity, or on redemption prior to maturity, to make regularly scheduled interest payments in the manner set forth herein, and to cancel any Bond upon payment thereof. Section 6.2 Acceptance of Trusts. The Trustee hereby accepts the trusts imposed upon it by this Indenture, and agrees to perform said trusts, but only upon and subject to the following express terms and conditions: (a) The Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. These duties shall be deemed purely ministerial in nature, and the Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In case an Event of Default hereunder has occurred (which has not been cured or waived), the Trustee may exercise such of the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill and diligence in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of that Person’s own affairs. (b) The Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents, or receivers, but shall be responsible for the negligent or willful acts of any of its agents, attorneys or receivers appointed by it. The Trustee may consult with and act upon the advice of counsel (which may be counsel to the Authority) concerning all matters of trust and its duty hereunder and may conclusively rely upon and shall be wholly protected in reliance upon the advice or opinion of such counsel in respect of any action taken or omitted by it in accordance therewith. (c) The Trustee shall not be responsible for any recital herein, or in the Tax Certificate or the Bonds, or for any of the supplements thereto or instruments of further assurance, or for the validity, effectiveness or the sufficiency of the security for the Bonds issued hereunder or intended to be secured hereby and the Trustee shall not be bound to ascertain or inquire as to the observance or performance of any covenants, conditions or agreements on the part of the Authority hereunder or under the Tax Certificate. The Trustee shall have no responsibility, opinion, or liability with respect to any information, statement, or recital in any offering memorandum, official statement, or other disclosure material prepared or distributed with respect to the issuance of the Bonds. (d) Except as provided in Section 3.2 hereof, the Trustee shall not be accountable for the use of any proceeds of sale of the Bonds delivered hereunder. The Trustee may become the Owner of Bonds secured hereby with the same rights which it would have if not the Trustee; may acquire and dispose of other bonds or evidences of indebtedness of the Authority with the same rights it would have if it were not the Trustee; and may act as a depository for and permit any of its officers or directors to act as a member of, or in any other capacity with respect to, any committee formed to protect the rights of Owners of Bonds, whether or not such committee shall represent the Owners of the majority in aggregate principal amount of the Bonds then Outstanding. (e) The Trustee shall be entitled to request and receive written instructions from the Authority and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Trustee in accordance with the written direction thereof. The Trustee shall be protected and shall incur no liability in acting, or refraining from acting, without negligence or willful misconduct, in reliance upon any notice, direction, Page 48 of 77 BAttachment F 45 4836-6408-6199v10/024036-0079 request, consent, opinion, certificate, order, resolution, report, affidavit, letter, telegram, facsimile, bond, debenture, note, other evidence of indebtedness (including any Bond or Parity Bond) or other paper or document believed by it to be genuine and correct and to have been signed, sent or presented by the proper person or persons, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein. Any action taken or omitted to be taken by the Trustee without negligence or willful misconduct pursuant to this Indenture upon the request, direction, authority or consent of any Person who at the time of making such request or direction or giving such authority or consent is the Owner of any Bond, shall be conclusive and binding upon all future Owners of the same Bond and upon Bonds issued in exchange therefor or in place thereof. The Trustee shall not be bound to recognize any Person as an Owner of any Bond or to take any action at such Person’s request unless the ownership of such Bond by such Person shall be reflected on the Bond Register. (f) As to the existence or non-existence of any fact or as to the sufficiency or validity of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a Certificate of the Authority and/or opinion of counsel as sufficient evidence of the facts therein contained and prior to the occurrence of an Event of Default hereunder of which the Trustee has been given notice or is deemed to have notice, as provided in Section 6.2(h) hereof, shall also be at liberty to accept a Certificate of the Authority and/or opinion of counsel to the effect that any particular dealing, transaction or action is necessary or expedient, and shall be fully protected in relying thereon, but may at its discretion secure such further evidence deemed by it to be necessary or advisable, but shall in no case be bound to secure the same. (g) The permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and notwithstanding any other provision of this Indenture, the Trustee shall not be answerable for other than its negligence or willful misconduct or that of its officers, directors, agents or employees. The immunities and exceptions from liability of the Trustee shall extend to its officers, directors, employees and agents. (h) The Trustee shall not be required to take notice or be deemed to have notice of any Event of Default hereunder except where a Responsible Officer has actual knowledge of such Event of Default and except for the failure by the Authority to make any of the payments to the Trustee required to be made by the Authority pursuant hereto, including payments on the Local Obligations, or failure by the Authority to file with the Trustee any document required by this Indenture to be so filed subsequent to the issuance of the Bonds, unless a Responsible Officer shall be specifically notified in writing of such default by the Authority or by the Owners of a majority in aggregate principal amount of the Outstanding Bonds and all notices or other instruments required by this Indenture to be delivered to the Trustee must, in order to be effective, be delivered to a Responsible Officer at the Trust Office of the Trustee, and in the absence of such notice so delivered the Trustee may conclusively assume there is no Event of Default hereunder except as aforesaid. Delivery of a notice to the officer at the address for the Trustee set forth in Section 9.11 hereof, as updated by the Trustee from time to time, shall be deemed notice to a Responsible Officer. (i) At any and all reasonable times the Trustee, and its duly authorized agents, attorneys, experts, accountants and representatives, shall have the right fully to inspect all books, papers and records of the Authority pertaining to the Bonds, and to make copies of any of such books, papers and records such as may be desired provided that they are not privileged by statute, law, or contract, protected by confidentiality by statute, law, or contract, or otherwise protected from disclosure by statute or by law, including without limitation, the California Public Records Act. The Page 49 of 77 BAttachment F 46 4836-6408-6199v10/024036-0079 Trustee shall not be required to give any bond or surety in respect of the execution of the said trusts and powers or otherwise in respect of the performance of its duties hereunder. (j) Notwithstanding anything elsewhere in this Indenture with respect to the execution of any Bonds, the withdrawal of any cash, the release of any property, or any action whatsoever within the purview of this Indenture, the Trustee shall have the right, but shall not be required, to demand any showings, certificates, opinions, appraisals or other information, or corporate action or evidence thereof, as may be deemed desirable by the Trustee in its sole discretion for the purpose of establishing the right of the Authority to the execution of any Bonds, the withdrawal of any cash, or the taking of any other action by the Trustee. (k) Before taking any action referred to in Sections 6.5, 8.2, or elsewhere in this Article, the Trustee may require that an indemnity bond or other form of security or indemnification satisfactory to it in its sole and exclusive discretion be furnished for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from the negligence or willful misconduct of the Trustee or its officers, directors, agents or employees in connection with any such action. (l) All moneys received by the Trustee shall, until used or applied or invested as herein provided, be held in trust for the purposes for which they were received but need not be segregated from other funds. (m) Whether or not expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of, or affording protection to, the Trustee shall be subject to the provisions of this Article VI. (n) The Trustee shall not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of delay in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence or willful misconduct, including, but not limited to, Acts of God or of the public enemy or terrorists, acts of a government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion, mob violence, riot, inability to procure or general sabotage or rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market, loss or malfunctions of utilities, computer (hardware or software) or communications service, accidents, labor disputes, the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, litigation or arbitration involving a party or others relating to zoning or other governmental action or inaction pertaining to the Project, malicious mischief, condemnation, and unusually severe weather or delays of supplies or subcontractors due to such causes or any similar event and/or occurrences beyond the control of the Trustee. (o) The Trustee agrees to accept and act upon facsimile or electronic transmission of written instructions and/or directions pursuant to this Indenture; provided, however, that: (a) such originally executed instructions and/or directions shall be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (b) the Trustee shall have received a current incumbency certificate containing the specimen signature of such designated person. Any such instructions, directions and other communications furnished by electronic transmission shall be in the form of attachments in PDF format and confirmed in accordance with Section 9.11. Page 50 of 77 BAttachment F 47 4836-6408-6199v10/024036-0079 (p) The Trustee shall not be liable in connection with the performance of its duties hereunder except for its own negligence or willful misconduct or that of its officers, directors, agents or employees. Section 6.3 Funds and Accounts. Any fund or account required by this Indenture to be established and maintained by the Trustee may be established and maintained in the accounting records of the Trustee, either as a fund or an account, and may, for the purpose of such records, any audits thereof and any reports or statements with respect thereto, be treated either as a fund or as an account. All such records with respect to all such funds and accounts held by the Trustee shall be at all times maintained in accordance with corporate trust industry practices; in each case with due regard for the protection of the security of the Bonds and the rights of every Owner thereof. Section 6.4 Fees, Charges and Expenses of Trustee. The Trustee shall be entitled to payment and reimbursement by the Authority for reasonable fees for its services rendered hereunder and all advances (including any interest on advances), counsel fees and expenses (including fees and expenses of outside counsel and the allocated costs of internal attorneys) and other expenses reasonably and necessarily made or incurred by the Trustee in connection with such services. Upon the occurrence of an Event of Default hereunder, but only upon an Event of Default with respect to the Bonds, the Trustee shall have a first lien with right of payment prior to payment of any Bond upon the amounts held in the funds and accounts hereunder for the foregoing fees, charges and expenses incurred by it respectively. The Trustee’s right to payment of its fees and expenses shall survive the discharge and payment or defeasance of the Bonds and termination of this Indenture, and the resignation or removal of the Trustee. Section 6.5 Notice to Bond Owners of Default. If an Event of Default hereunder occurs with respect to any Bonds of which the Trustee has been given, or is deemed to have notice, as provided in Section 6.2(h) hereof, then the Trustee shall promptly give written notice thereof to the Owner of each such Bond unless such Event of Default shall have been cured before the giving of such notice. Section 6.6 Intervention by Trustee. In any judicial proceeding to which the Authority is a party which, in the opinion of the Trustee and its counsel, has a substantial bearing on the interests of Owners of any of the Bonds, the Trustee may intervene on behalf of such Bond Owners, and subject to Section 6.2(h) hereof, shall do so if requested in writing by the Owners of at least a majority in aggregate principal amount of such Bonds then Outstanding. Section 6.7 Removal of Trustee. The Owners of a majority in aggregate principal amount of the Outstanding Bonds may and the Authority may, so long as no Event of Default then exists, upon thirty (30) calendar days’ prior written notice to the Trustee, remove the Trustee initially appointed, and any successor thereto, by an instrument or concurrent instruments in writing delivered to the Trustee. Upon any such removal, the Authority shall appoint a successor or successors thereto; provided that any such successor shall be a bank, association or trust company meeting the requirements set forth in Section 6.1 hereof. Section 6.8 Resignation by Trustee. The Trustee and any successor Trustee may at any time resign and be discharged from its duties and obligations hereunder by giving prior written notice of its intention to resign as Trustee hereunder, such notice to be given to the Authority by registered or certified mail and by electronic transmission. Upon receiving such notice of resignation, the Authority shall promptly appoint a successor Trustee. Any resignation or removal of the Trustee and Page 51 of 77 BAttachment F 48 4836-6408-6199v10/024036-0079 appointment of a successor Trustee shall become effective only upon acceptance of appointment by the successor Trustee. Upon such acceptance, the Authority shall cause notice thereof to be sent to the Bond Owners at their respective addresses set forth on the Bond Register. Section 6.9 Appointment of Successor Trustee. In the event of the removal or resignation of the Trustee pursuant to Sections 6.7 or 6.8, respectively, the Authority shall promptly appoint a successor Trustee in accordance with the provisions of this Section 6.9 and Section 26.16 of the Project Implementation Agreement. In the event the Authority shall for any reason whatsoever fail to appoint a successor Trustee within thirty (30) calendar days following the delivery to the Trustee of the instrument described in Section 6.7 or within thirty (30) calendar days following the receipt of notice by the Authority pursuant to Section 6.8, the Trustee may, at the expense of the Authority, petition any court of competent jurisdiction for the appointment of a successor Trustee meeting the requirements of Section 6.1 hereof. Any such successor Trustee appointed by such court shall become the successor Trustee hereunder notwithstanding any action by the Authority purporting to appoint a successor Trustee following the expiration of such thirty (30) calendar day period. Section 6.10 Merger or Consolidation. Any company into which the Trustee may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Trustee may sell or transfer all or substantially all of its corporate trust business, provided that such company shall meet the requirements set forth in Section 6.1 hereof, shall be the successor to the Trustee and vested with all of the title to the trust estate and all of the trusts, powers, discretions, immunities, privileges and all other matters as was its predecessor, without the execution or filing of any paper or further act, anything herein to the contrary notwithstanding. The Trustee may assign its rights, duties and obligations hereunder in whole or in part, to an affiliate or subsidiary thereof, provided such affiliate or subsidiary shall meet the requirements set forth in Section 6.1 hereof. Section 6.11 Concerning any Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to its predecessor and also to the Authority an instrument in writing accepting such appointment hereunder and to the predecessor Trustee an instrument indemnifying the predecessor Trustee for any costs or claims arising during the time the successor Trustee serves as Trustee hereunder and thereupon such successor, without any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations of its predecessors; but such predecessor shall, nevertheless, on the Request of the Authority, or of the Trustee’s successor, execute and deliver an instrument transferring to such successor all the estates, properties, rights, powers and trusts of such predecessor hereunder; and every predecessor Trustee shall deliver all securities and moneys held by it as the Trustee hereunder to its successor. Should any instrument in writing from the Authority be required by any successor Trustee for more fully and certainly vesting in such successor the estate, rights, powers and duties hereby vested or intended to be vested in the predecessor Trustee, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. Section 6.12 Appointment of Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction (including particularly the law of the State) denying or restricting the right of banking corporations or associations to transact business as a trustee in such jurisdiction. It is recognized that in the case of litigation under this Indenture, and in particular in case of the enforcement of the rights of the Trustee on default, or in the case the Trustee deems that by reason of any present or future law of any jurisdiction it may not exercise any of the Page 52 of 77 BAttachment F 49 4836-6408-6199v10/024036-0079 powers, rights or remedies herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Trustee appoint an additional Person as a separate co-trustee. The following provisions of this Section 6.12 are adopted to these ends. In the event that the Trustee or the Authority appoints an additional Person as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of the Trustee or separate or co-Trustee. Should any instrument in writing from the Authority be required by the separate trustee or co-trustee so appointed by the Trustee or the Authority for more fully and certainly vesting in and confirming to it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Authority. In case any separate trustee or co-trustee, or a successor to either, shall become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by law, shall vest in and be exercised by the Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee. Section 6.13 Indemnification; Limited Liability of Trustee. The Authority further covenants and agrees to indemnify and save the Trustee and its officers, officials, directors, agents and employees, harmless from and against any damages, loss, costs, claims, expense (including legal fees and expenses), and liabilities which it may incur arising out of or in the exercise and performance of its powers and duties hereunder, including the costs and expenses of defending against any claim of liability, but excluding any and all losses, expenses and liabilities which are due to the negligence or willful misconduct of the Trustee, its officers, directors, agents or employees. In no event shall the Trustee be responsible or liable for any consequential, punitive, indirect, incidental or special damages or loss of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. No provision in this Indenture shall require the Trustee to risk or expend its own funds or otherwise incur any financial liability hereunder unless security or indemnity satisfactory to it in its sole and exclusive discretion against such liability or risk is provided to it. The Trustee shall not be liable for any action taken or omitted to be taken by it in accordance with this Indenture and at the direction of a majority (or any lesser amount that may direct the Trustee in accordance with the provisions of this Indenture) of the Owners of the principal amount of Bonds Outstanding relating to the time, method and place of conducting any proceeding or remedy available to the Trustee under this Indenture. The Trustee shall not be liable for any errors of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent or engaged in willful misconduct in ascertaining the pertinent facts. The rights of the Trustee and the obligations of the Authority under this Section 6.12 shall survive termination of this Indenture, discharge of the Bonds and resignation or removal of the Trustee. Page 53 of 77 BAttachment F 50 4836-6408-6199v10/024036-0079 ARTICLE VII MODIFICATION AND AMENDMENT OF THE INDENTURE Section 7.1 Amendment Hereof. This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may be modified or amended at any time by a Supplemental Indenture which shall become binding when the consent of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding are filed with the Trustee. No such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal, interest or redemption premium, if any, at the time and place and at the rate and in the currency provided therein of any Bond without the express written consent of the Owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without written consent of the Trustee, modify any of the rights or obligations of the Trustee. This Indenture and the rights and obligations of the Authority and of the Owners of the Bonds may also be modified or amended at any time by a Supplemental Indenture which shall become binding upon adoption, without consent of any Bond Owners, to the extent permitted by law but only for any one or more of the following purposes: (a) to add to the covenants and agreements of the Authority contained in this Indenture, other covenants and agreements thereafter to be observed, or to limit or surrender any rights or powers herein reserved to or conferred upon the Authority so long as such addition, limitation or surrender of such rights or powers shall not materially adversely affect the Owners of the Bonds; or (b) to make such provisions for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained in this Indenture, or in any other respect whatsoever as the Authority may deem necessary or desirable, provided under any circumstances that such modifications or amendments shall not materially adversely affect the interests of the Owners of the Bonds; or (c) to amend any provision hereof relating to the Code as may be necessary or appropriate to assure compliance with the Code and the exclusion from gross income of interest on the Tax-Exempt Bonds, including, but not limited to, amending the procedures set forth in Section 5.8 hereof with respect to the calculation of rebatable arbitrage; or (d) to amend or clarify any provision hereof to provide for the issuance of any Additional Bonds on a parity with any Outstanding Bonds for all purposes of this Indenture, including, but not limited to, for the purpose of exercising all rights and remedies hereunder; or (e) to amend the provisions of Section 4.4 hereof. The Trustee may request and thereafter shall be furnished, at the expense of the Authority, an opinion of Bond Counsel that any such Supplemental Indenture entered into by the Authority and the Trustee complies with the provisions of this Article VII and the Trustee may conclusively rely upon such opinion and shall be fully protected in relying thereon. Page 54 of 77 BAttachment F 51 4836-6408-6199v10/024036-0079 Section 7.2 Effect of Supplemental Indenture. From and after the time any Supplemental Indenture becomes effective pursuant to this Article VII, this Indenture shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations of the parties hereto or thereto and all Owners of Outstanding Bonds, as the case may be, shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of this Indenture for any and all purposes. Section 7.3 Endorsement or Replacement of Bonds After Amendment. After the effective date of any action taken as hereinabove provided, the Authority may determine that any affected Bonds shall bear a notation, by endorsement in form approved by the Authority, as to such action, and in that case upon demand of the Owner of any Bond Outstanding at such effective date and presentation of its Bond for that purpose at the Trust Office of the Trustee, a suitable notation as to such action shall be made on such Bond. If the Authority shall so determine, new Bonds so modified as, in the opinion of the Authority, shall be necessary to conform to such Bond Owners’ action shall be prepared and executed, and in that case upon demand of the Owner of any Bond Outstanding at such effective date such new Bonds shall be exchanged at the Trust Office of the Trustee, without cost to each Bond Owner, for Bonds then Outstanding, upon surrender of such Outstanding Bonds. Section 7.4 Amendment by Mutual Consent. The provisions of this Article VII shall not prevent any Bond Owner from accepting any amendment as to the particular Bond held by such Owner, provided that due notation thereof is made on such Bond. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES OF BOND OWNERS Section 8.1 Events of Default. The following events shall be Events of Default hereunder. (a) Default in the due and punctual payment of the principal of any Bond when and as the same shall become due and payable, whether at maturity as therein expressed, by proceedings for redemption, by declaration or otherwise. (b) Default in the due and punctual payment of any installment of interest on any Bond when and as such interest installment shall become due and payable. (c) Default by the Authority in the observance of any of the other covenants, agreements or conditions on its part in this Indenture or in the Bonds contained, if such default shall have continued for a period of thirty (30) days after written notice thereof, specifying such default and requiring the same to be remedied, shall have been given to the Authority by the Trustee, or to the Authority and the Trustee by the Owners of not less than a majority in aggregate principal amount of the Bonds at the time Outstanding, provided that such default (other than a default arising from nonpayment of the Trustee’s fees and expenses, which must be cured within such 30 day period) shall not constitute an Event of Default hereunder if the Authority shall commence to cure such default within said thirty (30) day period and thereafter diligently and in good faith shall cure such default within a reasonable period of time of not to exceed ninety days (90 days), or such longer period as is consented to by a majority of the Owners of the Bonds; or Page 55 of 77 BAttachment F 52 4836-6408-6199v10/024036-0079 (d) The filing by the Authority of a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law of the United States of America, or if a court of competent jurisdiction shall approve a petition, filed with or without the consent of the Authority, seeking reorganization under the federal bankruptcy laws or any other applicable law of the United States of America, or if, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Authority or of the whole or any substantial part of its property. Section 8.2 Remedies; Rights of Bond Owners. Upon the occurrence of an Event of Default, the Trustee may pursue any available remedy at law or in equity to enforce the payment of the principal of, redemption premium, if any, and interest on the Outstanding Bonds, and to enforce any rights of the Trustee under or with respect to this Indenture and the Assigned Rights. Subject to Section 8.3, in the event of an Event of Default arising out of a nonpayment of Trustee’s fees and expenses, the Trustee may sue the Authority to seek recovery of its fees and expenses, provided, however, that such recovery may be made only from the funds of the Authority and not from Revenues. If an Event of Default shall have occurred and be continuing and if requested to do so by the Owners of a majority in aggregate principal amount of Outstanding Bonds, and, in each case, if indemnified as provided in Section 6.2(k), the Trustee shall be obligated to exercise such one or more of the rights and powers conferred by this Article VIII and, as applicable, under the Local Obligations, as the Trustee, being advised by counsel, shall deem most expedient in the interests of the Bond Owners. No remedy by the terms of this Indenture conferred upon or reserved to the Trustee (or to the Bond Owners) is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given to the Trustee or to the Bond Owners hereunder or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or acquiescence therein; such right or power may be exercised from time to time as often as may be deemed expedient. In no event shall the principal of the Bonds be accelerated. Section 8.3 Application of Revenues and Other Funds After Event of Default. All amounts received by the Trustee with respect to the Bonds pursuant to any right given or action taken by the Trustee under the provisions of this Indenture relating to the Bonds shall be applied by the Trustee in the following order upon presentation of the several Bonds, and the stamping thereon of the amount of the payment if only partially paid, or upon the surrender thereof if fully paid: First, to the payment of the costs and expenses of the Trustee in declaring such Event of Default and in carrying out the provisions of this Article VIII, including reasonable compensation to its agents, attorneys and counsel (including outside counsel and the allocated costs of internal attorneys), and to the payment of all other reasonable fees and expenses of the Trustee remaining unpaid; and Page 56 of 77 BAttachment F 53 4836-6408-6199v10/024036-0079 Second, to the payment of the whole amount of interest on and principal of the Bonds then due and unpaid, with interest on overdue installments of principal and interest to the extent permitted by law at the net effective rate of interest then borne by the Outstanding Bonds; provided, however, that in the event such amounts shall be insufficient to pay in full the full amount of such interest and principal, then such amounts shall be applied in the following order of priority and on a pro rata basis within each of (a), (b) and (c) below: (a) first to the payment of all installments of interest on the Bonds then due and unpaid, (b) second, to the payment of all installments of principal of the Bonds then due and unpaid, and (c) third, to the payment of interest on overdue installments of principal and interest on Bonds. Section 8.4 Power of Trustee to Control Proceedings. In the event that the Trustee, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of the Owners of a majority in aggregate principal amount of the Bonds then Outstanding, it may, in the exercise of its discretion for the best interests of the Owners of the Bonds, provide for the discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Trustee shall not, unless there no longer continues an Event of Default, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the Owners of a majority in aggregate principal amount of the Outstanding Bonds opposing such discontinuance, withdrawal, compromise, settlement or other such litigation and provided further that the Trustee shall have the right to decline to comply with such written request unless indemnification satisfactory to it has been provided. Any suit, action or proceeding which any Owner of Bonds shall have the right to bring to enforce any right or remedy hereunder may be brought by the Trustee for the equal benefit and protection of all Owners of Bonds similarly situated and the Trustee is hereby appointed (and the successive respective Owners of the Bonds issued hereunder, by taking and holding the same, shall be conclusively deemed so to have appointed it) the true and lawful attorney in fact of the respective Owners of the Bonds for the purposes of bringing any such suit, action or proceeding and to do and perform any and all acts and things for and on behalf of the respective Owners of the Bonds as a class or classes, as may be necessary or advisable in the opinion of the Trustee as such attorney in fact. Section 8.5 Appointment of Receivers. Upon the occurrence of an Event of Default hereunder, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Trustee and of the Bond Owners under this Indenture, the Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the Revenues and other amounts pledged hereunder, pending such proceedings, with such powers as the court making such appointment shall confer. Section 8.6 Non Waiver. Nothing in this Article VIII or in any other provision of this Indenture, or in the Bonds, shall affect or impair the obligation of the Authority, which is absolute and unconditional, to pay the interest on and principal of the Bonds to the respective Owners of the Page 57 of 77 BAttachment F 54 4836-6408-6199v10/024036-0079 Bonds at the respective dates of maturity, as herein provided, out of the Revenues and other moneys herein pledged for such payment. A waiver of any default or breach of duty or contract by the Trustee or any Bond Owners shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission of the Trustee or any Owner of any of the Bonds to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy conferred upon the Trustee or Bond Owners by the Bond Law or by this Article VIII may be enforced and exercised from time to time and as often as shall be deemed expedient by the Trustee or the Bond Owners, as the case may be. Section 8.7 Rights and Remedies of Bond Owners. No Owner of any Bond issued hereunder shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Indenture, unless (a) such Owner shall have previously given to the Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of all the Bonds then Outstanding shall have made written request upon the Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said Owners shall have tendered to the Trustee indemnity reasonably acceptable to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Trustee shall have refused or omitted to comply with such request for a period of sixty (60) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Trustee. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of Bonds of any remedy hereunder; it being understood and intended that no one or more Owners of Bonds shall have any right in any manner whatever by his or their action to enforce any right under this Indenture, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of this Indenture shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners of the Outstanding Bonds. The right of any Owner of any Bond to receive payment of the principal of and interest and redemption premium (if any) on such Bond as herein provided or to institute suit for the enforcement of any such payment, shall not be impaired or affected without the written consent of such Owner, notwithstanding the foregoing provisions of this Section or any other provision of this Indenture. Section 8.8 Termination of Proceedings. In case the Trustee shall have proceeded to enforce any right under this Indenture by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case, the Authority, the Trustee and the Bond Owners shall be restored to their former positions and rights hereunder, respectively, with regard to the property subject to this Indenture, and all rights, remedies and powers of the Trustee shall continue as if no such proceedings had been taken. Page 58 of 77 BAttachment F 55 4836-6408-6199v10/024036-0079 ARTICLE IX MISCELLANEOUS Section 9.1 Limited Liability of Authority. Notwithstanding anything in this Indenture contained, the Authority shall not be required to advance any moneys derived from any source of income other than the Revenues or for the payment of the principal of, redemption premium (if any) or interest on the Bonds, or for the performance of any covenants herein contained. The Authority may, however, advance funds from any source of income other than the Revenues for any such purpose, provided that such funds are derived from a source legally available for such purpose and may be used by the Authority for such purpose without incurring indebtedness. The Bonds are revenue bonds, payable exclusively from the Revenues and other funds pledged in Section 4.1 of this Indenture. The general fund of the Authority or those of its members is not liable, and the credit of the Authority is not pledged, for the payment of the principal of, redemption premium, if any, and interest on the Bonds. The Owners of the Bonds shall never have the right to compel the forfeiture of any property of the Authority or any property of any member of the Authority. The principal of, redemption premium, if any, and interest on the Bonds shall not be a legal or equitable pledge, charge, lien or encumbrance upon any property of the Authority or upon any of its income, receipts or revenues except the Revenues and other funds pledged to the payment thereof as provided in this Indenture. Section 9.2 Benefits of Indenture Limited to Parties. Nothing in this Indenture, expressed or implied, is intended to give to any person other than the Authority, the Trustee and the Owners of the Bonds, any right, remedy or claim under or by reason of this Indenture. Any covenants, stipulations, promises or agreements in this Indenture made by and on behalf of the Authority shall be for the sole and exclusive benefit of the Trustee and the Owners of Bonds. Section 9.3 Discharge of Indenture. The Authority may pay and discharge any or all of the Outstanding Bonds in any one or more of the following ways: (a) by well and truly paying or causing to be paid the principal of, redemption premium, if any, and interest on such Bonds, as and when the same become due and payable; (b) by irrevocably depositing with the Trustee, in trust, at or before maturity, money which, together with the available amounts then on deposit in the funds and accounts established with the Trustee pursuant to this Indenture and available for such purpose, is fully sufficient to pay all principal, redemption premium, if any, and interest due on such Bonds; or (c) by irrevocably depositing with the Trustee or any other fiduciary, in trust, Federal Securities in such amount as verified by an Independent Accountant in a report filed with the Authority and the Trustee that will, together with the interest to accrue thereon and available moneys then on deposit in the funds and accounts established with the Trustee pursuant to this Indenture and available for such purpose, be fully sufficient to pay and discharge all principal, redemption premium, if any, and interest on such Bonds at or before their respective maturity dates. Any Outstanding Bond or Bonds shall be deemed to have been paid and discharged under (c) above if (i) in the case of Bonds to be redeemed prior to the maturity thereof, notice of such redemption shall have been provided pursuant to Section 2.2(g) hereof, or provision satisfactory to Page 59 of 77 BAttachment F 56 4836-6408-6199v10/024036-0079 the Trustee shall have been made for the provision of such notice, (ii) the Authority shall have delivered an escrow agreement with respect to the deposits under (c) above; (iii) an opinion of Bond Counsel shall be delivered to the Trustee to the effect that the requirements of this Indenture have been satisfied with respect to the discharge of such Bond or Bonds; and (iv) the Trustee shall have delivered a certificate of discharge with respect to such Bond or Bonds. Upon a discharge of one or more Bonds as described above, and notwithstanding that any of such Bonds shall not have been surrendered for payment, the pledge of the Revenues, and other funds provided for in this Indenture with respect to such Bonds, as applicable, and all other pecuniary obligations of the Authority under this Indenture with respect to such Bonds, shall cease and terminate, except only the obligation of the Authority to comply with the covenants contained in Sections 5.7 and 6.13 hereof, to pay or cause to be paid to the Owners of such Bonds not so surrendered and paid all sums due thereon from amounts set aside for such purpose, to pay all expenses and costs of the Trustee and to comply with the covenants contained in Section 5.7 hereof. Any funds thereafter held by the Trustee, which are not required for said purposes, shall be paid over to the Authority (other than Net Proceeds and any RIDA Insurance and Condemnation Payments which shall be transferred as set forth in a Request of the Authority for application pursuant to the terms of the Sublease). Section 9.4 Successor is Deemed Included in All References to Predecessor. Whenever in this Indenture or any Supplemental Indenture either the Authority is named or referred to, such reference shall be deemed to include the successor to all of the powers, duties, obligations, and functions, with respect to the management, administration and control of the affairs of the Authority, that are presently vested in the Authority (but not the member of the Authority that is serving in the capacity as the “leasing manager” of the Authority with regard to the management, administration and control of the affairs of the Authority as it relates to the Facility Lease and Sublease), and all the covenants, agreements and provisions contained in this Indenture by or on behalf of the Authority shall bind and inure to the benefit of its successors whether so expressed or not. Section 9.5 Content of Certificates. Every certificate by or on behalf of the Authority with respect to compliance with a condition or covenant provided for in this Indenture shall include (a) a statement that the person or persons making or giving such certificate have read such covenant or condition and the definitions herein relating thereto; (b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate are based; (c) a statement that, in the opinion of the signers, they have made or caused to be made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied with; and (d) a statement as to whether, in the opinion of the signers, such condition or covenant has been complied with. Any such certificate made or given by an officer of the Authority may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate may be based, as aforesaid, are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Any such certificate or opinion or representation made or given by counsel may be based, insofar as it relates to factual matters, on information with respect to which is in the possession of the Authority, or upon the certificate or opinion of or representations by an officer or officers of the Authority, unless such counsel knows that the certificate or opinion or representations with respect to the matters upon which his certificate, opinion or representation may be based, as aforesaid, are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Page 60 of 77 BAttachment F 57 4836-6408-6199v10/024036-0079 Section 9.6 Execution of Documents by Bond Owners. Any request, consent or other instrument required by this Indenture to be signed and executed by Bond Owners may be signed individually or jointly by Bond Owners and may be signed or executed by such Bond Owners in person or by agent or agents duly appointed in writing. Proof of the execution of any such request, consent or other instrument or of a writing appointing any such agent, shall be sufficient for any purpose of this Indenture and shall be conclusive in favor of the Trustee and of the Authority if made in the manner provided in this Section 9.6. The fact and date of the execution by any person of any such request, consent or other instrument or writing may be proved by the affidavit of a witness of such execution or by the certificate of any notary public or other officer of any jurisdiction, authorized by the laws thereof to take acknowledgements of deeds, certifying that the person signing such request, consent or other instrument or writing acknowledged to him the execution thereof. The ownership of Bonds shall be conclusively proved by the Bond Register. Any request, consent or vote of the Owner of any Bond shall bind every future Owner of the same Bond and the Owner of any Bond issued in exchange therefor or in lieu thereof, in respect of anything done or suffered to be done by the Trustee or the Authority in pursuance of such request, consent or vote. In lieu of obtaining any demand, request, direction, consent or waiver in writing, the Trustee may call and hold a meeting of the Bond Owners upon such notice and in accordance with such rules and obligation as the Trustee considers fair and reasonable for the purpose of obtaining any such action. Section 9.7 Disqualified Bonds. In determining whether the Owners of the requisite aggregate principal amount of Bonds have concurred in any demand, request, direction, consent or waiver under this Indenture, Bonds which are owned or held by or for the account of the Authority, the City, the Financing District or the Port District (but excluding Bonds held in any employees’ or retirement fund) shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, provided, however, that for the purpose of determining whether the Trustee shall be protected in relying on any such demand, request, direction, consent or waiver, only Bonds which the Trustee knows to be so owned or held shall be disregarded. Upon request, the Authority shall specify to the Trustee those Bonds disqualified pursuant to this Section 9.7 and the Trustee may conclusively rely upon such certificate. Section 9.8 Waiver of Personal Liability. No member of the Authority, or officer, agent employee, or member of the governing body of the Authority, Port District, or City shall be individually or personally liable for the payment of the interest on or principal of the Bonds; but nothing herein contained shall relieve any such member of the Authority, or officer, agent, employee, or member of the governing body of the Authority, City, or Port District from the performance of any official duty provided by law. Section 9.9 Entire Agreement; Partial Invalidity. This Indenture and the exhibits hereto set forth the entire agreement and understanding of the parties with respect to the matters set forth herein and supersedes all prior agreements and understandings, oral or written. If any one or more of the covenants or agreements, or portions thereof, provided in this Indenture on the part of the Authority (or of the Trustee) to be performed should be contrary to law, then such covenant or covenants, such agreement or agreements, or such portions thereof, shall be null and void and shall be deemed separable from the remaining covenants and agreements or portions thereof and shall in no way affect the validity of this Indenture or of the Bonds; but the Bond Owners shall retain all rights and benefits accorded to them under the Bond Law or any other applicable provisions of law. Page 61 of 77 BAttachment F 58 4836-6408-6199v10/024036-0079 The Authority hereby declares that it would have entered into this Indenture and each and every other section, paragraph, subdivision, sentence, clause and phrase hereof and would have authorized the issuance of the Bonds pursuant hereto irrespective of the fact that any or more covenants, agreements, sections, paragraphs, subdivisions, sentences, clauses or phrases of this Indenture or the application thereof to any person or circumstance may be held to be unconstitutional, unenforceable or invalid. Section 9.10 Destruction of Cancelled Bonds. Whenever in this Indenture provision is made for the surrender to the Authority or the Trustee of any Bonds which have been paid or cancelled pursuant to the provisions of this Indenture, the Trustee shall destroy such Bonds in accordance with the retention policy of the Trustee then in effect. Section 9.11 Notices. Any notice, request, complaint, demand, communication or other paper shall be sufficiently given and shall be deemed given when delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, or sent by electronic transmission, addressed as follows: To the Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager And Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Page 62 of 77 BAttachment F 59 4836-6408-6199v10/024036-0079 To the Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800, Costa Mesa, California 92626 Attention: Corporate Trust Services Fax No.: (714) 384-4151 To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney To the Port District: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 With a copy to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 To the Financing District: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director The Authority, the Trustee, the City, the Port District, and the Financing District may designate any further or different addresses to which subsequent notices, certificates or other communications shall be sent. Any such notice, certificates or other communications furnished by electronic transmission shall be in the form of attachments in PDF format but shall not be deemed given until delivered as provided in the first sentence of this Section 9.11. Section 9.12 Unclaimed Moneys. Anything in this Indenture to the contrary notwithstanding, any moneys held by the Trustee in trust for the payment and discharge of any of the Page 63 of 77 BAttachment F 60 4836-6408-6199v10/024036-0079 Bonds which remain unclaimed for one (1) year after the date when such Bonds have become due and payable, either at their stated maturity dates or by call for earlier redemption, if such moneys were held by the Trustee at such date, or for one (1) year after the date of deposit of such moneys if deposited with the Trustee after said date when such Bonds become due and payable, shall be repaid by the Trustee to the Authority, as its absolute property and free from trust, and the Trustee shall thereupon be released and discharged with respect thereto and the Bond Owners shall look only to the Authority for the payment of such Bonds; provided, however, that before being required to make such payment to the Authority, the Trustee shall, at the expense of Authority, cause to be mailed to the Owners of all such Bonds, at their respective addresses appearing on the Bond Register, a notice that said moneys remain unclaimed and that, after a date in said notice, which date shall not be less than thirty (30) days after the date of mailing such notice, the balance of such moneys then unclaimed will be returned to the Authority. Section 9.13 Payment Due on Other than a Business Day. If the date for making any payment or the last date for performance of any act or the exercising of any right, as provided in this Indenture, is not a Business Day, such payment, with no interest accruing for the period after such nominal date, may be made or act performed or right exercised on the next succeeding Business Day with the same force and effect as if done on the nominal date provided in this Indenture. Section 9.14 Governing Law. This Indenture shall be construed and governed in accordance with the laws of the State, without regard to its conflicts of laws principles. Page 64 of 77 BAttachment F 61 4836-6408-6199v10/024036-0079 IN WITNESS WHEREOF, the Authority has caused this Indenture to be executed by its duly authorized representative, and the Trustee has caused this Indenture to be executed by one of its authorized officers, all as of the day and year first above written. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, By: Executive Director APPROVED AS TO FORM AND LEGALITY: Co- Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District __________________________________ Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Authorized Officer Page 65 of 77 BAttachment F A-1 4836-6408-6199v10/024036-0079 EXHIBIT A FORM OF 2021 SERIES A BOND R-__ $__________ UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE AUTHORITY OR THE TRUSTEE FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF SAN DIEGO CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT CONVENTION CENTER) SERIES 2021A (FEDERALLY TAXABLE) INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP NUMBER: ____% __________, 20__ ______ __, 2021 _________ REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: AND NO/100 DOLLARS The CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay (but only out of the Revenues and other funds hereinafter referred to) to the Registered Owner identified above or registered assigns (the “Registered Owner”), on the Maturity Date identified above (subject to any right of prior redemption hereinafter mentioned), the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at the Interest Rate identified above in like money on June 1 and December 1 in each year, commencing __________, 202_ (each, an “Interest Payment Date”) until the Maturity Date stated above or date of redemption of this 2021A Bond. This 2021A Bond shall bear interest from the Interest Payment Date next preceding its date of authentication, unless this 2021A Bond is authenticated after the fifteenth calendar day of the month preceding the month in Page 66 of 77 BAttachment F A-2 4836-6408-6199v10/024036-0079 which such Interest Payment Date occurs (the “Record Date”) and on or before the following Interest Payment Date, in which event it shall bear interest from such following Interest Payment Date, or unless this 2021A Bond is authenticated on or prior to __________ 15, 202_, in which event it shall bear interest from the Dated Date identified above; provided, however, that if, at the time of authentication of this 2021A Bond, interest is in default on this 2021A Bond, this 2021A Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been paid or made available for payment. The Principal Amount hereof is payable upon presentation and surrender hereof at the Trust Office of Wilmington Trust, National Association (the “Trustee”). Interest hereon is payable in the manner set forth in the Indenture (as hereinafter defined) on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the registration books of the Trustee as of the Record Date preceding such Interest Payment Date. This 2021A Bond is one of a duly authorized issue of bonds of the Authority designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the “2021A Bonds”), limited in principal amount __________________________________ Dollars ($____________), secured under an Indenture of Trust dated as of ________ 1, 2021 (the “Indenture”), by and between the Authority and the Trustee on a parity with the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021B (Tax-Exempt) (the “2021B Bonds” and, together with the 2021A Bonds, the “Bonds”) outstanding thereunder. Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Revenues, of the rights, duties and immunities of the Trustee and of the rights and obligations of the Authority thereunder; and all of the terms of the Indenture are hereby incorporated herein and constitute a contract between the Authority and the Registered Owner hereof, and to all of the provisions of which Indenture the Registered Owner hereof, by acceptance hereof, assents and agrees. Capitalized terms not defined herein shall have the meanings set forth in the Indenture. This 2021A Bond is a limited obligation of the Authority, payable solely from the Revenues and funds pledged under the Indenture. This 2021A Bond is not a debt of the City of Chula Vista (the “City”), the San Diego Unified Port District (the “Port District”) or the State of California (the “State”) or any of its political subdivisions (except the Authority and only to the extent set forth in the Indenture), and none of the City, the Port District, the State or any of its political subdivisions is liable hereon. The Authority has no taxing power. The Bonds are authorized to be issued pursuant to the provisions of the Marks-Roos Local Bond Pooling Act of 1985, as amended, constituting Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”). The Bonds are limited obligations of the Authority and, as and to the extent set forth in the Indenture, are payable solely from and secured by a first lien on and pledge of the Revenues and certain other funds held by the Trustee as provided in the Indenture. The Revenues and such other funds constitute a trust fund for the security and payment of the principal of and interest on the Bonds, except to the extent otherwise provided in the Indenture. The full faith and credit of the Authority is not pledged to the payment of the principal of, redemption premium, if any, or interest on the Bonds. The Bonds are not secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the Authority or any of its income or receipts, except the Revenues and funds pledged under the Indenture as provided in the Indenture. Page 67 of 77 BAttachment F A-3 4836-6408-6199v10/024036-0079 The Bonds have been issued to provide funds to finance the costs of the Convention Center. The 2021A Bonds are subject to redemption as set forth in the Indenture. Notice of redemption with respect to the 2021A Bonds to be redeemed shall be given to the registered owners thereof not less than 20 nor more than 45 days prior to the redemption date in the manner set forth in the Indenture, which so long as the 2021A Bonds are registered in the name of the Nominee shall be in accordance with the requirements of DTC. Neither a failure of the Registered Owner hereof to receive such notice nor any defect therein will affect the validity of the proceedings for redemption. All 2021A Bonds or portions thereof so called for redemption will cease to accrue interest on the specified redemption date, provided that funds for the redemption are on deposit with the Trustee on the redemption date. Thereafter, the registered owners of such 2021A Bonds shall have no rights except to receive payment of the redemption price upon the surrender of the 2021A Bonds. With respect to any notice of optional redemption of the 2021A Bonds, the notice of redemption may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, redemption premium if any, and interest on the 2021A Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so received or such other conditions shall not have been satisfied, the notice of redemption shall be of no force and effect and the Trustee shall not be required to redeem such 2021A Bonds. The 2021A Bonds are issuable as fully registered bonds, without coupons, in denominations of $5,000 or any integral multiple thereof. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, fully registered 2021A Bonds may be exchanged at the Trust Office of the Trustee for a like aggregate principal amount and maturity of fully registered 2021A Bonds of other authorized denominations. This 2021A Bond is transferable by the Registered Owner hereof, in person or by its attorney duly authorized in writing, at the Trust Office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this 2021A Bond. Upon such transfer a new fully registered 2021A Bond or 2021A Bonds, of authorized denomination or denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor. The Trustee shall not be required to register the transfer or exchange of any 2021A Bond (i) during the 15 days prior to selection of 2021A Bonds for redemption, or (ii) selected for redemption. The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary. The Indenture and the rights and obligations of the Authority and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time, and in certain cases without notice to or the consent of the registered owners, in the manner, to the extent, and upon the terms provided in the Indenture; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bond or otherwise alter or impair the obligation of the Authority to pay the principal of, redemption premium, if any and interest at the time and place and at the rate and in the currency as provided in any Bond without the express Page 68 of 77 BAttachment F A-4 4836-6408-6199v10/024036-0079 written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture. It is hereby certified by the Authority that all things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this 2021A Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and by the Act, and that the amount of this 2021A Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed by the Constitution or statutes of the State of California or by the Act. This 2021A Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee. IN WITNESS WHEREOF, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY has caused this 2021A Bond to be executed in its name and on its behalf by the facsimile signature of its Chair and attested by the facsimile signature of its Secretary, all as of the date set forth above. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: Executive Director Attest: Secretary Page 69 of 77 BAttachment F A-5 4836-6408-6199v10/024036-0079 [FORM OF CERTIFICATE OF AUTHENTICATION] This is one of the 2021A Bonds described in the within-mentioned Indenture. Date: ___________ WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory [FORM OF LEGAL OPINION] The attached is a true copy of the opinion rendered by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, in connection with the issuance of, and dated as of the date of the original delivery of, the 2021A Bonds. A signed copy is on file in my office. Secretary of the Board of Directors of Chula Vista Bayfront Facilities Financing Authority [FORM OF ASSIGNMENT] For value received the undersigned do(es) hereby sell, assign and transfer unto whose tax identification number is , the within mentioned registered 2021A Bond and hereby irrevocably constitute(s) and appoint(s) attorney to transfer the same on the books of the Trustee with full power of substitution in the premises. Dated: _______________ Signature guaranteed: NOTE: Signature guarantee shall be made by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee. NOTE: The signatures(s) on this Assignment must correspond with the name(s) as written on the face of the within 2021A Bond in every particular without alteration or enlargement or any change whatsoever Page 70 of 77 BAttachment F A-6 4836-6408-6199v10/024036-0079 FORM OF 2021 SERIES B BOND R-__ $__________ UNLESS THIS BOND IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE AUTHORITY OR THE TRUSTEE FOR REGISTRATION OR TRANSFER, EXCHANGE OR PAYMENT, AND ANY BOND ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO. HAS AN INTEREST HEREIN. UNITED STATES OF AMERICA STATE OF CALIFORNIA COUNTY OF SAN DIEGO CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2021B (TAX-EXEMPT) INTEREST RATE: MATURITY DATE: DATED DATE: CUSIP NUMBER: ____% __________, 20__ ______ __, 2021 _________ REGISTERED OWNER: CEDE & CO. PRINCIPAL AMOUNT: AND NO/100 DOLLARS The CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a joint powers authority organized and existing under the laws of the State of California (the “Authority”), for value received, hereby promises to pay (but only out of the Revenues and other funds hereinafter referred to) to the Registered Owner identified above or registered assigns (the “Registered Owner”), on the Maturity Date identified above (subject to any right of prior redemption hereinafter mentioned), the Principal Amount identified above in lawful money of the United States of America; and to pay interest thereon at the Interest Rate identified above in like money on June 1 and December 1 in each year, commencing __________, 202_ (each, an “Interest Payment Date”) until the Maturity Date stated above or date of redemption of this 2021B Bond. This 2021B Bond shall bear interest from the Interest Payment Date next preceding its date of authentication, unless this 2021A Bond is authenticated after the fifteenth calendar day of the month preceding the month in which such Interest Payment Date occurs (the “Record Date”) and on or before the following Interest Payment Date, in which event it shall bear interest from such following Interest Payment Date, or Page 71 of 77 BAttachment F A-7 4836-6408-6199v10/024036-0079 unless this 2021B Bond is authenticated on or prior to __________ 15, 202_, in which event it shall bear interest from the Dated Date identified above; provided, however, that if, at the time of authentication of this 2021B Bond, interest is in default on this 2021B Bond, this 2021B Bond shall bear interest from the Interest Payment Date to which interest hereon has previously been paid or made available for payment. The Principal Amount hereof is payable upon presentation and surrender hereof at the Trust Office of Wilmington Trust, National Association (the “Trustee”). Interest hereon is payable in the manner set forth in the Indenture (as hereinafter defined) on each Interest Payment Date to the Registered Owner hereof at the address of the Registered Owner as it appears on the registration books of the Trustee as of the Record Date preceding such Interest Payment Date. This 2021B Bond is one of a duly authorized issue of bonds of the Authority designated the “Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) (the “2021B Bonds”), limited in principal amount __________________________________ Dollars ($____________), secured under an Indenture of Trust dated as of ___________1, 2021 (the “Indenture”), by and between the Authority and the Trustee on a parity with the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Taxable) (the “2021A Bonds”; and, together with the 2021B Bonds, the “Bonds”) outstanding thereunder. Reference is hereby made to the Indenture and all indentures supplemental thereto for a description of the rights thereunder of the owners of the Bonds, of the nature and extent of the Revenues, of the rights, duties and immunities of the Trustee and of the rights and obligations of the Authority thereunder; and all of the terms of the Indenture are hereby incorporated herein and constitute a contract between the Authority and the Registered Owner hereof, and to all of the provisions of which Indenture the Registered Owner hereof, by acceptance hereof, assents and agrees. Capitalized terms not defined herein shall have the meanings set forth in the Indenture. This 2021B Bond is a special, limited obligation of the Authority, payable solely from the Revenues and funds pledged under the Indenture. This 2021B Bond is not a debt of the City of Chula Vista (the “City”), the San Diego Unified Port District (the “Port District”) or the State of California (the “State”) or any of its political subdivisions (except the Authority and only to the extent set forth in the Indenture), and none of the City, the Port District, the State or any of its political subdivisions is liable hereon. The Authority has no taxing power. The Bonds are authorized to be issued pursuant to the provisions of the Marks-Roos Local Bond Pooling Act of 1985, as amended, constituting Article 4 (commencing with Section 6584) of Chapter 5 of Division 7 of Title 1 of the Government Code of the State of California (the “Act”). The Bonds are special, limited obligations of the Authority and, as and to the extent set forth in the Indenture, are payable solely from and secured by a first lien on and pledge of the Revenues and certain other funds held by the Trustee as provided in the Indenture. The Revenues and such other funds constitute a trust fund for the security and payment of the principal of and interest on the Bonds, except to the extent otherwise provided in the Indenture. The full faith and credit of the Authority is not pledged to the payment of the principal of, redemption premium, if any, or interest on the Bonds. The Bonds are not secured by a legal or equitable pledge of, or charge, lien or encumbrance upon, any of the property of the Authority or any of its income or receipts, except the Revenues and funds pledged under the Indenture as provided in the Indenture. Page 72 of 77 BAttachment F A-8 4836-6408-6199v10/024036-0079 The Bonds have been issued to provide funds to finance the costs of the Phase 1A Infrastructure Improvements. The 2021B Bonds are subject to redemption as set forth in the Indenture. Notice of redemption with respect to the 2021B Bonds to be redeemed shall be given to the registered owners thereof not less than 20 nor more than 45 days prior to the redemption date in the manner set forth in the Indenture which so long as the 2021B Bonds are registered in the name of the Nominee shall be in accordance with the requirements of DTC. Neither a failure of the Registered Owner hereof to receive such notice nor any defect therein will affect the validity of the proceedings for redemption. All 2021B Bonds or portions thereof so called for redemption will cease to accrue interest on the specified redemption date, provided that funds for the redemption are on deposit with the Trustee on the redemption date. Thereafter, the registered owners of such 2021B Bonds shall have no rights except to receive payment of the redemption price upon the surrender of the 2021B Bonds. With respect to any notice of optional redemption of the 2021B Bonds, the notice of redemption may state that such redemption shall be conditional upon the receipt by the Trustee, on or prior to the date fixed for such redemption, of moneys sufficient to pay the principal of, redemption premium if any, and interest on the 2021B Bonds to be redeemed and upon other conditions set forth therein and that, if such money shall not have been so received or such other conditions shall not have been satisfied, the notice of redemption shall be of no force and effect and the Trustee shall not be required to redeem such 2021B Bonds. The 2021B Bonds are issuable as fully registered bonds, without coupons, in denominations of $5,000 or any integral multiple thereof. Subject to the limitations and upon payment of the charges, if any, provided in the Indenture, fully registered bonds may be exchanged at the Trust Office of the Trustee for a like aggregate principal amount and maturity of fully registered 2021B Bonds of other authorized denominations. This 2021B Bond is transferable by the Registered Owner hereof, in person or by its attorney duly authorized in writing, at the Trust Office of the Trustee, but only in the manner, subject to the limitations and upon payment of the charges provided in the Indenture, and upon surrender and cancellation of this 2021B Bond. Upon such transfer a new fully registered 2021B Bond or 2021B Bonds, of authorized denomination or denominations, for the same aggregate principal amount will be issued to the transferee in exchange herefor. The Trustee shall not be required to register the transfer or exchange of any 2021B Bond (i) during the 15 days prior to selection of 2021B Bonds for redemption, or (ii) selected for redemption. The Authority and the Trustee may treat the Registered Owner hereof as the absolute owner hereof for all purposes, and the Authority and the Trustee shall not be affected by any notice to the contrary. The Indenture and the rights and obligations of the Authority and of the owners of the Bonds and of the Trustee may be modified or amended from time to time and at any time, and in certain cases without notice to or the consent of the registered owners, in the manner, to the extent, and upon the terms provided in the Indenture; provided that no such modification or amendment shall (a) extend the maturity of or reduce the interest rate on any Bonds or otherwise alter or impair the obligation of the Authority to pay the principal of, redemption premium, if any, and interest at the Page 73 of 77 BAttachment F A-9 4836-6408-6199v10/024036-0079 time and place and at the rate and in the currency as provided in any Bond without the express written consent of the owner of such Bond, (b) reduce the percentage of Bonds required for the written consent to any such amendment or modification, or (c) without its written consent thereto, modify any of the rights or obligations of the Trustee, all as more fully set forth in the Indenture. It is hereby certified by the Authority that all things, conditions and acts required to exist, to have happened and to have been performed precedent to and in the issuance of this 2021B Bond do exist, have happened and have been performed in due time, form and manner as required by the Constitution and statutes of the State of California and by the Act, and that the amount of this 2021B Bond, together with all other indebtedness of the Authority, does not exceed any limit prescribed by the Constitution or statutes of the State of California or by the Act. This 2021B Bond shall not be entitled to any benefit under the Indenture, or become valid or obligatory for any purpose, until the certificate of authentication hereon shall have been signed by the Trustee. IN WITNESS WHEREOF, the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY has caused this 2021B Bond to be executed in its name and on its behalf by the facsimile signature of its Chair and attested by the facsimile signature of its Secretary, all as of the date set forth above. CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY By: Chair Attest: Secretary Page 74 of 77 BAttachment F A-10 4836-6408-6199v10/024036-0079 [FORM OF CERTIFICATE OF AUTHENTICATION] This is one of the 2021B Bonds described in the within-mentioned Indenture. Date: ___________ WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee By: Authorized Signatory [FORM OF LEGAL OPINION] The attached is a true copy of the opinion rendered by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California, in connection with the issuance of, and dated as of the date of the original delivery of, the 2021B Bonds. A signed copy is on file in my office. Secretary of the Board of Directors of Chula Vista Bayfront Facilities Financing Authority [FORM OF ASSIGNMENT] For value received the undersigned do(es) hereby sell, assign and transfer unto whose tax identification number is , the within mentioned registered 2021B Bond and hereby irrevocably constitute(s) and appoint(s) attorney to transfer the same on the books of the Trustee with full power of substitution in the premises. Dated: _______________ Signature guaranteed: NOTE: Signature guarantee shall be made by a guarantor institution participating in the Securities Transfer Agents Medallion Program or in such other guarantee program acceptable to the Trustee. NOTE: The signatures(s) on this Assignment must correspond with the name(s) as written on the face of the within 2021B Bond in every particular without alteration or enlargement or any change whatsoever Page 75 of 77 BAttachment F B-1 4836-6408-6199v10/024036-0079 EXHIBIT B FORM OF REQUISITION FROM CONSTRUCTION FUND To: Wilmington Trust, National Association, as Trustee From: Chula Vista Bayfront Facilities Financing Authority Closing Date: Re: Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) and Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) Requisition No. ___ The undersigned, an Authorized Officer (as such term is defined in the hereinafter defined Indenture) of the Chula Vista Bayfront Facilities Financing Authority (the “Authority”), hereby requests payment, from the account or subaccount of the Construction Fund (as defined in the Indenture), the amount of $___________ [by wire/check/ACH (circle one)] for the payment of [Convention Center Costs][Phase 1A Infrastructure Improvement Costs] (as defined in the Indenture) pursuant to that certain Project Implementation Agreement, dated as of ________ 1, 202[_] (the “Project Implementation Agreement”), by and among the Authority, RIDA Chula Vista, LLC (“RIDA”), the San Diego Unified Port District, the City of Chula Vista and the Bayfront Project Special Tax Financing District. Capitalized terms will herein have the meanings assigned to such terms in the Indenture of Trust, dated as of ________ 1, 202[_] (the “Indenture”), among the Chula Vista Bayfront Facilities Financing Authority and Wilmington Trust, National Association, as trustee (“Trustee”). The Trustee is directed to disburse the foregoing amount from the following account or subaccount of the Construction Fund (select one): 2021A Account 2021B Bond Proceeds Subaccount of the 2021B Account Sweetwater Park Subaccount of the 2021B Account County Funded Developer’s Phase 1A Subaccount of the 2021B Account County Funded Bayfront Improvements Subaccount of the 2021B Account Page 76 of 77 BAttachment F B-2 4836-6408-6199v10/024036-0079 If the payment is by wire or ACH, please fill in the following information: Name, Address and Phone Number of Bank: ABA#: Account No.: The undersigned hereby certifies as follows: 1. I have reviewed the [Developer’s Phase 1A/Convention Center] Payment Request (as defined in the Project Implementation Agreement) (“Payment Request”) dated [___________] for the Project Cost that is being requested herein. 2. The amount requisitioned hereby is for a Project Cost incurred in connection with the Project, is made for purposes and in accordance with the terms and restrictions set forth in Article IX of the Project Implementation Agreement, and is properly chargeable to the [2021A Account][the Subaccount(s) of the 2021B Account of the Construction Fund listed above] and has not been the subject of any previous requisition. The name and address of the person or persons to whom said amounts are to be disbursed and the amounts to be disbursed are as follows: 3. [$________] of the amount requisitioned hereby is being paid to RIDA under protest pursuant to the terms of the Project Implementation Agreement.] 4. The information contained herein is true and correct as of the date of this Requisition. Authorized Officer Page 77 of 77 BAttachment F OH&S Draft Dated: 02/04/21 4123-5109-5082.7 SUPPORT AGREEMENT between CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY and SAN DIEGO UNIFIED PORT DISTRICT Attachment G TABLE OF CONTENTS Page i 4123-5109-5082.7 ARTICLE I DEFINITIONS SECTION 1.01 Definitions............................................................................................ 2 ARTICLE II REPRESENTATIONS AND WARRANTIES SECTION 2.01 Representations and Warranties of the Authority ................................ 8 SECTION 2.02 Representations and Warranties of the Port District ............................ 8 ARTICLE III COMPLETION OF CONVENTION CENTER AND PHASE 1A INFRASTRUCTURE IMPROVEMENTS; PORT DISTRICT PAYMENTS; PORT DISTRICT OBLIGATIONS; DISCLOSURE SECTION 3.01 Completion of Convention Center and Phase 1A Infrastructure Improvements ...................................................................................... 9 SECTION 3.02 Port District Payments ........................................................................ 9 SECTION 3.03 Port District Obligations .................................................................... 10 SECTION 3.04 Disclosure .......................................................................................... 11 ARTICLE IV EVENTS OF DEFAULT AND REMEDIES OF THE AUTHORITY SECTION 4.01 Events of Default ............................................................................... 11 SECTION 4.02 Absolute and Unconditional Obligations ........................................... 12 SECTION 4.03 No Waiver of Default ......................................................................... 12 SECTION 4.04 Termination of Proceedings ............................................................... 12 ARTICLE V MISCELLANEOUS SECTION 5.01 Benefits of Support Agreement Limited to Parties and Trustee ........ 11 SECTION 5.02 Amendments ...................................................................................... 11 SECTION 5.03 Successor Is Deemed Included in all References to Predecessor ...... 12 SECTION 5.04 Waiver of Personal Liability .............................................................. 13 SECTION 5.05 Article and Section Headings, Gender and References ..................... 13 SECTION 5.06 Performance on Business Days .......................................................... 13 SECTION 5.07 Partial Invalidity................................................................................. 13 SECTION 5.08 Assignment ........................................................................................ 13 SECTION 5.09 California Law ................................................................................... 14 Attachment G TABLE OF CONTENTS (continued) Page ii 4123-5109-5082.7 SECTION 5.10 Notices ............................................................................................... 14 SECTION 5.11 Execution in Counterparts .................................................................. 15 Attachment 1 Annual Support Payment Schedule Attachment 2 Net RV Park Buyout Credit Schedule Attachment 3 Listing of Chula Vista Bayfront Leases Attachment G 4123-5109-5082.7 SUPPORT AGREEMENT This Support Agreement, dated as of __________, 2021 (this "Support Agreement"), is entered into between the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers authority formed pursuant to Title 1, Division 7, Chapter 5 of the California Government Code (the "Authority"), and the San Diego Unified Port District, a public corporation (the "Port District"), created by the California State Legislature in 1962 pursuant to the California Harbors and Navigation Code Appendix 1 (as amended from time to time, the "Port District Act"). RECITALS: WHEREAS, since 2002, the Port District and the City of Chula Vista, a chartered city organized and existing under the laws of the State of California (the "City"), have been working together to provide public access to, and engagement with, approximately 535 acres of land and water located on the southeastern edge of San Diego Bay in the City of Chula Vista (herein referred to as the "Chula Vista Bayfront"); WHEREAS, to facilitate development of the Chula Vista Bayfront, including financing a portion of the costs of such development, the Port District and the City created the Authority; WHEREAS, pursuant to an Indenture of Trust, dated as of __________, 2021 (as amended or supplemented from time to time pursuant to its terms, the "Indenture"), by and between the Authority and Wilmington Trust, N.A., as trustee (as more fully defined in Section 1.01 hereof, the "Trustee"), the Authority intends to issue the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the "2021A Bonds") and the Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax-Exempt) (the "2021B Bonds," and, together with the 2021A Bonds, the "2021 Bonds") to finance a portion of the costs of a convention center (the "Convention Center") to be located on tideland trust real property owned by the Port District and to finance a portion of the costs of certain public infrastructure improvements (the "Phase 1A Infrastructure Improvements"), to be located on tideland trust real property owned by the Port District or on real property owned by the City; WHEREAS, pursuant to this Support Agreement, the Port District will make certain payments to the Trustee, such payments to be comprised of (i) Annual Support Payments (as such term is more fully defined in Section 1.01 hereof, the "Annual Support Payments") and (ii) payments made from Other Ground Lease Revenues (as such term is more fully defined in Section 1.01 hereof, the "Other Ground Lease Revenues" and, together with the Annual Support Payments, the "Port District Payments"), such payments to be applied by the Trustee in accordance with the provisions of the Indenture; WHEREAS, pursuant to a Third Amended and Restated Revenue Sharing Agreement, dated as of __________, 2021 (as more fully defined in Section 1.01 hereof, the Attachment G 2 4123-5109-5082.7 "Revenue Sharing Agreement"), by and among the City, the Port District and the Authority, the Port District and the City will make certain other payments to the Authority to be applied by the Authority solely in accordance with the provisions of the Revenue Sharing Agreement; WHEREAS, the Port District has determined that construction of the Convention Center and construction of the Phase 1A Infrastructure Improvements is in furtherance of the purposes of the Port District as set forth in the Port District Act in respect of the tideland trust properties and will be of benefit to the Port District, the San Diego Bay, the City and the people of the State of California such that the Port District is willing to make the Port District Payments; and WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution, delivery and performance of this Support Agreement do exist, have happened and have been performed in regular and due time, form and manner, and the parties hereto are now duly authorized to execute, deliver and perform this Support Agreement. NOW, THEREFORE, in consideration of the mutual agreements and covenants contained herein, and for other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows: ARTICLE I DEFINITIONS SECTION 1.01 Definitions. Unless the context otherwise requires, the terms defined in this Section 1.01 shall, for all purposes hereof, have the meanings herein specified, such definitions to be equally applicable to both the singular and plural forms of any of the terms defined herein. Additional Bonds The term "Additional Bonds" means revenue bonds issued by the Authority pursuant to the Indenture to refund 2021A Bonds, 2021B Bonds or any Additional Bonds. Airport Note The term "Airport Note" means that certain Amended and Restated Subordinated, Fully-Negotiable Promissory Note, dated June 1, 2004, executed by the Port District and delivered to the San Diego County Regional Airport Authority, which is on file in the Office of the Port District Clerk as Document No. 47940, as amended and supplemented from time to time pursuant to its terms. Annual Debt Service The term "Annual Debt Service" shall have the meaning assigned to such term in the Port District Indenture. Attachment G 3 4123-5109-5082.7 Annual Support Payments The term "Annual Support Payments" means the annual payments listed in Attachment 1 attached hereto, as such payments may be modified pursuant to the provisions set forth in Section 3.02(b) hereof. Authority The term "Authority" shall have the meaning set forth in the Preamble. Authorized Representative The term "Authorized Representative" with respect to the Port District shall mean the Executive Director of the Port District or the Chief Financial Officer/Treasurer of the District or such other person as may be designated to act on behalf of the District by written certificate furnished to the Trustee containing the specimen signature of such person and signed on behalf of the Port District by an Authorized Representative. Board of Directors of the Authority The term "Board of Directors of the Authority" shall mean the governing body of the Authority established pursuant to, and consisting of the members selected in accordance with the provisions of the Amended and Restated Joint Exercise of Powers Agreement, dated and effective July 25, 2019, entered into by the City and the Port District, which is on file in the Office of the Port District Clerk as Document No. 70245, as amended and supplemented and/or as amended and restated from time to time pursuant to its terms. Board of Port Commissioners The term "Board of Port Commissioners" means the board of commissioners created pursuant to the Port District Act. Bond Counsel The term "Bond Counsel" means an attorney-at-law, or firm of such attorneys, of nationally recognized standing in matters pertaining to the tax-exempt nature of interest on obligations issued by states and their political subdivisions acceptable to the Authority, the Port District and the City. Bond Year The term "Bond Year" shall have the meaning assigned to such term in the Indenture. Bonds The term "Bonds" means, as applicable 2021A Bonds, 2021B Bonds and/or any Additional Bonds then Outstanding under the Indenture. Attachment G 4 4123-5109-5082.7 Business Day The term "Business Day" means any day other than (i) a Saturday or a Sunday, (ii) a day on which offices of the Port District are authorized to be closed, (iii) a day on which banking institutions in the State of California are authorized or obligated by law or executive order to be closed, or (iv) a day on which banking institutions in the city or cities in which the corporate trust office of the Trustee is authorized or obligated by law or executive order to be closed. Certificate of an Independent Consultant The term "Certificate of an Independent Consultant" means a written certificate signed by an authorized representative of a consulting firm or other expert, including, without limitation, any firm which serves as municipal advisor to the Port District, which (i) does not have any direct financial interest or any material indirect financial interest in the operations of the Port District, other than the payment to be received under a contract for services to be performed and (ii) no principal, member, partner or employee of which is connected with the Port District as a member of the Board of Port Commissioners, officer or employee, with knowledge and experience in the field of advising the management of facilities and services of the type provided by the Port District at the Port as to the planning, development, operation and management of such facilities and services, selected and employed by the Port District from time to time. Certificate of the Port District The term "Certificate of the Port District" means a written certificate signed in the name of the Port District by an Authorized Representative of the Port District. City The term "City" shall have the meaning set forth in the Recitals. Closing Date The term "Closing Date" shall have the meaning assigned to such term in the Indenture. Continuing Disclosure Certificate The term "Continuing Disclosure Certificate" shall have the meaning assigned to such term in the Indenture. Contribution Date The term "Contribution Date" shall have the meaning set forth in Section 2.02(d) hereof. Attachment G 5 4123-5109-5082.7 Convention Center The term "Convention Center" shall have the meaning set forth in the Recitals. Fiscal Year The term "Fiscal Year" means, with respect to the Authority, until and unless changed by resolution of the Board of Directors of the Authority, the twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, and means, with respect to the Port District, the twelve month period extending from July 1 in one calendar year to June 30 of the succeeding calendar year, both dates inclusive, or any other twelve-month period selected and designated by the Port District pursuant to the provisions of the Port District Indenture. Indenture The term "Indenture" shall have the meaning set forth in the Recitals. Independent Consultant The term "Independent Consultant" shall have the meaning assigned to such term in the Port District Indenture. Net Pledged Revenues The Term "Net Pledged Revenues" shall have the meaning assigned to such term in the Port District Indenture. Net RV Park Buyout Credit Schedule The term "Net RV Park Buyout Credit Schedule" means the schedule attached hereto as Attachment 2. Other Ground Leases The term "Other Ground Leases" means each of the ground leases listed on Attachment 3 hereto. Other Ground Lease Revenues The term "Other Ground Lease Revenues" means all ground lease revenues derived from the Other Ground Leases and actually received by the Port District; provided however, if one or more of the Other Ground Leases is renewed, replaced or amended in such a way as to change the size or configuration of the original premises to include premises outside of the original premises boundaries of all the other Other Ground Leases (each, a "Modified Boundary Lease"), then the revenues to be derived from such Modified Boundary Lease and included in the amount of revenues derived from the Other Ground Leases shall be calculated by multiplying the total amount of revenues generated by such Modified Boundary Lease by a Attachment G 6 4123-5109-5082.7 fraction, the numerator of which shall be an amount equal to the Modified Boundary Lease premises remaining within the original premises boundary, and the denominator of which shall be the total premises area of the Modified Boundary Lease, as modified, and provided further that to the extent that the Port District enters into any revenue generating agreement other than a ground lease with respect to the operations on all or any portion of the premises of the Other Ground Leases, such revenue, net of any related out-of-pocket operating costs paid by the Port District to third parties, shall be included as revenues derived from the Other Ground Leases, less in each Fiscal Year the amount listed in the Net RV Park Buyout Credit Schedule attached hereto as Attachment 2. Outstanding With respect to Bonds, the term "Outstanding" shall have the meaning assigned to such term in the Indenture. Outstanding With respect to Port District Bonds, the term "Outstanding" shall have the meaning assigned to such term in the Port District Indenture. Parity Debt The term "Parity Debt" shall have the meaning assigned to such term in the Port District Indenture. Port The term "Port" means all facilities and property, real or personal, wherever located, under the jurisdiction or control of the Port District or in which the Port District has other rights or from which the Port District derives revenues. Port District The term "Port District" shall have the meaning set forth in the Preamble. Port District Act The term "Port District Act" shall have the meaning set forth in the Preamble. Port District Bonds The term "Port District Bonds" means the San Diego Unified Port District Revenue Bonds authorized by the Port District and heretofore or hereafter issued and at any time Outstanding pursuant to, the Port District Indenture, including, without limitation, the San Diego Unified Port District Refunding Revenue Bonds, 2013 Series A. Attachment G 7 4123-5109-5082.7 Port District Indenture The term "Port District Indenture" means that certain Indenture, dated as of October 1, 2004, between the Port District and U.S. Bank National Association, as trustee, which is on file in the Office of the Port District Clerk as Document No. 48385, as heretofore supplemented and as it may from time to time be further supplemented, modified or amended in accordance with its terms, or any subsequent indenture entered into by the Port District and a trustee pursuant to which the Port District may issue revenue bonds. Port District Payments The term "Port District Payments" shall have the meaning assigned to such term in the Recitals. Reserved Rights The term "Reserved Rights" shall have the meaning assigned to such term in the Indenture. Revenue Sharing Agreement The term "Revenue Sharing Agreement" means the Third Amended and Restated Revenue Sharing Agreement, dated as of __________, 2021, by and among the City, the Port District and the Authority, which is on file in the Office of the Port District Clerk as Document No. [ _______ ], as amended and supplemented and/or as amended and restated from time to time pursuant to its terms. RIDA The term "RIDA" means RIDA Chula Vista, LLC, a Delaware limited liability company. Special Facility Indebtedness The term "Special Facility Indebtedness" shall have the meaning assigned to such term in the Port District Indenture. Subordinate Obligations The term "Subordinate Obligations" shall have the meaning assigned to such term in the Port District Indenture. Trustee The term "Trustee" means Wilmington Trust, N.A. or its successor as provided in the Indenture. 2021 Bonds Attachment G 8 4123-5109-5082.7 The term "2021 Bonds" shall have the meaning set forth in the Recitals. 2021A Bonds The term "2021A Bonds" shall have the meaning set forth in the Recitals. 2021B Bonds The term "2021B Bonds" shall have the meaning set forth in the Recitals. ARTICLE II REPRESENTATIONS AND WARRANTIES SECTION 2.01 Representations and Warranties of the Authority. The Authority makes the following representations and warranties: (a) The Authority is a joint exercise of powers agency duly created and existing under the laws of the State of California. (b) The Authority has full legal right, power and authority to enter into this Support Agreement, to carry out its obligations hereunder, and to carry out and consummate all transactions contemplated to be carried out by the Authority hereunder and under the Indenture and the Authority has complied and will comply with the provisions of applicable law in all matters relating to such transactions. (c) By proper action, the Authority has duly authorized the execution, delivery and due performance of its obligations under this Support Agreement. (d) The execution and delivery of this Support Agreement and the consummation of the transactions herein contemplated to be carried out by the Authority will not (i) violate any provision of any applicable law, any applicable order of any court or other agency of government, or any indenture, material agreement or other instrument to which the Authority is now a party or by which it or any of its properties or assets is bound, (ii) be in conflict with, result in a breach of, or constitute a default (with due notice or the passage of time or both) under any such indenture, material agreement or other instrument, or (iii) result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Authority. SECTION 2.02 Representations and Warranties of the Port District. The Port District makes the following representations and warranties: (a) The Port District is a public corporation created and existing pursuant to the Port District Act. (b) The Port District has full legal right, power and authority to enter into this Support Agreement, to carry out its obligations hereunder, and to carry out and consummate all transactions contemplated to be carried out by the Port District hereunder and the Port District Attachment G 9 4123-5109-5082.7 has complied and will comply with the provisions of applicable law in all matters relating to such transactions. (c) By proper action, the Port District has duly authorized the execution, delivery and due performance of its obligations under this Support Agreement. (d) As of the date that the Preliminary Official Statement for the 2021A Bonds and the 2021B Bonds was posted on the Municipal Market Securities Rulemaking Board's Electronic Municipal Market Access website (such date being herein referred to as the "Contribution Date"), the Port District transferred to the Authority all Other Ground Lease Revenues collected subsequent to July 1, 2018 and not expended prior to the Contribution Date on costs permitted by the Revenue Sharing Agreement. (e) As of the Closing Date for the 2021A Bonds, the 2021B Bonds and each other Series (as such term is defined in the Indenture) of Bonds, if any, the Port District will have sufficient funds available to pay amounts due and payable during the current Fiscal Year on the Port District Bonds, the Airport Note, the Port District Payments and payments, if any, due pursuant to the Revenue Sharing Agreement. (f) The execution and delivery of this Support Agreement and the performance by the Port District of its obligations hereunder will not (i) violate any provision of any applicable law, any applicable order of any court or other agency of government, or any indenture, material agreement or other instrument to which the Port District is now a party or by which it or any of its properties or assets is bound, (ii) be in conflict with, result in a breach of, or constitute a default (with due notice or the passage of time or both) under any such indenture, material agreement or other instrument, or (iii) result in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the properties or assets of the Port District. ARTICLE III COMPLETION OF CONVENTION CENTER AND PHASE 1A INFRASTRUCTURE IMPROVEMENTS; PORT DISTRICT PAYMENTS; PORT DISTRICT OBLIGATIONS; DISCLOSURE SECTION 3.01 Completion of Convention Center and Phase 1A Infrastructure Improvements. The Authority agrees to cause completion of the Convention Center and the Phase 1A Infrastructure Improvements pursuant to one or more agreements to be entered into with one or more parties in connection with the issuance of the 2021 Bonds. SECTION 3.02 Port District Payments. (a) In consideration of the Authority's agreement to issue Bonds to finance or refinance a portion of the costs of the Convention Center and a portion of the costs of the Phase 1A Infrastructure Improvements, the Port District shall pay or cause to be paid to the Trustee, as assignee of the Authority, the Port District Payments, which shall be applied by the Trustee in accordance with the provisions of the Indenture. In the event the Bonds are prepaid in full and the Indenture is discharged prior to the date of termination of the Revenue Sharing Attachment G 10 4123-5109-5082.7 Agreement, the Port District Payments shall be paid to the Authority and applied in accordance with the terms of the Revenue Sharing Agreement. Annual Support Payments shall be payable quarterly in arrears within thirty (30) days of the end of each fiscal quarter in each Fiscal Year, in an amount equal to 1/4 of the Annual Support Payment then due and payable. Other Ground Lease Revenues collected by the Port District subsequent to the Contribution Date shall be payable quarterly in arrears within thirty (30) days of the end of each fiscal quarter in each Fiscal Year for such preceding fiscal quarter, in an amount equal to all of the actual revenues received from the Other Ground Leases during such fiscal quarter for such preceding fiscal quarter, with the final payment for each Fiscal Year to be adjusted for actual revenue received during such Fiscal Year. (b) Notwithstanding any other provision of this Support Agreement to the contrary, the Port District shall not be required to commence payment of Annual Support Payments until the Authority shall have provided or caused to be provided to the Port District a copy of the temporary certificate of occupancy or other permit or approval allowing for the use and occupancy of the Convention Center and in the event that the obligation of the City to make Lease Payments (as such term is defined in the Indenture) abates in accordance with the provisions of the Facility Lease (as such term is defined in the Indenture) as a result of damage, destruction, condemnation or title defect, then the Annual Support Payments shall be abated to the same proportion that the Lease Payments are abated and the schedule of Annual Support Payments set forth in Attachment 1 hereto shall be adjusted accordingly and extended for the same period as any extension of the term of the Facility Lease, which adjusted schedule of Annual Support Payments shall be appended hereto and become a part of this Support Agreement. Notwithstanding any other provision of this Support Agreement to the contrary, adjustment of the schedule of Annual Support Payments authorized pursuant to this Section 3.02(b) and attachment hereto of an adjusted schedule shall not require any additional authorization by the Authority or the Port District and shall not be subject to compliance with Section 5.02 hereof or any other provision hereof applicable to amendment of this Support Agreement. (c) Notwithstanding anything to the contrary contained in this Support Agreement or elsewhere, the Port District Payments (i) shall be payable by the Port District after the prior payment of, and on a subordinate basis to, all amounts then due for all Port District Bonds, Parity Debt and any Subordinate Obligations and (ii) shall be payable by the Port District after the prior payment of, and on a subordinate basis, to, amounts then due on the Airport Note, which is payable by the Port District after the prior payment of all amounts then due for all Port District Bonds, Parity Debt and any Subordinate Obligations. SECTION 3.03 Port District Obligations. Subsequent to the execution and delivery of this Support Agreement, the Port District may at any time and from time to time issue or incur, as applicable, additional Port District Bonds, Parity Debt, Subordinate Obligations and Special Facility Indebtedness in each instance, as defined in and issued in accordance with, the provisions of the Port District Indenture. In addition to compliance with the provisions of the Port District Indenture, on or prior to the date of issuance of any additional Port District Bonds or the date of incurrence of Attachment G 11 4123-5109-5082.7 Parity Debt or Subordinate Obligations, the Port District shall have placed on file with the Trustee: (i) a Certificate of the Port District certifying that the lesser of (x) the amount of Net Pledged Revenues for a period of twelve (12) consecutive months during the eighteen (18) months immediately preceding the date on which such additional Port District Bonds will become Outstanding or Parity Debt will be incurred or (y) the estimated Net Pledged Revenues for the Fiscal Year in which such Port District Bonds are to be issued or Parity Debt shall be incurred shall have been, or will be, as applicable, at least equal, to 1.00 times Annual Debt Service on the Port District Bonds, Parity Debt, Subordinate Obligations, the Airport Note and the payments due under this Support Agreement; and (ii) a Certificate of an Independent Consultant certifying that the projected Net Pledged Revenues for each of the first three (3) Fiscal Years immediately following the completion date of the Project (as such term is defined in the Port District Indenture) being financed from the proceeds of such additional Port District Bonds or Parity Debt, as specified in a Certificate of the Port District delivered to the Independent Consultant, will be at least equal to 1.00 times Annual Debt Service on the Port District Bonds, Parity Debt, Subordinate Obligations, the Airport Note and the payments due under this Support Agreement. A copy of each Certificate of the Port District filed pursuant to this Section 3.03 shall be provided to the Authority and the City. SECTION 3.04 Disclosure. In the event that it is determined that financial and operating information concerning the Port District is required to be disclosed in a Continuing Disclosure Certificate to be executed and delivered in connection with issuance of 2021A Bonds, 2021B Bonds or any Additional Bonds to comply with Securities and Exchange Commission Rule 15c2-12 or other applicable laws or regulations, the Port District agrees to provide such financial and operating information (which shall not include information covered by attorney- client privilege or information otherwise protected by law) including, if requested, annual updates thereof. Failure of the Port District to comply with any such Continuing Disclosure Certificate shall not be considered an event of default hereunder. ARTICLE IV EVENTS OF DEFAULT AND REMEDIES OF THE AUTHORITY SECTION 4.01 Events of Default. If one or more of the following Events of Default shall happen, that is to say: (i) if default shall be made in the payment of any Port District Payments as the same shall become due and payable and/or (ii) if the Port District shall file a petition or answer seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, or if a court of competent jurisdiction shall approve a petition filed with or without the consent of the Port District seeking arrangement or reorganization under the federal bankruptcy laws or any other applicable law of the United States of America or any state therein, and such order, judgment or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof, or if under the provisions of any other law for the relief or aid of debtors any court of competent jurisdiction shall assume custody or control of the Port District or of the whole or any substantial part of its property, and such custody or control shall not be terminated within sixty (60) days from the date of assumption of such custody or control, then and in each and every such case during the continuance of such Event of Default, the Authority may exercise any and all remedies available or granted to it pursuant to law, including, but not limited to, specific Attachment G 12 4123-5109-5082.7 performance or its equivalent remedy, including a writ of mandamus. In no event shall the Authority or any other party, including, without limitation, the Trustee, have any right to demand the acceleration of any Port District Payments. SECTION 4.02 Absolute and Unconditional Obligations. Nothing in this Article IV or in any other provision of this Support Agreement shall affect or impair the obligation of the Port District, to pay the Port District Payments hereunder at the respective due dates or shall affect or impair the right of the Authority and, as applicable, the Trustee to institute suit to enforce such payment by virtue of the contract embodied herein. In the event any Port District Payment is not paid on the date due pursuant to the provisions of this Support Agreement, then the Port District agrees to pay the same with interest thereon from the date such amount was due at the rate equal to ___ percent (__%) per annum. SECTION 4.03 No Waiver of Default. A waiver of any default or breach of duty or contract by the Authority shall not affect any subsequent default or breach of duty or contract or impair any rights or remedies on any such subsequent default or breach of duty or contract. No delay or omission by the Authority to exercise any right or remedy accruing upon any default or breach of duty or contract shall impair any such right or remedy or shall be construed to be a waiver of any such default or breach of duty or contract or an acquiescence therein, and every right or remedy conferred upon the Authority by law or by this Article IV may be enforced and exercised from time to time and as often as shall be deemed expedient by the Authority. SECTION 4.04 Termination of Proceedings. If any action, proceeding or suit to enforce any right or exercise any remedy set forth in this Support Agreement is abandoned or determined adversely to the Authority, the Port District and the Authority shall be restored to their former positions, rights and remedies as if such action, proceeding or suit had not been brought or taken. ARTICLE V MISCELLANEOUS SECTION 5.01 Benefits of Support Agreement Limited to Parties and the Trustee. Nothing contained herein, expressed or implied, is intended to give to any person other than the parties hereto and the Trustee any right, remedy or claim under or pursuant to this Support Agreement. SECTION 5.02 Amendments. Subject to the provisions set forth in Section 5.9 of the Indenture, this Support Agreement may be amended in a writing mutually agreed to and executed by the Authority and the Port District. SECTION 5.03 Successor Is Deemed Included in all References to Predecessor. Except as otherwise provided herein, whenever the Authority or the Port District is named or referred to herein, such reference shall be deemed to include the successor to the powers, duties and functions that are presently vested in the Authority or the Port District, and all agreements and covenants required hereby to be performed by or on behalf of the Authority or Attachment G 13 4123-5109-5082.7 the Port District shall bind and inure to the benefit of the respective successors thereof whether so expressed or not. SECTION 5.04 Waiver of Personal Liability. No member of the Board of Port Commissioners, officer, employee or agent of the Port District shall be individually or personally liable for the payment of the Port District Payments but nothing contained herein shall relieve any member of the Board of Port Commissioners, officer, employee or agent of the Port District from the performance of any official duty provided by any applicable provisions of law or by this Support Agreement. SECTION 5.05 Article and Section Headings, Gender and References. The headings or titles of the several Articles and Sections hereof and the table of contents appended hereto shall be solely for convenience of reference and shall not affect the meaning, construction or effect hereof, and words of any gender shall be deemed and construed to include all genders. All references herein to "Articles," "Sections" and other subdivisions or clauses are to the corresponding Articles, Sections, subdivisions or clauses hereof; and the words "hereby," "herein," "hereof," "hereto," "herewith" and other words of similar import refer to this Support Agreement as a whole and not to any particular Article, Section, subdivision or clause hereof. SECTION 5.06 Performance on Business Days. If a date on which the performance of any act is required hereunder, including, without limitation, the payment of any Port District Payment, is not a Business Day, the act required to be performed may be performed on the next succeeding Business Day, without the payment of any interest or other charge, and such performance on the next succeeding Business Day shall not constitute or otherwise be deemed a default hereunder. SECTION 5.07 Partial Invalidity. If any one or more of the agreements or covenants or portions thereof required hereby to be performed by or on the part of the Authority or the Port District shall be contrary to law, then such agreement or agreements, such covenant or covenants or such portions thereof shall be null and void and shall be deemed separable from the remaining agreements and covenants or portions thereof and shall in no way affect the validity hereof. SECTION 5.08 Assignment. The Authority may assign all or a portion of its right, title and interest in this Support Agreement and may pledge, assign and convey its rights to receive Port District Payments hereunder and the right to exercise remedies hereunder with respect thereto to the Trustee for the benefit of the owners of the Bonds. The Port District hereby acknowledges that the Authority will pledge, assign and convey its rights to receive Port District Payments and the right to exercise remedies hereunder with respect thereto to the Trustee for the benefit of the owners of the Bonds, such pledge, assignment and conveyance to be made in the Indenture, and hereby consents to such pledge, assignment and conveyance. To the extent any of the Authority's rights under this Support Agreement are assigned to the Trustee as provided herein, such assignment shall be made to the Trustee solely in its capacity as trustee for the Bonds and the duties, powers and liabilities of the Trustee in Attachment G 14 4123-5109-5082.7 acting under this Support Agreement shall be subject to the terms and provisions of the Indenture. SECTION 5.09 California Law. This Support Agreement shall be construed and governed in accordance with the laws of the State of California. SECTION 5.10 Notices. All written notices to be given hereunder shall be given by first class mail, postage prepaid, by courier or by hand delivery to the party entitled thereto at its address set forth below, or at such other address as such party may provide to the other party in writing from time to time, or by electronic means, including by email, at such address as each party shall provide to the other party hereto: If to the Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager and San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Attention: Executive Director With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Attention: Director, Real Estate If to the Port District: San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Attention: Executive Director With a copy to: San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Attention: Director, Real Estate If to the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager Attachment G 15 4123-5109-5082.7 With a copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney SECTION 5.11 Execution in Counterparts. This Support Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of which shall constitute but one and the same instrument. Attachment G S-1 4123-5109-5082.7 IN WITNESS WHEREOF, the parties hereto have executed this Support Agreement by their duly authorized representative as of the date first set forth above. Chula Vista Bayfront Facilities Financing Authority By: ___________, Executive Director Approved as to Form and Legality: By: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District By: Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista San Diego Unified Port District By: ___________, Executive Director Approved as to Form and Legality: By: Thomas A. Russell, General Counsel of the San Diego Unified Port District Attachment G 4123-5109-5082.7 Attachment 1 Annual Support Payment Schedule Bond Year Support Payment Amount 5 $5,000,000 6 5,000,000 7 5,000,000 8 5,000,000 9 5,000,000 10 5,000,000 11 5,000,000 12 5,000,000 13 5,000,000 14 5,000,000 15 6,000,000 16 6,000,000 17 6,000,000 18 6,000,000 19 6,000,000 20 3,000,000 21 3,000,000 22 3,000,000 23 3,000,000 24 3,000,000 25 3,500,000 26 3,500,000 27 3,500,000 28 3,500,000 29 3,500,000 30 3,500,000 31 3,500,000 32 3,500,000 33 3,500,000 34 3,500,000 35 3,500,000 36 3,500,000 37 3,500,000 38 3,500,000 Attachment G 4123-5109-5082.7 Attachment 2 Net RV Park Buyout Credit Schedule Fiscal Year (FY) RV Park Buyout Credit 19 $410,500 20 $410,500 21 $410,500 22 $410,500 23 $410,500 24 $410,500 25 $410,500 26 $410,470 Attachment G 4123-5109-5082.7 Attachment 3 Listing of Chula Vista Bayfront Leases 1. Amended, Restated and Combined Lease between the San Diego Unified Port District (the "Port District") and The Marine Group LLC for property at the North Side of G Street at the terminus of both Quay Avenues and Sandpiper Way in Chula Vista, which lease is on file in the Office of the Port District Clerk as Document No. 54509, as amended and may be amended from time to time. 2. Lease between the Port District and Chula Vista Marina, LP, dba Chula Vista Marina, for property located at 550 Marina Parkway in Chula Vista which lease is on file in the Office of the Port District Clerk as Document No. 14244, as amended and may be amended from time to time. 3. Lease between the Port District and California Yacht Marina-Chula Vista, LLC, for property located at 640 Marina Parkway in Chula Vista which lease is on file in the Office of the Port District Clerk as Document No. 23924, as amended and may be amended from time to time. 4. Lease between the Port District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the Port District Clerk as Document No. 70407, as amended and may be amended from time to time. Attachment G 4834-1300-9344v8/024036-0079 LOAN AGREEMENT Between BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT and CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as trustee [AMOUNT] BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT PUBLIC INFRASTRUCTURE LOAN Dated as of [Dated Date] Page 1 of 41 CAttachment H Table of Contents Page i 4834-1300-9344v8/024036-0079 ARTICLE I DEFINITIONS Section 1.1. Definitions ..................................................................................................................... 2 ARTICLE II GENERAL AUTHORIZATION AND LOAN TERMS Section 2.1. Amount, Issuance, Purpose and Nature of Loan and Parity Loans ............................. 11 Section 2.2. Type and Nature of the Loan and Parity Loans .......................................................... 11 Section 2.3. Equality of Loan and Parity Loans and Pledge of Net Taxes ..................................... 11 Section 2.4. Terms of the Loan ....................................................................................................... 12 Section 2.5. Place and Form of Payment ........................................................................................ 12 Section 2.6. Execution and Authentication ..................................................................................... 12 Section 2.7. Validity of Agreement, the Loan and Parity Loans .................................................... 13 ARTICLE III CREATION OF FUNDS AND APPLICATION OF LOAN PROCEEDS Section 3.1. Creation of Funds ........................................................................................................ 13 Section 3.2. Deposits to and Disbursements from Special Tax Fund A ......................................... 13 Section 3.3. Administrative Expense Fund ..................................................................................... 14 Section 3.4. Repayment Fund; Terms of Repayment ..................................................................... 14 Section 3.5. Surplus Fund ............................................................................................................... 15 Section 3.6. Loan Amount; Assignment of Rights; Application of Loan Proceeds ....................... 15 Section 3.7. Investments ................................................................................................................. 16 ARTICLE IV [RESERVED] ARTICLE V COVENANTS AND WARRANTY Section 5.1. Warranty ..................................................................................................................... 17 Section 5.2. Covenants .................................................................................................................... 17 ARTICLE VI AMENDMENTS TO AGREEMENT Section 6.1. Supplemental Agreements or Orders Not Requiring Consent .................................... 21 Section 6.2. Supplemental Agreements or Orders Requiring Bondowner Consent ....................... 21 Page 2 of 41 CAttachment H Table of Contents (continued) Page ii 4834-1300-9344v8/024036-0079 ARTICLE VII TRUSTEE Section 7.1. Compensation of Authority Trustee ............................................................................ 22 Section 7.2. Successor to Authority Trustee ................................................................................... 23 Section 7.3. Liability of Authority Trustee ..................................................................................... 23 Section 7.4. Merger or Consolidation ............................................................................................. 25 ARTICLE VIII EVENTS OF DEFAULT; REMEDIES Section 8.1. Events of Default ........................................................................................................ 25 Section 8.2. Remedies upon an Event of Default ........................................................................... 25 Section 8.3. Application of Revenues and Other Funds After Default ........................................... 26 Section 8.4. Power of Authority Trustee to Control Proceedings ................................................... 26 Section 8.5. Appointment of Receivers .......................................................................................... 27 Section 8.6. Non-Waiver ................................................................................................................. 27 Section 8.7. Limitations on Rights and Remedies of Owners ........................................................ 27 Section 8.8. Termination of Proceedings ........................................................................................ 28 ARTICLE IX DEFEASANCE AND PARITY LOANS Section 9.1. Defeasance .................................................................................................................. 28 Section 9.2. Conditions for the Issuance of Parity Loans and Other Additional Indebtedness ................................................................................................................ 29 ARTICLE X MISCELLANEOUS Section 10.1. Execution of Documents ............................................................................................. 31 Section 10.2. Provisions Constitute Contract.................................................................................... 31 Section 10.3. Future Contracts .......................................................................................................... 31 Section 10.4. Further Assurances ...................................................................................................... 31 Section 10.5. Severability ................................................................................................................. 31 Section 10.6. Notices ........................................................................................................................ 32 Signatures ................................................................................................................................... S-1 EXHIBIT A LOAN REPAYMENT SCHEDULE ........................................................................ A-1 EXHIBIT B LEGAL DESCRIPTION OF SITE ........................................................................... B-1 Page 3 of 41 CAttachment H 1 4834-1300-9344v8/024036-0079 LOAN AGREEMENT THIS LOAN AGREEMENT dated as of [Dated Date] (the “Agreement”), is made and entered into by Bayfront Project Special Tax Financing District (as further defined herein, the “District”) for the benefit of the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (as further defined herein, the “Authority”) and Wilmington Trust, National Association, a national banking association organized and existing under the laws of the United States of America, in its capacity as Trustee under the Authority Indenture (defined herein) (as further defined herein, the “Authority Trustee”), and governs the terms of the loan (the “Loan”) being made to the District in accordance with this Agreement. R E C I T A L S : WHEREAS, the City Council (the “City Council”) of the City of Chula Vista (the “City”), has previously undertaken proceedings to create and did establish the District pursuant to Chapter 3.61 of the Chula Vista Municipal Code (“Chapter 3.61”) to finance certain public improvements; and WHEREAS, on _________, 2021, the City Council, acting as the legislative body of the District, duly adopted its Resolution No. ___ (the “District Resolution”) authorizing the execution and delivery of this Agreement; and WHEREAS, on _________, 2021, the Board of Directors of the Authority, duly adopted its Resolution No. ___ (the “Authority Resolution”) authorizing the execution and delivery of this Agreement; and WHEREAS, the Authority was established by the San Diego Unified Port District, a public corporation (the “Port”) and the City which now exists pursuant to an Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “JEPA Agreement”); and WHEREAS, the Authority, the Port and the City have determined it to be beneficial, for the Authority to acquire a leasehold interest in certain real property described in Exhibit B hereto (together with all improvements located thereon as of the Closing Date, the “Site”) upon which an approximately 275,000 net usable square foot convention center (the “Convention Center”) to be owned by the Authority will be constructed and operated; and WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns as the tenant under the Sublease (as defined herein), “RIDA”) holds a leasehold interest in certain real property which is immediately adjacent to the Site (the “Ground Lease Property”) described in and pursuant to a Lease, entered into as of ______, 202_ (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and between the Port, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and Page 4 of 41 CAttachment H 2 4834-1300-9344v8/024036-0079 WHEREAS, given the proximity of the proposed Hotel to the Site, the Authority, the Port and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the Authority and operate the Convention Center; and WHEREAS, the Port and the City have agreed to cause the Authority to provide financing for a portion of the costs of the Convention Center and the Phase 1A Infrastructure Improvements (defined herein) benefiting the Hotel and the Convention Center; and WHEREAS, such financing will be accomplished through the issuance by the Authority of its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2021A (Federally Taxable) (the “2021A Bonds”), in the initial aggregate principal amount of $_________, and its Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Phase 1A Infrastructure Improvements) Series 2021B (Tax- Exempt) (the “2021B Bonds”; and, together with the 2021A Bonds, the “2021 Bonds”) in the initial aggregate principal amount of $_________ which are being issued pursuant to the terms of the Authority Indenture; and which will be payable, in part, from the repayment by the District of the Loan (defined herein); and WHEREAS, to better secure the rights of the Owners of the Authority Bonds (defined herein), the Authority will assign certain of its rights under this Agreement to the Authority Trustee; and WHEREAS, it is in the public interest and for the benefit of the District, the persons responsible for the payment of Special Taxes (defined herein) and the owners of the Authority Bonds that the District enter into this Agreement to provide for the terms of the Loan, the disbursement of proceeds of the Loan, the disposition of the Special Taxes securing the Loan, and the administration and payment of the Loan; and WHEREAS, all things necessary to cause this Agreement, to be a legal, valid and binding and limited obligation in accordance with its terms, and all things necessary to cause the creation, authorization, execution and delivery of this Agreement have in all respects been duly authorized; NOW, THEREFORE, in order to establish the terms and conditions upon and subject to which the Loan is to be made, and in consideration of the premises and of the mutual covenants contained herein and of the making of the Loan hereunder, and for other valuable consideration, the receipt of which is hereby acknowledged, the District does hereby covenant and agree, for the benefit of the Authority, the Authority Trustee as party hereto and as assignee of the Authority and the Owners of the Authority Bonds as follows: ARTICLE I DEFINITIONS Section 1.1. Definitions. Capitalized terms used herein and not defined herein shall have the meanings ascribed to them in the Authority Indenture (as defined below). Unless the context otherwise requires, the following terms shall have the following meanings: “Act” means Articles 1 through 4 (commencing with Section 6500) of Chapter 5, Division 7, Title 1 of the Government Code of the State, as it may hereafter be amended from time to time. Page 5 of 41 CAttachment H 3 4834-1300-9344v8/024036-0079 “Administrative Expenses” means the following actual or reasonably estimated costs directly related to the administration of the District: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the City, the County or otherwise); the costs of the Authority Trustee (including its legal counsel) in the discharge of the duties required of it under this Agreement; the costs to the Authority, the City, the District or any designee thereof of complying with arbitrage rebate requirements, including paying to the Authority Trustee any amounts required to be deposited into the Rebate Fund established under the Authority Indenture; the costs to the Authority, the City, the District or any designee thereof of complying with disclosure requirements under applicable federal and state securities laws and Chapter 3.61; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, the County, the District, the Port or any designee thereof related to an appeal of any Special Tax levy; and the City’s annual administration fees and third party expenses. Administrative Expenses shall also include amounts estimated by an Authorized Representative of the District or advanced by the City or the District for any other administrative purposes of the District, including attorney’s fees and other costs related to commencing and pursuing to completion any foreclosure action to collect delinquent Special Taxes. “Administrative Expense Cap” means $________ for Fiscal Year 2021-22, increasing at a rate of 2% per Fiscal Year thereafter. “Administrative Expense Fund” means the Bayfront Project Special Tax Financing District Administrative Expense Fund created and established and held by the District in accordance with Section 3.1(a)(2) hereof. “Agreement” means this Loan Agreement, together with any Supplemental Agreement approved pursuant to Article 6 hereof. “Authority” means the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority established and existing pursuant to the JEPA Agreement. “Authority Bonds” means the 2021 Bonds and any additional bonds outstanding under the Authority Indenture, which are secured, in part, by payments made on the Loan. “Authority Indenture” means that certain Indenture of Trust, dated as of [Dated Date], by and between the Authority and the Authority Trustee, as originally executed or as it may from time to time be supplemented, modified or amended in accordance with its terms. “Authority Reserve Fund” means the fund by that name established by the Authority Indenture. “Authority Reserve Requirement” means the amount required to be on deposit in the Reserve Fund established under the Authority Indenture. “Authority Trustee” means Wilmington Trust, National Association, in its capacity as Trustee under the Authority Indenture, or any successor thereto appointed pursuant to the Authority Indenture. Page 6 of 41 CAttachment H 4 4834-1300-9344v8/024036-0079 “Authorized Representative of the District” means the Chair of the legislative body of the District, the City Manager, the Director of Finance of the City or any other person or persons designated by the legislative body of the District or the City Manager by a written certificate signed by one of such officers and containing the specimen signature of each such person. “Bond Counsel” means an attorney at law or a firm of attorneys selected by the District of nationally recognized standing in matters pertaining to the tax-exempt nature of interest on obligations issued by states and their political subdivisions duly admitted to the practice of law before the highest court of any state of the United States of America or the District of Columbia. “Bond Law” means the Marks-Roos Local Bond Pooling Act of 1985, constituting Article 4 of the Act (commencing with Section 6584), as it may hereafter be amended from time to time. “Bondowner” or “Owner” means the person or persons in whose name or names any Authority Bond is registered. “Business Day” means a day which is not a Saturday or Sunday or a day of the year on which banks or trust companies in New York, New York, Wilmington, Delaware, Los Angeles, California, or the city where the Principal Office of the Authority Trustee is located, are not required or authorized by law, regulation or executive order to remain closed. “Certificate of an Authorized Representative” means a written certificate or warrant request executed by an Authorized Representative of the District. “Chapter 3.61” means Chapter 3.61 of the Chula Vista Municipal Code, as amended from time to time. “City Treasurer” means the Treasurer of the City, or an authorized delegate thereof. “Code” means the Internal Revenue Code of 1986, as amended, and any Regulations, rulings, judicial decisions, and notices, announcements, and other releases of the United States Treasury Department or Internal Revenue Service interpreting and construing it. “Construction Fund” means the fund by that name created and established pursuant to Section 3.10 of the Authority Indenture. “Convention Center” has the meaning set forth in the recitals above. “County” means the County of San Diego and any successor thereto. “Delivery Date” means, the date on which the Authority Bonds are issued and delivered to the initial purchaser thereof pursuant to the Authority Indenture. “Deferred Payments” has the meaning set forth in Section 3.4 hereof. “Developer’s Phase 1A Infrastructure Improvements” means the public improvements set forth in Exhibit C attached to the Project Implementation Agreement. “District” means the Bayfront Project Special Tax Financing District established pursuant to the Chapter 3.61 and the Resolution of Formation. Page 7 of 41 CAttachment H 5 4834-1300-9344v8/024036-0079 “Federal Securities” means any of the following: (a) non-callable direct obligations of the United States of America (“Treasuries”), (b) evidences of ownership of proportionate interests in future interest and principal payments on Treasuries held by a bank or trust company as custodian, under which the owner of the investment is the real party in interest and has the right to proceed directly and individually against the obligor and the underlying Treasuries are not available to any person claiming through the custodian or to whom the custodian may be obligated, (c) pre-refunded municipal obligations rated “AAA” and “Aaa” by S&P and Moody’s, respectively, and (d) other securities eligible for “AAA” defeasance under then existing criteria of S&P. “Fiscal Year” means the period beginning on July 1 of each year and ending on the next following June 30. “Fund” means any fund created pursuant to this Agreement. “Gross Taxes” means the amount of all Special Taxes received by the District from the applicable taxpayers within the District, together with all payments made with respect to tax- defaulted parcels (including all delinquent and prepayment penalties, fees and costs) and the proceeds collected from the sale of property pursuant to the foreclosure provisions of this Agreement, but excluding any payment of Special Taxes on tax-defaulted parcels, including all delinquency and prepayment penalties, fees and costs and the proceeds collected from the sale of property pursuant to the foreclosure provisions of this Agreement in the event that the Special Taxes are paid to the District by the County pursuant to the Teeter Plan established by the County pursuant to California Revenue and Taxation Code Sections 4701 et seq., or paid by another party when due in exchange for such party’s right to collect all delinquency and prepayment penalties, fees and costs for the tax- defaulted parcels. “Ground Lease Property” has the meaning set forth in the Recitals above. “Improvements” means the Convention Center and the Phase 1A Infrastructure Improvements, including all costs of the acquisition, construction, engineering, planning and design services and other incidental expenses related to such facilities and improvements. “Independent Accountant” means any accountant or firm of such accountants appointed and paid by the Authority, and who, or each of whom: (a) is in fact independent and not under domination of the Authority, the City or the District; (b) does not have any substantial interest, direct or indirect, in the Authority, the City or the District; and (c) is not an officer or employee of the Authority, the City or the District, but who may be regularly retained to make annual or other audits of the books of or reports to the Authority, the City or the District. Page 8 of 41 CAttachment H 6 4834-1300-9344v8/024036-0079 “Independent Financial Consultant” means a financial consultant or firm of such consultants generally recognized to be well qualified in the financial consulting field, appointed and paid by the District, who, or each of whom: (1) is in fact independent and not under the domination of the District, the Authority or the City; (2) does not have any substantial interest, direct or indirect, in the District, the Authority or the City; and (3) is not connected with the District, the Authority or the City as a member, officer or employee of the District, the Authority or the City, but who may be regularly retained to make annual or other reports to the District, the Authority or the City. “Loan” means the loan made by the Authority to the District pursuant to the terms of this Agreement from proceeds of the 2021 Bonds. “Loan Proceeds” means the proceeds of the Loan payable to the District which shall be deposited by the Authority Trustee in and be disbursed from certain of the funds and accounts established under the Authority Indenture as set forth in Section 3.6 hereof. “Loan Year” means the twelve-month period ending on June 30 of each year; provided, however, that the first Loan Year shall begin on the Delivery Date and end on June 30, 20__. “Maximum Special Tax” has the meaning ascribed to it in the Rate and Method of Apportionment. “Moody’s” means Moody’s Investors Service, Inc., its successors and assigns. “Net Taxes” means Gross Taxes minus amounts set aside to pay Administrative Expenses. “Ordinance” means Ordinance No. 3481 adopted by the legislative body of the District on February 25, 2020, as amended from time to time. “Outstanding” or “Outstanding Authority Bonds” means all Authority Bonds theretofore issued by the Authority and outstanding under the terms of the Authority Indenture. “Parity Loans” means any loan, bond or other securities entered into or issued by the District in accordance with the terms of Section 9.2 hereof and secured by a lien on the Net Taxes which is on parity with the lien thereon securing the Loan. “Payment Date” means each date on which any Scheduled Payments are due and owing on the Loan as set forth in Exhibit A hereto and on any Parity Loans as set forth in a Supplemental Agreement and with respect to any Deferred Payment the first day of any month on which Net Taxes are available to make such payment in accordance with Section 3.4 herein. Page 9 of 41 CAttachment H 7 4834-1300-9344v8/024036-0079 “Permitted Investments” means any of the following that at the time of investment are legal investments under the laws of the State for the moneys proposed to be invested therein (provided that the Authority Trustee may rely upon investment direction of the District as a determination that such investment is a legal investment): 1. Cash. 2. United States Treasury bills, notes, loan or certificates of indebtedness, for which the full faith and credit of the United States are pledged for the payment of principal and interest. 3. Obligations, participations, or other instruments of, or issued by, a federal agency or a United States government-sponsored enterprise. 4. Eligible commercial paper shall be of “prime quality” and of the highest of ranking or of the highest letter and number rating as provided by a Rating Agency, expect that split ratings (i.e., A2/P1) shall not be allowed. The commercial paper shall not exceed 270 days’ maturity and the entity that issues the commercial paper shall meet all of the following conditions in either paragraph (a) or paragraph (b): (a) Has total assets in excess of five hundred million dollars ($500,000,000) , is organized and operating within the United States as a general corporation, and has debt other than commercial paper, if any, that is rated “A” or higher by a Rating Agency. (b) Is organized in the united States as a special purpose corporation, trust, or limited liability company, has program-wide credit enhancements including, but not limited to overcollateralization, letters of credit or a surety bond, has commercial paper that is rated “A-1” or higher, or the equivalent, by a Rating Agency. 5. Negotiable certificates of deposit issued by a U.S. national or state-charted bank, savings bank, saving and loan association, or credit union in this state or state or federal association (as defined by Section 5102 of the California Financial Code) or by a state-licensed branch of a foreign bank. Issuing banks must have a short-term rating of not less than A1/P1 and a long-term rating of not less than a “A” from a Rating Agency, if any. 6. Investments in repurchase agreements which comply with the requirements of California Government Code Section 53601(j) pursuant to which the seller will repurchase the securities on or before a specified date and for a specified amount and will deliver the underlying securities to the Authority Trustee by book entry, physical delivery, or by third party custodial agreement. The terms of a repurchase agreement shall not exceed one year. The term “securities,” for the purpose of repurchase agreements, means securities of the same issuer, description, issue date and maturity. To participate in repurchase agreements, a master repurchase agreement must be completed and signed by all parties involved. Repurchase agreements are required to be collateralized by securities or cash authorized under California Government Code Section 53601(j)(2) as described below: Page 10 of 41 CAttachment H 8 4834-1300-9344v8/024036-0079 (a) To anticipate market changes and provide a level of security for all repurchase agreement transactions, the market value of securities that underlie a repurchase agreement shall be valued at 102% or greater of the funds borrowed against those securities and the value shall be adjusted no less frequently than weekly. Since the market value of the underlying securities is subject to daily market fluctuations, the investments in repurchase agreements shall be in compliance if the value of the underlying securities is brought back up to 102% no later than the next business day. (b) Collateral will be limited to U.S. Treasury securities listed in paragraph (2) above and U.S. Government Agency securities listed in paragraph (3) above. Collateral will be held by an independent third party with whom the Authority Trustee has a current custodial agreement. A clearly marked evidence of ownership (safekeeping/custody receipt) must be supplied to the Authority Trustee and retained. The Authority Trustee retains the right to substitute or grant substitutions of collateral. 7. Bankers acceptances, also known as time drafts (bills of exchange) that are drawn on and accepted by a commercial bank. Purchases of bankers’ acceptances shall not exceed 180 days maturity. Issuing banks must be rated by each Rating Agency and have a short-term rating of at least A1/P1 and a long-term rating of not less than “A” from a Rating Agency, if any. 8. Shares of beneficial interest issued by diversified management companies that are mutual funds registered with the Securities and Exchange Commission under the Investment Company Chapter 3.61 of 1940 (15 U.S.C. Sec. 80a-1, et. seq.), which only invest in direct obligations in U.S. Treasury bills, notes and loan, U.S. Government Agency securities and repurchase agreements with a weighted average maturity of 60 days or less. At a minimum, approved mutual funds shall have met either of the following criteria: (a) Attained the highest ranking or the highest letter or numerical rating provided by each Rating Agency. (b) Retained an investment advisor registered or exempt from registration with the Securities and Exchange Commission with not less than five years’ experience managing money market mutual funds with assets under management in excess of $500,000,000. 9. Municipal debt instruments issued by a local or state agency, including: (a) Loans payable solely out of revenues from a revenue-producing property owned, controlled, or operated by the local agency or by a department, board, agency or authority of the local agency. (b) Registered state warrants or treasury notes or loans, including loans payable solely out of the revenues from a revenue-producing property owned, controlled or operated by the state or a department, board, agency or authority of the state. Page 11 of 41 CAttachment H 9 4834-1300-9344v8/024036-0079 (c) Loans, notes, warrants or other evidences of indebtedness of any local agency within a state, including loans payable solely out of revenues from a revenue- producing property owned, controlled or operated by the local agency, or by a department, board, agency, or authority of the local agency. Issuing municipalities must have a short-term rating of not less than A1/P1 and a long-term rating of not less than an “A” from a Rating Agency, if any. Municipal debt issued by the County is exempt from this credit requirement. 10. Medium-term notes consisting of corporate and depository institution debt securities with a maximum remaining maturity of not more than 397 days for any short-term pools such as money market funds and five years for any longer-term pools such as an extended fund. Medium-terms notes must be issued by corporations organized and operating within the United States or by depository institutions licensed by the United States or any state and operating within the United States. Notes eligible for investment shall be rated not less than “A” or its equivalent from each Rating Agency. 11. The San Diego County Investment Pool. 12. The Local Agency Investment Fund of the State of California The value of the above investments in (1) through (12) above, which shall be determined as of the end of each month, means that the value of any investments shall be calculated as follows: 1. for the purpose of determining the amount in any fund, all Permitted Investments credited to such fund shall be valued at fair market value. The Authority Trustee shall determine the fair market value based on accepted industry standards and from accepted industry providers; 2. as to certificates of deposit and bankers acceptances; the face amount thereof, plus accrued interest; 3. as to any investment not specified above: the value thereof established by prior agreement between the District and the Authority Trustee; and 4. as to any investment in (11) and (12), in the manner required by State Law. “Phase 1A Infrastructure Improvements” means (a) the Developer’s Phase 1A Infrastructure Improvements and (b) the Remaining Phase 1A Infrastructure Improvements. “Principal Office of the Authority Trustee” means the principal corporate trust office of the Authority Trustee as set forth in the Authority Indenture. “Project Implementation Agreement” means that certain Project Implementation Agreement dated as of ____________, 2021, by and among the City, the Port, the Authority, the District and RIDA as such agreement may be amended, amended and restated, supplemented or otherwise modified from time to time. Page 12 of 41 CAttachment H 10 4834-1300-9344v8/024036-0079 “Rate and Method of Apportionment” means that certain Rate and Method of Apportionment of Special Tax approved pursuant to the Resolution of Formation, as it may be further amended from time to time in accordance with Chapter 3.61 and this Agreement. “Rating Agency” means Moody’s and Standard & Poor’s, or both, as the context requires. “Regulations” means the regulations adopted or proposed by the Department of Treasury from time to time with respect to obligations issued pursuant to Section 103 of the Code. “Remaining Phase 1A Infrastructure Improvements” means the public improvements set forth in Exhibit D to the Project Implementation Agreement. “Repayment Fund” means the Bayfront Project Special Tax Financing District Repayment Fund created and established pursuant to Section 3.1 hereof. “Reserve Replenishment Amount” means the amount drawn upon the Authority Reserve Fund as a result of a failure of the District to pay the Scheduled Payments on the Loan or any Parity Loan. “Resolution of Formation” means, collectively, Resolution No. 2019-220 adopted by the City Council of the City on November 19, 2019, pursuant to which the City formed the District and Resolution No. ________ adopted by the City Council of the City on ________________, pursuant to which the Rate and Method of Apportionment was changed. “Scheduled Payments” has the meaning set forth in Section 3.4 hereof. “Special Tax Fund A” means the Bayfront Project Special Tax Financing District Special Tax Fund A created and established and held by the District in accordance with Section 3.1 hereof. “Special Taxes” means the taxes authorized to be levied by the legislative body of the District in accordance with Chapter 3.61 and the Ordinance on (i) the Assessor’s Parcels comprising the Ground Lease Property, (ii) the Assessor’s Parcels comprising that property included in the Lease between the Port and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the Port District Clerk as Document No. 70407, and (iii) Assessor’s Parcel No. 5670213800. “Standard & Poor’s” means S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, its successors and assigns. “Supplemental Agreement” means any supplement to this Agreement amending or supplementing this Agreement. “Surplus Fund” means the Bayfront Project Special Tax Financing District Surplus Fund created and established pursuant to Section 3.1 hereof. “Taxable Property” has the meaning ascribed to it in the Rate and Method of Apportionment. “Tax-Exempt Bonds” means the 2021B Bonds and any other series of additional bonds issued under the Authority Indenture, the interest on which is excluded from gross income for federal income tax purposes. Page 13 of 41 CAttachment H 11 4834-1300-9344v8/024036-0079 ARTICLE II GENERAL AUTHORIZATION AND LOAN TERMS Section 2.1. Amount, Issuance, Purpose and Nature of Loan and Parity Loans. Under and pursuant to the Bond Law the Authority will make the Loan in the aggregate principal amount of [AMOUNT] to the District from certain proceeds of the Authority Bonds as set forth in Section 3.6 herein for the purpose of financing the Improvements and in accordance with the provisions of Chapter 3.61 the District will enter into this Agreement and accept the Loan. Parity Loans may be entered into from time to time in accordance with the provisions of Section 9.2 hereof for the purpose of refunding the Loan or other Parity Loans. Section 2.2. Type and Nature of the Loan and Parity Loans. Neither the faith and credit nor the taxing power of the City, the State of California or any political subdivision thereof other than the District is pledged to the payment of the Loan or any Parity Loans. Except for the Net Taxes, no other taxes are pledged to the payment of the Loan and Parity Loans. The Loan and any Parity Loans are not general or special obligations of the City or general obligations of the District, but are limited obligations of the District payable solely from the Net Taxes and other amounts on deposit in the Repayment Fund and the Net Taxes on deposit in Special Tax Fund A, as more fully described herein. The District’s limited obligation to pay the principal of, premium, if any, and interest on the Loan and any Parity Loans from amounts in the Repayment Fund and Net Taxes on deposit in Special Tax Fund A is absolute and unconditional, free of deductions and without any abatement, offset, recoupment, diminution or set-off whatsoever. Neither the Authority nor the Authority Trustee as its assignee with respect to the Loan or the holder of any Parity Loans may compel the exercise of the taxing power by the District (except as pertains to the Special Taxes) or the City or the forfeiture of any of their property. The principal of and interest on the Loan and any Parity Loans are not a debt of the City, the State of California or any of its political subdivisions within the meaning of any constitutional or statutory limitation or restriction. The Loan and any Parity Loans are not a legal or equitable pledge, charge, lien, or encumbrance upon any of the District’s property, or upon any of its income, receipts or revenues, except the Net Taxes and other amounts in the Repayment Fund and the Net Taxes on deposit in Special Tax Fund A which are, under the terms of this Agreement and Chapter 3.61, set aside for the payment of the Loan and any Parity Loans and interest thereon and neither the members of the legislative body of the District or the City Council are liable personally on the Loan or any Parity Loans by reason of their issuance. Notwithstanding anything to the contrary contained in this Agreement, the District shall not be required to advance any money derived from any source of income other than the Net Taxes for the payment of the interest and principal due on the Loan or any Parity Loans, or for the performance of any covenants contained herein. The District may, however, advance funds for any such purpose, provided that such funds are derived from a source legally available for such purpose. Section 2.3. Equality of Loan and Parity Loans and Pledge of Net Taxes. Subject only to the provisions of this Agreement permitting the application thereof for the purposes and on the terms and conditions set forth herein, in order to secure the payment of the principal of and interest on the Loan and any Parity Loans in accordance with their terms, the provisions of this Agreement and Chapter 3.61, the District hereby pledges to the Authority, and grants thereto a lien on and a security interest in, all of the Net Taxes held in Special Tax Fund A and all amounts held in the Repayment Fund. This pledge shall constitute a first lien on and security interest in such assets, which shall immediately attach to such assets and be effective, binding and enforceable against the Page 14 of 41 CAttachment H 12 4834-1300-9344v8/024036-0079 District, its successors, purchasers of any of such assets, creditors and all others asserting rights therein, to the extent set forth in, and in accordance with, this Agreement, irrespective of whether those parties have notice of the pledge of, lien on and security interest in such assets and without the need for any physical delivery, recordation, filing or further act. Pursuant to Chapter 3.61 and this Agreement, the Loan and any Parity Loans shall be secured by and equally payable from the Net Taxes and other amounts in Special Tax Fund A and the Repayment Fund, without priority for the date of the making of the Loan or Parity Loans, and the payment of the interest on and principal of the Loan and any Parity Loans shall be exclusively paid from the Net Taxes and other amounts in Special Tax Fund A and the Repayment Fund, which are hereby pledged to the payment of the Loan and any Parity Loans. Net Taxes in Special Tax Fund A and amounts in the Repayment Fund shall constitute a trust fund held for the benefit of the Authority to be applied to the payment of the interest on and principal of the Loan and any Parity Loans and so long as any of the Loan and any Parity Loans or interest thereon remain Outstanding shall not be used for any other purpose, except as permitted by this Agreement or any Supplemental Agreement. Notwithstanding any provision contained in this Agreement to the contrary, Net Taxes deposited in the Surplus Fund shall no longer be considered to be pledged to the Loan or any Parity Loans, and neither the Surplus Fund nor the Administrative Expense Fund shall be construed as a trust fund held for the benefit of the Authority, the Authority Trustee or the Owners of the Authority Bonds for the repayment of the Loan. Nothing in this Agreement or any Supplemental Agreement shall preclude; (a) subject to the limitations herein, the payment of the Loan or Parity Loans from any source of lawfully available funds including proceeds of refunding bonds issued under Chapter 3.61 as the same now exists or as hereafter amended, or under any other law of the State of California; or (b) the issuance, subject to the limitations contained in Section 9.2 hereof, of Parity Loans which shall be payable from Net Taxes. Section 2.4. Terms of the Loan. The Loan shall be made in the principal amount of $_________ on the Delivery Date, shall mature on ____________ and shall accrue interest at the rate of _____________ percent (__%) per annum. Interest due on the Loan shall be calculated on the basis of a 360-day year comprised of twelve 30-day months. The Scheduled Payments on the Loan are set forth in Exhibit A hereto. [Any provision in this Agreement to the contrary notwithstanding, in the event that the Authority Bonds are no longer Outstanding under the Authority Indenture, then all remaining Scheduled Payments and Deferred Payments shall be forgiven and no longer be due and owing by the District and this Agreement shall terminate on the date that Authority Bonds ceased to be Outstanding under the Indenture.] Section 2.5. Place and Form of Payment. The Loan and Parity Loans shall be payable both as to principal and interest in lawful money of the United States of America. The principal of and interest on the Loan and Parity Loans shall be payable to the Authority Trustee as assignee of the Authority. Section 2.6. Execution and Authentication. This Agreement and any Supplemental Agreement shall be signed on behalf of the District by the Chair of the legislative body of the District and countersigned by the Clerk of the legislative body of the District, or any duly appointed deputy Clerk, in their capacity as officers of the District. This Agreement and any Supplemental Agreement shall be signed on behalf of the Authority and the Authority Trustee by a duly authorized representative of such entity. Page 15 of 41 CAttachment H 13 4834-1300-9344v8/024036-0079 Section 2.7. Validity of Agreement, the Loan and Parity Loans. The validity of this Agreement, Loan and any Parity Loans shall not be affected in any way by any defect in any proceedings taken by the District to authorize the execution and delivery of this Agreement and the making of the Loan and any Parity Loans, and the recital contained herein or in any Parity Loans that are issued pursuant to Chapter 3.61 and other applicable laws of the State shall be conclusive evidence of their validity and enforceability against the District. ARTICLE III CREATION OF FUNDS AND APPLICATION OF LOAN PROCEEDS Section 3.1. Creation of Funds. (a) There is hereby created and established and shall be maintained by the District the following funds: (1) The Bayfront Project Special Tax Financing District Special Tax Fund A (the “Special Tax Fund A”); and (2) The Bayfront Project Special Tax Financing District Administrative Expense Fund (the “Administrative Expense Fund”). (b) There is hereby created and established and shall be maintained by the Authority Trustee the following funds: (1) The Bayfront Project Special Tax Financing District Repayment Fund (the “Repayment Fund”); and (2) The Bayfront Project Special Tax Financing District Surplus Fund (the “Surplus Fund”). The amounts on deposit in the funds created and established pursuant to Section 3.1(b) shall be held by the Authority Trustee, as assignee of the Authority as set forth in Section 3.6 below, on behalf of the District and shall be invested and disbursed in accordance with the provisions of this Article 3. The investment earnings thereon shall be disbursed in accordance with the provisions of Section 3.7 hereof. Section 3.2. Deposits to and Transfers from Special Tax Fund A. (a) The District covenants and agrees that within 30 days of the end of each month it will deposit all Special Taxes received in such month into Special Tax Fund A to be held by it in trust as security for the repayment of the Loan and any Parity Loans and for the payment of Administrative Expenses. The District further covenants and agrees to transfer from Special Tax Fund A to the Authority Trustee for deposit to the Repayment Fund at least five Business Days prior to each Payment Date on the Loan and any Parity Loans an amount sufficient to cause the balance therein to equal the sum of the Scheduled Payments due on the Loan and any Parity Loans on such upcoming Payment Date plus any Deferred Payments remaining unpaid. Subject to the limitations in Section 3.5, the District may also transfer to the Authority Trustee from time to time from amounts in Special Tax Fund A amounts to be deposited to the Surplus Fund. The District shall accompany each transfer of funds to the Authority Trustee with a Certificate of an Authorized Representative stating Page 16 of 41 CAttachment H 14 4834-1300-9344v8/024036-0079 the amount of the transfer and the amount to be deposited to the Repayment Fund and the Surplus Fund, as applicable. (b) At the maturity of all of the Loan and Parity Loans and after all principal and interest then due on the Loan and Parity Loans has been paid or provided for, moneys in Special Tax Fund A and any accounts therein may be used by the District for any lawful purpose. (c) Subject to the limitations set forth in Section 3.3, the District may also transfer from Special Tax Fund A to the Administrative Expense Fund amounts needed to pay Administrative Expenses. Section 3.3. Administrative Expense Fund. (a) The District covenants and agrees that it shall not transfer or disburse from Special Tax Fund A to the Administrative Expense Fund in any Loan Year any amount in excess of the Administrative Expenses Cap until such time as there has been deposited to the Repayment Fund an amount, together with any amounts already on deposit therein, that is sufficient to pay the Scheduled Payments on the Loan and all Parity Loans due in such Loan Year and any Deferred Payments on the Loan and all Parity Loans. Notwithstanding the foregoing, upon receipt of a Certificate of an Authorized Representative of the District, amounts may be disbursed from Special Tax Fund A or transferred from Special Tax Fund A to the Administrative Expense Fund prior to the transfers to the Repayment Fund to the extent necessary to collect delinquent Special Taxes. Following the required deposit to the Repayment Fund of amounts sufficient to pay the interest and principal on the Loan and all Parity Loans due in a Loan Year and any past due and unpaid interest and principal payments on the Loan and all Parity Loans, the District may make additional transfers to the Administrative Expense Fund. The amounts in the Administrative Expense Fund are not pledged to the repayment of the Loan or the Parity Loans and may be used by the District to pay Administrative Expenses and for any other lawful purpose. (b) Amounts for Administrative Expenses shall be disbursed by the Authority Trustee to the District from the Surplus Fund as specified in a Request for Disbursement of Administrative Expenses, substantially in the form of Exhibit C attached hereto, which must be submitted by an Authorized Representative of the District to the Authority Trustee in connection with each requested disbursement. The Authority Trustee may conclusively rely upon such Certificate of an Authorized Representative in making any such disbursement. Section 3.4. Repayment Fund; Terms of Repayment. (a) The Authority Trustee shall deposit all Net Taxes and any other amounts transferred to it by the District for deposit to the Repayment Fund to pay the scheduled principal of and interest on the Loan in the amounts and on the dates set forth in Exhibit A hereto and to pay the scheduled principal of and interest on any Parity Loans in accordance with their terms on the dates specified therein (together, the “Scheduled Payments”). In the event that all Net Taxes have been collected and transferred by the District as required by Section 3.2 above and the amount in the Repayment Fund is insufficient to pay the Scheduled Payments when due, then any portion of the Scheduled Payments not paid (the “Deferred Payments”) shall be deferred and shall be paid on each successive Payment Date to the extent that any Net Taxes remain in the Repayment Fund after the payment of the Scheduled Payments due on such Payment Date until the Deferred Payments have been repaid in full. So long as the District has diligently performed its obligation under the Rate and Page 17 of 41 CAttachment H 15 4834-1300-9344v8/024036-0079 Method of Apportionment to levy the Special Taxes, the failure to pay the Scheduled Payments when due as a result of insufficient Net Taxes in the Repayment Fund shall not be an event of default hereunder. No additional interest shall accrue on any Deferred Payments. The Authority Trustee shall maintain a record of the Deferred Payments including each date on which a Deferred Payment occurs and each date a Deferred Payment is made and shall provide a copy of such record to the District and the Authority. (b) On each Payment Date on which a Scheduled Payment is due on the Loan and any Parity Loan and on each Payment Date that Net Taxes are available in the Repayment Fund to make a Deferred Payment, the Authority Trustee shall transfer the amount due from the Repayment Fund to the Revenue Fund established under the Authority Indenture. All or a portion of the amounts remaining on the deposit in the Repayment Fund after the transfer to the Authority Trustee of all amounts due on the Loan and any Parity Loans in a Loan Year may be transferred to the Surplus Fund upon receipt by the Authority Trustee of a Certificate of an Authorized Representative stating that (i) all Scheduled Payments due in such Loan Year, all Deferred Payments and all amounts due on any Parity Loan in such Loan Year have been paid, and (ii) the amount to be transferred to the Surplus Fund. (c) Moneys in the Repayment Fund may be held uninvested or be invested in any Permitted Investments. Section 3.5. Surplus Fund. The District covenants and agrees that it shall not transfer or disburse from Special Tax Fund A to the Surplus Fund in any Loan Year any amount until such time as there has been deposited to the Repayment Fund an amount, together with any amounts already on deposit therein, that is sufficient to pay the Scheduled Payments on the Loan and all Parity Loans due in such Loan Year and any Deferred Payments on the Loan and all Parity Loans. Moneys deposited in the Surplus Fund will be transferred by the Authority Trustee as directed in a Certificate of an Authorized Representative of the District (i) to the Repayment Fund for application in accordance with Section 3.4 above, (ii) to the Authority Reserve Fund to pay any Reserve Replenishment Amount, (iii) to the Administrative Expense Fund to pay Administrative Expenses, (iv) to the Authority Surplus Fund established under the Authority Indenture, or (v) for any other lawful purpose of the District. The amounts in the Surplus Fund are not pledged to the repayment of the Loan or the Parity Loans and may be used by the District for any purpose stated in this Section 3.5. In the event that the District reasonably expects to use any portion of the moneys in the Surplus Fund to pay debt service on the Loan or Parity Loans, the District will notify the Authority Trustee in a Certificate of an Authorized Representative and the Authority Trustee will segregate such amount into a separate subaccount and the moneys on deposit in such subaccount of the Surplus Fund shall be invested at the written direction of the District in Permitted Investments the interest on which is excludable from gross income under Section 103 of the Code (other than bonds the interest on which is a tax preference item for purposes of computing the alternative minimum tax of individuals under the Code) or in Permitted Investments at a yield not in excess of the yield on the issue of the Authority Bonds or Parity Loans to which such amounts are to be applied, unless, an opinion of Bond Counsel is delivered to the Authority Trustee stating that investment at a higher yield will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds or any Parity Loans which were issued on a tax-exempt basis for federal income tax purposes. Section 3.6. Loan Amount; Assignment of Rights; Application of Loan Proceeds. Page 18 of 41 CAttachment H 16 4834-1300-9344v8/024036-0079 (a) In consideration of the District’s promise to repay the Loan as described herein, the Authority agrees to loan $_________ to the District and further agrees to, and hereby does, irrevocably assign to the Authority Trustee all right title and interest of the Authority to the Scheduled Payments, Deferred Payments and any other amounts due with respect to the Loan and any Parity Loan as security for the repayment of the Authority Bonds, and further assigns to the Authority Trustee the right to enforce all covenants and obligations of the District hereunder. (b) On the Closing Date, the proceeds of the Loan shall be disbursed to the Authority Trustee on behalf of the District and be deposited to the following funds and accounts under the Authority Indenture and shall be applied in accordance with the terms of the Authority Indenture: (1) $_________ shall be deposited in the 2021A Account of the Costs of Issuance Fund and $___________ shall be deposited in the 2021B Account of the Costs of Issuance Fund for the payment of Costs of Issuance (as defined in the Authority Indenture) in accordance with Section 3.4 of the Authority Indenture. (2) $_________ shall be deposited in the 2021A Capitalized Interest Subaccount of the Interest Account of the Revenue Fund established pursuant to Section 3.3 of the Authority Indenture. (3) $_________ shall be deposited in the 2021A Account of the Authority Reserve Fund established pursuant to Section 3.6 of the Authority Indenture and $_________ shall be deposited in the 2021B Account of the Authority Reserve Fund established pursuant to Section 3.6 of the Authority Indenture. (4) $_________ shall be deposited in the 2021A Account of the Construction Fund for the payment of Convention Center Costs in accordance with Section 3.10 of the Authority Indenture and $_________ shall be deposited in the 2021B Account of the Construction Fund for the payment of Phase 1A Infrastructure Improvements Costs in accordance with Section 3.10 of the Authority Indenture . Section 3.7. Investments. Moneys held in any of the Funds under this Agreement shall be invested by the Authority Trustee or the District, as applicable, in accordance with the limitations set forth below only in Permitted Investments which shall be deemed at all times to be a part of such Funds. Any investment earnings or loss resulting from such Permitted Investments shall be credited or charged to the Fund from which such investment was made and any investment earnings shall be deposited in those respective Funds. Moneys in the Funds held under this Agreement may be invested by the Authority Trustee as directed in writing by the District, from time to time, in Permitted Investments subject to the following restrictions: (a) Moneys in the Repayment Fund shall be invested only in Permitted Investments which will by their terms mature, or are available for withdrawal without penalty, on such dates so as to ensure the payment of principal of, premium, if any, and interest on the Loan and any Parity Loans as the same become due. (b) In the absence of written directions from the District, the Authority Trustee shall invest such moneys solely in Permitted Investments specified in clause (8) of the definition thereof. Page 19 of 41 CAttachment H 17 4834-1300-9344v8/024036-0079 The District or the Authority Trustee, as applicable, shall sell, or present for prepayment, any Permitted Investment whenever it may be necessary to do so in order to provide moneys to meet any payment or transfer to or from a Fund to which such Permitted Investment is credited. Notwithstanding anything herein to the contrary, (i) the Authority Trustee, as applicable, shall not be responsible for any loss from investments, sales or transfers undertaken in accordance with the provisions of this Agreement provided it has followed the written directions from the District, or if none were available, complied with Section 3.7(b); and (ii) the District shall not be responsible for any loss from investments, sales or transfers undertaken in accordance with the provisions of this Agreement so long as it has only directed that amounts be invested in Permitted Investments. The Authority Trustee or the District, as applicable, may act as principal or agent in the making or disposing of any investment. For investment purposes, the Authority Trustee or the District, as applicable, may commingle the funds and accounts established hereunder, but shall account for each separately. The Authority Trustee is hereby authorized, in making or disposing of any investment permitted by this Section, to deal with itself (in its individual capacity) or with any one or more of its affiliates, whether it or such affiliate is acting as an agent of the Authority Trustee or for any third person or dealing as principal for its own account. The parties hereto acknowledge that the Authority Trustee is not providing investment supervision, recommendations, or advice. The District acknowledges that, to the extent regulations of the Comptroller of the Currency or other applicable regulatory entity grant the District the right to receive brokerage confirmations of security transactions effected by the Authority Trustee as they occur, the District specifically waives receipt of such confirmations to the extent permitted by law. The District further understands that trade confirmations for securities transactions effected by the Authority Trustee will be available upon request and at no additional cost and other trade confirmations may be obtained from the applicable broker. The Authority Trustee will furnish the District periodic cash transaction statements which shall include detail for all investment transactions made by the Authority Trustee hereunder or brokers selected by the District. Upon the District’s election, such statements will be delivered via the Authority Trustee’s online service and upon electing such service, paper statements will be provided only upon request. The Authority Trustee and its affiliates may act as sponsor, advisor, depository, principal or agent in the holding, acquisition or disposition of any investment. ARTICLE IV [RESERVED] ARTICLE V COVENANTS AND WARRANTY Section 5.1. Warranty. The District warrants that it shall preserve and protect the security pledged hereunder to the Loan and any Parity Loans against all claims and demands of all persons; provided, however, that such warranty does not require the District to expend any funds or moneys other than the Special Taxes and other amounts deposited to Special Tax Fund A and the Repayment Fund or, as and to the extent provided herein, in the Administrative Expense Fund and the Surplus Fund. Section 5.2. Covenants. So long as any of the Loan or Parity Loans issued hereunder are unpaid, the District makes the following covenants with the Authority and with the Authority Trustee Page 20 of 41 CAttachment H 18 4834-1300-9344v8/024036-0079 on behalf of the Owners of the Authority Bonds under the provisions of Chapter 3.61 and this Agreement (to be performed by the District or its proper officers, agents or employees), which covenants are necessary and desirable to secure the Loan and Parity Loans; provided, however, that said covenants do not require the District to expend any funds or moneys other than the Special Taxes and other amounts deposited to Special Tax Fund A and the Repayment Fund or, as and to the extent provided herein, in the Administrative Expense Fund and the Surplus Fund: (a) Punctual Payment; Against Encumbrances. The District covenants that it will receive all Special Taxes in trust for application in accordance with the terms of this Agreement and will instruct the City Treasurer to deposit all Special Taxes in Special Tax Fund A which the District covenants to establish solely for the purpose of holding the Special Taxes immediately upon their apportionment to the District. Except for the amounts held by the City Treasurer in Special Tax Fund A that are transferred by the District to the Administrative Expense Fund in accordance with Section 3.3, all amounts in such fund shall be subject to the lien and pledge set forth in Section 2.3 above for the benefit of the Authority, the Authority Trustee, and the Owners of the Loan and Parity Loans. From Special Taxes deposited by the City Treasurer in Special Tax Fund A in each Fiscal Year, the District may retain up to an amount equal to the Administrative Expenses Cap for such Fiscal Year for the purpose of paying Administrative Expenses and as and to the extent permitted by Section 3.3 above. The District further covenants that it will instruct the City Treasurer to transfer Net Taxes held in Special Tax Fund A to the Authority Trustee for deposit to the Repayment Fund to satisfy the provisions of Section 3.4 above and such Net Taxes shall be disbursed, allocated and applied solely to the uses and purposes set forth herein and in accordance with the Authority Indenture, and shall be accounted for separately and apart from all other money, funds, accounts or other resources of the District. The District covenants that it will duly and punctually pay or cause to be paid the principal of and interest on the Loan and any Parity Loans, together with the premium, if any, thereon on the date, at the place and in the manner set forth in the Loan and the Parity Loans and in accordance with this Agreement to the extent that Net Taxes and other amounts pledged hereunder are available therefor from Special Tax Fund A or the Repayment Fund, and that the payments into the Funds created hereunder will be made, all in strict conformity with the terms of this Agreement and any Parity Loans, and that it will faithfully observe and perform all of the conditions, covenants and requirements of this Agreement and all Supplemental Agreements and of the Loan and any Parity Loans issued hereunder. The District will not mortgage or otherwise encumber, pledge or place any charge upon any of the Net Taxes except as provided in this Agreement, and will not issue any obligation or security having a lien, charge, pledge or encumbrance upon the Net Taxes senior or superior to the Loan or Parity Loans or on a parity with the Loan, other than Parity Loans. Nothing herein shall prevent the District from issuing or incurring indebtedness which is payable from a pledge of Net Taxes which is subordinate in all respects to the pledge of Net Taxes to repay the Loan and the Parity Loans. (b) Levy of Special Taxes. So long as any Loan or Parity Loans issued under this Agreement are unpaid, the legislative body of the District covenants to levy the Special Taxes in accordance with the Rate and Method of Apportionment, to deposit all proceeds of the Special Tax collections into Special Tax Fund A and to apply the Special Taxes only in a manner consistent with the provisions of this Agreement. Page 21 of 41 CAttachment H 19 4834-1300-9344v8/024036-0079 (c) Commence Foreclosure Proceedings. The District covenants for the benefit of the Owners of the Authority Bonds that it will commence judicial foreclosure proceedings against parcels with delinquent Special Taxes in excess of $ 50,000 by the October 1 following the close of each Fiscal Year in which such Special Taxes were placed on the tax roll and will diligently pursue such foreclosure proceedings to completion or the earlier payment of the delinquent Special Taxes. The District covenants to place on the tax roll in each Fiscal Year all Special Taxes which remain delinquent and unpaid from the prior Fiscal Year. The District covenants that it will deposit to Special Tax Fund A any Gross Taxes received in connection with a foreclosure that remain after the payment of Administrative Expenses related to such foreclosure and such Gross Taxes shall be applied in accordance with Section 3.4 hereof. (d) Payment of Claims. The District will pay and discharge any and all lawful claims for labor, materials or supplies which, if unpaid, might become a lien or charge upon the Net Taxes or other funds in Special Tax Fund A or the Repayment Fund, or which might impair the security of the Loan or any Parity Loans then Outstanding; provided that nothing herein contained shall require the District to make any such payments so long as the District in good faith shall contest the validity of any such claims and there is no impairment of the security of the Loan or any Parity Loan. (e) Books and Accounts. The District will keep proper books of records and accounts, separate from all other records and accounts of the District, in which complete and correct entries shall be made of all transactions relating to the levy of the Special Tax and the deposits to Special Tax Fund A and the other Funds listed in Section 3.1 hereof. Such books of records and accounts shall at all times during business hours be subject to the inspection by the Authority and the Authority Trustee (who shall have no duty or obligation to inspect) or any duly authorized representative of the Authority Trustee. (f) Federal Tax Covenants. Notwithstanding any other provision of this Agreement, absent an opinion of Bond Counsel that the exclusion from gross income of interest on the Tax-Exempt Bonds or any Parity Loans issued on a tax-exempt basis for federal income tax purposes will not be adversely affected for federal income tax purposes, the District covenants to comply with all applicable requirements of the Code necessary to preserve such exclusion from gross income and specifically covenants, without limiting the generality of the foregoing, as follows: (1) Private Activity. The District will take no action or refrain from taking any action or make any use of the proceeds of the Loan or any Parity Loans or of any other moneys or property which would cause any Tax-Exempt Bonds or any Parity Loans issued on a tax- exempt basis for federal income tax purposes to be “private activity bond” within the meaning of Section 141 of the Code; (2) Arbitrage. The District will make no use of the proceeds of the Loan or any Parity Loans or of any other amounts or property, regardless of the source, or take any action or refrain from taking any action which will cause any Tax-Exempt Bonds or any Parity Loans issued on a tax-exempt basis for federal income tax purposes to be “arbitrage bond” within the meaning of Section 148 of the Code; (3) Federal Guaranty. The District will make no use of the proceeds of the Loan or any Parity Loans or take or omit to take any action that would cause any Tax-Exempt Page 22 of 41 CAttachment H 20 4834-1300-9344v8/024036-0079 Bonds or any Parity Loans issued on a tax-exempt basis for federal income tax purposes to be “federally guaranteed” within the meaning of Section 149(b) of the Code; (4) Hedge Bond. The District will make no use of the proceeds of the Loan or any Parity Loans or any other amounts or property, regardless of the source, or take any action or refrain from taking any action that would cause any Tax-Exempt Bonds or any Parity Loans issued on a tax-exempt basis for federal income tax purposes to be considered “hedge bond” within the meaning of Section 149(g) of the Code unless the District takes all necessary action to assure compliance with the requirements of Section 149(g) of the Code to maintain the exclusion from gross income for federal income tax purposes of interest on any Tax-Exempt Bonds or any Parity Loans issued on a tax-exempt basis for federal income tax purposes; and (5) Other Tax Exempt Issues. The District will not use proceeds of other tax exempt securities to prepay the Loan or any Parity Loans without first obtaining the written opinion of Bond Counsel that doing so will not impair the exclusion from gross income for federal income tax purposes of interest on any Tax-Exempt Bonds or any Parity Loans issued on a tax- exempt basis. (g) Reduction of Maximum Special Taxes. The District hereby finds and determines that the Loan is being issued based on the express assumption that the Special Taxes will be levied and collected at the maximum rate permitted by the Rate and Method of Apportionment until the Loan is repaid in full. For this reason, the District hereby determines that a reduction in the maximum Special Tax rates authorized to be levied on parcels in the District below the levels provided in this Section 5.2(g) would interfere with the timely retirement of the Loan and any Parity Loans. The District determines it to be necessary in order to preserve the security for the Loan and any Parity Loans to covenant, and, to the maximum extent that the law permits it to do so, the District hereby does covenant, that it will not initiate proceedings to reduce the maximum Special Tax rates for the District. (h) Covenants to Defend. The District covenants that, in the event that any initiative is adopted by the qualified electors in the District which purports to reduce the maximum Special Tax below the levels specified in Section 5.2(g) above or to limit the power of the District to levy the Special Taxes for the purposes set forth in Section 5.2(b) above, it will commence and pursue legal action in order to preserve its ability to comply with such covenants. (i) Further Assurances. The District shall make, execute and deliver any and all such further agreements, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement and for the better assuring and confirming unto the Authority, Authority Trustee and the Owners of the Authority Bonds or other holder of the Loan and any Parity Loans of the rights and benefits provided in this Agreement. (j) Pledged Net Taxes. The District represents it has not heretofore made a pledge of, granted a lien on or security interest in, or made an assignment or sale of the Net Taxes that ranks on a parity with or prior to the pledge granted under this Agreement. The District shall not hereafter make any pledge or assignment of, lien on, or security interest in the Net Taxes payable senior to the pledge of Net Taxes established under this Agreement and, except for Parity Loans, on a parity to the pledge of Net Taxes hereunder. Page 23 of 41 CAttachment H 21 4834-1300-9344v8/024036-0079 ARTICLE VI AMENDMENTS TO AGREEMENT Section 6.1. Supplemental Agreements or Orders Not Requiring Consent. The District, the Authority and the Authority Trustee may from time to time, and at any time, without notice to or consent of any of the Bondowners, amend this Agreement through the execution of a Supplemental Agreement for any of the following purposes: (a) to cure any ambiguity, to correct or supplement any provisions herein which may be inconsistent with any other provision herein, or to make any other provision with respect to matters or questions arising under this Agreement or in any additional resolution or order, provided that such action is not materially adverse to the interests of the Bondowners or to the Authority or the Authority Trustee hereunder; (b) to add to the covenants and agreements of and the limitations and the restrictions upon the District contained in this Agreement, other covenants, agreements, limitations and restrictions to be observed by the District which are not contrary to or inconsistent with this Agreement as theretofore in effect or which further secure payments on the Loan and any Parity Loans; (c) to provide for the making of any Parity Loans, and to provide the terms and conditions under which such Parity Loans may be made, subject to and in accordance with the provisions of this Agreement; or (d) to modify, alter, amend or supplement this Agreement in any other respect which is not materially adverse to the Bondowners or to the Authority or the Authority Trustee hereunder. Section 6.2. Supplemental Agreements or Orders Requiring Bondowner Consent. Exclusive of the Supplemental Agreements described in Section 6.1, the Authority and the Authority Trustee, with the consent or at the direction of the Bondowners of not less than a majority in aggregate principal amount of the Authority Bonds Outstanding, shall have the right to consent to and approve such Supplemental Agreements as shall be deemed necessary or desirable by the District, for the purpose of waiving, modifying, altering, amending, adding to or rescinding, in any particular, any of the terms or provisions contained in this Agreement; provided, however, that nothing herein shall permit, or be construed as permitting, (a) an amendment to the payment dates and amounts set forth in Exhibit A hereto, (b) a preference or priority of the Loan or any Parity Loan over the Loan or any Parity Loan, or (c) a reduction in the aggregate principal amount of the percentage of the Bondowners of which are required to direct or consent to such Supplemental Agreement, without the consent of the Bondowners of all Authority Bonds then Outstanding. If at any time the District shall desire to adopt a Supplemental Agreement pursuant to the terms of this Section 6.2, the District shall so notify the Authority and the Authority Trustee and shall deliver to the Authority and the Authority Trustee a copy of the proposed Supplemental Agreement. The Authority Trustee shall, at the expense of the District, cause notice of the proposed Supplemental Agreement to be mailed, by first class mail, postage prepaid, or in such other manner as is permitted under the Authority Indenture, to all Bondowners at their addresses as they appear in the bond register established under the Authority Indenture. Such notice shall briefly set forth the nature of Page 24 of 41 CAttachment H 22 4834-1300-9344v8/024036-0079 the proposed Supplemental Agreement and shall state that a copy thereof is on file at the office of the Authority Trustee for inspection by all Bondowners. The failure of any Bondowners to receive such notice shall not affect the validity of such Supplemental Agreement when consented to and approved by the Bondowners of the applicable aggregate principal amount of the Authority Bonds Outstanding required by this Section. Whenever at any time within one year after the date of the first mailing or giving of such notice, the Authority Trustee shall receive an instrument or instruments purporting to be executed by the Bondowners of not less than the applicable aggregate principal amount of the Authority Bonds Outstanding, which instrument or instruments shall refer to the proposed Supplemental Agreement described in such notice, and shall specifically consent to and approve the adoption thereof by the District substantially in the form of the copy referred to in such notice as on file with the Authority Trustee, such proposed Supplemental Agreement, when duly executed by the District, the Authority and the Authority Trustee, shall thereafter become a part of the proceedings for the issuance of the Loan and any Parity Loans. In determining whether the Owners of a majority of the aggregate principal amount of the Authority Bonds have consented to the adoption of any Supplemental Agreement, Authority Bonds which are owned by the Authority or the District or by any person directly or indirectly controlling or controlled by or under the direct or indirect common control with the Authority or the District, shall be disregarded and shall be treated as though they were not Outstanding for the purpose of any such determination. Upon the execution of any Supplemental Agreement and the receipt of consent to any such Supplemental Agreement from the Owners of the applicable aggregate principal amount of the Outstanding Authority Bonds, this Agreement shall be, and shall be deemed to be, modified and amended in accordance therewith, and the respective rights, duties and obligations under this Agreement of the District, the Authority and the Authority Trustee, as applicable, shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments. The Authority Trustee may in its discretion, but shall not be obligated to, enter into any such Supplemental Agreement authorized by Sections 6.1 and 6.2 which affects the Authority Trustee’s own rights, duties or immunities under this Agreement or otherwise. ARTICLE VII TRUSTEE Section 7.1. Compensation of Authority Trustee. The District shall (i) pay and reimburse the Authority Trustee for its services, advances and expenditures, including, but not limited to, advances to and fees and expenses of independent accountants or counsel employed by it in the exercise and performance of its powers and duties hereunder, and (ii) indemnify and save the Authority Trustee, its officers, directors, employees and agents, harmless from and against costs, damages, claims, expenses and liabilities, including, without limitation, fees and expenses of its attorneys, not arising from its own negligence or willful misconduct which it may incur in the exercise and performance of its powers and duties hereunder. In no event shall the Authority Trustee be liable for any consequential, punitive, indirect, incidental or special damages or loss of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Authority Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action. The foregoing obligations of the District to pay, reimburse and indemnify the Authority Trustee are payable only from the Special Taxes pledged hereunder and shall survive the removal or resignation Page 25 of 41 CAttachment H 23 4834-1300-9344v8/024036-0079 of the Authority Trustee, the discharge and payment or defeasance of the Loan, and the termination of this Agreement. Section 7.2. Successor to Authority Trustee. In the event that the Authority Trustee is removed or replaced under the Authority Indenture, the successor thereto shall automatically assume all rights and obligations of the Authority Trustee hereunder. Section 7.3. Liability of Authority Trustee. The Authority Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. These duties shall be deemed purely ministerial in nature, and the Authority Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Agreement against the Authority Trustee. The recitals of fact and all promises, covenants and agreements contained herein and in the Loan and any Parity Loans shall be taken as statements, promises, covenants and agreements of the District, and the Authority Trustee assumes no responsibility for the correctness of the same and makes no representations as to the validity or sufficiency of this Agreement, the Loan or any Parity Loans, and shall incur no responsibility in respect thereof, other than in connection with its duties or obligations specifically set forth herein, in the Loan and any Parity Loans, or in the certificate of authentication assigned to or imposed upon the Authority Trustee. The Authority Trustee shall be under no responsibility or duty with respect to the issuance of the Loan or any Parity Loans for value. The Authority Trustee shall not be liable in connection with the performance of its duties hereunder, except for its own negligence or willful misconduct. The Authority Trustee shall be protected in acting upon any notice, direction, resolution, request, consent, opinion, order, certificate, report, affidavit, letter, telegram, facsimile, bond, debenture, note, other evidence of indebtedness (including any Loan or Parity Loan) or other paper or document believed by it to be genuine and to have been signed, sent, or presented by the proper person or persons, not only as to due execution, validity and effectiveness, but also as to the truth and accuracy of any information contained therein. The Authority Trustee may consult with and act upon the advice of counsel, which may be counsel to the District, concerning all matters of trust and its duty hereunder and may conclusively rely upon and shall be wholly protected in reliance upon the advice or opinion of such counsel in respect of any action taken or omitted by it in accordance therewith. Whenever in the administration of its duties under this Agreement the Authority Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established and the Authority Trustee shall be fully protected in relying upon a written certificate of the District and/or opinion of counsel, and such certificate and/or opinion of counsel shall be full warrant to the Authority Trustee for any action taken, not taken or suffered under the provisions of this Agreement upon the faith thereof, but in its discretion the Authority Trustee may, in lieu thereof, accept other evidence of such matter or may require such additional evidence as to it may seem reasonable. The Authority Trustee shall have no duty or obligation whatsoever to enforce the collection of Special Taxes or other funds to be deposited with it hereunder, or as to the correctness of any amounts received, but its liability shall be limited to the proper accounting for such funds as it shall actually receive. No provision in this Agreement shall require the Authority Trustee to expend or Page 26 of 41 CAttachment H 24 4834-1300-9344v8/024036-0079 risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of its rights or powers. The Authority Trustee shall not be deemed to have knowledge of any default or event of default until an officer at the Principal Office of the Authority Trustee responsible for the administration of its duties hereunder shall have actual knowledge thereof or the Authority Trustee shall have received written notice thereof at the Principal Office of the Authority Trustee. The Authority Trustee shall not be considered in breach of or in default in its obligations hereunder or progress in respect thereto in the event of enforced delay (“unavoidable delay”) in the performance of such obligations due to unforeseeable causes beyond its control and without its fault or negligence, including, but not limited to, acts of God or of the public enemy or terrorists, acts of a government, acts of the other party, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, earthquakes, explosion, mob violence, riot, war, inability to procure or general sabotage or rationing of labor, equipment, facilities, sources of energy, material or supplies in the open market, loss or malfunctions of utilities, computer (hardware or software) or communications service, accidents, labor disputes, the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, litigation or arbitration involving a party or others relating to zoning or other governmental action or inaction pertaining to the project, malicious mischief, condemnation, and unusually severe weather or delays of supplies or subcontractors due to such causes or any similar event and/or occurrences beyond the control of the Authority Trustee. The Authority Trustee shall have no responsibility, opinion or liability with respect to any information, statement or recital in any offering memorandum, official statement, or other disclosure material prepared or distributed with respect to the making of the Loan or any Parity Loan. The Authority Trustee shall be under no obligation to exercise any of the rights or powers assigned to it or vested in it by this Agreement at the request, order or direction of any of the Owners pursuant to the provisions of this Agreement unless such Owners shall have offered to the Authority Trustee security or indemnity satisfactory to it in its sole and exclusive discretion against the costs, expenses and liabilities which may be incurred therein or thereby. The Authority Trustee, prior to the occurrence of an Event of Default and after the curing or waiver of all Events of Default which may have occurred, undertakes to perform such duties and only such duties as are specifically set forth in this Agreement. These duties shall be deemed purely ministerial in nature, and the Authority Trustee shall not be liable except for the performance of such duties, and no implied covenants or obligations shall be read into this Agreement against the Authority Trustee. In case an Event of Default has occurred (which has not been cured or waived) the Authority Trustee may exercise such of the rights and powers vested in it by this Agreement, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of that person’s own affairs. The Authority Trustee shall be entitled to request and receive written instructions from the District and shall have no responsibility or liability for any losses or damages of any nature that may arise from any action taken or not taken by the Authority Trustee in accordance with the written direction thereof. The Authority Trustee agrees to accept and act upon facsimile or electronic transmission of written instructions and/or directions pursuant to this Agreement; provided, however, that: (a) such originally executed instructions and/or directions shall be signed by a person as may be designated and authorized to sign for the party signing such instructions and/or directions, and (b) the Page 27 of 41 CAttachment H 25 4834-1300-9344v8/024036-0079 Authority Trustee shall have received a current incumbency certificate containing the specimen signature of such designated person. Any such instructions and directions furnished by electronic transmission shall be in the form of attachments in PDF format. Section 7.4. Merger or Consolidation. Any company into which the Authority Trustee may be merged or converted or with which it may be consolidated or any company resulting from any merger, conversion or consolidation to which it shall be a party or any company to which the Authority Trustee may sell or transfer all or substantially all of its corporate trust business, shall be the successor to the Authority Trustee without the execution or filing of any paper or further act, anything herein to the contrary notwithstanding. ARTICLE VIII EVENTS OF DEFAULT; REMEDIES Section 8.1. Events of Default. Any one or more of the following events shall constitute an “Event of Default” hereunder: (a) Any failure by the District to comply with the provisions of Section 3.2(a), the first sentence of Section 3.5 and Section 5.2(b) hereof: (b) Except as described in Section 8.1(a) above, any failure by the District to comply with any of the agreements, conditions or covenants on its part contained in this Agreement or any Supplemental Agreement, which continues for a period of 30 days after the District shall have been given notice in writing of such failure by the Authority Trustee or the Owners of a majority in aggregate principal amount of the Outstanding Authority Bonds; provided, however, that if in the reasonable opinion of the District the failure to comply stated in the notice can be corrected, but not within such thirty (30) day period, and corrective action is instituted by the District, within such thirty (30) day period and diligently pursued in good faith until the failure to comply is corrected, such failure to comply shall not be an Event of Default hereunder. (c) The Authority Trustee agrees to give notice to the Owners within 30 days of the Authority Trustee’s knowledge of an Event of Default. Section 8.2. Remedies upon an Event of Default. Upon the occurrence of an Event of Default, the Authority Trustee may pursue any available remedy at law or in equity to enforce the payment of the principal of and interest on the Loan and any Parity Loans, and to enforce any rights of the Authority and the Authority Trustee under or with respect to this Agreement, including: (a) By mandamus or other suit or proceeding at law or in equity to enforce any rights against the District and any of the members, officers and employees of the District, and to compel the District or any such members, officers or employees to perform and carry out their duties under Chapter 3.61 and this Agreement; (b) By suit in equity to enjoin any actions or things which are unlawful or violate the rights of the Owners; or Page 28 of 41 CAttachment H 26 4834-1300-9344v8/024036-0079 (c) By a suit in equity to require the District and its members, officers and employees to account as the trustee of an express trust. If an Event of Default shall have occurred and be continuing and if requested so to do by the Owners of at least a majority in aggregate principal amount of Outstanding Authority Bonds and if indemnified to its satisfaction, the Authority Trustee shall be obligated to exercise one or more of the rights and powers conferred by this Article VIII, as the Authority Trustee, being advised by counsel, shall deem most expedient in the interests of the Owners of the Authority Bonds. No remedy herein conferred upon or reserved to the Authority Trustee or to the Owners is intended to be exclusive of any other remedy. Every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise, and may be exercised without exhausting and without regard to any other remedy conferred by Chapter 3.61 or any other law. The Loan and any Parity Loans are not subject to acceleration prior to maturity. Section 8.3. Application of Revenues and Other Funds After Default. All amounts received by the Authority Trustee pursuant to any right given or action taken by the Authority Trustee under the provisions of this Agreement relating to the Loan and Parity Loans shall be applied by the Authority Trustee in the following order: First, to the payment of the fees, costs and expenses of the Authority Trustee in declaring such Event of Default and in carrying out the provisions of this Article VIII, including reasonable compensation to its agents, attorneys and counsel, and to the payment of all other outstanding fees and expenses of the Authority Trustee; and Second, to the payment of the whole amount of interest on and principal of the Loan and Parity Loans then due and unpaid; provided, however, that in the event such amounts shall be insufficient to pay in full the full amount of such interest and principal, then such amounts shall be applied in the following order of priority: (a) first to the payment of all installments of interest on the Loan and Parity Loans then due and unpaid on a pro rata basis based on the total amount then due and owing, and (b) second, to the payment of all installments of principal of the Loan and Parity Loans then due and unpaid on a pro rata basis based on the total amount then due and owing. Section 8.4. Power of Authority Trustee to Control Proceedings. In the event that the Authority Trustee, upon the happening of an Event of Default, shall have taken any action, by judicial proceedings or otherwise, pursuant to its duties hereunder, whether upon its own discretion or upon the request of the Owners of a majority in aggregate principal amount of the Authority Bonds then Outstanding, it shall have full power, in the exercise of its discretion for the best interests of the Owners, with respect to the continuance, discontinuance, withdrawal, compromise, settlement or other disposal of such action; provided, however, that the Authority Trustee shall not, unless there no longer continues an Event of Default, discontinue, withdraw, compromise or settle, or otherwise dispose of any litigation pending at law or in equity, if at the time there has been filed with it a written request signed by the Owners of a majority in aggregate principal amount of the Outstanding Authority Bonds opposing such discontinuance, withdrawal, compromise, settlement or other such Page 29 of 41 CAttachment H 27 4834-1300-9344v8/024036-0079 litigation. Any suit, action or proceeding which any Owner shall have the right to bring to enforce any right or remedy hereunder may be brought by the Authority Trustee for the equal benefit and protection of all Owners similarly situated and the Authority Trustee is hereby appointed (and the successive respective Owners, by taking and holding the same, shall be conclusively deemed so to have appointed it) the true and lawful attorney in fact of the respective Owners of the Loan and Parity Loans for the purposes of bringing any such suit, action or proceeding and to do and perform any and all acts and things for and on behalf of the respective Owners of the Loan and Parity Loans as a class or classes, as may be necessary or advisable in the opinion of the Authority Trustee as such attorney-in-fact. Section 8.5. Appointment of Receivers. Upon the occurrence of an Event of Default hereunder, and upon the filing of a suit or other commencement of judicial proceedings to enforce the rights of the Authority Trustee and of the Owners of the Authority Bonds under this Agreement, the Authority Trustee shall be entitled, as a matter of right, to the appointment of a receiver or receivers of the Net Taxes and other amounts pledged hereunder, pending such proceedings, with such powers as the court making such appointment shall confer. Section 8.6. Non-Waiver. Nothing in this Article VIII or in any other provision of this Agreement, or in the Loan or the Parity Loans, shall affect or impair the obligation of the District, which is absolute and unconditional, to pay the interest on and principal of the Loan and Parity Loans in accordance with the terms of this Agreement and any Supplemental Agreement, as applicable, out of the Net Taxes and other moneys herein pledged for such payment. A waiver of any default or breach of duty or contract by the Authority Trustee or any Owners shall not affect any subsequent default or breach of duty or contract, or impair any rights or remedies on any such subsequent default or breach. No delay or omission of the Authority Trustee or any Owner of any of the Authority Bonds to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of any such default or an acquiescence therein; and every power and remedy conferred upon the Authority Trustee or the Owners by Chapter 3.61 or by this Article VIII may be enforced and exercised from time to time and as often as shall be deemed expedient by the Authority Trustee or the Owners, as the case may be. Section 8.7. Limitations on Rights and Remedies of Owners. No Owner shall have the right to institute any suit, action or proceeding at law or in equity, for any remedy under or upon this Agreement, unless (a) such Owner shall have previously given to the Authority Trustee written notice of the occurrence of an Event of Default; (b) the Owners of a majority in aggregate principal amount of all Authority Bonds then Outstanding shall have made written request upon the Authority Trustee to exercise the powers hereinbefore granted or to institute such action, suit or proceeding in its own name; (c) said Owners shall have tendered to the Authority Trustee indemnity reasonably acceptable to the Authority Trustee against the costs, expenses and liabilities to be incurred in compliance with such request; and (d) the Authority Trustee shall have refused or omitted to comply with such request for a period of sixty (60) days after such written request shall have been received by, and said tender of indemnity shall have been made to, the Authority Trustee. Such notification, request, tender of indemnity and refusal or omission are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of the Authority Bonds of any remedy hereunder; it being understood and intended that no one or more Owners shall have any right in any manner whatever by his or their action to enforce any right under this Agreement, except in the manner herein provided, and that all proceedings at law or in equity to enforce any provision of Page 30 of 41 CAttachment H 28 4834-1300-9344v8/024036-0079 this Agreement shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Owners of the Outstanding Authority Bonds. Section 8.8. Termination of Proceedings. In case the Authority Trustee shall have proceeded to enforce any right under this Agreement by the appointment of a receiver or otherwise, and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely, then and in every such case, the District, the Authority, the Authority Trustee and the Owners shall be restored to their former positions and rights hereunder, respectively, with regard to the property subject to this Agreement, and all rights, remedies and powers of the Authority Trustee shall continue as if no such proceedings had been taken. ARTICLE IX DEFEASANCE AND PARITY LOANS Section 9.1. Defeasance. If the District shall pay or cause to be paid, or there shall otherwise be paid, all of the principal and interest due on the Loan or a Parity Loan at the times and in the manner stipulated in this Agreement or any Supplemental Agreement, then the Authority Trustee shall cease to be entitled to the pledge of Net Taxes with respect to such Loan or Parity Loan, and, other than as set forth below, all covenants, agreements and other obligations of the District to the Authority Trustee under this Agreement and any Supplemental Agreement with respect to the Loan or such Parity Loan, as applicable, shall thereupon cease, terminate and become void and be discharged and satisfied. The Loan and any Parity Loan shall be deemed to have been paid within the meaning expressed in the first paragraph of this Section 9.1 if such Loan or Parity Loan is paid in any one or more of the following ways: (a) by paying or causing to be paid the principal of, premium, if any, and interest on such Loan or Parity Loan, as and when the same become due and payable; (b) by depositing with the Authority Trustee, in trust, at or before maturity, money which, together with the amounts then on deposit in the Repayment Fund and available for such purpose, is fully sufficient to pay the principal of and interest on such Loan or Parity Loan, as and when the same shall become due and payable; or (c) by depositing with the Authority Trustee or another escrow bank appointed by the District, in trust, Federal Securities, in which the District may lawfully invest its money, in such amount as will be sufficient, together with the interest to accrue thereon and moneys then on deposit in the Repayment Fund and available for such purpose, together with the interest to accrue thereon, to pay and discharge the principal of and interest on such Loan or Parity Loan, as and when the same shall become due and payable; then, at the election of the District, and notwithstanding that the Loan and any Parity Loan shall not have been surrendered for payment, all obligations of the District under this Agreement and any Supplemental Agreement with respect to such Loan or Parity Loan shall cease and terminate, except for the obligation of the Authority Trustee to pay or cause to be paid the Loan and any Parity Loan not so surrendered and paid, all sums due thereon from the amounts described above and except for the covenants of the District contained in Section 5.2(f) or any covenants in a Supplemental Page 31 of 41 CAttachment H 29 4834-1300-9344v8/024036-0079 Agreement relating to compliance with the Code. Notice of such election shall be filed with the Authority Trustee not less than ten days prior to the proposed defeasance date, or such shorter period of time as may be acceptable to the Authority Trustee. In connection with a defeasance under (c) above, there shall be provided to the District and the Authority Trustee, a verification report from an Independent Accountant, stating its opinion as to the sufficiency of the moneys or securities deposited with the Authority Trustee or the escrow bank to pay and discharge the principal of and interest on the Loan and any Parity Loans to be defeased in accordance with this Section, as and when the same shall become due and payable. The Loan and any Parity Loans shall be deemed unpaid under this Agreement unless and until they are in fact paid and retired or the above criteria are met. Upon a defeasance, the Authority Trustee, upon request of the District, shall release its rights and the rights of the Owners hereunder with respect to the Loan and Parity Loans which have been defeased under this Agreement and any Supplemental Agreement and execute and deliver to the District all such instruments as may be desirable to evidence such release, discharge and satisfaction. In the case of a defeasance hereunder of all Loan and Parity Loans, the Authority Trustee shall pay over or deliver to the District any funds held by the Authority Trustee hereunder at the time of a defeasance, which are not required for the purpose of paying and discharging the principal of or interest on the Loan and Parity Loans when due. The Authority Trustee shall, at the written direction of the District, send a notice to the Bondowners, in the manner set forth in the Authority Indenture and in the form directed by the District, stating that the defeasance has occurred. Section 9.2. Conditions for the Issuance of Parity Loans and Other Additional Indebtedness. The District may at any time after the issuance and delivery of the Loan hereunder issue Parity Loans payable from the Net Taxes in Special Tax Fund A and secured by a lien and charge upon such amounts equal to the lien and charge securing the Outstanding Loan and any other Parity Loans theretofore issued hereunder or under any Supplemental Agreement; provided, however, that a Parity Loan may only be used for the purpose of refunding all or a portion of the Loan or any Parity Loans then outstanding and unpaid hereunder and under any Supplemental Agreement. A Parity Loan may be issued subject to the following additional specific conditions, which are hereby made conditions precedent to the issuance of any such Parity Loan: (a) The District shall be in compliance with all covenants set forth in this Agreement and any Supplemental Agreement then in effect and a certificate of the District to that effect shall have been filed with the Authority Trustee; provided, however, that a Parity Loan may be issued notwithstanding that the District is not in compliance with all such covenants so long as immediately following the issuance of such Parity Loan the District will be in compliance with all such covenants. (b) The issuance of such Parity Loan shall have been duly authorized pursuant to Chapter 3.61 and all applicable laws, and the issuance of such Parity Loan shall have been provided for by a Supplemental Agreement duly adopted by the District which shall specify the following: (1) The refunding purpose for which such Parity Loan is to be issued and the fund or funds into which the proceeds thereof are to be deposited, including payment of all costs incidental to or connected with such refunding; (2) The authorized principal amount of such Parity Loan; Page 32 of 41 CAttachment H 30 4834-1300-9344v8/024036-0079 (3) The date and the maturity date of such Parity Loan; (4) The debt service payment schedule for such Parity Loan; provided, however that the Loan and all Parity Loans shall have the same payment dates; (5) The description of the Parity Loan, the place of payment thereof and the procedure for execution and authentication; (6) The amount, if any, to be deposited from the proceeds of such Parity Loan in the Authority Reserve Fund to increase the amount therein to the Authority Reserve Requirement; and (7) Such other provisions as are necessary or appropriate and not inconsistent with this Agreement. (c) The District shall have received the following documents or money or securities, all of such documents dated or certified, as the case may be, as of the date of delivery of a Parity Loan by the Authority Trustee (unless the Authority Trustee shall accept any of such documents bearing a prior date): (1) An executed copy of the Supplemental Agreement pursuant which such Parity Loan is issued; (2) A written request of the District as to the delivery of such Parity Loan; (3) An opinion of Bond Counsel and/or counsel to the District to the effect that (a) the District has the right and power under Chapter 3.61 to execute and deliver the Supplemental Agreement relating to such Parity Loan, and this Agreement and such Supplemental Agreement have been duly and lawfully executed and delivered by the District, are in full force and effect and are valid and binding upon the District and enforceable in accordance with their terms (except as enforcement may be limited by bankruptcy, insolvency, reorganization and other similar laws relating to the enforcement of creditors’ rights); (b) this Agreement creates the valid pledge which it purports to create of the Net Taxes and other amounts as provided in this Agreement, subject to the application thereof to the purposes and on the conditions permitted by this Agreement; and (c) such Parity Loan is a valid and binding limited obligation of the District, enforceable in accordance with its terms (except as enforcement may be limited by bankruptcy, insolvency, reorganization and other similar laws relating to the enforcement of creditors’ rights) and the terms of this Agreement and any Supplemental Agreements thereto and entitled to the benefits of this Agreement and all such Supplemental Agreements, and such Parity Loan has been duly and validly authorized and issued in accordance with Chapter 3.61 (or other applicable laws) and this Agreement and all such Supplemental Agreements; and a further opinion of Bond Counsel to the effect that, assuming compliance by the District with certain tax covenants, the issuance of the Parity Loan will not adversely affect the exclusion from gross income for federal income tax purposes of interest on the Tax-Exempt Bonds; Page 33 of 41 CAttachment H 31 4834-1300-9344v8/024036-0079 (4) A certificate of the District containing such statements as may be reasonably necessary to show compliance with the requirements of this Agreement; (5) A certificate from one or more Independent Financial Consultants which, when taken together, certify that the annual principal and interest due on the Parity Loan is less than the annual principal and interest due on the Loan or Parity Loan being refunded, or in the case of a partial refunding on the portion of the Loan or a Parity Loan refunded with the proceeds of the Parity Loan; and (6) Such further documents, money and securities as are required by the provisions of this Agreement and the Supplemental Agreement providing for the issuance of such Parity Loan. ARTICLE X MISCELLANEOUS Section 10.1. Execution of Documents. Any request, direction, consent, revocation of consent, or other instrument in writing required or permitted by this Agreement to be signed or executed by the Owners may be given only in the manner provided by the Authority Indenture and the Authority Trustee shall apply the provisions of the Authority Indenture in determining whether any such action by the Owners is effective for purposes of this Agreement. Any request or consent of the Owner of any Authority Bond shall bind every future Owner of the same Authority Bond in respect of anything done or suffered to be done by the Authority Trustee or the District under this Agreement in pursuance of such request or consent. Section 10.2. Provisions Constitute Contract; Governing Law. The provisions of this Agreement shall constitute a contract between the parties hereto. This Agreement shall be construed and governed in accordance with the laws of the State of California, without regard to its conflicts of laws principles. Section 10.3. Future Contracts. Nothing herein contained shall be deemed to restrict or prohibit the District from making contracts or creating bonded or other indebtedness payable from a pledge of the Net Taxes which is subordinate to the pledge hereunder, or which is payable from any source other than the Net Taxes and other amounts pledged hereunder. Section 10.4. Further Assurances. The District will adopt, make, execute and deliver any and all such further resolutions, instruments and assurances as may be reasonably necessary or proper to carry out the intention or to facilitate the performance of this Agreement, and for the better assuring and confirming unto the Authority Trustee and the Owners of the Authority Bonds the rights and benefits provided in this Agreement. Section 10.5. Severability. If any covenant, agreement or provision, or any portion thereof, contained in this Agreement, or the application thereof to any person or circumstance, is held to be unconstitutional, invalid or unenforceable, the remainder of this Agreement and the application of any such covenant, agreement or provision, or portion thereof, to other persons or circumstances, shall be deemed severable and shall not be affected thereby. Page 34 of 41 CAttachment H 32 4834-1300-9344v8/024036-0079 Section 10.6. Notices. All notices or other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when delivered or, if mailed by first class mail, postage prepaid, on the third day after deposit in the U.S. Mail to each of the parties listed below at the addresses set forth below. To the Authority: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager And Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney To the Authority Trustee: Wilmington Trust, National Association 650 Town Center Drive, Suite 800, Costa Mesa, California 92626 Attention: Corporate Trust Services Fax No.: (714) 384-4151 Page 35 of 41 CAttachment H 33 4834-1300-9344v8/024036-0079 To the Port: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 With a copy to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, California 92112-0488 The Authority, the City, the Port and the Authority Trustee, by notice given hereunder, may designate different addresses to which subsequent notices or other communications will be sent. Page 36 of 41 CAttachment H S-1 4834-1300-9344v8/024036-0079 IN WITNESS WHEREOF, the Bayfront Project Special Tax Financing District, the Chula Vista Bayfront Facilities Financing Authority and Wilmington Trust, National Association, each has caused this Loan Agreement to be signed in its corporate name by its duly authorized officer identified below, all as of the day and year first above written. BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: Authorized Officer CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, By: Executive Director APPROVED AS TO FORM AND LEGALITY: Co- Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District __________________________________ Co-Counsel, Glen R. Googins, City Attorney of the City of Chula Vista WILMINGTON TRUST, NATIONAL ASSOCIATION, as Authority Trustee By: Authorized Officer Page 37 of 41 CAttachment H A-1 4834-1300-9344v8/024036-0079 EXHIBIT A LOAN REPAYMENT SCHEDULE [To be added on the Closing Date based on the pricing of the Bonds] Page 38 of 41 CAttachment H B-1 4834-1300-9344v8/024036-0079 EXHIBIT B LEGAL DESCRIPTION OF SITE Page 39 of 41 CAttachment H C-1 4834-1300-9344v8/024036-0079 EXHIBIT C FORM OF REQUISITION FROM SURPLUS FUND To: Wilmington Trust, National Association, as Trustee From: Bayfront Project Special Tax Financing District Dated Date: Re: [Amount] Bayfront Project Special Tax Financing District Public Infrastructure Loan Requisition No. ___ The undersigned, an Authorized Officer of the Bayfront Project Special Tax Financing District (the “District”), hereby requests payment, from the Surplus Fund for deposit to the Administrative Expense Fund the amount of $___________ [by wire/check/ACH (circle one)] pursuant to the Loan Agreement, dated as of ________ 1, 2021 (the “Agreement”), by and among the District, the Chula Vista Bayfront Facilities Financing District, and Wilmington Trust, National Association, as Trustee (the “Trustee”). If the payment is by wire or ACH, please fill in the following information: Name, Address and Phone Number of Bank: ABA#: Account No.: The undersigned hereby certifies as follows: 1. The amount requisitioned hereby is for the payment of Administrative Expenses chargeable to the Surplus Fund and has not been the subject of any previous requisition. 2. As of the date hereof, no event has occurred and is continuing which constitutes an Event of Default under the Agreement or would constitute an Event of Default but for the requirement that notice be given, or time elapse, or both. 3. The information contained herein is true and correct as of the date of this Requisition. Page 40 of 41 CAttachment H C-1 4834-1300-9344v8/024036-0079 4. Capitalized terms will herein have the meanings assigned to such terms in the Agreement. BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT By: Authorized Officer Page 41 of 41 CAttachment H Page 1 of 4 AAttachment I Page 2 of 4 AAttachment I Page 3 of 4 AAttachment I Page 4 of 4 AAttachment I 1 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. Page 1 of 24 LAttachment J Chula Vista Bayfront Facilities Financing Authority Resolution 2020-007 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 2020-007 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 Thomas A. Russell, San Diego Unified Port District Glen R. Googins, City of Chula Vista City Attorney 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: AYES: Castellanos, Malcolm, Moore, and Padilla NAYS: EXCUSED: Casillas Salas ABSENT: ABSTAIN: Mary Casillas Salas, Chair Board of Directors ATTEST: Donna Morales Secretary DocuSign Envelope ID: FA32B3CF-9EC9-4D86-9A47-244E95F38BAB Page 2 of 24 LAttachment J Exhibit A AUTHORITY PROCUREMENT POLICY [To Be Attached] Page 3 of 24 LAttachment J 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. Page 4 of 24 LAttachment J 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. Page 5 of 24 LAttachment J 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 Page 6 of 24 LAttachment J 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 Page 7 of 24 LAttachment J 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 Page 8 of 24 LAttachment J 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. Page 9 of 24 LAttachment J 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. Page 10 of 24 LAttachment J 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 Page 11 of 24 LAttachment J 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). Page 12 of 24 LAttachment J Exhibit B RESOLUTION 2020-002 [To Be Attached] Page 13 of 24 LAttachment J 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 Page 14 of 24 LAttachment J 2020-002 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 Page 15 of 24 LAttachment J 2020-002 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- Page 16 of 24 LAttachment J 2020-002 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 Page 17 of 24 LAttachment J 2020-002 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 Page 18 of 24 LAttachment J 2020-002 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 Page 19 of 24 LAttachment J 2020-002 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. Page 20 of 24 LAttachment J 2020-002 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. Page 21 of 24 LAttachment J 2020-002 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. Page 22 of 24 LAttachment J Certificate Of Completion Envelope Id: FA32B3CF9EC94D869A47244E95F38BAB Status: Completed Subject: Please DocuSign: CVBFFA Resolution 2020-002 for DocuSign.pdf, CVBFFA Resolution No. 2020-007 fo... Source Envelope: Document Pages: 31 Signatures: 8 Envelope Originator: Certificate Pages: 5 Initials: 0 Gabby Livingston AutoNav: Enabled EnvelopeId Stamping: Enabled Time Zone: (UTC-08:00) Pacific Time (US & Canada) 3165 Pacific Highway San Diego, CA 92101 glivingston@portofsandiego.org IP Address: 207.215.153.162 Record Tracking Status: Original 8/3/2020 5:12:37 PM Holder: Gabby Livingston glivingston@portofsandiego.org Location: DocuSign Security Appliance Status: Connected Pool: StateLocal Storage Appliance Status: Connected Pool: San Diego Unified Port District Location: DocuSign Signer Events Signature Timestamp Thomas Russell trussell@portofsandiego.org General Counsel Security Level: Email, Account Authentication (None)Signature Adoption: Pre-selected Style Using IP Address: 174.192.135.152 Signed using mobile Sent: 8/3/2020 5:19:14 PM Viewed: 8/3/2020 8:46:30 PM Signed: 8/3/2020 8:46:48 PM Electronic Record and Signature Disclosure: Accepted: 4/2/2020 11:20:36 AM ID: 31ccb88b-7938-4c4a-8675-c7c09341f658 Glen Googins GGoogins@chulavistaca.gov City Attorney City of Chula Vista Security Level: Email, Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 209.242.148.130 Sent: 8/3/2020 8:46:50 PM Viewed: 8/5/2020 8:26:56 AM Signed: 8/5/2020 8:27:22 AM Electronic Record and Signature Disclosure: Accepted: 4/16/2020 11:42:24 AM ID: 000b9c9e-3d9c-40f5-9734-8e946936a005 Mary Casillas Salas msalas@chulavistaca.gov Mayor City of Chula Vista Security Level: Email, Account Authentication (None) Signature Adoption: Uploaded Signature Image Using IP Address: 162.198.65.45 Signed using mobile Sent: 8/5/2020 8:27:25 AM Viewed: 8/5/2020 11:04:57 AM Signed: 8/5/2020 11:05:19 AM Electronic Record and Signature Disclosure: Accepted: 8/5/2020 11:04:57 AM ID: b9a2a653-14d6-4b41-b50f-7ea7d17a5c5d Donna Morales dmorales@portofsandiego.org District Clerk San Diego Unified Port District Security Level: Email, Account Authentication (None) Signature Adoption: Pre-selected Style Using IP Address: 70.95.190.9 Signed using mobile Sent: 8/5/2020 11:05:22 AM Viewed: 8/6/2020 5:54:32 AM Signed: 8/6/2020 5:55:56 AM Electronic Record and Signature Disclosure: Th,.t,111~s rv.ssJl Page 23 of 24 LAttachment J Signer Events Signature Timestamp Not Offered via DocuSign In Person Signer Events Signature Timestamp Editor Delivery Events Status Timestamp Agent Delivery Events Status Timestamp Intermediary Delivery Events Status Timestamp Certified Delivery Events Status Timestamp Carbon Copy Events Status Timestamp Sally Raney sraney@portofsandiego.org Security Level: Email, Account Authentication (None) Sent: 8/6/2020 5:55:58 AM Electronic Record and Signature Disclosure: Not Offered via DocuSign Elizabeth Alonso ealonso@portofsandiego.org Deputy General Counsel Security Level: Email, Account Authentication (None) Sent: 8/6/2020 5:55:59 AM Electronic Record and Signature Disclosure: Accepted: 4/23/2020 2:21:12 PM ID: 280d898a-123d-485f-b6d3-602391308b0a Witness Events Signature Timestamp Notary Events Signature Timestamp Envelope Summary Events Status Timestamps Envelope Sent Hashed/Encrypted 8/6/2020 5:55:59 AM Certified Delivered Security Checked 8/6/2020 5:55:59 AM Signing Complete Security Checked 8/6/2020 5:55:59 AM Completed Security Checked 8/6/2020 5:55:59 AM Payment Events Status Timestamps Electronic Record and Signature Disclosure COPIED COPIED Page 24 of 24 LAttachment J US-DOCS\118371412.45 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: STRADLING YOCCA CARLSON & RAUTH 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attention: Robert J. Whalen, Esq. NO FEE FOR RECORDING PURSUANT TO GOVERNMENT CODE SECTION 27383 [Space above for Recorder’s use.] THIS DOCUMENT IS RECORDED FOR THE BENEFIT OF THE CITY OF CHULA VISTA, AND THE RECORDING IS FEE-EXEMPT UNDER SECTION 27383 OF THE GOVERNMENT CODE. SUBLEASE AGREEMENT (CHULA VISTA BAYFRONT CONVENTION CENTER) by and between CITY OF CHULA VISTA, as Sublessor and RIDA CHULA VISTA, LLC, as Sublessee Dated as of ___________, [2021] Relating to $__________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) Series 2021B (Tax-Exempt) $__________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS (CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) Series 2021B (Tax-Exempt) Attachment K TABLE OF CONTENTS Page i US-DOCS\118371412.45 CONTENTS Page ARTICLE I DEFINITIONS AND EXHIBITS ..........................................................................2  Section 1.1 Definitions and Rules of Construction .................................................2  Section 1.2 Exhibits .................................................................................................2  ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS ..........................3  Section 2.1 Representations and Warranties of RIDA ............................................3  Section 2.2 Covenants of RIDA ..............................................................................4  Section 2.3 Representations, Covenants and Warranties of the City ......................5  ARTICLE III AGREEMENT TO SUBLEASE; TERM OF SUBLEASE; SUBLEASE ADVANCE RENT AND SUBLEASE PAYMENTS ...................................................6  Section 3.1 Sublease ................................................................................................6  Section 3.2 Term .....................................................................................................6  Section 3.3 Extension of Term ................................................................................6  Section 3.4 Sublease Advance Rent ........................................................................6  Section 3.5 Base Rent and Additional Rent ............................................................7  Section 3.6 Section 467 of the Code .......................................................................8  Section 3.7 Capital Expenditures as Rent ................................................................8  Section 3.8 Use and Possession ...............................................................................8  Section 3.9 Reimbursement .....................................................................................8  Section 3.10 Net-Net-Net Lease ................................................................................9  Section 3.11 Further Assurances and Corrective Instruments ...................................9  Section 3.12 Security Deposit ...................................................................................9  Section 3.13 Peaceable Surrender ...........................................................................10  Section 3.14 Waiver ................................................................................................11  Section 3.15 Holdover .............................................................................................12  Attachment K ii US-DOCS\118371412.45 ARTICLE IV INSURANCE ....................................................................................................12  Section 4.1 Insurance Requirements .....................................................................12  Section 4.2 Rental Interruption Insurance .............................................................12  Section 4.3 [Reserved] ..........................................................................................13  Section 4.4 Payment of Insurance Proceeds ..........................................................13  Section 4.5 General Insurance Provisions .............................................................13  Section 4.6 Cooperation ........................................................................................14  ARTICLE V EMINENT DOMAIN; DAMAGE OR DESTRUCTION; USE OF NET PROCEEDS .................................................................................................................14  Section 5.1 Eminent Domain .................................................................................14  Section 5.2 Damage or Destruction .......................................................................19  ARTICLE VI CONDITIONS AND COVENANTS WITH RESPECT TO THE FACILITY23  Section 6.1 Permitted Use of the Facility ..............................................................23  Section 6.2 City Holds Subleasehold Interest in the Site and Leasehold Interest in the Convention Center ........................................................................26  Section 6.3 Quiet Enjoyment .................................................................................26  Section 6.4 Installation of RIDA’s Personal Property ...........................................27  Section 6.5 [Reserved] ..........................................................................................27  Section 6.6 Maintenance and Repair .....................................................................27  Section 6.7 Hotel Management Agreement ...........................................................30  Section 6.8 Performance by the Public Entities ....................................................31  Section 6.9 Records ...............................................................................................31  Section 6.10 Alterations ..........................................................................................33  Section 6.11 Liens ...................................................................................................34  Section 6.12 “As-Is” Sublease and Waivers ............................................................35  Section 6.13 Force Majeure Event ..........................................................................38  Section 6.14 Compliance with Laws .......................................................................40  Attachment K iii US-DOCS\118371412.45 Section 6.15 Equal Employment Opportunity; Nondiscrimination and OFAC ......41  Section 6.16 Taxes and Property Expenses; Reporting ...........................................42  Section 6.17 Meet and Confer .................................................................................43  Section 6.18 Property Expenses ..............................................................................43  Section 6.19 Property Tax Expenses; Utility Charges; Contest Right ....................44  Section 6.20 Hazardous Materials ...........................................................................46  Section 6.21 Advertising Devices ...........................................................................52  Section 6.22 Prevailing Wage .................................................................................52  ARTICLE VII ASSIGNMENT BY THE CITY AND AMENDMENTS ...............................54  Section 7.1 Assignment by the City ......................................................................54  Section 7.2 Amendments and Modifications .........................................................54  ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES .................................................54  Section 8.1 Events of Default ................................................................................54  Section 8.2 Remedies ............................................................................................55  Section 8.3 Bankruptcy .........................................................................................58  ARTICLE IX SUBLEASE FINANCING ENCUMBRANCE ................................................59  Section 9.1 Permitted Financing Encumbrances ...................................................59  Section 9.2 Definition of “Permitted Sublease Financing Encumbrance,” “Permitted Equity Financing Encumbrance,” “Permitted Financing Encumbrance,” “Permitted Mortgage Lender,” “Permitted Lender” and “Equity Collateral Enforcement Action” .....................................60  Section 9.3 Rights of Permitted Lender ................................................................61  Section 9.4 City’s Deemed Consent to Assignment or Transfer or Bidders .........65  Section 9.5 Subordination, Non-Disturbance and Attornment Agreement ...........66  Section 9.6 Miscellaneous .....................................................................................66  ARTICLE X SUB-SUBLEASES; ASSIGNMENT ................................................................67  Section 10.1 Sub-Subleases .....................................................................................67  Attachment K iv US-DOCS\118371412.45 Section 10.2 Effect of Sub-sublease ........................................................................68  Section 10.3 Conditions ..........................................................................................69  Section 10.4 Sub-subtenant Attornment ..................................................................69  Section 10.5 Sub-sublease Rent Requirements .......................................................69  Section 10.6 Reporting of Sub-sublease Information ..............................................70  Section 10.7 Assignment .........................................................................................70  Section 10.8 Effect of Transfer ...............................................................................70  Section 10.9 Conditions ..........................................................................................71  Section 10.10 Permitted Lender and Foreclosure Purchasers ...................................71  ARTICLE XI MISCELLANEOUS .........................................................................................71  Section 11.1 Notices ................................................................................................71  Section 11.2 Binding Effect ....................................................................................73  Section 11.3 Severability .........................................................................................73  Section 11.4 Execution in Counterparts ..................................................................73  Section 11.5 Applicable Law ..................................................................................73  Section 11.6 Captions ..............................................................................................73  Section 11.7 No Merger ..........................................................................................73  Section 11.8 Third-Party Beneficiary ......................................................................73  Section 11.9 Release of Encumbrance ....................................................................74  Section 11.10 Transaction Costs ...............................................................................74  Section 11.11 Drafting Presumption; Review Standard ............................................74  Section 11.12 Constitutional Rights and Compliance with Law ...............................75  Section 11.13 Time of Essence .................................................................................75  Section 11.14 Entire Agreement ................................................................................75  Section 11.15 Discharge of the Bonds ......................................................................75  Signatures ................................................................................................................................... S-1 Attachment K v US-DOCS\118371412.45 DEFINITIONS ADDENDUM ....................................................................................................... DA-1 EXHIBIT A: DESCRIPTION OF THE SITE .......................................................................... A-1 EXHIBIT B-1: SCHEDULE OF BASE RENT PAYMENTS ................................................. B-1-1 EXHIBIT B-2: CALCULATION OF ADDITIONAL RENT .................................................. B-2-1 EXHIBIT C: FORM OF LETTER OF CREDIT ..................................................................... C-1 EXHIBIT D: LETTER OF CREDIT ISSUERS ....................................................................... D-1 EXHIBIT E: FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT FOR PERMITTED MORTGAGE LENDER............................................................................................................. E-1 EXHIBIT F: FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT FOR PERMITTED MEZZANINE LENDER............................................................................................................. F-1 EXHIBIT G: FORM OF ESTOPPEL CERTIFICATE ............................................................ G-1 EXHIBIT H: RENT ROLL ...................................................................................................... H-1 EXHIBIT I: FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT ................... I-1 EXHIBIT J: [RESERVED] ...................................................................................................... J-1 EXHIBIT K: DISTRICT DOCUMENTS ................................................................................ K-1 EXHIBIT L: PRE-APPROVED ADVERTISING DEVICES ................................................. L-1 EXHIBIT M: APPROVED AGREEMENTS………………………………………………...M-1 EXHIBIT N: CONSTRUCTION REQUIREMENTS (ALTERATIONS) .............................. N-1 EXHIBIT O: PRIOR AGREEMENTS………………………………………………... .......... O-1 Attachment K 1 US-DOCS\118371412.45 SUBLEASE AGREEMENT (CHULA VISTA BAYFRONT CONVENTION CENTER) THIS SUBLEASE AGREEMENT (Chula Vista Bayfront Convention Center) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Sublease”), dated as of ___________, [2021], is entered into by and between the City of Chula Vista, a charter city of the State of California duly organized and existing under and by virtue of the Constitution and laws of the State of California, as sublessor (the “City”), and RIDA Chula Vista, LLC, a Delaware limited liability company, as sublessee (together with its successors and permitted assigns, “RIDA”). WITNESSETH: WHEREAS, the San Diego Unified Port District, a public corporation (together with its successors in interest under the Ground Lease, the “Port”), has entered into that certain San Diego Unified Port District Lease To RIDA Chula Vista, LLC of Property Located In Chula Vista, California, dated as of _________, 2021 (as amended, amended and restated, supplemented or otherwise modified from time to time, together with any New Lease, as such term is defined therein, the “Ground Lease”), with RIDA under which the Port has leased to RIDA the Ground Lease Property upon which RIDA will be constructing the Resort Hotel in accordance with the requirements of the Ground Lease; and WHEREAS, the Chula Vista Bayfront Facilities Financing Authority (together with its successors in interest under the Facility Lease, the “JEPA”) and the City have determined it to be beneficial to construct the Convention Center on the Site, which is immediately adjacent to the Ground Lease Property, and to cause RIDA to construct the Convention Center on behalf of the JEPA and to sublease, operate and maintain the Convention Center; and WHEREAS, the JEPA has entered into a Site Lease of even date herewith (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Site Lease”) by and between the JEPA and the Port under which the JEPA has leased from the Port certain real property described in Exhibit A hereto (the “Site”), on which the Convention Center will be constructed; and WHEREAS, pursuant to the Government Code of the State of California and the Charter of the City of Chula Vista, the City may enter into leases and agreements relating to real property for purposes of supporting commercial development for business purposes, economic opportunity, or such other purposes as deemed appropriate by the City Council of the City (the “Council” or “City Council”); and WHEREAS, the Council has determined that it is in the best interests of the City and for the common benefit of the citizens residing in the City, for the JEPA to acquire a leasehold interest in the Site upon which the Convention Center will be constructed on behalf of the JEPA by RIDA; and WHEREAS, the JEPA has, pursuant to that certain Facility Lease dated as of ___________, 2021 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Facility Lease”) by and between the JEPA and the City, subleased the Site and leased the Attachment K 2 US-DOCS\118371412.45 Improvements (the Site and the Improvements together referred to herein as the “Facility”) to the City; and WHEREAS, the JEPA and City have entered into the Facility Lease in order to support the issuance of the Bonds, which are secured in part by lease payments to be made by the City under the Facility Lease, and which are being issued by the JEPA concurrently with the execution and delivery of this Sublease; and WHEREAS, a portion of the proceeds of the Bonds will be applied to finance the construction of the Convention Center and certain public infrastructure benefiting the Resort Hotel and the Convention Center; and WHEREAS, pursuant to the Site Lease, the Port, and, pursuant to the Facility Lease, the JEPA, have acknowledged and consented to the City’s sub-sublease of the Site and sublease of the Improvements to RIDA; and WHEREAS, in consideration of the construction of the Convention Center by RIDA pursuant to the terms of that certain Project Implementation Agreement, dated as of the date hereof, by and among the Port, the JEPA, the City, the Special Tax District and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Implementation Agreement”), and RIDA’s performance of its obligations herein, the City will sub-sublease the Site and sublease the Improvements to RIDA pursuant to the terms hereof; NOW, THEREFORE, in consideration of the above premises and of the mutual covenants hereinafter contained and for other good and valuable consideration, the Parties agree as follows: ARTICLE I DEFINITIONS AND EXHIBITS Section 1.1 Definitions and Rules of Construction. Unless the context otherwise requires, the capitalized terms used herein shall, for all purposes of this Sublease, have the meanings set forth in the Definitions Addendum attached hereto and incorporated herein. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa. The terms “hereby,” “hereof,” “hereto,” “herein,” “hereunder” and any similar terms, as used in this Sublease, refer to this Sublease as a whole. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it. Each reference herein to this “Sublease” shall include a reference to any “New Sublease” as defined herein. Section 1.2 Exhibits. The following Exhibits are attached to, and by reference made a part of, this Sublease: Definitions Addendum Exhibit A: Description of the Site Exhibit B-1: Schedule of Base Rent Payments Exhibit B-2: Calculation of Additional Rent Attachment K 3 US-DOCS\118371412.45 Exhibit C: Form of Letter of Credit Exhibit D: Letter of Credit Issuers Exhibit E: Form of Subordination, Non-Disturbance and Attornment Agreement For Permitted Mortgage Lender Exhibit F: Form of Subordination, Non-Disturbance and Attornment Agreement for Permitted Mezzanine Lender Exhibit G: Form of Estoppel Certificate Exhibit H: Rent Roll Exhibit I: Form of Assignment and Assumption Agreement Exhibit J: [Reserved] Exhibit K: District Documents Exhibit L: Pre-Approved Advertising Devices Exhibit M: Approved Agreements Exhibit N: Construction Requirements (Alterations) Exhibit O: Prior Agreements ARTICLE II REPRESENTATIONS, WARRANTIES AND COVENANTS Section 2.1 Representations and Warranties of RIDA. RIDA represents and warrants to the City as of the Commencement Date as follows: (a) Due Organization and Existence; Enforceability. RIDA is a limited liability company duly organized, existing and in good standing under and by virtue of the laws of the State of Delaware, has the power to enter into this Sublease, the Ground Lease, the Project Implementation Agreement and the Continuing Disclosure Agreement; is possessed of full power to own and hold real and personal property, and to lease and sell the same; and has duly authorized the execution and delivery of this Sublease, the Ground Lease, the Project Implementation Agreement and the Continuing Disclosure Agreement. This Sublease, the Ground Lease, the Project Implementation Agreement and the Continuing Disclosure Agreement constitute the legal, valid and binding obligations of RIDA, enforceable in accordance with their respective terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally. (b) No Conflicts or Defaults; No Liens or Encumbrances. Neither the execution and delivery of this Sublease, the Ground Lease, the Project Implementation Agreement or the Continuing Disclosure Agreement, nor the fulfillment of or compliance with the terms and conditions Attachment K 4 US-DOCS\118371412.45 hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terms, conditions or provisions of the certificate of formation or the operating agreement of RIDA or any material agreement or instrument to which RIDA is now a party or by which RIDA is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of RIDA or upon the Facility, except for Permitted Encumbrances. (c) Execution and Delivery. RIDA has duly authorized and executed this Sublease, the Ground Lease, the Project Implementation Agreement and the Continuing Disclosure Agreement in accordance with the laws of the State of Delaware. (d) Useful Life and Residual Value. To the Knowledge of RIDA as of the Commencement Date, based in part upon an analysis performed by a nationally-recognized third- party advisory firm, immediately following the date which is 37 years from the Commencement Date, (i) the Convention Center is reasonably expected to have a remaining useful life of at least 33 years and (ii) the fair market value of the Convention Center is reasonably expected to exceed $187,900,000 (without including in such value any increase or decrease for inflation or deflation during the Term). For purposes of this Section 2.1(d), “Knowledge of RIDA” shall mean the actual knowledge of Luke Charlton. Section 2.2 Covenants of RIDA. RIDA covenants to the City as follows: (a) No Encumbrances. RIDA will not pledge or encumber the Facility or its interest therein created by virtue of this Sublease or otherwise, except for Permitted Encumbrances. (b) Indemnification of Public Entity Parties. RIDA hereby indemnifies and shall defend the Public Entity Parties, at RIDA’s sole cost and expense and with counsel reasonably selected by the Public Entity Parties and reasonably approved by RIDA, and hold the Public Entity Parties harmless from any and all claims (including claims under negligence and strict liability and claims with respect to obligations of the Public Entity Parties to indemnify, defend and hold harmless third parties, including the City’s obligation to indemnify the JEPA under the Facility Lease), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (i) the performance by RIDA of its obligations under this Sublease, (ii) any breach by RIDA of its obligations under this Sublease, (iii) any accident, injury or damage whatsoever caused to any Person or the property of any Person on or about the Site or at the Improvements or (iv) the use, occupancy, possession or operation of the Site and the Improvements by any RIDA Party or Hotel Operator, or any acts or omissions of any RIDA Party or Hotel Operator, except for claims or litigation arising through the sole gross negligence or willful misconduct of any Public Entity Party (but subject to Section 18.4 of the Ground Lease); provided that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this Section 2.2(b). The foregoing indemnity, defense and hold harmless obligations of RIDA shall not include any claims (including claims under negligence and strict liability or claims with respect to obligations of the Public Entity Parties to indemnify, defend and hold harmless third parties, including the City’s obligation to indemnify the JEPA under the Facility Lease), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (x) the Project’s failure or alleged failure to comply with Section 15 and Exhibit 3 of the Settlement Agreement or any other document implementing or Attachment K 5 US-DOCS\118371412.45 duplicating Section 15 and Exhibit 3 of the Settlement Agreement, provided that RIDA has satisfied its obligations under Section 5.8 and Exhibit O of the Project Implementation Agreement and any other agreement entered into between the Port and/or City with RIDA regarding the subject of this subsection (x) or (y) any Person’s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Public Entity Party (other than by a RIDA Party or Hotel Operator, or on behalf of a RIDA Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a RIDA Party or Hotel Operator). If any Public Entity determines in its reasonable discretion that there is a conflict of interest with RIDA’s counsel representing an applicable Public Entity and RIDA, then such Public Entity, at the election of the relevant Public Entity, may conduct such defense with its own counsel independent from RIDA’s counsel that is selected by such Public Entity in its reasonable discretion and is approved by RIDA in its reasonable discretion (and in that event RIDA will select its own counsel) and the reasonable costs incurred by such Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. If any Public Entity determines in its reasonable discretion that there is a conflict of interest with counsel representing such Public Entity and the other Public Entity Parties, then such Public Entity, at its election, may conduct its own defense with its own counsel independent from the other Public Entity Parties’ counsel which such Public Entity’s counsel is approved by RIDA in its reasonable discretion (and in that event such Public Entity will select its own counsel) and the reasonable costs incurred by such Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The terms of this Section 2.2(b) shall survive the expiration or earlier termination of this Sublease. The foregoing indemnity obligations of RIDA are in addition to, and not in limitation of, any other indemnity obligations of RIDA contained in this Sublease or any other agreement between the Public Entities and RIDA. Notwithstanding the foregoing, Section 19.2 of the Project Implementation Agreement, and not this Section 2.2(b), shall apply to the reimbursement of any fees or expenses incurred by the Public Entity Parties in connection with a Tax Claim (as defined in the Project Implementation Agreement). Notwithstanding anything to the contrary in this Section 2.2(b), RIDA shall have no obligation to pay or reimburse any Public Entity for costs incurred by such Public Entity that such Public Entity would have been obligated to pay without any express right to reimbursement by RIDA, or for which such Public Entity would have been obligated to reimburse RIDA, pursuant to this Sublease or the Project Implementation Agreement. Section 2.3 Representations, Covenants and Warranties of the City. The City represents and warrants to RIDA that each representation and warranty of the City set forth in the Facility Lease is true and correct. The City covenants to perform each obligation that it is required to perform pursuant to the Facility Lease in accordance with the terms thereof unless and to the extent RIDA is required to perform such obligation pursuant to this Sublease. If any Convention Center Lease requires RIDA and/or the City to obtain any approval or authorization from the Port and/or the JEPA, then, promptly after RIDA requests, the City shall cooperate with RIDA and shall use commercially reasonable efforts to cause the Port and/or the JEPA, as applicable, to grant such approval or authorization, as applicable. Attachment K 6 US-DOCS\118371412.45 ARTICLE III AGREEMENT TO SUBLEASE; TERM OF SUBLEASE; SUBLEASE ADVANCE RENT AND SUBLEASE PAYMENTS Section 3.1 Sublease. The City hereby sub-subleases the Site and subleases the Improvements and all appurtenant rights thereto, including all easements and licenses granted to the City pursuant to Section 4.1 of the Facility Lease, to RIDA and RIDA hereby sub-subleases the Site and subleases the Improvements and all appurtenant rights thereto from the City upon the terms and conditions set forth herein. Each of the City and RIDA acknowledges that at the time that this Sublease is being entered into, the Convention Center has not yet been constructed on the Site and that RIDA, acting as an independent contractor to the JEPA, will construct the Convention Center in accordance with the terms of the Project Implementation Agreement. Section 3.2 Term. The term of this Sublease (the “Term”) shall commence on the Closing Date (the “Commencement Date”) and shall end on __________, 20__, unless extended pursuant to Section 3.3 hereof. Section 3.3 Extension of Term. If the term of the Facility Lease is extended pursuant to Section 4.3 thereof, then the Term shall be extended for an equal period of time. If (a) the Ground Lease has terminated for a reason other than (i) an Event of Default (as defined in the Ground Lease) or (ii) pursuant to RIDA’s exercise of a right to terminate the Ground Lease (for example, by reason of a casualty event as provided in the Ground Lease) and (b) in accordance with law, RIDA remains in possession of the Ground Lease Property notwithstanding the termination (for example, pursuant to Section 365(h) of the Bankruptcy Code), then, on the date that is the 37th anniversary of the Commencement Date, this Sublease shall be extended for 29 years on the terms and conditions set forth in this Sublease with such modifications to the provisions with respect to the payment of Rent so that for any period of time following such extension, the sum of the Rent to be paid under this Sublease and the Rent (as defined under the Ground Lease) to be paid under the Ground Lease will equal the Rent (as defined under the Ground Lease) that would have been paid under the Ground Lease as if the Expansion Date had occurred and the Ground Lease had not been terminated. Section 3.4 Sublease Advance Rent. (a) The Parties acknowledge that the Convention Center is being constructed pursuant to the Project Implementation Agreement. (b) Sublease Advance Rent. In partial consideration of the City’s agreement to sub-sublease the Site and to sublease the Convention Center to RIDA on the terms set forth in this Sublease, RIDA shall pay Sublease Advance Rent (as defined below) hereunder to be applied to the construction of the Convention Center as set forth in the Project Implementation Agreement, pursuant to which RIDA is acting as the developer and general contractor for the construction of the Convention Center. Upon receipt of a Facility Lease Advance Rent Notice (as defined in the Facility Lease) from the JEPA under the Facility Lease, the City shall promptly submit to RIDA a Sublease Advance Rent Notice for an equivalent amount (such amounts, collectively, “Sublease Advance Rent”). Contemporaneous with its delivery of each Sublease Advance Rent Notice to RIDA, the City shall record the information contained therein in a register of the recordation of the amount of Sublease Advance Rent that is due and payable by RIDA in accordance with this Section 3.4 (the “Sublease Advance Rent Register”). The Sublease Advance Rent Register shall be available for Attachment K 7 US-DOCS\118371412.45 inspection by RIDA at any reasonable time and from time to time upon reasonable prior notice. If RIDA pays Sublease Advance Rent to the City, then the City shall promptly pay an equivalent amount to the JEPA as advance rent under the Facility Lease. Notwithstanding anything to the contrary herein or in any other Convention Center Lease, if RIDA receives a notice from the City confirming that the City assigned to the JEPA its right to receive the payment of Sublease Advance Rent hereunder, then, from and after the date of the receipt of such notice, RIDA shall pay Sublease Advance Rent to the JEPA as the City’s assignee. In addition to and not in limitation of the foregoing, if RIDA makes a deposit into the Construction Fund (as defined in the Indenture) without receipt of any Sublease Advance Rent Notice, then the amount so deposited shall constitute Sublease Advance Rent. (c) Payment of Sublease Advance Rent. RIDA shall pay (i) Sublease Advance Rent (other than any Sublease Advance Rent in connection with any true-up payment pursuant to Section 9.2.6.1 of the Project Implementation Agreement) no later than ten (10) Business Days and (ii) any Sublease Advance Rent in connection with any true-up payment pursuant to Section 9.2.6.1 of the Project Implementation Agreement no later than twenty (20) Business Days, in each case, after it receives a Sublease Advance Rent Notice with respect to such Sublease Advance Rent in accordance with Section 3.4(b). All payments of Sublease Advance Rent and other sums due to City hereunder shall be paid in legal tender of the United States, without notice, invoice, setoff, deduction or demand, except as otherwise expressly provided herein. No payment by RIDA or receipt or acceptance by of a lesser amount than the required amount of Sublease Advance Rent shall be deemed to be a waiver of any current or preceding breach by RIDA of any provision hereof. No endorsement or statement on any check or any letter accompanying any check or payment as Sublease Advance Rent shall be deemed an accord and satisfaction, and City has the right to accept such check or payment without prejudice to City’s right to recover the balance of such Sublease Advance Rent or pursue any other remedy in accordance with this Sublease, at law or in equity. RIDA waives all rights that it may have under present or future law to designate the items of Sublease Advance Rent to which any payments made by RIDA are to be credited. RIDA agrees that City may apply any payments made by RIDA to such items of Sublease Advance Rent as City designates, irrespective of any designation or request by RIDA as to the items of Sublease Advance Rent to which such payments should be credited. Section 3.5 Base Rent and Additional Rent. In partial consideration of the City’s agreement to sub-sublease the Site and to sublease the Improvements to RIDA on the terms set forth in this Sublease, RIDA agrees to pay to City the Periodic Rent in accordance with this Section 3.5. All payments of Periodic Rent and other sums due to City hereunder shall be paid in legal tender of the United States, without notice, invoice, setoff, deduction or demand, except as otherwise expressly provided herein. No payment by RIDA or receipt or acceptance by City of a lesser amount than the required amount of Periodic Rent shall be deemed to be a waiver of any current or preceding breach by RIDA of any provision hereof. No endorsement or statement on any check or any letter accompanying any check or payment as Periodic Rent shall be deemed an accord and satisfaction, and City has the right to accept such check or payment without prejudice to City’s right to recover the balance of such Periodic Rent or pursue any other remedy in accordance with this Sublease, at law or in equity. RIDA waives all rights that it may have under present or future law to designate the items of Periodic Rent to which any payments made by RIDA are to be credited. RIDA agrees that City may apply any payments made by RIDA to such items of Periodic Rent as City designates, irrespective of any designation or request by RIDA as to the items of Periodic Rent to which such payments should be credited. Attachment K 8 US-DOCS\118371412.45 (a) Base Rent. RIDA shall pay Base Rent on the dates and in the amounts set forth in Exhibit B-1 hereto. (b) Additional Rent. RIDA shall pay Additional Rent in an amount calculated in accordance with Exhibit B-2 hereto, payable monthly on the dates set forth in Exhibit B-2. (c) Late Charges. RIDA hereby acknowledges that late payment by RIDA to City of Periodic Rent will cause City to incur costs not contemplated by this Sublease. In the event RIDA has not paid the Periodic Rent due in accordance with the provisions of this Sublease, within three (3) Business Days from when the Periodic Rent is due, RIDA shall pay, in addition to the unpaid Periodic Rent, five percent (5%) of the Periodic Rent due (“Late Charges”). The Parties hereby agree that said Late Charges are supplemental Rent and are not interest and that the Late Charges apply whether or not RIDA receives notice of its failure to pay Periodic Rent. Notwithstanding the foregoing, in no event shall any Late Charge be less than One Hundred Dollars ($100). Acceptance by City of any Late Charge or the late payment of any Periodic Rent or any portion thereof shall in no event constitute a waiver of an Event of Default with respect to such overdue amount, nor shall it prevent City from exercising any of its other rights and remedies hereunder. In addition to the application of a Late Charge, if RIDA fails to pay any Periodic Rent when due, then the unpaid Periodic Rent amount shall accrue interest at the Default Rate from the date due until paid, and such interest shall constitute supplemental Rent. Section 3.6 Section 467 of the Code. The Parties acknowledge and agree that, for federal income tax purposes, amounts paid or funded by RIDA pursuant to Sections 3.5(b) (Additional Rent), 3.5(c) (Late Charges), 3.7 (Capital Expenditures as Rent), 3.9 (Reimbursement), 4.5(b) (Payment of Premiums; Right of City to Pay and be Reimbursed), Section 6.6 (Maintenance and Repair) and Section 6.8(b) (City Repair Rights), and which are treated as Rent hereunder, shall constitute “contingent payments” for purposes of Section 467 of the Code and the regulations thereunder and shall be allocable to the period in which the requisite amounts are accrued. For purposes of the foregoing, (i) amounts paid or funded by RIDA pursuant to Sections 3.7 (Capital Expenditures as Rent), Section 6.6 (Maintenance and Repair) and Section 6.8(b) (City Repair Rights) shall, to the extent such amounts would be required to be capitalized into the basis of the Convention Center, be accrued on a “straight-line” basis from the date the relevant improvements are “placed in service” over the remaining Term, (ii) amounts paid by RIDA pursuant to Section 3.4 (Sublease Advance Rent) shall be accrued on a “straight-line” basis from the date such amounts are paid over the remaining Term and (iii) amounts paid by RIDA pursuant to Section 3.5(b) (Base Rent and Additional Rent) shall be allocable to and deductible by RIDA in the taxable period in which such amounts accrued. Section 3.7 Capital Expenditures as Rent. In partial consideration of its right to occupy the Facility, capital expenditures made by RIDA to fund any alterations or any improvements to the Convention Center or the Site shall be treated as supplemental Rent hereunder. Section 3.8 Use and Possession. During the Term, RIDA shall be entitled to the exclusive use and possession of the Facility, subject only to the Permitted Encumbrances and rights of access provided for herein and in the Project Implementation Agreement. Section 3.9 Reimbursement. The reimbursement procedure set forth in this Section 3.9 shall be referred to as the “Reimbursement Procedure”. If under the terms of the Convention Center Leases an amount expended by a Public Entity is to be reimbursed by RIDA, then RIDA shall Attachment K 9 US-DOCS\118371412.45 reimburse the applicable Public Entity for the subject amount within thirty (30) days of RIDA’s receipt of reasonable evidence of the nature and the amount of costs incurred by the applicable Public Entity, including, without limitation, a reasonably detailed invoice or statement from the applicable Public Entity, for the subject amount and, if applicable, copies of any applicable third party invoices, and/or work description. The Parties acknowledge that RIDA’s obligations to reimburse the Public Entities are derived from its interest in the Facility hereunder and thus any amounts owed to the applicable Public Entity pursuant to the Reimbursement Procedure shall accrue interest at the Default Rate from the date due until paid if not paid within the time period permitted under the Reimbursement Procedure. Section 3.10 Net-Net-Net Lease. Subject to the last sentence of this Section 3.10, RIDA acknowledges that the Rent will be absolutely net of any costs or expenses to City relating to the Site or any Improvements and acknowledges and agrees that City shall not be responsible for any costs, charges, expenses and outlays of any nature whatsoever arising from or relating to the Site or any Improvements during the Term, whether foreseen or unforeseen and whether or not within the contemplation of the Parties as of the Commencement Date, except as shall be otherwise expressly provided in the Convention Center Leases. Without limitation of the foregoing, City shall not be required to construct, install, provide or arrange for any utilities, roadway, docks, tide walls, drainage or other improvements of any nature on, in, under or above the Site. Except as expressly set forth herein, RIDA shall not be responsible for the payment of (i) any administrative costs of the Public Entities relating to the Facility, (ii) taxes imposed on the Public Entities based on income or profit of any of the Public Entities as a result of their respective interests in the Facility or undertaking of the transactions contemplated herein, (iii) fees of auditors, accountants, attorneys or engineers, (iv) insurance premiums required to be paid for by the City pursuant to this Sublease, (v) any costs associated with the issuance, administration or enforcement of the Bonds, nor (vi) any other administrative or overhead costs or expenses incurred by any of the Public Entities in connection with this Sublease. Section 3.11 Further Assurances and Corrective Instruments. The City and RIDA agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site hereby sub- subleased or the Convention Center hereby subleased or intended to be sub-subleased or subleased, respectively, or for carrying out the express intention of this Sublease. Section 3.12 Security Deposit. (a) A security deposit in the amount of $350,000 shall be provided to the JEPA, as assignee of the City, by RIDA, on or before RIDA’s execution of this Sublease. The security deposit shall be held by the JEPA and used for the purpose of remedying an Event of Default. If there shall be an Event of Default, then the JEPA shall have the right, but shall not be obligated, to use, apply or retain all or any portion of the security deposit for the payment of any (a) Rent or any other amount applicable to such Event of Default, or (b) amount that the JEPA may spend or become obligated to spend, or for the compensation of the JEPA for any losses incurred, by reason of such Event of Default (including any damage or deficiency arising in connection with the reletting of the Facility). If any portion of the security deposit (in whatever form) is so used or applied, then, within three (3) Business Days after the JEPA gives written notice to RIDA of such use or application, RIDA shall increase the Letter of Credit (as defined below) (or deliver to the JEPA, as assignee of the City, additional funds, in the case of a cash security deposit) in an amount sufficient to restore the Attachment K 10 US-DOCS\118371412.45 security deposit to the original security deposit amount, and RIDA’s failure to do so shall constitute an Event of Default if such failure is not cured within the notice and cure period set forth in Section 8.1(b) below. RIDA waives any and all rights that RIDA may have under Section 1950.7 of the California Civil Code, any successor statute, and all similar provisions of Law, now or hereafter in effect. RIDA agrees that (i) any statutory time frames for the return of a security deposit are superseded by the express period identified in this Section 3.12, and (ii) the JEPA has the right to claim from the security deposit any and all sums expressly identified in this Section 3.12, and any additional sums reasonably necessary to compensate the JEPA for any and all losses or damages caused by the Event of Default, including, but not limited to, all damages or Rent due upon termination of this Sublease pursuant to Section 1951.2 of the California Civil Code. The JEPA shall not be required to keep the security deposit in trust, segregate it or keep it separate from the JEPA’s general funds, and RIDA shall not be entitled to any interest accrued on the security deposit. (b) In satisfaction of RIDA’s obligation set forth in this Section 3.12, RIDA may deliver to the JEPA, as assignee of the City, an irrevocable stand-by letter of credit (“Letter of Credit”) issued by Wells Fargo Bank, N.A. or another bank that has a Moody’s Long Term Letter of Credit rating of “A-” or higher and a Moody’s Long Term Deposit rating of “A-” or higher. The principal sum of the Letter of Credit shall be made payable to the JEPA, as assignee of the City, or order. Each Letter of Credit provided during the Term shall be valid for a minimum of twelve (12) months from date of issuance; provided, however, that, subject to Section 3.12(e), when the remaining Term is one (1) year or less, the Letter of Credit shall be valid for a minimum of three (3) months beyond the last day of the Term and if a Letter of Credit is not valid for the entire remaining Term plus three (3) months beyond the last day of the Term, then such Letter of Credit shall be extended or renewed at least sixty (60) days prior to its expiration. (c) All of the principal sum of the Letter of Credit shall be available unconditionally to the JEPA, as assignee of the City, for the purposes and uses for the security deposit provided in this Section 3.12. The bank, and the form and provisions of the Letter of Credit shall be acceptable to the JEPA, in its reasonable discretion, and if not so acceptable, the JEPA shall have the right to reject such Letter of Credit; provided, however, that a Letter of Credit substantially in the form of Exhibit C attached hereto without material changes shall be deemed acceptable to the JEPA and any of the banks listed on Exhibit D attached hereto shall be deemed acceptable to the JEPA. The Letter of Credit shall not be acceptable to the JEPA if it requires the JEPA to present the Letter of Credit in person, at a location that is not in San Diego County, send written notice of an Event of Default or request or demand payment from RIDA after an Event of Default, prior to the JEPA drawing on any funds under the Letter of Credit. RIDA acknowledges and agrees that if the JEPA, as assignee of the City, accepts a Letter of Credit from RIDA that must be presented in person at a location that is not in San Diego County, RIDA agrees to pay all reasonable travel and other expenses incurred by the JEPA Parties in presenting the Letter of Credit at its designated location. (d) Notwithstanding the above, RIDA may elect to provide the required security deposit in the form of cash. (e) Notwithstanding anything to the contrary herein, but without limiting Section 8.2(d), the JEPA shall release to RIDA or order, as applicable, the full then-remaining amount of the security deposit within ninety (90) days following Completion of the Convention Center and the issuance by the City of the final certificate of occupancy with respect to the Convention Center. Section 3.13 Peaceable Surrender. Attachment K 11 US-DOCS\118371412.45 (a) Upon the expiration or earlier termination of this Sublease, RIDA shall peaceably surrender the Site to the City in accordance with the end of Term obligations set forth in this Sublease, including without limitation, in the same good order and condition as of the commencement of the Term, reasonable wear and tear and any improvements permitted by this Sublease or the Project Implementation Agreement excepted (subject to any demolition obligations with respect to any such improvements under this Sublease or the Project Implementation Agreement). If RIDA fails to surrender the Site at the expiration of this Sublease or the earlier termination or cancellation thereof in the condition required under this Sublease, in addition to the City’s other remedies, RIDA shall defend and indemnify the City from all liability and expense resulting from the delay or failure to surrender, including without limitation any succeeding tenant claims based on RIDA’s failure to surrender or the Public Entities' failure to deliver the Site due to RIDA’s failure to so surrender the Site and loss of profits due to RIDA’s failure to so surrender the Site. (b) Immediately following the expiration or earlier termination of this Sublease, RIDA shall execute, deliver, and cause to be recorded in the Office of the Recorder of San Diego County, all such documents, including but not limited to a quitclaim deed, as are necessary or advisable to fully release, of record, the encumbrance on title to the Facility which is caused by the terms of this Sublease and convey the Improvements that RIDA may then have (excluding any trade fixtures, installed or constructed on the Site, which shall remain the personal property of RIDA) to the City free and clear of any mechanics’ or materialmen’s liens and other encumbrances (other than any lien for taxes that are not due and payable and, if the Expansion Date occurs, subject to RIDA’s interest in the Improvements under the Ground Lease) and without compensation to any Public Entity or RIDA; it being acknowledged that RIDA will have a leasehold, but not an ownership interest, in the Improvements. RIDA shall thereafter take such actions and execute such documents as may further be necessary or advisable to fully evidence the termination of this Sublease and the release of the City and RIDA from all of their respective obligations hereunder. Without limitation of the foregoing, RIDA hereby appoints the City as RIDA’s attorney-in-fact to execute such deed in the name and on behalf of RIDA and to record same in the official records of San Diego County, California. This power of attorney is irrevocable and coupled with an interest. RIDA shall deliver to the City all such documents as are necessary or advisable to fully release, of record, the encumbrances on title to the Facility which are caused by the terms of this Sublease, including, without limitation, any Permitted Financing Encumbrances with respect to the Improvements. Section 3.14 Waiver. No waiver of any provision of this Sublease shall be implied by any failure of a party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently. Any waiver by a party of any provision of this Sublease may only be in writing, and no express waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in the manner specifically stated. No receipt of monies by City from RIDA after the termination of this Sublease shall in any way alter the length of the Term or of RIDA’s right of possession hereunder or after the giving of any notice shall reinstate, continue or extend the Term or affect any notice given RIDA prior to the receipt of such monies, it being agreed that after the service of notice or the commencement of a suit or after final judgment for possession of the Facility, City may receive and collect any Rent due, and the payment of said Rent shall not waive or affect said notice, suit or judgment. City shall have the power and authority to waive any requirement of RIDA under this Sublease except as such authority may be limited by the Facility Lease; provided, however, that City may elect to obtain approval of the City Council as a condition to exercising this authority. Attachment K 12 US-DOCS\118371412.45 Section 3.15 Holdover. This Sublease shall terminate without further notice at expiration of the Term. Any holding over by RIDA after either expiration or earlier termination of this Sublease without the City’s prior written consent shall be a tenancy at-sufferance upon all of the provisions of this Sublease, except those pertaining to the Term, and except that Rent shall be 150% of the Rent in effect under this Sublease prior to such expiration or termination. If RIDA, with the City’s consent, remains in possession of the Site after the expiration or earlier termination of this Sublease, such possession shall be deemed a month-to-month tenancy terminable upon thirty (30) days’ notice furnished at any time by either Party to the other Party. All provisions of this Sublease, except those pertaining to the Term, shall apply to the month-to-month tenancy, and RIDA shall continue to pay all Rent required by this Sublease. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years. Except for the first sentence of this Section 3.15, this Section 3.15 shall not apply if the Expansion Date occurs. ARTICLE IV INSURANCE Section 4.1 Insurance Requirements. (a) RIDA shall maintain or cause to be maintained at its expense, commencing on the first date after the date that the Construction Period ends, and thereafter, throughout the Term hereof, all policies of insurance that are required by Article 18 of the Ground Lease for operation of the Resort Hotel, in the forms, with all endorsements, and in the amounts required by Article 18 of the Ground Lease; provided that such insurance policies shall also cover the Site and the Improvements with respect to operation thereof; provided, however, RIDA shall ensure that there is no period of time during the Term hereof when neither each insurance policy that is required hereunder is in effect nor any corresponding insurance policy under the Project Implementation Agreement is in effect. The Trustee shall be named as loss payee with respect to all proceeds paid under the all-risk and builders risk insurance covering the Facility only to the extent such proceeds are properly allocable to any loss or damage to the Convention Center with Alterations thereto. No amendments or modifications to the insurance requirements set forth in Article 18 of the Ground Lease shall be made without the City’s prior express written consent to such amendments or modifications. (b) The Public Entities shall be named as additional insureds with respect to all liability insurance policies that Section 4.1(a) requires RIDA to maintain or cause to be maintained. Section 4.2 Rental Interruption Insurance. (a) Coverage and Amount. Except as set forth in this Section 4.2(a), RIDA shall not be required to maintain any rental interruption insurance with respect to the Facility for the City’s lost rental income under this Sublease or the JEPA’s lost rental income under the Facility Lease (“Facility Lease Lost Rental Income Insurance”). If the City requests that RIDA procures and maintains Facility Lease Lost Rental Income Insurance, then RIDA shall use commercially reasonable efforts to procure such Facility Lease Lost Rental Income Insurance in accordance with this Section 4.2(a) so long as procuring or maintaining such Facility Lease Lost Rental Income Insurance does not adversely affect any other insurance that RIDA maintains in connection with the Resort Hotel or the Convention Center, including any insurance that RIDA is required to procure and maintain pursuant to any Convention Center Lease, the Project Implementation Agreement, the Attachment K 13 US-DOCS\118371412.45 Ground Lease or any documentation that evidences or secures any Financing Transaction (as defined in the Ground Lease) or any Financing Transaction (“RIDA Baseline Insurance”), it being understood that RIDA may intend to procure some or all of the RIDA Baseline Insurance through a program managed by the Hotel Operator or an affiliate of the Hotel Operator, and RIDA may determine in its reasonable discretion that procuring the RIDA Baseline Insurance other than through such program would have an adverse effect on the RIDA Baseline Insurance. RIDA shall request proposals for Facility Lease Lost Rental Income Insurance after the City requests that RIDA do so, and shall present such proposals to the City for its consideration. If and as needed, RIDA and the City shall meet and confer regarding such proposals. The Parties understand that it may be most efficient for RIDA to procure Facility Lease Lost Rental Income Insurance in conjunction with the RIDA Baseline Insurance. If (i) the City, in its reasonable discretion, selects a proposal for the procurement of such Facility Lease Lost Rental Income Insurance and (ii) RIDA (A) determines that procuring such Facility Lease Lost Rental Income Insurance will not adversely affect any RIDA Baseline Insurance (including RIDA’s ability to procure RIDA Baseline Insurance) or (B) determines in its sole discretion to procure such Facility Lease Lost Rental Income Insurance, then RIDA shall procure such Facility Lease Lost Rental Income Insurance for the applicable policy period (assuming that such Facility Lease Lost Rental Income Insurance remains commercially available to RIDA), and the City shall promptly reimburse RIDA for the amount by which (x) the aggregate amount expended by RIDA in connection with obtaining and maintaining the RIDA Baseline Insurance and the Facility Lease Lost Rental Income Insurance exceeds (y) the amount that RIDA would have expended in connection with maintaining the RIDA Baseline Insurance had RIDA not also obtained the Facility Lease Lost Rental Income Insurance. Promptly after the City so requests, RIDA shall provide documentation to the City that reasonably evidences the amount of such excess. (b) Additional Requirements. Rental interruption insurance shall name the JEPA as the insured and the Trustee as loss payee as their interests appear. Section 4.3 [Reserved]. Section 4.4 Payment of Insurance Proceeds. (a) Proceeds of any policies of liability insurance required hereunder shall be applied toward extinguishment or satisfaction of the liability with respect to which the insurance proceeds shall have been paid. (b) Any Net Proceeds of all-risk insurance and builders risk insurance (if any) provided pursuant to Section 4.1 with respect to the Facility shall be paid and be applied as provided in Section 5.2 hereof, Section 6.1(a) of the Facility Lease and Section 9.2 of the Project Implementation Agreement. (c) Proceeds of any rental interruption insurance required by Section 4.2 shall be paid to the Trustee and be credited to the payment of Lease Payments under the Facility Lease as they become due and payable. Section 4.5 General Insurance Provisions. (a) Form of Policies. All policies of insurance required to be procured and maintained pursuant to this Sublease, other than the worker’s compensation insurance required by Section 18.2.4 of the Ground Lease, shall provide that each of the Public Entities and the Trustee Attachment K 14 US-DOCS\118371412.45 shall receive 30 days’ notice of each expiration, or any intended cancellation thereof or reduction of the coverage provided thereby. If RIDA receives any notice of expiration or intended cancelation of any such insurance or reduction of coverage from the insurer, it shall promptly deliver such notice to the City. All insurance policies required hereunder must be provided by an insurer with an S&P or AM Best rating of not less than “A-”. (b) Payment of Premiums; Right of City to Pay and be Reimbursed. RIDA shall pay or cause to be paid when due the premiums for all insurance policies required to be purchased by RIDA hereunder. In the event that RIDA fails to maintain all policies of insurance required by Section 4.1 of this Sublease in the forms, with all endorsements, and in the amounts required hereby, then the City may purchase such insurance and RIDA shall reimburse the City for all costs of such insurance if purchased by the City, which reimbursement shall be supplemental Rent. (c) Protection of the Trustee. The Trustee shall not be responsible for the sufficiency or adequacy of any insurance herein required and shall be fully protected in accepting payment on account of such insurance or any adjustment, compromise or settlement of any loss agreed to by RIDA and the City. (d) Evidence of Insurance. During the Term, RIDA shall provide the City with insurance certificates, in the form customary in the insurance industry, issued by the insurer evidencing the existence of the necessary insurance policies and certified endorsements effecting coverage required by Section 4.1. Section 4.6 Cooperation. The City shall cooperate fully with RIDA in filing any proof of loss with respect to any insurance policy maintained pursuant to this Article 4 and in the prosecution or defense of any prospective or pending Condemnation proceeding with respect to the Facility or any portion thereof. ARTICLE V EMINENT DOMAIN; DAMAGE OR DESTRUCTION; USE OF NET PROCEEDS Section 5.1 Eminent Domain. (a) Eminent Domain. If all or any portion of the Facility shall be condemned pursuant to exercise of the power of eminent domain, or acquired under an actual threat of the exercise of such power (collectively, “Condemnation”), then the rights and obligations of the City and RIDA with respect thereto shall be as set forth in this Section 5.1. Nothing in this Section 5.1 shall be interpreted to prevent the City from exercising its power of eminent domain as to RIDA’s sub-subleasehold interest in the Site and subleasehold interest in the Improvements. (b) Notice of Condemnation. If either Party receives notice of any Condemnation or intended Condemnation (including, without limitation, service of process), then, within five (5) Business Days of receipt thereof, such Party shall deliver to the other Party an exact copy of such notice of any Condemnation or intended Condemnation and the date such notice was received. The Port shall receive a copy of any notice received by either Party under this Section 5.1(b). Attachment K 15 US-DOCS\118371412.45 (c) Representation of Interest. City and RIDA shall each have the right to represent its respective interests in such proceeding or negotiation with respect to a Condemnation or intended Condemnation and to make full proof of its claims. City and RIDA each agrees to execute and deliver to the other Party any instrument which may be required to effectuate or facilitate the provisions of this Section 5.1. (d) Early Termination. In the event (i) of a Condemnation (other than a Temporary Condemnation) of all of the Facility, then the 2021A Bonds shall be redeemed in whole from the Available Condemnation Amount (defined in subparagraph (C) below) and the amount, if any, required to be paid by RIDA pursuant to subparagraph (C) below and RIDA shall obtain the consents from the Permitted Lenders pursuant to subparagraph (A) below and the releases from the Permitted Lenders pursuant to subparagraph (B) below. In the event (i) of a Condemnation (other than a Temporary Condemnation) of a portion of the Facility with respect to which the total proceeds of Condemnation exceed Seventy Million Dollars ($70,000,000), and prevents RIDA from reasonably and economically using the remainder of the Facility, for the same Permitted Use as at the time of the Condemnation (as reasonably determined by RIDA and reasonably approved by the City and the JEPA) or (ii) of a Condemnation (other than a Temporary Condemnation) where the Facility or any portion thereof needs to be repaired or restored as a result of a Condemnation (other than a Temporary Condemnation), (1) the cost of such repair or restoration exceeds ten percent (10%) of the then current fair market value of all of the Convention Center and (2) the amount that the Trustee has received as part of the Leasehold Award from the Condemnation is less than ninety percent (90%) of the cost of such repair or restoration, then, in the case of either (i) or (ii) above, RIDA may terminate this Sublease by delivering to the City written notice thereof and if RIDA exercises this option, this Sublease shall then terminate as of the date the following conditions are satisfied: (A) each Permitted Lender consents to the termination of this Sublease; (B) each Permitted Lender releases all liens in its favor on the Site, Improvements, and RIDA’s subleasehold interest in this Sublease (but not in any Leasehold Award to which such Permitted Lender is entitled pursuant to Section 5.1(g)); and (C) as applicable, (a) if such Condemnation occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has not terminated in accordance with the terms thereof, RIDA pays to the Trustee the lesser of: (i) Five Million Dollars ($5,000,000) and (ii) the positive difference (if any) of (A) the amount that is necessary to redeem the outstanding principal amount of the 2021A Bonds under the Indenture (other than the principal amount of the 2021A Bonds that corresponds to the amount of capitalized interest and costs of issuance (with respect to the Bonds) funded with the proceeds of the 2021A Bonds) minus (B) the sum of: (1) the amount that is then on deposit in the 2021A Account of the Construction Fund; (2) the amount on deposit in the 2021A Account of the Reserve Fund; (3) the amount on deposit in the Revenue Fund that would have been applied to pay debt service on the 2021A Bonds in the current Bond Year, as calculated by the JEPA based on the debt service due on all Bonds then outstanding (such aggregate amount in clauses (1) through (3), the “Available Condemnation Amount on Deposit”); and (4) the amount of the Leasehold Award that the Trustee has received with respect to such Condemnation (such aggregate amount in this clause (B), the “Available Condemnation Amount”), or (b) if such Condemnation occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has terminated in accordance with the terms thereof, RIDA pays to the Trustee the positive difference (if any) of (A) the amount that is necessary to redeem the outstanding Attachment K 16 US-DOCS\118371412.45 principal amount of the 2021A Bonds under the Indenture minus (B) the Available Condemnation Amount. If (i) a Condemnation (as defined in the Ground Lease) affects the Resort Hotel, and (ii) RIDA will no longer operate the Resort Hotel under the Ground Lease (it being understood that such failure to operate will result in a material reduction in Convention Center bookings) then RIDA shall within ninety (90) days of the Condemnation, pay to the Trustee (a) the amount set forth in Section 5.1(d)(C)(a) above if such Condemnation occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has not terminated in accordance with the terms thereof, or (b) the amount set forth in Section 5.1(d)(C)(b) above if such Condemnation occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has terminated in accordance with the terms thereof, and, except as set forth in the following sentence, this Sublease shall terminate as of the date when the conditions set forth in Sections 5.1(d)(A) and 5.1(d)(B) are satisfied. As an alternative to terminating this Sublease following the redemption of the 2021A Bonds pursuant to this paragraph, RIDA may deliver notice to the City that it is electing to continue as the subtenant under this Sublease following the termination of the Ground Lease. In such event, RIDA shall continue to be bound by all the terms of this Sublease following the termination of the Ground Lease. Any termination of this Sublease pursuant to this Section 5.1(d) shall act to relieve RIDA from any further liability under this Sublease except as to obligations accruing or arising on or prior to such termination or which are otherwise required to be performed in connection with such termination or surrender of the Facility or which otherwise expressly survive such termination. In the event of a termination, RIDA shall deliver the portion of the Site that has not been Condemned to the City in a Buildable Condition and in accordance with any other condition required for the surrender of the Site under this Sublease. (e) Partial Condemnation. If only a portion of the Site or the Improvements is subject to Condemnation and this Sublease is not terminated pursuant to Section 5.1(d) above, then (i) this Sublease shall continue in full force and effect upon the same terms and conditions as set forth herein, (ii) the Base Rent shall be reduced in proportion to the loss of use of the Site and/or the Improvements, as applicable, after the Condemnation as compared to the use of the Site and/or the Improvements, as applicable, immediately prior to the Condemnation (as reasonably determined by the City and approved by RIDA in its reasonable discretion), and (iii) any Leasehold Award shall be applied as set forth in Section 5.1(g)(i)(A)(1) and, if applicable, Section 5.1(g)(i)(B). If only a portion of the Site or the Improvements is subject to Condemnation and this Sublease is terminated pursuant to Section 5.1(d) above, then any Leasehold Award shall be applied as set forth in Section 5.1(g)(i)(B). (f) Temporary Condemnation. If the Facility or any portion thereof is subject to a Temporary Condemnation, then this Sublease shall continue in full force and effect. Any portion of an award, settlement or other compensation or damages which may be given for such Temporary Condemnation attributable to the Term shall be paid to the Trustee, as assignee of the JEPA of the Assigned Rights, and shall be deposited by the Trustee in the Revenue Fund for application in accordance with Section 4.2 of the Indenture, and the Base Rent under this Sublease shall be adjusted or abated in an amount equal to the amount of such portion of such award, settlement or other compensation or damages, as applicable. As used herein, a “Temporary Condemnation” shall mean any taking which is not intended by the condemning authority to be permanent at the time such Condemnation initially occurs. Attachment K 17 US-DOCS\118371412.45 (g) Award. (i) Leasehold Award. Any and all awards and/or settlements or other compensation or damages for any Condemnation (excluding any compensation or damages for any Temporary Condemnation and excluding any compensation or damages attributable to RIDA’s personal property that would be retained by RIDA at the end of the Term) of any portion of or all of the Facility or the leasehold estate created by this Sublease (collectively, “Leasehold Award”) shall be paid as follows: (A) (1) Provided this Sublease is not terminated pursuant to Section 5.1(d)(i) above, that portion of the Leasehold Award determined by the City to be reasonably necessary to repair and restore the remaining portion of the Improvements shall be payable in trust to the Trustee and shall be deposited in the Insurance and Condemnation Fund pursuant to Section 4.5 of the Indenture and Section 6.1(d) of the Facility Lease. Such portion of the Leasehold Award shall be held in trust by the Trustee in the Insurance and Condemnation Fund pursuant to the terms of the Indenture. If, no later than six (6) months after the date that any applicable Condemnation has occurred or such later date as the JEPA consents to pursuant to Section 6.1(c) of the Facility Lease, RIDA has provided to the City, the JEPA and the Trustee the certifications to be provided by RIDA as set forth in Section 6.1(b)(i)(A) and Section 6.1(b)(i)(C) of the Facility Lease, and the City has provided the certifications to be provided by the City as set forth in Sections 6.1(b)(i)(A), 6.1(b)(i)(B) and 6.1(d)(iii) of the Facility Lease, then such portion of the Leasehold Award shall be transferred to the 2021A Account of the Construction Fund pursuant to Section 4.5 of the Indenture and disbursed by the Trustee in accordance with Section 6.1(d)(iii) of the Facility Lease, the terms of the Indenture and Section 9.2 of the Project Implementation Agreement, for the payment of the costs of repairing and restoring the remaining portion of the Improvements to substantially its condition prior to such Condemnation or to such other condition as the City (at RIDA’s request and based on information provided by RIDA) has certified to the Trustee pursuant to Section 6.1(d)(iii) of the Facility Lease will have an annual fair rental value of not less than the Maximum Lease Payments (under and as defined in the Facility Lease) that the City is required to pay in each Lease Year (as defined in the Facility Lease). If RIDA requests that the City provide such certification, then the City shall promptly request that RIDA provide information that the City reasonably requires to establish the truthfulness of such certification, RIDA shall provide the City with such information, and if the truthfulness of such certification is established to the reasonable satisfaction of the City, then the City shall make such certification as and when required under the Facility Lease. If any such Condemnation occurs prior to the date that the Convention Center has been Completed and the Convention Center is to be repaired and restored as provided above, then, in addition to the Condemnation Proceeds deposited in the Insurance and Condemnation Fund and subsequently transferred to the 2021A Account of the Construction Fund, any amounts remaining on deposit in the 2021A Account of the Construction Fund shall continue to be available to fund construction of the Convention Center and shall be disbursed by the Trustee in accordance with Section 3.10 of the Indenture and Section 9.2 of the Project Implementation Agreement prior to disbursement by the Trustee of any amounts initially on deposit in the Insurance and Condemnation Fund and later transferred to the 2021A Account of the Construction Fund. (2) If there is no Trustee or if there is but the Trustee declines to act as a trustee for the disbursement of funds as provided above, then such Leasehold Award shall be payable in trust to the Permitted Mortgage Lender with an outstanding Permitted Lease Financing Encumbrance that is still outstanding, and shall be disbursed by such Permitted Mortgage Lender as provided above. If the Permitted Mortgage Lender is the trustee for disbursement, then the Attachment K 18 US-DOCS\118371412.45 Permitted Mortgage Lender may disburse the progress payments in accordance with its normal loan disbursement procedures (e.g., upon receipt of appropriate mechanics’ lien releases, and invoices) so long as such disbursement procedures are reasonably acceptable to the City and ensure that the Leasehold Award is applied to the costs of repairing and restoring the remaining portion of the Improvements or to redeem the 2021A Bonds as set forth in this Section 5.1. If there is no such Permitted Mortgage Lender, or if there is, but it declines to hold and disburse the Leasehold Award, then such Leasehold Award shall be payable to a bank or trust company doing business in the County of San Diego agreed upon by the Parties, or if the Parties fail to agree, to Bank of America, N.A., or its successor, and such Leasehold Award shall be deposited in interest bearing accounts or deposits agreed upon by the Parties, or if the Parties fail to agree, then in the bank’s regular passbook savings account, and shall be disbursed as provided above after all amounts in the 2021A Account of the Construction Fund are disbursed by the Trustee for the costs of repairing and restoring the remaining portion of the Improvements or to redeem the 2021A Bonds as set forth in this Section 5.1. (B) If this Sublease is terminated pursuant to Section 5.1(d), or if there are excess proceeds available after completion of the repair and restoration of the remaining portion of the Improvements as provided above, then any portion of the Leasehold Award not used for the repair and restoration of the remaining portion of the Improvements pursuant to clause (A) above, or used to place the Improvements in a Buildable Condition and satisfy any other conditions required for the surrender of the Site under this Sublease to the City, shall be paid as follows (with all amounts on deposit in the funds and accounts listed below being exhausted first prior to use of any Net Proceeds): (1) first, a portion of such Net Proceeds equal to an amount that, when taken together with the Available Condemnation Amount on Deposit, will be sufficient to redeem the 2021A Bonds under the Indenture, shall be used (along with the Available Condemnation Amount on Deposit) to redeem the 2021A Bonds, (2) second, to RIDA in an amount equal to the unamortized portion of all Advance Rent paid by RIDA under this Sublease, as reimbursement of such Advance Rent, (3) third, to the Port to the extent of any loss in value of the Port’s fee interest in the Site, and (4) fourth, to RIDA. (C) If there is any Permitted Lender that has a Permitted Financing Encumbrance outstanding, any portion of the Leasehold Award relating to the Improvements and not used as described in clauses (A) and (B) and which is payable to RIDA pursuant to clause (B) shall be paid to the Permitted Lender that has the highest priority lien, to be applied against the indebtedness that is secured by its Permitted Financing Encumbrance to the extent such payment is required to be made by RIDA pursuant to the terms of the Permitted Financing Encumbrance held by the Permitted Lender, (ii) Claims by RIDA. Nothing in this Section 5.1 shall be construed to preclude RIDA from prosecuting any claim directly against the condemning authority (but only in a manner consistent with this Section 5.1), but not against the City or the Port (unless the City or the Attachment K 19 US-DOCS\118371412.45 Port is the condemning entity), if such claim does not diminish or otherwise adversely affect the Leasehold Award or the City’s rights herein. RIDA shall be entitled to any award allocated by a court of competent jurisdiction to RIDA’s personal property. (h) RIDA hereby acknowledges that the City may consult with the JEPA prior to making any determinations under this Section 5.1, and, with respect to certain determinations, the City is required to consult with the JEPA pursuant to the Facility Lease. Section 5.2 Damage or Destruction. (a) Casualty. Subject to Section 5.2(b) and Section 5.2(c), in the event of any damage to or destruction of the Site or any Improvements, whether or not from a risk coverable by the insurance described in Section 4.1, RIDA shall promptly repair and restore the Site or such Improvements, in a manner reasonably approved in writing by the City, so that after such restoration and repair, the Facility is in substantially the same condition as existed prior to such event of damage or destruction, as applicable, or to such other condition as the City, at RIDA’s reasonable request and based on information provided by RIDA, has certified to the JEPA, the Port and the Trustee will have an annual fair rental value in each Lease Year (under and as defined in the Facility Lease) of not less than the Maximum Lease Payment (under and as defined in the Facility Lease) in each Lease Year. If RIDA requests that the City provide such certification, then the City shall reasonably request that RIDA provide information that the City reasonably requires to establish the truthfulness of such certification, RIDA shall provide the City with such information, and if the truthfulness of such certification is established to the reasonable satisfaction of the City, then the City shall make such certification as and when required under Section 6.1(b)(i)(A) of the Facility Lease. Any property insurance policy proceeds received in connection with and that are allocable to such damage to or destruction of the Site or such Improvements (“Casualty Proceeds”) shall be paid to the Trustee as “loss payee” under the property insurance policies that are required to be maintained pursuant to the Project Implementation Agreement and this Sublease and shall be deposited into the Insurance and Condemnation Fund pursuant to Section 4.5 of the Indenture and Section 6.1(a) of the Facility Lease. Such Casualty Proceeds shall be held in trust by the Trustee in the Insurance and Condemnation Fund pursuant to the terms of the Indenture. If, no later than six (6) months after the date that any damage to or destruction of the Site or any Improvements has occurred or such later date as the JEPA consents to pursuant to Section 6.1(b) of the Facility Lease, RIDA has provided to the City, the JEPA and the Trustee the certifications to be made by RIDA as set forth in Section 6.1(b)(i)(A) and Section 6.1(b)(i)(C) of the Facility Lease, and the City has provided the certifications to be made by the City as set forth in Section 6.1(b)(i)(A) and Section 6.1(b)(i)(B) of the Facility Lease, then such Casualty Proceeds shall be transferred by the Trustee to the 2021A Account of the Construction Fund and disbursed by the Trustee in accordance with Section 6.1(b) of the Facility Lease, the terms of the Indenture and Section 9.2 of the Project Implementation Agreement to fund the repair or restoration of the Site and the Improvements. If RIDA has made the certifications to be made by RIDA pursuant to Section 6.1(b)(i)(A) and Section 6.1(b)(i)(C) of the Facility Lease and requests the City to make the certifications to be made by the City in Section 6.1(b)(i)(A) and Section 6.1(b)(i)(B) of the Facility Lease then the City shall promptly request information that the City reasonably requires to establish the truthfulness of RIDA’s certifications and to make the City’s required certifications, and if the truthfulness of RIDA’s certifications and the evidence required by the City to make its certifications is established to the reasonable satisfaction of the City, then the City shall promptly make such certifications as and when required under the Facility Lease. If any damage to or destruction of the Site or any Improvements occurs prior to the Attachment K 20 US-DOCS\118371412.45 date that such Improvements have been Completed, then, in addition to the Casualty Proceeds deposited in the Insurance and Condemnation Fund and subsequently transferred to the 2021A Account of the Construction Fund, all amounts remaining on deposit in the 2021A Account of the Construction Fund shall continue to be available to fund construction of the Site and the Improvements and shall be disbursed by the Trustee in accordance with Section 3.10 of the Indenture and Section 9.2 of the Project Implementation Agreement prior to disbursement by the Trustee of any Casualty Proceeds deposited in the Insurance and Condemnation Fund and subsequently transferred to the 2021A Account of the Construction Fund. Upon completion of repair or restoration of such damage or destruction, as applicable, free and clear of mechanics or other liens, any remaining balance of the Casualty Proceeds in the 2021A Account of the Construction Fund with respect to such damage or destruction, as applicable (exclusive of any proceeds applicable to RIDA’s personal property that would be retained by RIDA at the end of the Term, all of which shall be paid to RIDA), shall be paid to RIDA as reimbursement of the unamortized portion of any Advance Rent previously paid by RIDA; provided, however, if there is any Permitted Lender that has a Permitted Financing Encumbrance outstanding, then such amount shall be paid to the Permitted Lender that has the highest priority lien to be applied against the indebtedness that is secured by its Permitted Financing Encumbrance to the extent such payment is required to be made by RIDA pursuant to the terms of the Permitted Financing Encumbrance held by the Permitted Lender. If there is no Trustee or if there is but the Trustee declines to act as a trustee for the disbursement of funds as provided above, then any Casualty Proceeds shall be payable in trust to the Permitted Mortgage Lender with an outstanding Permitted Lease Financing Encumbrance that is still outstanding, and shall be disbursed by such Permitted Mortgage Lender as provided above. If the Permitted Mortgage Lender is the trustee for disbursement, then the Permitted Mortgage Lender may disburse the payments in accordance with its normal disbursement procedures (e.g. upon receipt of appropriate mechanics lien releases, invoices, etc.) so long as such disbursement procedures are reasonably satisfactory to City and ensure that the Casualty Proceeds are applied to the costs of repairing, restoring or replacing the Site and the Improvements that were damaged or destroyed. If there is no such Permitted Mortgage Lender, or if there is, but it declines to hold and disburse the Casualty Proceeds, then such Casualty Proceeds shall be payable to a bank or trust company doing business in the County of San Diego agreed upon by the Parties, or if the Parties fail to agree, to Bank of America, N.A., or its successor, and such Casualty Proceeds shall be deposited in interest bearing accounts or deposits agreed upon by the Parties, or if the Parties fail to agree, then in the bank’s regular passbook savings account, and shall be disbursed as provided above after all amounts in the 2021A Account of the Construction Fund are disbursed by the Trustee for the costs of repairing and restoring the remaining portion of the Site and the Improvements. To the extent that the Casualty Proceeds and all amounts that are on deposit in the 2021A Account of the Construction Fund, are insufficient to pay for the costs of restoring, repairing or replacing the damaged Site and Improvements, RIDA shall pay such deficiency to the Trustee for application to the restoration costs in accordance with Section 6.1(b) of the Facility Lease, within ninety (90) days after the insurer first makes available such Casualty Proceeds for repair, restoration or replacement. In satisfaction of its obligation under the preceding sentence, RIDA may provide a letter(s) of credit or a completion guaranty, in each case, in a form reasonably acceptable to each of the City, the Port and the JEPA, in an amount equal to such deficiency. As and to the extent provided in the Project Implementation Agreement, the provisions of Article 9 of the Project Implementation Agreement shall apply to all work performed pursuant to this Section 5.2. Notwithstanding the foregoing, if RIDA and the Permitted Lender are not able to obtain sufficient Casualty Proceeds (in the case of an insured casualty) or construction funds (in the case of an uninsured casualty) to Attachment K 21 US-DOCS\118371412.45 commence repair, restoration or replacement of the damaged Site or Improvements within ninety (90) days of such damage or destruction, and in the case of an insured casualty, RIDA has used its best efforts to, or the Permitted Lender has used its reasonable efforts to, so obtain such Casualty Proceeds or, in the case of an uninsured casualty, RIDA and the Permitted Lender have used their best efforts to obtain sufficient construction funds, then RIDA and the Permitted Lender shall have such additional time as is necessary to obtain such Casualty Proceeds or construction funds (but in no event to exceed one hundred and eighty (180) days from the date of such damage or destruction) in which to commence to repair, restore or replace the damaged Site and Improvements (including commencing engineering or permitting with respect thereto). (b) Termination. Notwithstanding anything in Section 5.2(a) to the contrary, if: (1) (A) there is damage or destruction to the Site or any Improvements and (B) (a) the cost of repairing said damage or destruction exceeds Fifty Million Dollars ($50,000,000) and a Permitted Mortgage Lender requires that any or all of Casualty Proceeds with respect to such damage or destruction are used to repay any indebtedness that is secured by a Permitted Lease Financing Encumbrance or (b) the cost of repairing said damage or destruction exceeds the Casualty Proceeds with respect to such damage or destruction (exclusive of any Casualty Proceeds attributable to RIDA’s personal property that would be retained by RIDA at the end of the Term) by at least Five Million Dollars ($5,000,000) then RIDA shall have the option to terminate this Sublease and if RIDA exercises such option, this Sublease shall then terminate upon RIDA’s satisfaction of all of the requirements in subparagraphs (i) through (vi) below, or (2) (A) there is damage or destruction to any Improvements and (B) Casualty Proceeds with respect to such damage or destruction are required to be applied in accordance with Section 6.1(c) of the Facility Lease because the certifications required to be made pursuant to Section 6.1(b)(i) of the Facility Lease are not provided to the JEPA and the Trustee within six (6) months of said damage or destruction, then RIDA shall promptly satisfy the requirements in subparagraphs (i) and (iii) through (vi) below and this Sublease shall then terminate: (i) RIDA shall have procured and maintained all property damage insurance that it is required to procure and maintain pursuant to this Sublease (except for any immaterial deviation from such requirements) and RIDA shall have exercised commercially reasonable efforts to obtain all available Casualty Proceeds with respect to such damage or destruction; (ii) RIDA shall, within ninety (90) days after the date of such damage or destruction, give the City written notice of its election to terminate (“Notice of Election to Terminate”); (iii) RIDA shall secure and deliver to the City the written consent of each Permitted Lender to terminate this Sublease; (iv) RIDA shall secure and deliver to the City the releases from each Permitted Lender of all liens in favor of each Permitted Lender on the Site, Improvements, and RIDA’s interest in this Sublease effective as of the termination date (other than any liens with respect to insurance proceeds to which such Permitted Lender is entitled pursuant to this Section 5.2, if any); (v) as applicable, (A) if such damage or destruction occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has not terminated in accordance with the terms thereof, RIDA pays to the Trustee the lesser of: (1) Five Million Attachment K 22 US-DOCS\118371412.45 Dollars ($5,000,000) and (2) the positive difference (if any) of (x) the amount that is necessary to redeem the outstanding principal amount of the 2021A Bonds under the Indenture (other than the principal amount of the 2021A Bonds that corresponds to the amount of capitalized interest and costs of issuance (with respect to the Bonds) funded with the proceeds of the 2021A Bonds) minus (y) the sum of: (a) the amount that is then on deposit in the 2021A Account of the Construction Fund; (b) the amount on deposit in the 2021A Account of the Reserve Fund; (c) the amount on deposit in the Revenue Fund that would have been applied to pay debt service on the 2021A Bonds in the current Bond Year, as calculated by the JEPA based on the debt service due on all Bonds then outstanding (such aggregate amount in clauses (a) through (c), the “Available Casualty Amount on Deposit”); and (d) the amount of the Casualty Proceeds that the Trustee has received with respect to such damage or destruction (such aggregate amount in this clause (A), the “Available Casualty Amount”), or (B) if such damage or destruction occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has terminated in accordance with the terms thereof, RIDA pays to the Trustee the positive difference (if any) of (x) the amount that is necessary to redeem the outstanding principal amount of the 2021A Bonds under the Indenture minus (y) the Available Casualty Amount, and (vi) RIDA shall, within one hundred and eighty (180) days of the City’s receipt of the Notice of Election to Terminate or the termination date of this Sublease pursuant to Section 5.2(b)(2) above, surrender the Site to the City in a Buildable Condition and in accordance with any other conditions required for the surrender of the Site under this Sublease to the City. If (i) any damage to or destruction of the Resort Hotel occurs, and (ii) RIDA will no longer operate the Resort Hotel under the Ground Lease (it being understood that such failure to operate will result in a material reduction in Convention Center bookings) then RIDA shall within ninety (90) days of such damage or destruction pay to the Trustee (a) the amount set forth in Section 5.2(b)(v)(A) above if such damage or destruction occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has not terminated in accordance with the terms thereof, or (b) the amount set forth in Section 5.2(b)(v)(B) above if such damage or destruction occurs at a time when any 2021A Bonds are outstanding and the Completion Guaranty has terminated in accordance with the terms thereof, and, except as set forth in the following sentence, this Sublease shall terminate as of the date when the conditions set forth in Section 5.2(b)(iii), Section 5.2(b)(iv) and Section 5.2(b)(vi) are satisfied. As an alternative to terminating the Sublease following the redemption of the 2021A Bonds pursuant to this paragraph, RIDA may deliver notice to the City that it is electing to continue as the subtenant under this Sublease following the termination of the Ground Lease. In such event, RIDA shall continue to be bound by all the terms of this Sublease following the termination of the Ground Lease. (c) In the event of a damage or destruction giving rise to a termination of this Sublease, any and all Casualty Proceeds (exclusive of any proceeds applicable to RIDA’s personal property that would be retained by RIDA at the end of the Term, all of which shall be paid to RIDA) paid to the Trustee shall be distributed by the Trustee as follows (with all amounts on deposit in the funds and accounts listed below being exhausted first prior to use of any Net Proceeds): (i) first, a portion of such Net Proceeds equal to an amount that, when taken together with the Available Casualty Amount on Deposit, will be sufficient to redeem the Attachment K 23 US-DOCS\118371412.45 2021A Bonds under the Indenture, shall be used (along with the Available Casualty Amount on Deposit) to redeem the 2021A Bonds; (ii) second, the remaining amount of Net Proceeds shall be distributed to RIDA, provided, however, if there is any Permitted Lender that has a Permitted Financing Encumbrance outstanding, then such amount shall be paid to the Permitted Lender that has the highest priority lien to be applied against the indebtedness that is secured by its Permitted Financing Encumbrance to the extent such payment is required to be made by RIDA pursuant to the terms of the Permitted Financing Encumbrance held by the Permitted Lender. (d) No Rental Abatement. Except as may be expressly permitted in this Sublease, RIDA shall not be entitled to any abatement or reduction in the Rent during any period of time that any portion of the Improvements or any Alterations located on the Site are in need of repair, restoration or replacement or are under construction for such repairs, restoration or replacements or any other period of time during the Term. (e) Waiver of Statutory Provisions. The provisions of this Sublease, including this Section 5.2, constitute an express agreement between the City and RIDA with respect to any and all damage to, or destruction of, all or any part of the Facility or any portion thereof, and any California statute or regulation, now or hereafter in effect, regarding the rights or obligations of a tenant concerning damage or destruction following a casualty event are waived and shall have no application to this Sublease or any damage or destruction to all or any part of the Facility as a result of a casualty event. (f) RIDA hereby acknowledges that the City may consult with the JEPA prior to making any determinations under this Section 5.2 and, with respect to certain determinations, the City is required to consult with the JEPA pursuant to the Facility Lease. ARTICLE VI CONDITIONS AND COVENANTS WITH RESPECT TO THE FACILITY Section 6.1 Permitted Use of the Facility. (a) Permitted Use. RIDA represents and warrants as of the Commencement Date that it has an immediate essential need for all of the Facility, which need is not expected to be temporary or to diminish during the Term, and that RIDA shall make use of the Facility (i) as approximately 275,000 net usable square feet of meeting space located in the Convention Center (the “Primary Use”), (ii) any use which is ancillary or incidental to the Primary Use described in this Section 6.1, and (iii) any other use of the Facility that is approved by the City in its sole and absolute discretion, in writing; provided that any such uses are not restricted or prohibited by the CDP or any Laws (collectively, the “Permitted Use”); and provided, further, that in the event of any conflict between the terms of this Section 6.1 and the CDP or any Laws, RIDA shall deliver notice to the City of such conflict and the Parties shall meet and confer within ten (10) days of the City receiving RIDA’s notice to discuss the conflict and attempt to resolve the conflict in good faith. If the conflict cannot be resolved by the Parties within thirty (30) days after the meet and confer commences, then the Parties shall endeavor to resolve the dispute pursuant to Section 26.12.10 of the Project Implementation Agreement. Except as expressly provided herein, RIDA shall not use or permit the Attachment K 24 US-DOCS\118371412.45 Facility to be used for any uses or purposes other than the Permitted Use. This restriction on use of the Facility absolutely prohibits a change in use by RIDA to a use that is not a Permitted Use. RIDA agrees to comply with all project conditions and all applicable mitigation measures, including, without limitation, those contained in the final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environmental Impact Report,” (UPD# #83356-EIR-658, SCH #2005081077; Document 56562), including, but not limited to, the “Mitigation Monitoring and Reporting Program”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010 (collectively, the “EIR”), and in the CVBMP Documents. RIDA acknowledges and agrees that the only parking it has a right to utilize in connection with the Permitted Use is as set forth in this Section 6.1, Section 4.2 of the Ground Lease, Section 4.3 of the Ground Lease and any Contemporaneous Agreement. RIDA acknowledges and agrees that with respect to any public parking (other than the Parking Improvements) located adjacent to or proximate to the Site, RIDA has only the rights of a member of the public notwithstanding any regular use of such parking by RIDA and/or its employees, subtenants, independent contractors, visitors and patrons, and invitees and the Hotel Operator. For the avoidance of doubt, the foregoing shall in no way affect any parking rights granted under or specifically governed by any Contemporaneous Agreement or any agreement governing parking rights of the Hotel Operator. (b) Primary Use. RIDA agrees that the Site and the Improvements shall be used only and exclusively for the Permitted Use, including the following uses that are ancillary or incidental to the Primary Use and that are designed primarily for Convention Center guests, visitors or employees: (i) Rental of Meeting Space; (ii) Full-service restaurant and/or limited service restaurant, including cocktail lounge and any standalone bar or cocktail lounge; (iii) Snack bar, delicatessen and/or coffee shop(s); (iv) Banquet and other food and beverage uses; (v) Retail shop(s); (vi) Barber and beauty shop; (vii) Spa services; (viii) Health, recreational, and tennis facilities, including recreational lessons; (ix) Bicycle rentals; (x) Rental of automobiles; (xi) Motorcycle rentals; Attachment K 25 US-DOCS\118371412.45 (xii) Boat rentals, beach equipment rentals and beach-related services; (xiii) Special temporary exhibition(s), including production shows (including any and all uses in connection with the production of ICE! (including the use of the ICE! tent as temporary additional meeting space when such ICE! tent is not used for purposes of the ICE! production)) and outdoor entertainment (including ice skating and carnivals); (xiv) Vending machines, including telephones; (xv) Office and counter areas for Convention Center management and other ancillary services that are consistent with services provided by a convention center or a conference center comparable with the Convention Center; (xvi) Back-of-house activities consistent with services provided by a convention center or a conference center comparable with the Convention Center, including but not limited to a shipping center, truck yard loading and unloading, sales, human resources, management, information technology management, repair and storage, employee cafeteria, employee gymnasium or other recreation space, and employee locker room or other storage and changing areas); (xvii) Office and logistics services; (xviii) Construction, operation and maintenance of central plant facilities (including to serve the Resort Hotel); (xix) Installation and hosting of telecommunications equipment; (xx) Building maintenance and workshop area; (xxi) Parking and valet parking services; (xxii) A security office; (xxiii) A parking management office; (xxiv) Storage areas consistent with services provided by a convention center or a conference center comparable with the Convention Center; (xxv) Bicycle parking; (xxvi) Electronic vehicle charging stations; (xxvii) Shuttle bus loading, unloading and management areas; (xxviii) Restrooms; (xxix) Any sign or other advertising device that complies with the CDP (as may be amended with the consent of RIDA), the EIR and Laws and is (A) maintained or used to identify or advertise an establishment, occupancy or service available on the Site, (B) temporarily displayed in conjunction with promotional events, (C) related to the construction or operation of the Attachment K 26 US-DOCS\118371412.45 Improvements (including, for example, directional, identification and related signage) or (D) approved by the City in its sole and absolute discretion; and (xxx) Each other use that (i) is ancillary or incidental to the Primary Use, (ii) is customary for a convention center and/or a conference center in the United States of America that is comparable with the Convention Center and (iii) is not prohibited by the CDP or any Laws. (c) Continuous Operation. From and after sixty (60) days after the Completion of the Convention Center, RIDA shall actively and continuously use and operate the Improvements (other than the Existing Improvements) (in accordance with the Permitted Use, except to the extent a Force Majeure Event renders RIDA unable to do so (which inability, for the avoidance of doubt, shall be for the period of time that such Force Majeure Event prevents the use and/or operation of the Facility (excluding the Existing Improvements) and except for temporary interruptions reasonably and directly related to Alterations (provided that RIDA shall diligently prosecute construction of such Alterations to Completion in accordance with Section 6.10 hereof). Active and continuous use and operation shall (x) mean that the Improvements (other than the Existing Improvements) shall be continuously open for business, and appropriately staffed with personnel, on such days and for such hours as is customary for similar business operations in San Diego County, California and (y) shall include training activities and pre-opening activities after the Completion of the Convention Center and before opening the Convention Center to the public in an effort to open the Convention Center to the public, provided that RIDA diligently prosecutes such training activities and pre-opening activities. Notwithstanding anything to the contrary herein, RIDA may decide in its sole discretion and in good faith in order to maximize the long-term best interest of the Development that portions of the Convention Center which are not then in use may be temporarily closed if (a) RIDA reasonably believes that such temporary closure will not cause the Revenues (as defined in the Indenture) pledged under the Indenture to be less than the amount needed to pay the Annual Debt Service (as defined in the Indenture) and (b) such temporary closure does not materially and adversely affect the use and operation of, and access to, the remainder portion of the Convention Center (for example, for renovations; provided that such renovations are not otherwise prohibited by this Sublease and provided, further, that RIDA diligently prosecutes such renovations to completion). RIDA acknowledges and agrees that said active and continuous use and operation of the Improvements (other than the Existing Improvements) enhances the value of the lands within City’s jurisdiction; provides public service; and provides additional employment, taxes, and other benefits to the general economy of the area. The City acknowledges and agrees that RIDA shall not be in violation of this Section 6.1(c) for any failure to operate any retail, food service and other service space so long as RIDA has made and continues to make commercially reasonable efforts to lease such space. (d) Hotel Management Agreement. Unless otherwise consented to by the Port, the JEPA or the City in writing, the Convention Center shall be operated and managed by the Hotel Operator pursuant to the terms of a Hotel Management Agreement. Section 6.2 City Holds Subleasehold Interest in the Site and Leasehold Interest in the Convention Center. During the term of the Facility Lease, the City shall hold a subleasehold interest in the Site and a leasehold interest in the Improvements pursuant to the Facility Lease. The execution of this Sublease shall not cause a merger of the interests created by the Facility Lease, the Site Lease and this Sublease. Section 6.3 Quiet Enjoyment. Subject to the Permitted Encumbrances, during the Term, the City shall provide RIDA with quiet use and enjoyment of the Facility, and RIDA shall during Attachment K 27 US-DOCS\118371412.45 such Term peaceably and quietly have and hold and enjoy the Facility, without suit, trouble or hindrance from the City, or any Person claiming under or through the City except as expressly set forth in this Sublease. The City will, at the request of RIDA, but at no unreimbursed expense to the City, cooperate in any legal action in which RIDA asserts its right to such possession and enjoyment to the extent the City may lawfully do so, including, if necessary, joining such legal action. Notwithstanding the foregoing, the City shall have the right of access to the Facility as provided in this Sublease. Section 6.4 Installation of RIDA’s Personal Property. RIDA may at any time and from time to time, in its sole discretion and at its own expense, install or permit to be installed items of equipment or other personal property in or upon any portion of the Facility. All such items shall remain the sole personal property of RIDA, regardless of the manner in which the same may be affixed to such portion of the Facility. Neither any Public Entity nor the Trustee shall have any interest in any of such equipment or personal property which may be modified or removed by RIDA at any time; provided that RIDA shall repair and restore any and all damage to the Facility resulting from the installation, modification or removal of any such items of equipment and personal property. Nothing in this Sublease shall prevent RIDA from financing the purchase of items to be installed pursuant to this Section 6.4, provided that no lien or security interest attaching to such items shall attach to any part of the Facility. Section 6.5 [Reserved]. Section 6.6 Maintenance and Repair. (a) Maintenance and Repair. At any time when any Hotel Management Agreement is in effect, RIDA shall, at its sole cost and expense, and at all times during the Term, comply with the maintenance and repair standards for the Facility set forth in such Hotel Management Agreement. RIDA, at its sole cost and expense, shall also maintain, repair, replace and rebuild the Facility as necessary to keep the Improvements (other than the Existing Improvements) in First-Class Condition except for reasonable wear and tear. Without limitation of the foregoing, RIDA shall perform all maintenance and make all repairs and replacements, ordinary as well as extraordinary, foreseen or unforeseen, structural or otherwise, which may be necessary or required so that at all times the Facility (together will all equipment, trade fixtures, mechanical and utility systems, paving, landscaping, installations and appurtenances) shall be in compliance with the Hotel Management Agreement, and in First-Class Condition. RIDA acknowledges and agrees that, during the Term, in order to adhere to these maintenance and repair standards, certain repairs and replacements which are accounted for as capital expenditures shall be required and are bargained for by the Port in consideration of the Site Lease, by JEPA in consideration of the Facility Lease, and by City as consideration for this Sublease, and that regular capital reinvestment in the Facility should therefore be anticipated by RIDA and that capital reinvestment for such purposes does not qualify RIDA for any concessions, subsidies, or other modifications of the Sublease during the Term. Further, RIDA shall provide containers for the collection of trash and garbage outside the Convention Center, which may require the City’s approval, and keep the Facility in a clean, safe, healthy and sanitary condition, free and clear of rubbish, litter, and any fire hazards. RIDA’s maintenance shall include, without limitation, all preventive maintenance, painting and replacements necessary to maintain and preserve the Facility, and compliance with the BMPs. Except in the event where RIDA may need to undertake work to protect life, public health and safety, and property, or to maintain public services and private services, which constitutes an Attachment K 28 US-DOCS\118371412.45 “emergency development” in the Port’s CDP Regulations, and shall be processed by the Port in accordance with the “Emergency Developments” section of said CDP Regulations, prior to RIDA performing any non-routine repair or replacement (which shall mean any repair or replacement that does not occur with an expected or known frequency in the normal course of business) to the exterior, the structure or building systems or which will substantially interfere with the typical operation of the Improvements, or affect the portions of the Improvements that are generally accessible to the public (if any), RIDA shall submit to the City plans and specifications with respect to such repair or replacement, as applicable, and receive the City’s written approval thereof, pursuant to the procedures set forth in this Section 6.6 and Section 6.10, as if such repair or replacement, as applicable, were an Alteration; provided, however, that RIDA shall not be required to do so if RIDA would not be required to obtain the City’s approval if such repair or replacement, as applicable, were an Alteration. If the City’s approval is required pursuant to this Sublease for any plans or specifications with respect to any repair or replacement, then the City shall not unreasonably reject such plans or specifications with respect to any such repair or replacement, as applicable, that, if not performed by RIDA, would result in an Event of Default. If RIDA is legally required to obtain the BPC’s approval for any plans or specifications with respect to any repair or replacement, then RIDA shall cooperate in good faith with the City to prepare such plans or specifications to be presented to the BPC. If the City withholds its consent in violation of this Section 6.6(a) or if the BPC withholds its consent and, in each case, the City or the BPC, as applicable, does not give RIDA the opportunity to revise the plans or specifications for reconsideration by the City or the BPC, as applicable, then RIDA may challenge such decision of the City or the BPC, as applicable, through Judicial Reference in accordance with Section 6.6(e). RIDA’s obligation to repair or replace shall be suspended during the pendency of any Judicial Reference pursuant to this Section 6.6. By entering into this Sublease, RIDA expressly waives all rights to make repairs at the expense of any of the Public Entities, as provided in Section 1942 of the California Civil Code, and all rights provided by Section 1941 of the California Civil Code. All amounts expended by RIDA for maintenance and repair of the Improvements pursuant to this Section 6.6 shall be treated as supplemental Rent for all purposes of this Sublease. In the event of conflict between the terms of the Hotel Management Agreement and the terms of this Section 6.6(a) with respect to RIDA’s obligations hereunder, the terms of this Section 6.6(a) shall control. (b) Condition in Compliance with Laws. RIDA, at its sole cost and expense, shall keep the Facility (together with all equipment, trade fixtures, mechanical and utility systems, paving, installations and appurtenances) in full compliance with all Laws and the requirements of any insurer providing insurance for the Facility or any part thereof. (c) Inspection Report. Within sixty (60) days after notice from the City to RIDA requesting an Inspection Report, which notice shall not be given more than once in any five- (5-) year period (unless the City determines that RIDA may be in default of its obligations under this Section 6.6, in which event such time limitation shall not apply), RIDA, at RIDA’s sole expense, shall provide to the City a detailed inspection report listing any known defects, required repairs or deferred maintenance items in the Facility and recommendations for work to be performed to ensure that the condition of the Facility is in full compliance with this Sublease, including the standard of condition set forth in this Section 6.6 (the “Inspection Report”). Notwithstanding the foregoing, if the City requests an Inspection Report more than once in any Lease Period, then the City shall pay Attachment K 29 US-DOCS\118371412.45 RIDA for any reasonable costs incurred by RIDA in connection with such Inspection Report unless such Inspection Report demonstrates that RIDA is in default of its obligations under this Section 6.6. The Inspection Report shall be (i) prepared by an unrelated third-party inspector licensed in the State of California selected by RIDA, (ii) certified to the City, to the best knowledge of the Person conducting the inspection, as complete and accurate, and (iii) in a form reasonably acceptable to the City. Without limitation of RIDA’s obligations or the City’s remedies hereunder, RIDA shall commence work to comply with the recommendations set forth in such Inspection Report within thirty (30) days of receipt of same and diligently pursue such work to completion within not later than one hundred eighty (180) days of receipt of such Inspection Report. Notwithstanding the requirement in this Section 6.6(c) that RIDA provide the City with an Inspection Report within sixty (60) days after notice from the City, so long as there is no Event of Default and the Convention Center is operated pursuant to a Hotel Management Agreement under an Acceptable Brand, and such Hotel Management Agreement requires RIDA to maintain and repair the Facility in accordance with such Hotel Management Agreement and requires there to be established a reserve for repair and maintenance of the Facility, including without limitation, the furniture, trade fixtures and equipment, and such repair and maintenance occur in accordance with the requirements of such Hotel Management Agreement, Section 6.6(a) and Section 6.6(b), then the foregoing Inspection Reports shall not be required. (d) Waste or Nuisance. RIDA shall not use, or fail to maintain, the Facility in a manner that constitutes waste or nuisance. (e) Judicial Reference. If the City withholds its consent in violation of Section 6.6(a) or if the BPC withholds its consent to the plans and specifications with respect to repair or replacement of the Facility that RIDA submitted in accordance with Section 6.6(a) and, in each case, the City or the BPC, as applicable, does not give RIDA the opportunity to revise the plans or specifications for reconsideration by the City or the BPC, as applicable, then the sole remedy of RIDA shall be to seek relief in the nature of specific performance through consensual general reference as provided in Part 2, Title 8, Chapter 6 (Section 638, et seq.) of the California Code of Civil Procedure, or any successor California statute governing resolution of disputes by a court- appointed referee (“Judicial Reference”) and in no event shall the City or the BPC, as applicable be liable to RIDA, or any Person whatsoever, for monetary damages. Notwithstanding the foregoing, RIDA shall be entitled to recover such monetary damages, if any, it may sustain as a result of the City’s or the BPC’s, as applicable, failure or refusal to comply with a final, non-appealable, Superior Court order confirming an award in favor of RIDA in said Judicial Reference. (i) Issue. The issue to be submitted to Judicial Reference shall be whether the City’s or the BPC’s, as applicable, record contains substantial evidence to support the decision to reject the plans and specifications with respect to repair or replacement of the Facility that RIDA submitted in accordance with Section 6.6(a) in accordance with the requirements set forth in this Section 6.6. RIDA may submit said issue to Judicial Reference. (ii) Judicial Reference Procedure. Submission of a dispute to a Judicial Reference proceeding shall be commenced by a written notice thereof made by one Party to the other Party, or by mutual written election of both Parties (in either case, a “Reference Notice”). The Judicial Reference proceeding shall be conducted in San Diego County, and the Parties waive their respective rights to initiate any legal proceedings against each other in any court or jurisdiction other than the Superior Court of the State in and for the County of San Diego unless such court determines Attachment K 30 US-DOCS\118371412.45 that it lacks jurisdiction, in which case, the Judicial Reference proceedings shall be conducted in the Federal District Court for the Southern District of California if such court has jurisdiction, and if such court has no jurisdiction, then any court of competent jurisdiction (the “Court”). The referee shall be a retired California federal or state judge with experience in commercial real estate leasing and related disputes selected by mutual agreement of the Parties from a reputable source, and if the Parties cannot so agree within twenty (20) days after the Reference Notice is given, the referee shall be selected by the presiding judge of the Court (or his or her representatives). The referee shall not have any power to alter, amend, modify or change any of the terms of this Sublease nor grant any remedy which is either prohibited by the terms of this Sublease, or not available in a court of law or equity. The Parties shall bear their respective costs, fees, and expenses incurred in connection with said Judicial Reference. For purposes of this clause (ii), “Parties” shall mean RIDA and any Public Entity or the BPC, as applicable. (iii) Other Public Entities. RIDA acknowledges that any Public Entity shall have the right to participate in any Judicial Reference conducted pursuant to this Section 6.6(e). If RIDA challenges any decision of the City and/or the BPC, as applicable, through Judicial Reference in accordance with Section 6.6(e), then the Port shall have the right to represent the interests of the Port and/or the BPC. (f) Reservations. RIDA shall take possession of the Facility subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit M attached hereto and incorporated herein by reference (“Approved Agreements”). RIDA acknowledges that Section 24.2 of the Project Implementation Agreement includes certain rights with respect to granting a license or easement or other access agreement to Rohr for Rohr and its authorized contractors and agents to access the Site upon reasonable prior notice to RIDA for sampling, operation, maintenance, relocation, replacement, removal and closure of groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement (as defined in the Project Implementation Agreement)), and that such rights are reserved herein. Section 6.7 Hotel Management Agreement. (a) Deemed Approval. RIDA will not enter into an agreement for the management of all or a substantial portion of the Facility unless such management agreement (a) is a Hotel Management Agreement that includes the management of the Resort Hotel and (b) is approved by the Port pursuant to and in accordance with the Ground Lease, except the Hotel Management Agreement that is in effect as of the Commencement Date, which the Port reviewed and consented to prior to the Commencement Date. Notwithstanding anything to the contrary herein or in any Contemporaneous Agreement, Hotel Operator shall have the right to subcontract any of its responsibilities to be performed by it under any Hotel Management Agreement to any third party without the prior consent of the City; provided that Hotel Operator shall not be relieved of its obligations pursuant to such Hotel Management Agreement as a result of such subcontracting. If the Port approves a Hotel Management Agreement pursuant to and in accordance with the Ground Lease, then the terms and conditions of this Sublease shall in no way be deemed to have been waived or modified. Attachment K 31 US-DOCS\118371412.45 Section 6.8 Performance by the Public Entities. (a) Inspection. From and after the Completion of the Convention Center, the Public Entities shall have the right but not an obligation to enter, view, inspect and determine the condition of, and protect their interests in the Facility, during normal business hours and upon a three (3) Business Days’ prior notice to RIDA (except in the case of an emergency in which case no prior notice shall be required but the applicable Public Entity that enters the Facility shall notify RIDA) and the Public Entities that enter the Facility shall: (a) comply with all applicable security and safety procedures of RIDA, of which RIDA informs the Public Entities in writing and with which the Public Entities can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with RIDA’s operation and use of the Site and the Improvements, the Ground Lease Property, the Resort Hotel and the Parking Improvements, while on the Site and at the Improvements. If the City determines that the Site and/or the Improvements are not in the condition required pursuant to the terms of this Sublease or if the City receives a notice with respect thereto pursuant to the Facility Lease, the City shall deliver written notice to RIDA detailing the items to be corrected and RIDA shall commence the necessary maintenance, alteration, repair, replacement and rebuilding work necessary to remedy the issues set forth in the City’s notice within ten (10) days after written notice from the City and diligently pursue such work to completion. (b) City Repair Rights. At the City’s option, if RIDA fails to commence to perform the necessary maintenance, alteration, repair, replacement or rebuilding work within ten (10) days of the City’s written demand therefor (except in the event of an emergency in which case no such notice shall be required) in accordance with this Sublease, then the City may, but shall not be required to, perform such maintenance, alteration, repair, replacement or rebuilding work, and RIDA shall pay the City the actual cost thereof, together with interest thereon at the Default Rate from the date due until paid and an administrative fee in the amount of ten percent (10%) of the cost of such work, pursuant to the Reimbursement Procedure. Such payments shall constitute supplemental Rent under this Sublease and shall be paid monthly as billed by the City or in a lump sum payment, as directed by the City. If requested by the City, RIDA shall pay to the City the entire estimated cost of such work in advance, but such payment shall not relieve RIDA from the obligation to pay any excess costs that may be actually incurred by the City. The City shall have no obligation to repair or maintain any portion of the Site. The rights of the City under this Section 6.8(b) shall not create any obligations or increase any obligations of the City set forth elsewhere in this Sublease, nor shall the exercise of such rights, or the failure to exercise same, limit any other rights or remedies of the City. From and after the Completion of the Convention Center, the City shall have the right to enter the portions of the Site where the necessary maintenance, alteration, repair, replacement or rebuilding work, as applicable, is to be performed or is being performed in accordance with this Section 6.8(b) during normal business hours and upon a three (3) Business Days’ prior notice to RIDA (except in the case of an emergency in which case no prior notice shall be required but the City shall notify RIDA) and the City shall: (a) comply with all applicable security and safety procedures of RIDA, of which RIDA informs the City in writing and with which the City can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with RIDA’s operation and use of the Site, the Improvements, the Ground Lease Property, the Resort Hotel and the Parking Improvements, while on the Site and at the Improvements. Section 6.9 Records. (a) Maintenance Records. RIDA shall, during the Term and, with respect to each record, for a period of seven (7) years from the date the record was created (or such longer period as Attachment K 32 US-DOCS\118371412.45 RIDA may decide in its sole discretion), use commercially reasonable efforts to keep, or cause to be kept, accurate and complete records of maintenance conducted at the Facility. The records must be supported by source documents of original entry such as invoices, receipts, work orders, construction contracts, service contracts or other pertinent supporting documents. All of RIDA’s maintenance records relating to the Facility shall be kept either at the Site, the Ground Lease Property, or at such other location in San Diego County, California as are acceptable to the City. The Public Entities shall have the right at any time to examine such maintenance records without restriction and, at the Public Entities' request, RIDA shall provide the Public Entities with copies thereof at RIDA’s expense for the purpose of determining the accuracy thereof. After the seven (7) year period has expired for a certain record of maintenance, RIDA shall deliver the original record of maintenance to the City at the address set forth in Section 11.1 or such other location designated by the City in writing, which may include the main offices of the City; provided, however, that RIDA may elect to deliver all of the records of maintenance subject to this Section 6.9 that expire in a given Lease Year at one time, in one delivery, within twelve (12) months after the end of the applicable Lease Year. (b) Major Alterations Cost Records. RIDA shall, during the Term and, with respect to each record, for a period of seven (7) years after the date such record is created (or such longer period as RIDA may decide in its sole discretion), use commercially reasonable efforts to maintain customary records of construction costs incurred by RIDA in connection with any Major Alterations. Such records shall include, but are not limited to, a general ledger, vendor invoices, cancelled checks, agreements with third-party contractors and contractor progress payment billings. RIDA shall furnish to the City an itemized statement of the construction costs incurred and paid by RIDA in connection with any Major Alterations within thirty (30) days after RIDA receives the City’s request therefor (which request shall not be provided to RIDA until the respective Major Alterations have been Completed). The statement shall be sworn to and signed, under penalty of perjury, by RIDA as fairly representing, to the best of RIDA’s knowledge, the construction costs incurred and paid by RIDA. Should RIDA perform any construction with its own personnel, RIDA shall during the Term and, with respect to each record, for a period of seven (7) years after the date of such record (or such longer period as RIDA may decide in its sole discretion), maintain the following records with respect to the actual work performed by its own personnel: a payroll journal, copies of cancelled payroll checks, and timecards or other payroll documents which show dates worked, hours worked, and pay rates. Books and records herein required shall be maintained and made available either at the Site, the Ground Lease Property, the Convention Center, the Resort Hotel or at such other location in San Diego County, California as is reasonably acceptable to the City. The City shall have the right with 48 hours’ advanced notice and at reasonable times to examine and audit said books and records without restriction for the purpose of determining the accuracy thereof, and the accuracy of the aforesaid statement. In the event RIDA does not make available the original books and records at the Site, the Ground Lease Property, the Convention Center, the Resort Hotel or at such other location in San Diego County, California, then RIDA agrees to pay all reasonable expenses incurred by the City Parties in conducting an audit at the location where said books and records are maintained. After the seven (7) year period has expired for any record subject to this Section 6.9(b), RIDA shall deliver the original of such record to the City at the address set forth in Section 1.11 or such other location designated by the City in writing, which may include the main offices of the City; provided, however, that RIDA may elect to deliver all of the records subject to this Section 6.9(b) that expire in a given Lease Year at one time, in one delivery, within twelve (12) months after the end of the applicable Lease Year. Attachment K 33 US-DOCS\118371412.45 Section 6.10 Alterations. (a) Major Alterations. The term “Major Alterations” means all Alterations other than Minor Alterations, the Initial Project Improvements and the Existing Improvements. RIDA shall comply with all Laws, at its sole cost and expense, including, without limitation, obtaining any permits and approvals required to be obtained for the Major Alterations from any Governmental Authority. RIDA may not make any Major Alterations without the prior written consent of the City. The City’s consent will not be unreasonably withheld. The foregoing is not intended to limit the City’s discretion when the City is exercising its police or regulatory powers as a Governmental Authority or is considering issuing any discretionary approval. The City may condition its approval of a Major Alteration on compliance with Laws and RIDA obtaining insurance coverages in addition to those required under Article 4 if such additional coverage is customarily obtained in connection with work similar in scope to the Major Alteration. All Major Alterations shall be in accordance with plans and specifications, including but not limited to working drawings (collectively, “Alteration Plans”) submitted to and approved by the City in its reasonable discretion in writing prior to the commencement of the Major Alterations. Following approval by the City, any changes in the Alteration Plans shall be subject to the City’s approval, in the City’s reasonable discretion. If the City approves the Alteration Plans, and if RIDA elects to proceed with the Major Alterations, then RIDA shall construct and Complete all of the Major Alterations set forth in the Alteration Plans in one (1) integrated construction project with all due diligence; provided, however, that any Major Alterations may be Completed in phases if such phasing is permitted by the Laws. (b) Minor Alterations. RIDA may make Minor Alterations without the City’s written consent except to the extent the City’s prior written consent must be obtained to comply with Laws. “Minor Alterations” shall mean Alterations that do not: (i) significantly change the silhouette or appearance of the Convention Center, (ii) result in a use that is not a Permitted Use, (iii) require new subsurface utility installations, (iv) require structural modifications, (v) result in an exterior replacement that results in a substantial change to the exterior appearance of the Improvements, (vi) result in the removal of trees in violation of the CDP, (vii) pave any area greater than twenty-five (25) square feet, (viii) trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, or (ix) violate any Laws or the CDP. (c) Diligent Construction; Continuous Operations. Once construction of any Alterations is commenced, RIDA shall diligently prosecute construction of the Alterations to Completion. During the course of the construction of the Major Alterations, RIDA shall continue to use and operate the Site and the Improvements (other than the Existing Improvements) to the extent required by Section 6.1(c). Once an Alteration is Complete, RIDA shall use and operate the Alteration as part of the Site and the Improvements, as applicable, throughout the Term. (d) Construction Requirements. In constructing any Alterations, RIDA shall comply with all Construction Requirements and all Laws, including, without limitation, any PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals of the Project and the Development from any Governmental Authority, including any CDP applicable to the Site or the use or development thereof and any conditions of approval or mitigation measures or project changes pursuant to any environmental review under CEQA. Attachment K 34 US-DOCS\118371412.45 (e) Tenant Percentage for Art. RIDA acknowledges and agrees that any requests for proposed Alterations during the Term may be conditioned on the payment of additional commissions or purchases of artwork and/or in-lieu contributions based on the policies of the BPC. Section 6.11 Liens. (a) No Right to Bind the City. Neither RIDA, any RIDA Party nor the Hotel Operator shall have any power or authority to do any act or thing, or to make any contract or agreement, which shall bind the City in any way whatsoever, and the City shall have no responsibility to RIDA, RIDA Party, the Hotel Operator or other Person who performs, causes to perform, engages in or participates in any construction of any work on the Facility at the request of RIDA, RIDA Party, the Hotel Operator or other Persons. The City shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom. (b) Notice of Non-Responsibility. RIDA shall give written notice to all contractors, subcontractors and materialmen of the Public Entities' non-responsibility in connection with any construction of any Improvements, Alterations or any other construction work on the Site, and shall immediately provide each of the Public Entities with true copies of such notices not less than ten (10) days prior to the commencement of any work on the Site. Each of the Public Entities shall have the right to post and keep posted thereon notices of non-responsibility, or such other notices which the City may deem to be proper for the protection of the City’s interest in the Facility. RIDA shall provide each of the Public Entities with any information required by such Person to complete the notice of non-responsibility. (c) Mechanics’ Liens. RIDA shall pay or cause to be paid all costs for work, labor, services or materials supplied to or performed on the Facility that might result in any mechanics’ lien or similar lien as and when RIDA is required to do so under RIDA’s agreement with the respective provider thereof. If RIDA receives notice that any mechanics’ lien or any similar lien is recorded against the Facility and RIDA is not contesting such lien in accordance herewith, then RIDA shall cause such lien to be released and removed of record within thirty (30) days after RIDA receives notice of the recordation of the mechanics’ lien or similar lien. RIDA shall indemnify, defend, release and save the City free and harmless from and against any and all claims of lien of laborers or materialmen or others for work performed or caused to be performed or for materials or supplies furnished for or at the Facility by or for any RIDA Party and the Hotel Operator and all Related Costs. Notwithstanding anything to the contrary in this Sublease, RIDA’s obligation to comply with this Section 6.11 before the Acceptance of the Convention Center (as such term is defined in the Project Implementation Agreement) is set forth in the Project Implementation Agreement and as such this Section 6.11 shall not be effective before the Acceptance of the Convention Center (as such term is defined in the Project Implementation Agreement) and RIDA shall have no obligation under this Sublease with respect to any mechanics’ lien that arises out of the JEPA’s failure to pay to RIDA any amount that the Project Implementation Agreement requires the JEPA to pay to RIDA. (d) Contest of Lien. If RIDA in good faith wishes to contest the amount or validity of any lien (other than any lien with respect to taxes), then RIDA shall have the right to do so; provided that (a) RIDA shall first provide the City with at least ten (10) Business Days’ written notice prior to any such contest, (b) RIDA shall first record a surety bond sufficient to release such lien; and (c) RIDA shall cause the following conditions to remain satisfied during such contest: Attachment K 35 US-DOCS\118371412.45 (i) such contest shall not place the fee estate of the Facility in material danger of being forfeited or lost; (ii) such contest shall be without cost, liability, or expense to the Public Entity Parties; (iii) RIDA shall prosecute such contest with reasonable diligence and in good faith; and (iv) no Event of Default shall exist under this Sublease at the time of or during such contest. (e) City’s Right to Pay. If RIDA shall be in default in paying any charge for which a lien claim has been filed, and if RIDA has not contested such lien in accordance with Section 6.11(d), then the City may, but shall not be so obliged to, pay said lien claim and any costs incurred in connection therewith, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due and owing from RIDA to the City, and RIDA shall pay the same to the City pursuant to the Reimbursement Procedure, together with interest on the full amount thereof at the Default Rate from the date of the City’s payments until paid. (f) Notice of Liens. Should any claims of lien be filed against the Site or any Improvement or any action affecting the title to the Site or Improvements be commenced, the Party receiving notice of such lien or action shall give the other Party written notice thereof within five (5) Business Days of receipt. (g) Right of Entry. Nothing herein shall imply any consent on the part of the City to subject the City’s estate to liability under any mechanics’ lien or other lien. Without limiting RIDA’s obligations under Section 6.11(b), from and after the Completion of the Convention Center, the City Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Facility where the operation of the Convention Center and any Alterations to the Convention Center is ongoing, during normal business hours and upon a three (3) Business Days’ prior notice to RIDA (except in the case of an emergency in which case no prior notice shall be required but each of such City Parties shall notify RIDA) and the City shall, and shall cause each of such City Parties to: (a) comply with all applicable security and safety procedures of RIDA of which RIDA informs the City in writing and with which such City Party can reasonably comply, and (b) use commercially reasonable efforts to minimize any interference with RIDA’s operation and use of the Site and the Improvements, the Ground Lease Property, the Resort Hotel and the Parking Improvements, while at the Facility. Notwithstanding the foregoing, nothing herein shall limit the City’s right to enter the Facility at any time to exercise its police powers. Section 6.12 “As-Is” Sublease and Waivers. (a) RIDA’s Acknowledgment. RIDA acknowledges that prior to entering into this Sublease, the Port, the City, and the JEPA have given RIDA sufficient opportunity to consider, inspect and review, to RIDA’s complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; (2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; (3) the risk of climate change and the possible adverse consequences thereof, Attachment K 36 US-DOCS\118371412.45 including, without limitation, rises in sea level and possible damage to and destruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; (6) the financial prospects of the Site and local market conditions; (7) RIDA’s determination of the feasibility of RIDA’s intended use and enjoyment of the Site; (8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater, water adjacent to San Diego Bay and sediment adjacent to San Diego Bay; and (9) all other facts, circumstances, and conditions affecting, concerning or relating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; the feasibility of RIDA’s intended use and enjoyment of the Site; and such other facts, circumstances and conditions being collectively referred to herein as the “Condition of the Site”; and, without limitation on any other provision of this Sublease, RIDA expressly assumes the risk that adverse conditions affecting the Site have not been revealed by RIDA’s investigations. (b) Only Express Written Agreements Binding. RIDA acknowledges and agrees that no Person acting on behalf of a Public Entity is authorized to make, and that except as expressly set forth in this Sublease and the Contemporaneous Agreements to which RIDA or a Public Entity is a party, none of the Public Entity Parties nor anyone acting for or on behalf of a Public Entity has made any representation, warranty, agreement, statement, guaranty or promise to RIDA, or to anyone acting for or on behalf of RIDA, concerning the Condition of the Site or any other aspect of the Site. RIDA further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of a Public Entity which is not expressly set forth in this Sublease and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on a Public Entity. The City acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of RIDA which is not expressly set forth in this Sublease and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on RIDA. (c) As-Is Sublease. RIDA further acknowledges and agrees that RIDA’s execution of this Sublease shall constitute RIDA’s representation, warranty and agreement as of the Commencement Date that the Condition of the Site has been independently verified by RIDA to its full satisfaction, and that, except to the extent of the express covenants of the City set forth in this Sublease, RIDA will be leasing the Site based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of RIDA’s representatives; and that RIDA IS LEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS” CONDITION AND STATE OF REPAIR INCLUSIVE OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF RIDA’S EXECUTION OF THIS SUBLEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, RIDA expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect. (d) Waivers, Disclaimers and Indemnity. (i) Waiver and Disclaimer. RIDA hereby fully and forever waives, and the City hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use. Attachment K 37 US-DOCS\118371412.45 (ii) Landlord’s Materials. RIDA acknowledges that any information and reports, including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which RIDA has received or may hereafter receive from Public Entity Parties (collectively, the “Landlord’s Materials”) have been furnished without warranty of any kind (other than that the Port has delivered true and correct copies of each of the items set forth on Exhibit K attached hereto as filed in the Office of the District Clerk (“District Documents”)) and on the express condition that RIDA will make its own independent verification of the accuracy, reliability and completeness of such Landlord’s Materials and that RIDA will not rely thereon. Accordingly, subject to terms of Section 6.12(d)(iii) below, RIDA agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Public Entity Parties or any of the Persons that prepared or furnished any of the Landlord’s Materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such Landlord’s Materials, and RIDA hereby fully and forever releases, acquits and discharges Public Entity Parties and each Person furnishing such Landlord’s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown (other than in connection with the Port’s breach of its representation and warranty set forth in Section 22.4.2 of the Ground Lease that the Port has delivered to RIDA true and correct copies of each of the District Documents set forth on Exhibit K attached hereto). (iii) Release and Waiver. (A) Release. Except to the extent of Claims against the Port, the City, or JEPA arising from any breach by the Port, the City and/or the JEPA, as applicable of its respective covenants and obligations expressly provided in any Convention Center Lease or the Project Implementation Agreement, or the Port’s representation and warranty set forth in Section 22.4.2 of the Ground Lease or Section 18(d)(ii) of the Site Lease, RIDA, on behalf of RIDA, its successors and assigns, hereby fully and forever releases, acquits and discharges the Public Entity Parties of and from, and hereby fully, and forever waives and agrees not to assert any and all Claims whatsoever, whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that any RIDA Party, Hotel Operator or any of RIDA’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of the Port, the City, or JEPA (or any Person acting for or on behalf of the Port, the City, or JEPA or for whose conduct the Port, the City, or JEPA may be liable), whether or not such act be the active, passive or sole negligence of the Port, the City, or JEPA (or any Person acting for or on behalf of the Port, the City or JEPA or for whose conduct the Port, the City or JEPA may be liable), in connection with their prior ownership, maintenance, operation or use of the Site; (ii) any condition of environmental contamination or pollution at the Site (including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean-up or abatement order effecting the Site); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Site (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Site or into any soils, subsoils, surface waters or ground waters at the Site); (iv) the violation of, or noncompliance with, any Environmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Site; (vi) the Condition of the Site, including, without limitation, the condition of any improvements located on the Site including, without limitation, the structural Attachment K 38 US-DOCS\118371412.45 integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Site (including, without limitation, all existing easements and encroachments, if any); (viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Site; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Site by the Port, the City, or JEPA (or any Person acting for or on behalf of the Port, the City or JEPA or for whose conduct the Port, the City or JEPA may be liable) or any predecessor(s)-in-interest in the Site of the Port, the City, or JEPA. (B) Waiver of Civil Code Section 1542. With respect to all releases made by RIDA under or pursuant to Section 6.20 and this Section 6.12, RIDA hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her would have materially affected his or her settlement with the debtor or released party.” RIDA: _____________________ (e) Survival. The terms of this Section 6.12 shall survive the expiration or earlier termination of this Sublease. Section 6.13 Force Majeure Event. (a) Definition. The term “Force Majeure Event” means the occurrence of any of the following events (and the actual collateral effects of such event), individually or in any combination, to the extent that (x) such event is beyond the reasonable control of RIDA and (y) such event and/or such actual collateral effect prevents RIDA from the performance of its obligations under this Sublease and is approved by the City pursuant to Section 6.13(e) below: (i) A strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had RIDA, Hotel Operator or a RIDA Party, as applicable, complied with Laws or labor agreements with respect to the Development, if any. (ii) Hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods. (iii) Days of precipitation or high winds in any month in excess of ten (10) year average for the area within the Port’s jurisdiction. (iv) An earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster. (v) Fires (including wildfires). Attachment K 39 US-DOCS\118371412.45 (vi) Inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or RIDA’s, Hotel Operator’s or RIDA Parties’ acts or failure to act). (vii) Acts of war or armed conflict, insurrections, riots, and acts of terrorism (including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof. (viii) Extraordinary delays in the issuance of any approvals or authorizations from any Governmental Authority (excluding any non-regulatory approvals provided under the terms of this Sublease by any Public Entity) that is necessary to proceed with development or operation of the Convention Center (provided that RIDA has timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that RIDA, Hotel Operator or a RIDA Party is not responsible for the delay in the issuance of such approvals or authorizations by such party’s own actions or inactions). For purposes of this paragraph, “extraordinary delays” with respect to any approval or authorization from any Governmental Authority shall mean delays beyond the reasonably expected time period for such approval or authorization which reasonably expected time period shall include customary or reasonably foreseeable delays in obtaining such approvals. (ix) An act of God. (x) Embargoes or blockades. (xi) Pre-Existing Hazardous Material (that is not the result of Material Exacerbation). (xii) Closures ordered by any Governmental Authority that do not arise from a breach of this Sublease or misconduct by RIDA, RIDA Parties or Hotel Operator. (b) Calculation of Delay. Actual delays resulting from the occurrence of one or more Force Majeure Events occurring concurrently shall be calculated concurrently and not consecutively. (c) Exclusions. For purposes of this Section 6.13, a Force Majeure Event shall not include adverse general economic or market conditions not caused by any of the events described in 6.13(a)(i) through (xii) above. (d) Payment Obligations. In no event will a Force Majeure Event excuse the payment of Rent or any other monies due to City under this Sublease. (e) Notice and Acceptance Requirement. RIDA shall notify City of a Force Majeure Event in writing within ten (10) days after RIDA learns of, and in no event later than thirty (30) days after commencement of, such Force Majeure Event. Such notice (the “Initial Force Majeure Notice”) must be made in good faith and describe the Force Majeure Event creating delay, why such delay is occurring, the estimated expected duration of such delay, and the commercially reasonable efforts that RIDA is taking to minimize the period of delay. Commencing on the date that is thirty (30) days after the date of the Initial Force Majeure Notice and for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exist (whichever is later), Attachment K 40 US-DOCS\118371412.45 RIDA shall provide to City monthly written updates on the estimated expected duration of such delay and the commercially reasonable efforts that RIDA is taking to minimize the period of delay. Within thirty (30) days after the Force Majeure Event or the actual collateral effects of such Force Majeure Event cease to exist (whichever is later), RIDA shall notify City in writing that the Force Majeure Event and the actual collateral effects of such Force Majeure Event, as applicable, have ceased to exist and of the number of days by which Force Majeure Event (including the actual collateral effects of such Force Majeure Event) has delayed completion of any construction work on the Facility from and after Completion of the Convention Center or Hotel Operator’s operation of the Improvements, as applicable (the “Force Majeure Notice”). Within thirty (30) days after City’s receipt of the Force Majeure Notice, City shall provide notice to RIDA (“Force Majeure Response”) that either City (a) requires additional information to make a determination regarding RIDA’s assertion of the existence of a Force Majeure Event or the duration of the delay caused by the Force Majeure Event or the actual collateral effects of such Force Majeure Event, (b) approves the Force Majeure Notice, or (c) denies some or all of the Force Majeure Notice. City’s approval or denial of the Force Majeure Notice shall be in City’s reasonable discretion. If City denies some or all of the Force Majeure Notice, City and RIDA will meet and confer in good faith within ten (10) days after City’s delivery of the Force Majeure Response to attempt to reach a mutually acceptable modification to the Force Majeure Notice that will result in City approving the Force Majeure Notice as modified (“Meet & Confer Period”). If the City and RIDA do not agree on a modification to the Force Majeure Notice during the Meet & Confer Period, RIDA may elect to withdraw the Force Majeure Notice and if RIDA does not withdraw the Force Majeure Notice, City shall present the Force Majeure Notice to the City Council for its consideration to either approve or deny the Force Majeure Notice at a regularly scheduled meeting that shall take place within sixty (60) days after the expiration of the Meet & Confer Period. If the City Council denies the Force Majeure Notice, then the dispute shall be resolved by a court of competent jurisdiction. If a court of competent jurisdiction determines in a final and non-appealable decision that the putative Force Majeure Event that was described in such Force Majeure Notice did not constitute a Force Majeure Event, the duration of such delay in the completion of any construction work on the Facility or in the operation of the Improvements, as applicable, specified therein was not reasonable, or the efforts that RIDA took to minimize the period of delay were not commercially reasonable, then, as City’s sole and exclusive remedy for RIDA’s failure to perform any obligation under this Sublease from which RIDA claimed to be excused as a result of such Force Majeure Event, but was not excused, RIDA shall make City whole for any loss that City suffered as a result of such failure. Section 6.14 Compliance with Laws. RIDA shall in all activities on or in connection with the Site and the Improvements, and in all uses thereof, including without limitation the Permitted Use and any construction of the Convention Center1 or the making of any Alterations thereto as permitted by Section 6.10, abide by and comply with, and cause the Hotel Operator and each RIDA Party (other than RIDA) to abide by and comply with, all Laws at RIDA’s sole cost and expense, and the City shall not have any obligations or responsibilities to comply with any Laws as to the Facility or any use thereby by any RIDA Party or Hotel Operator. In particular and without limitation, RIDA shall have the sole and exclusive obligation and responsibility, at RIDA’s sole cost and expense, to comply with the requirements of the following, to the extent applicable: (i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control) and the City of Chula Vista Municipal Code, (ii) the ADA, including but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations 1 NTD: Consistent with the Ground Lease. Attachment K 41 US-DOCS\118371412.45 regarding employment and labor practices, including, without limitation, the provisions of Section 6.15 below and those referenced in the Project Implementation Agreement, (iv) any Coastal Development Permit (“CDP”) (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act (“CEQA”)) or any other California Coastal Commission (“CCC”) regulations or local, state or federal requirements now or hereafter affecting the Facility, including the use or development thereof, (v) the Port Master Plan (“PMP”), (vi) any other development permits or approvals accepted by RIDA, and (vii) the policies adopted by the BPC and the City. During the Term, the City shall not adopt any Law that only applies to the Tenant’s Initial Project Improvements, the Convention Center or RIDA, unless the Law is determined by the City, in its sole and absolute discretion, but in a manner that is neither arbitrary nor capricious, to be necessary for health and safety reasons, to protect the welfare of the people, or to exercise the City’s police powers. The foregoing limitation on the adoption of certain Laws by the City shall not apply to the adoption of any ordinance or resolution that authorizes an amendment to this Sublease or is adopted to authorize the enforcement of the City’s rights or the performance of the City’s obligations under this Sublease, including without limitation, any ordinances or resolutions adopted by the City as part of any discretionary approval. In the event of any conflict between the terms of a policy, ordinance or resolution adopted by the City and/or the JEPA and this Sublease, RIDA shall deliver notice to the City of such a conflict and the parties shall meet and confer within ten (10) days of the City’s receipt of the notice to discuss the conflict and attempt to resolve the conflict in good faith. If the conflict cannot be resolved by the Parties within thirty (30) days after the meet and confer, then the Parties shall endeavor to resolve the conflict pursuant to Section 26.12.10 of the Project Implementation Agreement. If the conflict is not resolved pursuant to Section 26.12.10 of the Project Implementation Agreement, then the terms of this Sublease shall control and RIDA shall be excused from complying with the terms of such policy adopted by the City to the extent of such conflict only. Section 6.15 Equal Employment Opportunity; Nondiscrimination and OFAC. (a) Nondiscrimination. RIDA shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, RIDA shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between the City and RIDA. Each Sub-Subtenant and the Hotel Operator (with respect to their operations on the Site only) shall comply with the requirements of this Section 6.15. (b) Compliance with Employment and Labor Requirements. RIDA shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor-Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices. RIDA shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize. (c) OFAC Compliance. RIDA represents and warrants as of the Commencement Date that (i) RIDA and, to the best of RIDA’s knowledge, the Persons that directly or indirectly hold Attachment K 42 US-DOCS\118371412.45 an interest in RIDA (collectively, “RIDA Members”, each a “RIDA Member”) (other than any such Person that owns an interest in RIDA through publicly traded securities) is not now a Person with whom the City or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“OFAC”) or a Person (also, a “Prohibited Person”) with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of RIDA’s knowledge, none of the funds or other assets of RIDA constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of RIDA’s knowledge, no Prohibited Person directly or indirectly Controls RIDA, or any of RIDA’s Members, either individually or in the aggregate and (iv) to the best of RIDA’s knowledge, none of the funds of RIDA have been derived from any unlawful activity with the result that the investment in RIDA is prohibited by Laws or that this Sublease is in violation of Laws. RIDA covenants and agrees that at no time during the Term shall a RIDA Member with a twenty percent (20%) or more direct or indirect interest in RIDA be a Prohibited Person. RIDA shall reimburse the City for all reasonable costs, including, without limitation, attorneys’ fees, resulting from RIDA’s failure to comply with this Section 6.15(c). If RIDA receives written notice that any of RIDA’s Members (other than any such Person that holds an interest in RIDA through publicly traded securities) is a Prohibited Person, then RIDA shall promptly use RIDA’s best and commercially reasonable efforts to cause such Person to divest such Person’s interests in RIDA. Notwithstanding any limits set forth in this Section 6.15(c), any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder. Section 6.16 Taxes and Property Expenses; Reporting. (a) Tax Expenses. This Sublease may result in a taxable possessory interest and be subject to the payment of property and other taxes. RIDA shall pay directly to the Government Agency which is entitled thereto (which may or may not be a Public Entity), prior to delinquency, all Tax Expenses attributable to any time period during the Term now or hereafter assessed against, or relating in any way to RIDA, this Sublease, the Facility Lease, the Site Lease, the Facility or the use or occupancy thereof by RIDA, Hotel Operator and RIDA Parties, to the extent such Tax Expenses are imposed on the RIDA Parties, Hotel Operator or any Public Entity. RIDA shall promptly following written request therefor from the City, provide the City with evidence of the payment of Tax Expenses. “Tax Expenses” shall include, without limitation, all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordinary or extraordinary (including, without limitation, real estate taxes, possessory interest taxes, use taxes, general and special assessments, leasehold taxes or taxes based upon RIDA’s receipt of rent, including gross receipts or sales taxes applicable to RIDA’s receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by RIDA in connection with the Facility) and any taxes and assessments relating to the business or other activities of RIDA upon or in connection with the Facility. Tax Expenses also shall include, without limitation: Attachment K 43 US-DOCS\118371412.45 (i) Any tax on the City’s receipt of Rent, right to Rent or other revenue from the Facility other than any tax imposed on the City based on income or profit of the City; (ii) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, possessory interest tax or use tax or other Tax Expenses, and any assessments, taxes, fees, levies and charges that may be imposed by a Governmental Authority for services such as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of RIDA and the City that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses for purposes of this Sublease; and (iii) Any assessment, tax, fee, levy, or charge, which is levied or assessed based upon the area of the Facility or the Rent payable hereunder, including, without limitation, any gross receipts tax upon or with respect to the possession, leasing, operating, management, maintenance, alteration, repair, use or occupancy by RIDA of the Facility, or any portion thereof. Notwithstanding anything to the contrary in this Sublease, (i) Tax Expenses shall not include any taxes based on income or profit that are imposed on RIDA, the Public Entity Parties or the direct or indirect owners of RIDA, Hotel Operator or the Affiliates of Hotel Operator, whether based upon the taxable income or profit generated by RIDA, the Public Entity Parties, Hotel Operator or otherwise and (ii) the taxes described in clause (i) shall not be otherwise recoverable by the Public Entity Parties pursuant to this Sublease (including but not limited to Section 2.2(b) hereof). RIDA acknowledges that the City has formed the Bayfront Project Special Tax Financing District of the City of Chula Vista pursuant to Chapter 3.61 of the Chula Vista Municipal Code (the “Special Tax District”) and that RIDA’s sub-subleasehold or other possessory interest in the Site and the operation of the Convention Center thereon shall be subject to levy of a special tax thereunder in the amounts and at the times specified in the rate and method of apportionment for the Special Tax District that is in effect as of the Commencement Date or as amended with RIDA’s consent. Any taxes imposed by the Special Tax District, as it may be amended from time to time in accordance with the terms of this Sublease, shall constitute Tax Expenses under the terms of Section 6.16(a)(iii). RIDA agrees to remit, or to cause the Hotel Operator to remit, such special taxes when and in the amounts due. Section 6.17 Meet and Confer. RIDA agrees to meet and confer with the City and the Port regarding possible terms for its support of any City or Port proposal to amend any terms of the existing Special Tax District. RIDA also agrees to meet and confer with the City or Port should either desire to establish a new special tax district in the future. Section 6.18 Property Expenses. Without limitation of RIDA’s other obligations under this Sublease, RIDA agrees to pay, on or before the date due, all Property Expenses. As used herein, “Property Expenses” shall include, without limitation, all costs and expenses of any nature incurred or payable, or arising in connection with, the ownership, management, maintenance, construction, repair, replacement, restoration or operation of the Facility, including, without limitation, any amounts paid for: (i) the cost of supplying any utilities, the cost of operating, maintaining, repairing, Attachment K 44 US-DOCS\118371412.45 renovating and managing any utility systems, mechanical systems, communications systems, sanitary and storm drainage systems, and the cost of supplies and equipment and maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, permits and inspections; (iii) the cost of any insurance carried or required to be carried by RIDA pursuant to this Sublease and the Hotel Management Agreement with respect to the Facility including without limitation any premiums and deductibles (except the cost of any Facility Lease Lost Rental Income Insurance); (iv) the cost of landscaping, supplies, tools, equipment and materials, and all fees, charges and other costs incurred in connection with the management, operation, repair and maintenance of the Site and/or the Improvements; (v) payments under any easement, license, permit, operating agreement, declaration, or covenant or instrument pertaining to the Site that exist as of the Commencement Date or that are created or consented to by RIDA; and (vi) the cost of any Improvements, capital repairs, capital alterations, or capital equipment, required by Laws, the Hotel Management Agreement or otherwise required under this Sublease. Notwithstanding anything to the contrary in this Sublease, Property Expenses shall not include (a) Property Tax Expenses, (b) any amounts that constitute Sublease Advance Rent nor (c) any other amount that a Public Entity has expressly agreed to pay without reimbursement from RIDA under this Sublease or any Contemporaneous Agreement or that this Sublease or any Contemporaneous Agreement expressly provides that RIDA is not required to pay. Section 6.19 Property Tax Expenses; Utility Charges; Contest Right. (a) Payment Obligation. RIDA shall pay or cause to be paid all Property Tax Expenses when due, including but not limited to, utility charges of any type or nature charged to the City, the Port, the JEPA or RIDA or levied, assessed or charged against any portion of the Facility or the respective interests or estates therein; provided that, with respect to special assessments or other governmental charges that may lawfully be paid in installments over a period of years, RIDA shall be obligated to pay only such installments as are required to be paid during the Term as and when the same become due. (b) Right to Pay Under Protest. Subject to the terms and conditions of this Section 6.19 and Section 19.4 of the Project Implementation Agreement, RIDA may pay the Property Tax Expenses under protest and RIDA may contest any amount of such Property Tax Expenses (each, a “Property Tax Contest”); provided that (x) RIDA shall first provide the City with at least ten (10) Business Days’ written notice prior to commencing any such Property Tax Contest, (y) RIDA shall reasonably cooperate with the City with respect to any such Property Tax Contest and (z) RIDA shall cause the following conditions to remain satisfied: (i) such Property Tax Contest shall not place the fee estate of the Site in material danger of being forfeited or lost; (ii) such Property Tax Contest shall be without cost, liability, or expense to the Public Entities; (iii) RIDA shall prosecute such Property Tax Contest with reasonable diligence and in good faith; (iv) no Event of Default shall exist under this Sublease at the time of or during such Property Tax Contest; and Attachment K 45 US-DOCS\118371412.45 (v) such Property Tax Contest shall not challenge any Property Tax Expenses payable under any Community Facilities District affecting the Facility that are in effect as of the Commencement Date or that the City has notified RIDA in writing and RIDA has approved at least ninety (90) days before the Commencement Date or that RIDA otherwise approves pursuant to the terms of this Sublease. (c) [Reserved.] (d) Miscellaneous. RIDA shall pay the contested Property Tax Expenses when due and payable regardless of any anticipated or ongoing Property Tax Contest. RIDA shall be entitled to any refund of any Property Tax Expenses (and penalties and interest) paid by RIDA whether such refund is made during or after the Term (except to the extent such refund includes any tax increase for which RIDA has been reimbursed by the City prior to receiving such refund); provided that RIDA shall be responsible for securing such refund and the City shall have no obligation or liability in connection with such refund. When RIDA concludes any Property Tax Contest, RIDA shall pay the amount of any Property Tax Expenses as has been finally determined in such Property Tax Contest to be due (except for any amounts that RIDA has already paid pursuant to this Section 6.19(d)), and any costs, interest, penalties, or other liabilities in connection with such Property Tax Expenses. (e) Limitation on Property Tax Contest. RIDA and the City understand that, as of the Commencement Date, the City is generally expected to receive for any Subject Fiscal Year, (a) 15.24% of 1% of the assessed value of the Hotel and Convention Center Project for such Subject Fiscal Year as the City’s ordinary share of the Project Property Taxes for such Subject Fiscal Year and (b) 0.077% of the assessed value of the Hotel and Convention Center Project for such Subject Fiscal Year as the City’s property tax in-lieu of vehicle license fee with respect to the Hotel and Convention Center Project for such Subject Fiscal Year. For example, in the first Subject Fiscal Year, where the assessed value of the Hotel and Convention Center Project is expected to be $1,013,676,000, (i) the City’s ordinary share of Project Property Taxes is expected to be $1,544,842, (ii) the City’s property tax in-lieu of vehicle license fee with respect to the Hotel and Convention Center Project is expected to be $780,531, and (iii) the City’s total share of the Project Property Taxes is expected to be $2,325,373. If RIDA contests the amount of Project Property Taxes for any Subject Fiscal Year and RIDA prevails in such contest and any appeals with respect to such contest, then, within sixty (60) days after the later of (A) the end of the last applicable appeal period in connection with such contest or (B) the date of the last final decision in connection with such contest or any such appeal, RIDA shall pay to the City the positive difference (if any) between: (1) the applicable amount set forth in the table below for such Subject Fiscal Year less (2) (x) if the formula for allocating Project Property Taxes to the City as set forth in the first sentence in this clause is not modified after the Commencement Date, the amount the City is actually entitled to receive from Project Property Taxes for such Subject Fiscal Year or (y) if the formula for allocating Project Property Taxes to the City as set forth in the first sentence in this clause is modified after the Commencement Date, the amount the City would have been entitled to receive from Project Property Taxes for such Subject Fiscal Year if the formula for allocating Project Property Taxes to the City had not been so modified. Subject Fiscal Year Amount First Subject Fiscal Year $2,325,373 Attachment K 46 US-DOCS\118371412.45 Second Subject Fiscal Year $2,371,880 Third Subject Fiscal Year $2,419,318 Fourth Subject Fiscal Year $2,467,704 Section 6.20 Hazardous Materials. (a) RIDA Use of Hazardous Materials. RIDA shall not cause or permit any Hazardous Material Activity in or about the Site or Improvements by RIDA or its agents, whether by a RIDA Party, Hotel Operator or any other Person, during the Term (including any extensions or holdover periods resulting from RIDA’s obligations pursuant to Section 6.20(d)) unless expressly approved, at the City’s sole discretion, in writing by the City after submittal by RIDA of Material Safety Data Sheets or other information requested by the City regarding the Hazardous Material. Approval by the City of any Hazardous Materials Activity shall not create or impose any liability or obligation on the City with respect to such Hazardous Material or Hazardous Materials Activity and RIDA shall assume all liability and obligations related thereto. All Hazardous Materials Activity shall be in strict compliance with all applicable Laws and other requirements in effect during the Term, including, without limitation, Environmental Laws. RIDA shall comply at all times with all Environmental Laws. Notwithstanding the foregoing, if RIDA is in compliance with Environmental Laws, RIDA shall not be required to obtain the City’s consent to generate, store or use reasonable and customary quantities of Hazardous Materials for cleaning materials or supplies, construction materials or supplies, food service materials or supplies, paint, auto supplies (including, without limitation, gasoline, oil and other supplies incidental to motorized vehicles) or office materials or supplies reasonably required to be used in the normal course of the Permitted Use. (b) Notice of Release or Inquiry. If RIDA becomes aware of (i) any actual or threatened release that occurs during the Term of any Hazardous Material on, in, under, from, or about the Facility or (ii) any Inquiry, RIDA shall give the City written notice of such release or Inquiry within twenty-four (24) hours after RIDA learns that there has been a release or Inquiry and shall simultaneously furnish to the City copies of any notices of inquiry or investigation, claims, notices of violation, reports, warning or other writings received by RIDA that concern such release or Inquiry. Unless the City receives separate notice, RIDA shall provide the City with advance written notice of any meeting scheduled between any RIDA Party and any Government Agency where a material item of discussion is directly related to the subject matter of this Section 6.20, at least five (5) Business Days prior to such meeting or as soon as reasonably possible if the Government Agency schedules such meeting with any RIDA Party for less than five (5) Business Days from the date the meeting is proposed. The City and the Port shall be entitled to have its representatives attend and participate in any and all such meetings. If the Government Agency brings up Hazardous Material on, in, under, from, or about the Facility in any other scheduled meeting, RIDA shall suggest that a separate meeting should be scheduled so that the City and the Port can participate in such meeting. (c) Port Right to Inspect and Data. If Hazardous Materials Activity has occurred during the Term or is ongoing, the Port or its designated representative, at the Port’s sole discretion, may, but is not obligated to, enter upon the Facility and make any inspections, non-intrusive tests or measurements that the Port deems necessary or desirable to determine if a release or discharge of Hazardous Materials has occurred. The Port shall furnish to RIDA a minimum of twenty-four (24) Attachment K 47 US-DOCS\118371412.45 hours’ notice prior to conducting any inspections or tests, unless, in the Port’s reasonable judgment, circumstances require otherwise. If the Port reasonably suspects a possible release of Hazardous Materials or a use of Hazardous Materials in violation of Environmental Law, then the Port shall describe the concern to RIDA, and may require RIDA, at RIDA’s sole expense, to have additional investigation for such Hazardous Materials conducted on, under or about the Facility by an environmental consultant or engineering firm designated by the Port; provided, however, that RIDA’s obligation to conduct such investigation shall terminate if RIDA can demonstrate to the Port’s reasonable satisfaction that there was neither any release of Hazardous Materials, nor any use of Hazardous Materials during the Term in violation of Environmental Law. Such tests may include, without limitation, any area outside the Site or Convention Center that may have been contaminated, including but not limited to surface and groundwater. RIDA shall provide to the Port as soon as reasonable after they become available to RIDA, access to all non-privileged information reports and data obtained, generated or learned as a result of sampling or testing activities on the Facility, including raw and verified lab data and consultant reports. RIDA shall be permitted to have representatives present during any sampling or testing on or at the Site, and may obtain split samples, if requested, copies of the results of on-site testing and visual inspections, and complete access to all samples and tests taken or conducted as a result of any investigations of the Site or Improvements. Access to any non-privileged consultant reports issued by or on behalf of RIDA concerning the Site or Improvements shall be provided to the Port as soon as reasonable after such reports are finalized. Any environmental reports issued by or on behalf of RIDA regarding the Facility or Hazardous Materials Activities related thereto shall first be generated in draft form and furnished to the Port for review and comment, except in the case when any resulting delay in producing a final environmental report would violate any Laws or any order of any Government Agency. Except in the case when any resulting delay in producing a final environmental report would violate any Laws or any order of any Government Agency, no such report shall be made final until the Port has had reasonable opportunity to review the draft and to identify any factual inaccuracies therein; provided, however, that if the Port fails to comment on a draft report within thirty (30) days after RIDA provides the Port with the final draft report and any information needed by the Port to complete its review, RIDA shall provide the Port with notice to deliver any comments to the draft report within fifteen (15) days of the delivery of the notice. If the Port does not respond after the second notice, RIDA may complete and submit the report. Notwithstanding the foregoing, under no circumstance shall any report submitted by RIDA pursuant to this Section 6.20(c) bind the Port and the City or contain any representation from the Port or the City. Failure by the Port to inspect, test or take other actions pursuant to this Section 6.20(c) shall in no way relieve RIDA of any responsibility for a release of a Hazardous Material. (d) Environmental Cleanup Obligations. If, on or after the Commencement Date, any Hazardous Material has been released by RIDA Parties or Hotel Operator, or any Pre-Existing Hazardous Material is exacerbated by RIDA Parties or Hotel Operator and thereby violates any Environmental Laws and/or results in (a) any investigation mandated by any Government Agency, (b) any clean-up order by any Government Agency, (c) any third-party claim or demand against the City, (d) any material increase in liability of the City or (e) any Material Exacerbation, then RIDA shall promptly take all necessary actions, at RIDA’s sole expense, to complete the Environmental Cleanup. RIDA shall have no obligation to undertake any Environmental Cleanup with respect to any contamination caused by any Pre-Existing Hazardous Material unless such Environmental Cleanup is required as a result of RIDA’s Material Exacerbation, and the extent of RIDA’s obligation to undertake such Environmental Cleanup shall be limited to that required as a result of the Material Exacerbation. RIDA shall provide notice to the City prior to performing any removal or remedial action. In the event that an Environmental Cleanup conducted or required of RIDA interferes with Attachment K 48 US-DOCS\118371412.45 the current or future use of the Facility or other property of the Public Entity Parties, RIDA shall promptly alter or amend the Environmental Cleanup (whether such is completed or not and regardless of the time period elapsed between the cleanup activities and the request of the City to alter the Environmental Cleanup because of the interference), upon notice from the City, as necessary to prevent and/or eliminate such interference. RIDA shall not propose, and the City is under no obligation to agree to, any covenant of use restriction or other institutional controls as part of any removal or remediation required as a result of this Section 6.20(d). Unless otherwise agreed in writing by the City, an Environmental Cleanup required under this Section 6.20(d) shall avoid and not include the use of additional restrictive covenants or other institutional controls. To the extent the City incurs any costs or expenses in performing RIDA’s obligation to conduct an Environmental Cleanup which is RIDA’s obligation under this Sublease or under Environmental Law, RIDA shall reimburse the City for all such costs and expenses in accordance with the Reimbursement Procedure. This provision does not limit the indemnification obligation set forth in Section 6.20(g). (e) Environmental Cleanup Extending Beyond Term if Expansion Date Does Not Occur. Should any Environmental Cleanup of Hazardous Materials for which RIDA is responsible not be completed prior to the expiration or earlier termination of this Sublease and the Expansion Date does not occur, then: (i) RIDA shall deposit with the City an amount of money equal to the balance of the estimated costs of such Environmental Cleanup as reasonably determined by an independent third-party environmental consultant that is acceptable to RIDA and selected by the City (the “Independent Consultant”), and (ii) if the nature of the contamination or Environmental Cleanup required of RIDA is such as to make any portion of the Facility untenable or unleaseable, then RIDA shall be liable to the City as a holdover tenant until the Environmental Cleanup has been completed to the extent required by this Sublease, or to the extent necessary to render the Facility, in full compliance with all Environmental Laws and to make the Facility suitable for lease to third parties. The estimated cost of the Environmental Cleanup shall require approval of the City. The City and RIDA agree and acknowledge that, pursuant to the Revenue Sharing Agreement, the Port, its successors and assigns have certain rights in the funds that RIDA is required to deposit with the City in accordance with Section 6.20(e)(i). The City shall release funds from such deposit from time to time to pay for such Environmental Cleanup costs incurred with the approval of the City. To the extent the Independent Consultant estimates, at any time, that the funds remaining on deposit may not be sufficient to cover all remaining anticipated Environmental Cleanup costs, then RIDA shall deposit, within thirty (30) days of the City’s written demand therefor, such additional funds with the City as Independent Consultant may estimate at such time may be required to complete the Environmental Cleanup. (f) Financial Security. If the City determines, in its reasonable discretion, that RIDA does not have insurance or other financial resources sufficient to enable RIDA to fulfill its obligations under this Section 6.20 whether or not accrued, liquidated, conditional, or contingent, then RIDA shall, at the request of the City, procure and thereafter maintain in full force and effect such commercially available environmental impairment liability and/or pollution liability insurance policies and endorsements, or shall otherwise provide such collateral or security reasonably acceptable to the City as is appropriate to assure that RIDA will be able to perform its duties and obligations hereunder. (g) Hazardous Materials Indemnification. Excluding Pre-Existing Hazardous Material, RIDA hereby assumes for itself and shall indemnify, defend the Public Entity Parties, and hold the Public Entity Parties harmless from any and all claims, demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders (judicial or Attachment K 49 US-DOCS\118371412.45 administrative), judgments, and all Related Costs (whether or not based upon personal injury, negligence, strict liability, property damage, or contamination of, or adverse effects upon, the environment, waters or natural resources, including any loss of or damage to the Public Entity Parties’ real or personal property, or claims with respect to obligations of the Public Entity Parties to indemnify, defend and hold harmless third parties, including the City’s obligation to indemnify the JEPA under the Facility Lease), which occur or arise during or after the Term relating to, or resulting from, any Hazardous Materials Activity, any Tenant Hazardous Material, any Hazardous Material that migrates to the Site from the Ground Lease Property during the Term, any Material Exacerbation of Pre-Existing Hazardous Material by a RIDA Party or Hotel Operator, or any breach by RIDA of its obligations under this Section 6.20, at RIDA’s sole cost and expense and with counsel and experts selected by the Public Entities in their reasonable discretion and approved by RIDA in its reasonable discretion and who act according to the Public Entities' reasonable direction, with reasonable input and cooperation from RIDA; provided, however, that if any Public Entity determines in its reasonable discretion that there is a conflict of interest with counsel representing such Public Entity and the other Public Entity Parties, then such Public Entity, at its election, may conduct its own defense with its own counsel independent from the other Public Entity Parties’ counsel which such Public Entity’s counsel is approved by RIDA in its reasonable discretion (and in that event such Public Entity will select its own counsel) and the reasonable costs incurred by such Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. RIDA’s obligations under this Section 6.20 (including the indemnification of the Public Entity Parties by RIDA under this Section 6.20(g)) include, without limitation, any Environmental Cleanup required by this Sublease, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by this Sublease or any federal, state or local Government Agency because of Hazardous Materials present in the air, soil or ground water above, on, or under the Facility. The Public Entities shall have a direct right of action against RIDA even if no third party has asserted a claim. The indemnification and Environmental Cleanup requirements under this Section 6.20 include, but, are not necessarily limited to: (i) Losses attributable to diminution in the value of the Facility; (ii) Losses of rental or other income from the Facility; (iii) Loss of or damage to natural resources regarding which the City or the Port is the lawfully designated trustee; (iv) Loss or restriction of use of rentable space(s) in the Facility; (v) Adverse effect on the marketing of any space(s) in the Facility; and (vi) All other liabilities, obligations, penalties, fines, claims, actions (including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including reasonable attorney, consultant, and expert fees and expenses). (h) Termination of Sublease. If the Expansion Date does not occur, upon the expiration or earlier termination of this Sublease, RIDA shall: (i) cause all Tenant Hazardous Materials (and Pre-Existing Hazardous Materials Materially Exacerbated by a RIDA Party or Hotel Operator) to be removed from the Site and Improvements and disposed of in accordance with all Attachment K 50 US-DOCS\118371412.45 applicable provisions of Environmental Law; (ii) remove any underground or aboveground storage tanks or other containers installed or used by RIDA, or its predecessors as RIDA or otherwise under this Sublease, if any, to store any Hazardous Material on the Facility, and repair any damage to the Site caused by such removal; (iii) cause any soil or other portion of the Facility which has become contaminated by any Hazardous Material (or any Pre-Existing Hazardous Materials Materially Exacerbated by a RIDA Party or Hotel Operator) during the Term to be decontaminated, detoxified, or otherwise cleaned up in accordance with the applicable requirements of any Government Agency with authority over the Site or Improvements; and (iv) surrender possession of the Facility to City free of any Tenant Hazardous Materials (and any Pre-Existing Hazardous Material Materially Exacerbated by a RIDA Party or Hotel Operator); provided, however, with respect to any Material Exacerbation of any Pre-Existing Hazardous Material, RIDA’s responsibility shall be limited to remediating such Existing Hazardous Material condition to such an extent that the Port’s liability and responsibility for such Pre-Existing Hazardous Material is no greater than such liability and responsibility would have been on the Commencement Date had RIDA not Materially Exacerbated such Pre-Existing Hazardous Material condition thereafter. (i) Storage Tanks. (i) Storage Tanks. Except for USTs described in Exhibit F-1 to the Project Implementation Agreement which the City has approved RIDA to install on the Site as part of the Plans, no underground storage tanks (“USTs”) or aboveground storage tanks (“ASTs”) shall be permitted to be installed on or under the Site without the prior written consent of the City in its sole and absolute discretion. In the event RIDA obtains such approval to install a UST or an AST on or under the Site then RIDA shall be responsible for complying with all Laws pertaining to such UST or AST, including tank monitoring of such UST or AST as required by the County of San Diego Hazardous Material Management Division (“HMMD”) or any other responsible agency and RIDA further agrees to take sole responsibility for reporting unauthorized releases from such UST to HMMD and the City within twenty-four (24) hours of such unauthorized release. RIDA will be responsible for all fees and costs related to the unauthorized release of any Hazardous Material from such AST or UST or any required Environmental Cleanup as a result thereof including, but not limited to: investigative, surface and groundwater clean-up, and expert and agency fees. RIDA shall maintain evidence of financial responsibility for taking corrective action and for compensating third parties for bodily injury and/or property damage caused by a release from any such UST or AST. RIDA further agrees to be responsible for maintenance and repair of any such USTs and ASTs; obtaining tank permits; filing a business plan with HMMD or other responsible agency; and for paying for all regulatory agency fees relating to USTs and ASTs. (ii) Records. RIDA agrees to keep complete and accurate records regarding USTs and ASTs on the Site for the prior three (3) year period, including, but not limited to, records relating to permit applications, monitoring, testing, equipment installation, repairing and closure of the USTs and ASTs, and any unauthorized releases of Hazardous Materials. RIDA also agrees to make such records available for the Public Entities or responsible agency inspection. RIDA further agrees to include a copy of Health and Safety Code, Chapter 6.7, Section 25299, as part of any agreement between RIDA and any operator of USTs or ASTs. (iii) Aboveground Storage Tanks. In the event RIDA obtains approval to install an AST or such approval is not required, RIDA shall be responsible for complying with all Laws pertaining to such AST. In connection with such AST, RIDA shall, in accordance with this Sublease and applicable Laws, secure and pay for all necessary permits and approvals, prepare a spill Attachment K 51 US-DOCS\118371412.45 prevention control counter measure plan and conduct periodic inspections to ensure compliance therewith. In addition, RIDA shall maintain and repair said tanks to conform and comply with all other applicable Laws for ASTs, including without limitation all of the requirements of Health & Safety Code, Chapter 6.67, Sections 25270 through 25270.13 as presently existing or as hereinafter amended, including without limitation conducting daily visual inspection of such ASTs, allowing the San Diego Regional Water Quality Control Board (“SDRWQCB”), the Port, the City, and/or responsible agency, to conduct periodic inspections. RIDA also shall comply with valid orders of the SDRWQCB, filing the required storage tank statement and payment of the fee therefor, establishing and maintaining the required monitoring program and systems, reporting spills as required, and payment of lawfully imposed penalties as provided therein and as otherwise provided by Law. (j) Environmental Covenants. (i) Excavated Soil Removal. RIDA hereby acknowledges that excavation of soils from the Site could result in exportation of a regulated waste requiring appropriate characterization, handling, transport and disposal (collectively, “Excavated Soil Removal”). The Public Entities take no responsibility and assume no liability whatsoever for Excavated Soil Removal. Accordingly, RIDA hereby waives any claim, or potential claim, it may have to recover costs or expenses from the Public Entities arising out of or associated with Excavated Soil Removal and agrees to indemnify, defend and hold harmless the Public Entity Parties from and against any and all claims (including under negligence or strict liability and claims with respect to obligations of the Public Entity Parties to indemnify, defend and hold harmless third parties, including the City’s obligation to indemnify the JEPA under the Facility Lease), liabilities, losses, damages, costs, and expenses arising from, out of, or in any way related to Excavated Soil Removal, except only claims or litigation arising through the gross negligence or willful misconduct of any Public Entity Party; provided that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this Section 6.20(j)(i). (ii) Worker Claims for Hazardous Material. The Public Entities shall have no liability or responsibility for ensuring that RIDA’s workers, including without limitation those conducting testing, construction and maintenance activities on the Site and Improvements are protected from any Hazardous Material existing on the Site and Improvements. RIDA shall assess all human health risks from vapor transport or direct contact with residual hazardous substances or contaminants and incorporate such engineering and institutional controls as may be required to sufficiently protect human health of onsite workers and transient visitors. RIDA hereby waives any claim, or potential claim, it may have to recover any damages, losses, Related Costs related to worker exposure or alleged worker exposure to any residual onsite contamination and to indemnify, defend and hold harmless the Public Entity Parties from and against any and all such Related Costs, claims (including under negligence or strict liability and claims with respect to obligations of the Public Entity Parties to indemnify, defend and hold harmless third parties, including the City’s obligation to indemnify the JEPA under the Facility Lease), liabilities, losses and damages, except only claims or litigation arising through the gross negligence or willful misconduct of any Public Entity Party; provided that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this Section 6.20(j)(ii). (iii) Covenant Not To Sue and Release of the City. RIDA hereby RELEASES the Public Entity Parties from, COVENANTS NOT TO SUE the Public Entity Parties Attachment K 52 US-DOCS\118371412.45 for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of RIDA under this Section 6.20, including for claims for contribution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of RIDA under this Section 6.20. (k) Survival. The terms of this Section 6.20 shall survive the expiration or earlier termination of this Sublease. Section 6.21 Advertising Devices. All signs, flags and other advertising devices (collectively, the “Advertising Devices”) visible from outside the Site or the Improvements, as applicable, must be expressly approved in writing by the City prior to installation. As of the Commencement Date, the Advertising Devices described on Exhibit L attached hereto have been previously approved by the City in writing (collectively, “Pre-Approved Advertising Devices”). The City’s written approval shall comply with the following: (1) the City’s approval of Advertising Devices that is not a Discretionary Entitlement shall not be unreasonably withheld; (2) the City’s approval of Advertising Devices that is a Discretionary Entitlement shall be subject to the City’s sole and absolute discretion; and (3) all approvals by the City of Advertising Devices, whether they are a Discretionary Entitlement or not, shall be in accordance with all Laws (collectively, “Review Processes”). During the Term, RIDA may submit to the City a list of Advertising Devices to be flown, installed, placed or erected on the Site and the Improvements, to be approved or disapproved by the City in accordance with the Review Processes. Such list shall specify, with respect to each proposed Advertising Device, its form, proposed location on the Site or the Improvements, dimensions, frequency and duration of display and any other information that the City may request. RIDA shall not sell any naming rights to any portion of the Convention Center without the prior written consent of the City, which consent may be denied, conditioned, or withheld in the City’s sole and absolute discretion, and if the City consents to the sale of naming rights, RIDA shall pay the City percentage rent, in an amount to be mutually agreed to by the City and RIDA, based on the gross income for the sale of such naming rights. All signage on the Site is subject to all Laws, including without limitation, San Diego Unified Port District Code Section No. 8.30. If the City or the Port hereafter adopts any other ordinance or policy governing signage, RIDA shall comply with such ordinance or policy subject to any grandfathering terms thereof. Section 6.22 Prevailing Wage. (a) RIDA acknowledges and agrees that: (i) Any construction, alteration, demolition, installation or repair work, in each case, to or of the Improvements required or performed under this Sublease constitutes “public work” under California Prevailing Wage Law, including Labor Code §§ 1720 through 1861, et seq. (“PWL”), and obligates RIDA to cause such work to be performed as “public work,” including, but not limited to, the payment of applicable prevailing wages to all Persons subject to the PWL. (ii) RIDA shall cause all Persons performing “public work” to or of the Improvements under this Sublease to comply with all applicable provisions of the PWL and other applicable wage Laws. (iii) The City hereby notifies RIDA, and RIDA hereby acknowledges, that the PWL includes, without limitation, Labor Code § 1771.1(b) that provides that the following requirements described in Labor Code § 1771.1(a) shall be included in all bid invitations and “public work” contracts: “A contractor or subcontractor shall not be qualified to bid on, be listed in a bid Attachment K 53 US-DOCS\118371412.45 proposal, subject to the requirements of § 4104 of the Public Contract Code, or engage in the performance of any contract for “public work,” as defined in this chapter, unless it is currently registered and qualified to perform “public work” pursuant to Section 1725.5. It is not a violation of this Section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Sections 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform “public work” pursuant to Section 1725.5 at the time the contract is awarded.” (iv) RIDA acknowledges that its obligations under the PWL with respect to the Improvements include, without limitation, ensuring that: (1) pursuant to Labor Code § 1771.1(b), a bid shall not be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor’s current registration to perform “public work” pursuant to § 1725.5; (2) pursuant to Labor Code § 1771.4(a)(1), the call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“DIR”); (3) pursuant to Labor Code § 1771.4(a)(2), it posts or requires the prime contractor to post job site notices, as prescribed by regulation; and (4) pursuant to Labor Code § 1773.3(a)(1), it provides notice to the DIR of any “public works” contract subject to the requirements of the PWL, within thirty (30) days of the award, but in no event later than the first day in which a contractor has workers employed upon the public work. Pursuant to Labor Code § 1773.3(a)(2), the notice shall be transmitted electronically in a format specified by the DIR and shall include the name and registration number issued by the DIR pursuant to §1725.5 of the contractor, the name and registration number issued by the DIR pursuant to §1725.5 of any subcontractor listed on the successful bid, the bid and contract award dates, the contract amount, the estimated start and completion dates, job site location, and any additional information that the DIR specifies that aids in the administration and enforcement of the PWL. PWC-100 is the name of the form currently used by the DIR for providing the notice, but RIDA shall determine and use whatever form the DIR requires. (v) None of the Public Entities shall be responsible for RIDA’s failure to comply with any applicable provisions of the PWL. (vi) RIDA’s violations of the PWL shall constitute a default (subject to cure pursuant to Section 8.1(c)) under this Sublease. (vii) Notwithstanding anything in this Sublease to the contrary, RIDA shall not be responsible for any Person’s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Public Entity Party (other than by a RIDA Party or Hotel Operator, or on behalf of a RIDA Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a RIDA Party or Hotel Operator). Notwithstanding anything to the contrary in this Sublease, RIDA’s obligation to comply with PWL before the Acceptance of the Convention Center (as such term is defined in the Project Implementation Agreement) is set forth in the Project Implementation Agreement and such this Attachment K 54 US-DOCS\118371412.45 Section 6.22 shall not be effective before the Acceptance of the Convention Center (as such terms are defined in the Project Implementation Agreement). ARTICLE VII ASSIGNMENT BY THE CITY AND AMENDMENTS Section 7.1 Assignment by the City. Except for the assignment to the JEPA of the City’s rights hereunder as provided in the Facility Lease, the City will not assign this Sublease, or any right, title or interest of the City in and to this Sublease, to any other Person. Section 7.2 Amendments and Modifications. This Sublease may be amended, or any of its terms modified, only in writing and only with the written consent of the City and RIDA. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.1 Events of Default. The occurrence of any one (1) or more of the following events shall constitute an event of default by RIDA hereunder (each, an “Event of Default”): (a) Abandonment. “Abandonment” shall mean that on and after Completion of the Convention Center, for thirty (30) consecutive days or longer, none of the Improvements (excluding the Existing Improvements) are operated by RIDA or the Hotel Operator, except for temporary closures that are permitted under, or periods of time when such Improvements are not operated as permitted under Section 6.1 or as a result of an existing Force Majeure Event in accordance with Section 6.13 that prevents Hotel Operator and RIDA from being at the Facility or operating a portion of the Improvements (excluding the Existing Improvements) and RIDA does not cure such condition within sixty (60) days after written notice thereof from the City. Notwithstanding the foregoing, “Abandonment” shall not include temporary closures or failures to operate that may result from an event of condemnation of any of the Improvements. (b) Failure to Pay. Failure by RIDA to pay, when due, any Rent, other payment, and/or charge that RIDA is required to pay hereunder, where such failure continues for a period of five (5) days after written notice thereof from the City; provided, however, that any notice provided under this Section 8.1(b) shall be in lieu of, and not in addition to, any notice required under Section 1161 of the California Code of Civil Procedure, as amended. (c) Failure to Perform. Failure by RIDA to perform any express or implied covenants or conditions in this Sublease (other than as provided in the other subsections of this Section 8.1), where such failure continues for thirty (30) days after written notice thereof from the City; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and RIDA diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default; and provided, further, that if such failure is due to a Force Majeure Event in accordance with Section 6.13, then such failure shall not constitute an Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists. Attachment K 55 US-DOCS\118371412.45 (d) Bankruptcy Event. The occurrence of a Bankruptcy Event. (e) [Reserved]. (f) Cross-Defaults. The occurrence or existence of an Event of Default as defined in and in accordance with the Project Implementation Agreement or the Ground Lease, as applicable. (g) Breach of a Representation or Warranty. Any representation or warranty by RIDA under this Sublease or the Completion Guarantor under the Completion Guaranty is not true, correct or complete and RIDA does not, or does not cause the Completion Guarantor to (as the case may be), cure such deficiency within ten (10) Business Days after written notice thereof from the City. (h) Specified Defaults. The occurrence of any event expressly stated to constitute an Event of Default under this Sublease. Section 8.2 Remedies. Upon any Event of Default but subject to Section 8.2(g), the City may, in addition to all other rights and remedies afforded to the City hereunder or by law or in equity, take any one or more of the following actions: (a) Termination of Sublease. Terminate this Sublease by giving RIDA written notice thereof, in which event RIDA shall immediately surrender the Facility to the City. In the event that the City shall elect to so terminate this Sublease, then the City may recover from RIDA: (i) The worth at the time of award of any unpaid Rent which had been earned at the time of such termination; plus (ii) The worth at the time of award of the amount by which the unpaid Rent which would have been earned after such termination until the time of award exceeds the amount of such Rent loss that RIDA proves could have been reasonably avoided; plus (iii) The worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such Rent loss that RIDA proves could be reasonably avoided; plus (iv) Any other amount necessary to compensate the City for all detriment proximately caused by RIDA’s failure to perform its obligations under this Sublease or which in the ordinary course of things would be likely to result therefrom, including, without limitation, the cost of recovering possession of the Facility, expenses of reletting (including necessary repair, renovation and alteration of the Facility), reasonable attorneys’ fees, and any other reasonable costs; plus (v) At the City’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by Law. AS USED IN CLAUSES (I) AND (II) ABOVE, THE “WORTH AT THE TIME OF AWARD” IS COMPUTED BY ALLOWING INTEREST AT THE DEFAULT RATE. AS USED IN CLAUSE (III) ABOVE, THE “WORTH AT THE TIME OF AWARD” IS COMPUTED BY DISCOUNTING SUCH AMOUNT AT THE DISCOUNT RATE OF THE FEDERAL RESERVE BANK OF SAN FRANCISCO AT THE TIME OF AWARD PLUS ONE PERCENT (1%). Attachment K 56 US-DOCS\118371412.45 Failure by the City to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default. RIDA hereby waives for RIDA and for all those claiming under RIDA all rights now or hereafter existing to redeem by order or judgment of any court or by any legal process or writ, RIDA’s right of occupancy of the Facility after any termination of this Sublease. (b) Continue Sublease in Effect. Exercise the remedy described in California Civil Code Section 1951.4 (the City may continue this Sublease in effect after RIDA’s breach and abandonment and recover Rent as it becomes due if RIDA has the right to sublet or assign this Sublease, subject only to reasonable limitations). (c) Perform Acts on Behalf of RIDA. Perform any act that RIDA is obligated to perform under this Sublease (and enter upon the Facility in connection therewith if necessary) in RIDA’s name and on RIDA’s behalf, without being liable for any claim for damages therefor, and RIDA shall reimburse the City on demand for any expenses which the City may incur in thus effecting compliance with RIDA’s obligations under this Sublease (including, but not limited to, collection costs and legal expenses), plus interest thereon at the Default Rate. (d) Increased Security Deposit. Notwithstanding anything to the contrary in Section 3.12(e), require RIDA to, in which case RIDA shall, increase the security deposit with an amount equal to three (3) months of the Base Rent (which remedy may be exercised on more than one occasion with further increases in the security deposit on any subsequent Event of Default); provided that the City shall return such increased amount of the security deposit to RIDA on the first anniversary of the date on which the applicable Event of Default ceased to exist upon request in writing from RIDA except if another Event of Default then exists, and a separate increased security deposit has not already been delivered to RIDA with respect to such Event of Default in accordance with this Section 8.2(d), then the City will continue to hold such increased amount of security deposit until the first anniversary of the date on which such other Event of Default ceases to exist and RIDA requests in writing the return of the increased amount of the security deposit from the City. (e) Payment by RIDA. Require RIDA to, in which case RIDA shall, pay to the City all costs incurred by the City (including court costs and reasonable attorneys’ fees and expenses and staff time) in: (a) obtaining possession of the Facility; (b) removing and storing RIDA’s or any other occupant’s property; (c) repairing, restoring, altering, remodeling, or otherwise putting the Facility into condition acceptable to a new tenant; (d) performing RIDA’s obligations which RIDA failed to perform; and (e) enforcing, or advising the City of, its rights, remedies, and recourses arising out of the Event of Default. (f) Assignment of Plans and Other Matters. Require RIDA to, in which case RIDA shall, (i) at RIDA’s sole cost and expense, assign and transfer to the City all of RIDA’s right, title and interest in and to all plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Facility, free and clear of liens and claims by third parties, in connection with and (ii) execute and deliver to the City, within five (5) Business Days of the City’s request, in a form provided by and acceptable to the City, an instrument confirming the Assignment and transfer of such property and interests to the City and, within such five (5) Business Day period, to deliver the originals of such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Facility to the City. RIDA agrees to reasonably cooperate with the City at no cost or expense to the City in seeking any consent from the preparer of any plans, drawings, Attachment K 57 US-DOCS\118371412.45 specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Facility, which may be required for the City to rely on such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Facility. (g) Certain Limitations. The City shall not have the right to terminate this Sublease as a result of any Event of Default arising solely under Section 8.1(c) or Section 8.1(f) (as it relates to a cross-default for failure to perform only) of the Sublease that is susceptible to cure (but will retain all other remedies) if the following conditions apply: (i) (A) RIDA has, in good faith, by written notice served on the City within thirty (30) days of receipt of any notice from the City of such Event of Default, contested that (x) RIDA has failed to perform any covenant or condition required to be performed by it under this Sublease or (y) an Event of Default as defined in the Project Implementation Agreement or the Ground Lease has occurred or is continuing, as applicable, and (B) there has been no final determination by a court with jurisdiction that (x) RIDA has in fact failed to perform any covenant or condition required to be performed by it under this Sublease and that such failure has had a material adverse effect on any Public Entity or the Project or (y) an Event of Default as defined in the Project Implementation Agreement or the Ground Lease has occurred or is continuing and that such Event of Default has had a material adverse effect on any Public Entity or the Project, as applicable; or (ii) after any final determination by a court with jurisdiction that (x) RIDA has in fact failed to perform any covenant or condition required to be performed by it under this Sublease and that such failure has had a material adverse effect on any Public Entity or the Project or (y) an Event of Default as defined the Project Implementation Agreement or the Ground Lease has occurred or is continuing and that such Event of Default has had a material adverse effect on any Public Entity or the Project, as applicable, RIDA promptly (and in all events, within thirty (30) days of such final determination), cures such failure, such Event of Default as defined in the Project Implementation Agreement or the Ground Lease, as applicable. Without limiting the foregoing, the City shall not have the right to terminate this Sublease as a result of any Event of Default arising solely under Section 8.1(f) unless the Project Implementation Agreement or the Ground Lease, as applicable, has been terminated in accordance with its terms. For purposes of this Section 8.2(g), a “final determination by a court with jurisdiction” shall mean the entry of a final judgment by the trial court or equivalent tribunal in any such proceeding. For clarification, the thirty-day cure period following such “final determination” within which RIDA’s failure to perform must be cured in order to avoid the City’s right to terminate pursuant to this Section 8.2(g) shall commence immediately upon entry of such judgment by the trial court and shall not be stayed, delayed or otherwise postponed during any appeal periods or other post-judgment proceedings (e.g., Motion for New Trial or JNOV) that RIDA might pursue following entry of such judgment. For purpose of this Section 8.2(g), “material adverse effect on any Public Entity or the Project” shall mean, but shall expressly not be limited to, (i) a failure to comply with any provision of the Port Act, including, but not limited to, Port Act provisions limiting use of the Facility, (ii) a material failure to comply with any CDP (as may be amended from time to time) applicable to the Facility, (iii) a material failure to comply with the PMP, or any amendments thereto, (iv) a material failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, related to Hazardous Materials, (v) a material failure to comply with any provision of this Attachment K 58 US-DOCS\118371412.45 Sublease relating to assignment or sublease of the Site, (vi) a failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, relating to PWL requirements, (vii) a failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, that results or could reasonably be expected to result in a public health or safety issue, (viii) a failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, the effect of which may be that any Public Entity Party has incurred or could reasonably be expected to incur criminal liability, (ix) a failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, that could reasonably be expected to result in a default by the City or the JEPA under the public financing, or (x) a failure to comply with any provision of this Sublease or the Project Implementation Agreement, as applicable, that could reasonably be expected to result in significant irreparable harm or injury to any Public Entity. Nothing in this Section 8.2(g) shall prejudice RIDA’s ability to appeal any decision of any court, provided that RIDA’s appeal shall not limit the City’s ability to pursue any remedies available to the City under this Sublease. Section 8.3 Bankruptcy. (a) Bankruptcy Event. Upon occurrence of a Bankruptcy Event, the City shall have all rights and remedies available pursuant to this Article VIII. After the commencement of a bankruptcy case: (i) RIDA shall perform all post-petition obligations of RIDA under this Sublease; and (ii) if the City is entitled to damages (including unpaid Rent) from and after any order for relief pursuant to the terms of this Sublease, then all such damages shall be entitled to administrative expense priority pursuant to the Bankruptcy Code. RIDA acknowledges that this Sublease is a lease of nonresidential real property and therefore RIDA, as the debtor in possession, or the trustee shall not seek or request any extension of time to assume or reject this Sublease or to perform any obligations of this Sublease which arise from or after the order of relief. (b) Assignment/Assumption. (i) General. Any Person to which this Sublease is assigned pursuant to the Bankruptcy Code shall be deemed without further act or deed to have assumed all of the obligations arising under this Sublease on and after the date of such an assignment, and any such assignee shall upon request by the City execute and deliver to the City an instrument confirming such assumption in a form acceptable to the City. If RIDA desires to assign this Sublease under the Bankruptcy Code to any Person who shall have made a bona fide offer, then RIDA shall give the City written notice of such proposed assignment and assumption (which notice shall set forth the name and address of such Person, all of the terms and conditions of such offer, and the adequate assurance to be provided the City to assure such Person’s future performance under this Sublease) prior to the date RIDA shall make application to the appropriate court for authority and approval to enter into such assignment and assumption. The City shall thereupon have the prior right and option, to be exercised by notice to RIDA given at any time prior to the effective date of such proposed assignment and assumption, to accept an assignment and assumption of this Sublease upon the same terms and conditions and for the same consideration, if any, as the bona fide offer made by such Person, less any brokerage commissions which may be payable out of the consideration to be paid by such Person for the assignment and assumption of this Sublease. If RIDA fails to assume or assume and assign this Sublease in accordance with the requirements of the Bankruptcy Code within the period provided by the Bankruptcy Code or allowed by a bankruptcy court, then this Sublease shall be deemed rejected and the City shall have all rights and remedies available to it pursuant to Section 8.2. Attachment K 59 US-DOCS\118371412.45 (ii) Financial Statements. At any time during the Term, upon not less than five (5) days’ prior written notice, RIDA shall provide the City with audited financial statements for RIDA for not less than the most recent two (2) years (or such shorter period of time as RIDA has existed if such financial statements have been created for less than two (2) years) for which such financial statements have been created. Such statements are to be certified by an Authorized Representative of RIDA to be a complete copy of the financial statements of RIDA and to have been prepared in accordance with generally accepted accounting principles and audited by any independent certified public accountant. (c) Adequate Assurances. In the event RIDA or proposed assignee under Section 8.3(b) proposes under the Bankruptcy Code to cure any default under this Sublease or to assume or assign this Sublease and is obliged to provide adequate assurance to the City that (a) a default shall be cured, (b) the City shall be compensated for its damages arising from any breach of this Sublease and (c) future performance of RIDA’s obligations under this Sublease shall occur, then such adequate assurances shall include all of the following, as designated by the City in its sole and absolute discretion: (i) Those acts specified in the Bankruptcy Code or other applicable laws as included within the meaning of “adequate assurance”; (ii) A prompt cash payment to compensate the City for any monetary defaults or actual damages arising directly from a breach of this Sublease; (iii) A cash deposit in an amount at least equal to the then-current amount of the security deposit; and (iv) The assumption or assignment of all of RIDA’s interest and obligations under this Sublease. The City covenants that if (x) the JEPA rejects the Facility Lease in a bankruptcy or insolvency proceeding affecting the JEPA or (y) the Port rejects the Site Lease in a bankruptcy or insolvency proceeding affecting the Port, then the City will exercise its rights under 11 U.S.C. § 365(h) to stay in possession of the Facility. ARTICLE IX SUBLEASE FINANCING ENCUMBRANCE Section 9.1 Permitted Financing Encumbrances. RIDA shall not encumber or hypothecate this Sublease, RIDA’s sub-subleasehold interest in the Site or subleasehold interest in the Improvements, or any part thereof or interest therein, or grant any security interest in the direct or indirect equity interests of RIDA except as set forth in this Article IX. If, under the Ground Lease, Landlord (as defined in the Ground Lease) consents to a Permitted Lender (as defined in the Ground Lease) and to Tenant (as defined in the Ground Lease) encumbering or hypothecating the Ground Lease, Tenant’s leasehold interest under the Ground Lease, or the Improvements (as defined in the Ground Lease) thereon, or any part thereof or interest therein or the granting of a security interest in the direct or indirect equity interests in Tenant under the Ground Lease in accordance with the Ground Lease in connection with any Financing Transaction (as defined in the Ground Lease), then the City shall be deemed to have consented to such Permitted Lender and to RIDA encumbering or Attachment K 60 US-DOCS\118371412.45 hypothecating (and RIDA may encumber or hypothecate) this Sublease, RIDA’s sub-subleasehold interest in the Site or subleasehold interest in the Improvements, or any part thereof or interest therein, or the granting of (and there may be granted) a security interest in the direct or indirect equity interests of RIDA (such encumbrance, hypothecation or grant of any security interest in any direct or indirect equity interests of RIDA being referred to herein as a “Financing Transaction”), respectively, as security for such, or for any transaction that is secured by such, Financing Transaction (as defined in the Ground Lease), pursuant to any mortgage, deed of trust, security agreement, pledge agreement or other similar instrument that is the same as, or in substantially the same form as, the mortgage, deed of trust, security agreement, pledge agreement or other similar instrument to which Landlord consented under the Ground Lease. Section 9.2 Definition of “Permitted Sublease Financing Encumbrance,” “Permitted Equity Financing Encumbrance,” “Permitted Financing Encumbrance,” “Permitted Mortgage Lender,” “Permitted Lender” and “Equity Collateral Enforcement Action”. Each mortgage, deed of trust or similar security instrument securing RIDA’s payment and performance in connection with the Financing Transaction by a Permitted Mortgage Lender that is deemed consented to by City is a “Permitted Sublease Financing Encumbrance”. Any security agreement, pledge agreement or similar instrument or agreement that creates any security interest in the Mezzanine Interests securing RIDA’s payment and performance in connection with any Financing Transaction by a Permitted Mezzanine Lender that is deemed consented to by City is a “Permitted Equity Financing Encumbrance” (together with the Permitted Sublease Financing Encumbrance, “Permitted Financing Encumbrance”). The term “Permitted Mortgage Lender” means any lender that is deemed approved by City pursuant to Section 9.1 and that is a party to a Financing Transaction for a Permitted Sublease Financing Encumbrance made in accordance with this Sublease. City’s consent or deemed consent shall not be required for an assignment or transfer of indebtedness secured by a Permitted Financing Encumbrance, where the terms and conditions of the Permitted Financing Encumbrance are not changed or modified in a manner for which RIDA must obtain City’s consent under Section 9.6(c). The term “Permitted Lender” means each Permitted Mortgage Lender and each Permitted Mezzanine Lender, or any one thereof. For the avoidance of doubt, a holder of indebtedness that is secured by any Financing Transaction, but that is not a Permitted Mortgage Lender because it is not a party to a Financing Transaction (i.e., the holder of some or all of the indebtedness that is secured by a Permitted Sublease Financing Encumbrance in favor of an agent that holds collateral as security for such indebtedness) need not be approved or deemed approved by City, and may assign or transfer such indebtedness without City’s consent or approval or deemed consent or deemed approval, but shall not be a Prohibited Person. The term “Equity Collateral Enforcement Action” means any action or proceeding or other exercise of a Permitted Mezzanine Lender's rights and remedies in connection with its security interests in the Pledgor in order to realize upon its equity collateral, including, without limitation, the acceptance of an assignment in lieu of foreclosure for the equity collateral. With respect to any Permitted Equity Financing Encumbrance, (a) the granting of such Permitted Equity Financing Encumbrance shall not be deemed a Change of Control of RIDA, (b) any enforcement action and/or the completion of any Equity Collateral Enforcement Action (including, without limitation, the acquisition of all (or substantially all) of the direct or indirect ownership of RIDA) or the exercise of voting control over RIDA by a Permitted Mezzanine Lender with respect to such equity collateral security interest shall not be deemed a Change of Control of RIDA and shall not be prohibited by this Sublease, (c) the Permitted Mezzanine Lender shall have the same cure rights and notice rights as are given to any other Permitted Lender under this Article 9, but such periods for the notice rights and cure rights shall run concurrently with the rights provided to the Permitted Mortgage Lender, and (d) in the case of MICC only, MICC shall have the same rights, including the same cure rights and the same notice rights, as are given to any other Permitted Attachment K 61 US-DOCS\118371412.45 Mortgage Lender under this Article 9, but such periods for notice rights and cure rights shall run concurrently with the rights provided to the Permitted Mortgage Lender. Section 9.3 Rights of Permitted Lender. (a) Voluntary Sublease Surrender. So long as a Permitted Financing Encumbrance remains outstanding, City will not accept the voluntary surrender, cancellation, or termination of this Sublease by RIDA before the Term expires, unless each Permitted Lender with an outstanding Permitted Financing Encumbrance provides prior written consent thereto. Nothing in this Section 9.3(a) shall impair City’s right to terminate this Sublease as a result of an Event of Default or by reason of City’s other rights to terminate this Sublease as set forth in this Sublease, subject to the Permitted Lender’s notice and cure rights pursuant to Section 9.3(b) below, if applicable, and the New Sublease rights pursuant to Section 9.3(b)(iv) below, if applicable. (b) Right to Cure/New Sublease. (i) Notice of Default. So long as one or more loans secured by a Permitted Financing Encumbrance remain outstanding, City hereby agrees to give each Permitted Lender with a Permitted Financing Encumbrance that has provided City with its address and has requested a copy of the same, a copy of any written notice, which City gives to RIDA pursuant to Section 8.1, at the same time as it delivers it to RIDA, and such notice shall be deemed delivered three (3) days after delivery thereof to the respective Permitted Lenders, whereupon each Permitted Lender shall have the right, but not the obligation, to cure such default or Event of Default. This Sublease shall not terminate as a result of an Event of Default if a Permitted Lender cures such Event of Default within (x) thirty (30) days after the Permitted Lender is deemed to have received such notice of an Event of Default in the payment of Rent, or (y) subject to the terms of this Section 9.3(b), within ninety (90) days after the Permitted Lender is deemed to have received such notice of any other Event of Default under this Sublease. City shall accept performance of the terms of this Sublease by the Permitted Lender, or any agent, nominee or designee of the Permitted Lender that Permitted Lender notifies City in writing is performing the cure rights on behalf of and for the Permitted Lender under this Section 9.3.(b)(i) (each, a “Designated Nominee”); provided such performance is completed within the time frames set forth in this Section 9.3(b) as if the terms were performed by RIDA, regardless of whether there has been an Event of Default and Permitted Lender is liable to City for the performance by such Designated Nominee. If there is more than one Permitted Lender, then City shall recognize only the cure rights of the Permitted Lender (whether such cure rights are exercised by Permitted Lender or its Designated Nominee) that has been most recently designated as authorized to exercise cure rights by the Permitted Mortgage Lender with the earliest recorded Permitted Sublease Financing Encumbrance that has not been reconveyed and to which deemed consent has been received in accordance with this Sublease, without any liability to the City, RIDA or the other Permitted Lenders; provided, however, that City shall accept without the necessity of further inquiry, and without liability to the City, RIDA and any Permitted Lender, a written notice from the Permitted Mortgage Lender with the earliest recorded Permitted Sublease Financing Encumbrance that is still outstanding and to which City consented as confirmation that such Permitted Mortgage Lender has the first right to exercise any cure rights under this Sublease or enter into a New Sublease as set forth in this Article 9, and such notice shall be valid for all purposes until such time as such Permitted Mortgage Lender informs City in writing that such notice is no longer valid or City receives a new written notice from the succeeding Permitted Mortgage Lender with the earliest recorded Permitted Financing Encumbrance that is outstanding and to which deemed consent has been received in accordance with this Sublease, stating that the prior Permitted Mortgage Attachment K 62 US-DOCS\118371412.45 Lender with the earliest recorded Permitted Sublease Financing Encumbrance no longer has an outstanding Permitted Sublease Financing Encumbrance as evidenced by a copy of the recorded reconveyance of the Deed of the Trust for such prior Permitted Mortgage Lender. (ii) Possession Required. If the Event of Default specified in Section 9.3(b)(i)(y) cannot be cured until the Permitted Lender has obtained possession of the Facility (or, in the case of a Permitted Mezzanine Lender, control of RIDA) through foreclosure or otherwise, and if the Permitted Lender has delivered to City within the ninety (90) day cure period specified in Section 9.3(b)(i)(y) Permitted Lender’s written commitment (in form acceptable to City in its sole discretion) to use diligent efforts to cure (or to cause RIDA to cure) such Event of Default with due diligence upon obtaining possession of the Facility (or, in the case of a Permitted Mezzanine Lender, control of RIDA) through foreclosure or otherwise, then the Permitted Lender shall have such additional time (but in no event to exceed two hundred and seventy (270) days from the date of obtaining possession of the Facility) as is reasonably necessary to cure (or to cause RIDA to cure) such Event of Default, but only if the Permitted Lender: (x) unless judicially stayed, commences the judicial or other foreclosure of the Permitted Financing Encumbrance within ninety (90) days from receipt of written notice of the occurrence of an Event of Default under this Sublease; (y) prosecutes said foreclosure with due diligence; and (z) cures, during said period, all monetary Events of Default and, during the period of said stay and/or foreclosure, continues to pay and perform during said period of stay and/or foreclosure all other monetary obligations of RIDA in a timely manner, including, without limitation, payment of all rent, taxes, assessments, utility charges, insurance premiums and all other amounts required to be paid by RIDA under this Sublease. Notwithstanding anything herein to the contrary, nothing herein shall require a Permitted Lender who has taken possession of the Facility or, in the case of an Equity Collateral Enforcement Action, control of RIDA, to cure any non-monetary default that, by its nature, is not reasonably capable of being cured by the Permitted Lender, or in the case of an Equity Collateral Enforcement Action, RIDA, or is a Bankruptcy Event (an “Incurable Default”). All such Incurable Defaults shall be deemed to be permanently waived following the Permitted Lender’s taking possession of the Facility or, in the case of an Equity Collateral Enforcement Action, control of RIDA. All monetary obligations and non-monetary obligations that are not Incurable Defaults shall still be performed as required under this Sublease, subject to the extended cure periods set forth in this Section 9.3(b). In no event shall nuisance or waste caused by RIDA’s failure to use the Facility in accordance with the Permitted Use or failure to construct, operate and maintain the Facility in accordance with the requirements of this Sublease be an Incurable Default. (iii) No Termination by City. City shall not terminate this Sublease by reason of an Event of Default if City has failed to comply with its obligations under Section 9.3 or if the Permitted Lender (i) is curing or has cured all Events of Defaults under this Sublease in the payment of Rent within the time frames provided in Section 9.3(b)(i)(x) above, and (ii) has cured all other Events of Default within the time frames provided in Sections 9.3(b)(i)(y) and 9.3(b)(ii), other than any Incurable Default. (iv) New Sublease. In the event of any termination of this Sublease of which City has received written notice by reason of a surrender, cancellation, or termination by RIDA, excluding any termination under Sections 5.1(d) or 5.2(b), or as a result of the rejection or disaffirmance of this Sublease pursuant to bankruptcy law or other Law affecting creditors rights, or as a result of any other termination of this Sublease for any reason, then City shall deliver notice to each Permitted Lender that this Sublease has been terminated or rejected, as applicable. The notice shall include a statement of all Rent that would be due under this Sublease but for the termination hereof or the rejection of this Sublease, as applicable, and all other Events of Default, or breaches Attachment K 63 US-DOCS\118371412.45 under this Sublease, that are then known to City, without the duty of inquiry; provided that in no event shall such notice prevent or estop City from asserting other breaches under this Sublease or Events of Default that become known to City after the time the notice is sent to the Permitted Lender. The Permitted Mortgage Lender or any Permitted Mezzanine Lender or SPE Lender Affiliate (defined below) nominated by the first priority Permitted Mortgage Lender (a “New Tenant”) shall then have the option, to be exercised within seventy-five (75) days following receipt of such notice of termination or rejection, as applicable, to enter into a new lease (“New Sublease”) with City, in each case, on the following terms and conditions: (aa) The New Sublease shall commence as of the date of the termination or rejection of this Sublease, as applicable, and shall be for the remainder of the Term, and at the Rent, terms, covenants, and conditions as this Sublease. (bb) Upon execution of the New Sublease, the New Tenant shall pay any and all sums that would at the time of execution thereof be due under this Sublease, but for termination, and shall pay all expenses, costs, attorneys’ fees, court costs, and disbursements incurred by City in connection with any default and termination of this Sublease, recovery of possession of the Facility, and the execution, preparation and delivery of the New Sublease. (cc) Upon execution of the New Sublease, the New Tenant shall cure all other defaults under this Sublease, which have not yet been cured (other than any Incurable Default), with due diligence in a timely manner in accordance with the cure periods under the Sublease assuming such cure periods commence with the execution of the New Sublease and without additional notice (provided that City has already provided such notice of such default to New Tenant). (dd) Nothing herein shall be construed to require City to deliver possession of the Facility to the New Tenant. Upon execution and delivery of the New Sublease, the New Tenant may take any and all appropriate actions as may be necessary to remove parties in possession from the Facility. City shall not grant any real property interest in the Facility during the seventy-five (75) day period set forth in Section 9.3(b)(iv). (ee) The sublessee under each sub-sub-sublease of the Site and sub-sublease of the Improvements shall be deemed to have agreed that each sublessee whose sub- sub-sublease of the Site or the sub-sublease of the Improvements, as applicable, was in effect immediately prior to the execution of such New Sublease shall, on the date of its execution or the commencement of its term, whichever is later, pursuant to its sub-sub-sublease of the Site or its sub- sublease of the Improvements, as applicable, attorn to the New Tenant and the New Tenant shall accept such attornment of each sub-sub-sublease of the Site or each sub-sublease of the Improvements, as applicable, which was entered into in compliance with the terms hereof; provided that City shall have no obligation to require the same of sublessee and shall have no liability to New Tenant resulting from the failure of any sublessee to comply with this Section 9.3(b)(iv)(ee). During such seventy-five (75) day period and thereafter if the Permitted Lender designated to exercise the cure rights under Section 9.3(b)(i) timely accepts such offer of a New Sublease until the termination or expiration of such New Sublease, ownership of the Improvements shall not vest in City, and the Permitted Lender’s lien that elected to exercise the cure rights under Section 9.3(b)(i) in and to the Improvements shall continue unaffected by the termination of this Sublease. Attachment K 64 US-DOCS\118371412.45 Should neither the Permitted Lender designated to exercise the cure rights under Section 9.3(b)(i) nor its Designated Nominee accept said offer for such New Sublease in writing within said seventy-five (75) day period, or, having so accepted said offer, should it fail promptly to execute the New Sublease or satisfy the requirements of clauses (ii) and (iii) above in a timely manner, then the termination of this Sublease shall be effective as to all of the Permitted Lenders and the Permitted Lenders shall have no further rights hereunder. Furthermore, if the first priority Permitted Mortgage Lender nominates Permitted Mezzanine Lender or an SPE Lender Affiliate that is affiliated with the Permitted Mezzanine Lender to receive the New Sublease, then the New Tenant may, concurrently or promptly after receipt of the New Sublease, enter into a new Financing Transaction with the Permitted Mortgage Lender(s) on substantially the same terms as those of the Financing Transaction(s) in place immediately prior to termination of this Sublease (but with modifications, as necessary, to reflect the New Sublease and the new identity of the tenant). The security interest on the New Sublease granted in connection with such Financing Transaction will be a Permitted Sublease Financing Encumbrance. It is the intent of this provision to permit the Permitted Lender(s) that do not receive a New Sublease to be in the same position in which they would have been had no Sublease termination occurred. The New Tenant will provide to City notice of any such Financing Transaction, together with copies of documents evidencing such Financing Transaction and redlines against the previously existing documents evidencing the Financing Transaction that is, in effect, being continued. (c) Loan Default. If a Permitted Financing Encumbrance or any loan secured by a Permitted Financing Encumbrance is in default at any time, then the Permitted Lender shall, as provided by Law, have the right, without City’s prior consent, to perform the following; provided that the Permitted Lender exercises such rights as to the whole of Permitted Lender’s interest in the Ground Lease, Project Implementation Agreement, and this Sublease and/or RIDA, as the case may be, and not portions thereof: (i) In the case of a Permitted Mortgage Lender, accept an Assignment of this Sublease in lieu of foreclosure or, in the case of a Permitted Mezzanine Lender, accept an assignment of its equity collateral resulting from an Equity Collateral Enforcement Action; or (ii) In the case of a Permitted Mortgage Lender, request that a court of competent jurisdiction appoint a receiver as to any or all of the Facility or cause a foreclosure sale to be held pursuant to either judicial proceedings, power of sale and/or foreclosure proceedings as provided in its Permitted Sublease Financing Encumbrance; (iii) In the case of a Permitted Mezzanine Lender, exercise such remedies as may be permitted by its Permitted Equity Financing Encumbrance or applicable Law; provided, however, that no Assignment or Transfer to the successful bidder (a “Foreclosure Purchaser”) that is neither a Permitted Lender, nor an Affiliate of a Permitted Lender that is a special purpose entity set up and operated by a Permitted Lender specifically to take and hold (directly or indirectly) title to the Site or the Mezzanine Interests (“SPE Lender Affiliate”) shall be effective without City’s prior written consent in accordance with Section 9.4 below. (d) Assume Sublease Obligations. Notwithstanding anything in this Sublease to the contrary, (a) in the case of the acquisition of the leasehold interest created by this Sublease in connection with a Permitted Sublease Financing Encumbrance and as an express condition thereto, Attachment K 65 US-DOCS\118371412.45 the Foreclosure Purchaser shall, before or concurrently with such acquisition, agree in writing to be bound by all provisions of, and assume each and every obligation of RIDA, under this Sublease and (b) in the case of an Equity Collateral Enforcement Action and as an express condition thereto, the Foreclosure Purchaser shall, before or concurrently with such Equity Collateral Enforcement Action, cause RIDA to reaffirm, in writing, promptly after the Equity Collateral Enforcement Action, its obligations under this Sublease; provided, however, that under no circumstance shall such Permitted Lender or such Foreclosure Purchaser have any liability hereunder unless and until it becomes a tenant under this Sublease. Notwithstanding the foregoing, nothing in this Section 9.3(d) shall limit the liability of a Permitted Lender for damage or loss caused by Permitted Lender’s attempt to cure a non-monetary Event of Default. A Permitted Lender that has: (i) acquired the sub-subleasehold interest in the Site and the subleasehold interest in the Improvements and assumed RIDA’s obligations, or (ii) entered into a New Sublease pursuant to Section 9.3(b)(iv) shall be released from all obligations under this Sublease first arising after the effective date of the assignment and assumption of such sub-subleasehold interest and such subleasehold interest to an assignee deemed consented to by City, in accordance with Section 9.4. Section 9.4 City’s Deemed Consent to Assignment or Transfer or Bidders. (a) City’s Deemed Consent to Assignment. City’s consent shall not be required for a Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate. If (x) Landlord under the Ground Lease consents to any of the following in accordance with the Ground Lease or (y) a referee finds in accordance with the judicial reference procedure set forth in Section 10.4.3 of the Ground Lease that Landlord under the Ground Lease shall have consented to any of the following: (1) an Assignment to a Foreclosure Purchaser that is neither a Permitted Lender, nor an SPE Lender Affiliate, or (2) an Assignment or sub-sub-sublease or sub-sublease, as applicable, of all or Substantially All of the Site and the Improvements to a Person by a Permitted Lender or an SPE Lender Affiliate should such entity become the tenant by reason of: (i) being the successful bidder upon said foreclosure, (ii) an assignment in lieu of foreclosure, or (iii) a New Sublease entered into pursuant to Section 10.3.2(d) of the Ground Lease (each capitalized term in clauses (1) and (2) above shall have the meaning assigned thereto in the Ground Lease), then the City shall be deemed to have consented to (A) an Assignment to such Foreclosure Purchaser or (B) an Assignment or sub-sub- sublease of all or Substantially All of the Site or sub-sublease of all or Substantially All of the Improvements to the Person described in clause (2) by a Permitted Lender or an SPE Lender Affiliate. (b) Cancellation; Surrender; Modification; Amendment. There shall be no cancellation, surrender (which term shall be deemed to include any determination by RIDA to treat this Sublease as terminated under 11 U.S.C. § 365(h) if City rejects this Sublease in a bankruptcy or insolvency proceeding affecting City) or modification of this Sublease which is binding on any Permitted Lender (other than correction of scrivener’s errors), without the prior written consent of each Permitted Lender (but nothing herein shall prevent City or RIDA from terminating this Sublease pursuant to the express terms hereof, subject, however, to the rights of the Permitted Lender designated to exercise the cure rights to obtain a New Sublease in accordance with Section 9.3(b)(iv)). RIDA hereby advises City that RIDA is assigning any right which it may have to object to any sale of City’s interests in the Facility free and clear of this Sublease under the terms of 11 U.S.C. § 363(f)(2) to the Permitted Lenders to act on RIDA’s behalf and any such objection by Permitted Lenders shall be as effective as if made by RIDA and, for the benefit of City, RIDA hereby waives any and all right to object to any sale of City’s interests in the Facility so assigned to the Permitted Lenders. So long as a Permitted Financing Encumbrance remains outstanding, City shall Attachment K 66 US-DOCS\118371412.45 not grant consent or deemed consent to any amendment or modification of this Sublease that is not consented to in writing by each Permitted Lender with an outstanding Permitted Sublease Financing Encumbrance of which City has received notice. (c) City’s Deemed Consent to Potential Bidders. City’s consent or deemed consent shall not be required for a Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate. If Landlord under the Ground Lease consents to an Equity Collateral Enforcement Action (as defined in the Ground Lease) that is a foreclosure on the Mezzanine Interests (as defined in the Ground Lease) in accordance with the Ground Lease, then the City shall be deemed to have consented to an Equity Collateral Enforcement Action that is a foreclosure on the Mezzanine Interest. Section 9.5 Subordination, Non-Disturbance and Attornment Agreement. Prior to or on the Commencement Date, (a) City and each Permitted Mortgage Lender shall enter into a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit E attached hereto and (b) City and each Permitted Mezzanine Lender shall enter into a subordination, non-disturbance and attornment agreement substantially in the form of Exhibit F attached hereto. Section 9.6 Miscellaneous. (a) Estoppel Statements. Upon not less than fifteen (15) Business Days’ notice by RIDA, City shall execute, acknowledge and deliver to RIDA, or if requested by RIDA in writing, such Permitted Lender or such prospective qualified Permitted Lender, as applicable, an estoppel statement in substantially the form of Exhibit G attached hereto without any material changes. (b) Completion of the Convention Center. If any Foreclosure Purchaser acquires the subleasehold interest before the date when the Convention Center is Completed, such Foreclosure Purchaser shall expressly assume in writing (in a form reasonably acceptable to the Public Entities) the obligations of RIDA under the Ground Lease and the Project Implementation Agreement. The City shall negotiate in good faith with such Foreclosure Purchaser to set a new commercially reasonable timetable for Completion of the Convention Center (“New Convention Center Completion Timetable”). For the avoidance of doubt, the new date of Completion of the Convention Center (“New Convention Center Outside Construction Completion Date”) may be later than the Original Outside Construction Completion Date set forth in the Project Implementation Agreement), based on the status of the construction of the Convention Center at the time of the applicable foreclosure or action in lieu of foreclosure, as applicable, but in no event shall such New Convention Center Outside Construction Completion Date be extended by a period that does not reasonably take into account the status of the construction of the Convention Center at the time of the applicable foreclosure or action in lieu of foreclosure, as applicable, and the amount of time that it would reasonably take a sophisticated developer with experience constructing and operating convention centers to Complete the Convention Center and in no event shall such New Convention Center Outside Construction Completion Date extend beyond four (4) years from the Original Outside Construction Completion Date set forth in the Project Implementation Agreement, unless otherwise agreed to by City. Once City and such Foreclosure Purchaser agree on a New Convention Center Completion Timetable, then such Foreclosure Purchaser shall Complete the Convention Center in accordance with such New Convention Center Completion Timetable and such Foreclosure Purchaser shall pay Construction Late Charges in accordance with the Project Implementation Agreement. If the City and such Foreclosure Purchaser cannot agree on a New Convention Center Completion Timetable, then the City and such Foreclosure Purchaser shall proceed to Judicial Attachment K 67 US-DOCS\118371412.45 Reference in accordance with Section 6.6(e); provided that the New Convention Center Outside Construction Completion Date shall be tolled during the pendency of any Judicial Reference pursuant to this Section 9.6(b). (c) Amendments and Modifications to Loan Documents. Notwithstanding anything to the contrary herein, RIDA and Permitted Lender shall have the right to make any amendment or modification to any of the Loan Documents without City’s consent if (a) City receives a copy of the amendment or modification within thirty (30) days after it has been executed and (b) following the amendment or modification, (i) the requirements of Sections 10.1.2 or 10.1.3 of the Ground Lease, as applicable, are satisfied and (ii) the name of the borrower and the name of the lender that is a party to the Permitted Financing Encumbrance remain the same. Notwithstanding the foregoing, no City consent shall be required for any protective advances made by a Permitted Lender under and in compliance with the applicable Loan Documents. ARTICLE X SUB-SUBLEASES; ASSIGNMENT Section 10.1 Sub-Subleases. (a) Sub-Subleases. The City and RIDA agree that no sub-sub-sublease of the Site and no sub-sublease of the Improvements (each, a “Sub-sublease”) shall be made except as set forth in this Article 10. (b) Consent Required. Subject to the terms of Sections 10.1(b) through 10.6 and except for (a) any Sub-sublease that is for less than ten thousand (10,000) square feet of the total square footage of the Convention Center, no Sub-sublease shall be made or permitted without the prior written consent of the City (which consent shall not be unreasonably withheld, conditioned or delayed). (c) Request for Consent. If a Sub-sublease is proposed for which the City consent is required, RIDA shall notify the City in writing, which notice (the “Sub-sublease Notice”) shall include (i) the proposed effective date of the Sub-sublease, which shall not be less than sixty (60) days and not more than one hundred eighty (180) days after the date of delivery of the Sub- sublease Notice, (ii) a narrative description, with supporting documents, of the proposed Sub- sublease, including without limitation, the name of the proposed Sub-subtenant, the term of the Sub- sublease, the proposed use of the Site and/or the Improvements, as applicable, the experience of the proposed Sub-subtenant, the organizational structure of the proposed Sub-subtenant, and any additional information that the City may reasonably require to evaluate the Sub-sublease based on the factors set forth in Section 10.1(d), (iii) with respect to any Sub-sublease that has a maximum total term of more than five (5) years, a copy of the proposed sub-sublease agreement, (iv) a statement of any current litigation or any litigation which was resolved within the prior five (5) years affecting the proposed Sub-subtenant and (v) such other information as the City may reasonably require. Not later than thirty (30) days after receipt of a Sub-sublease Notice, the City shall notify RIDA (a) that the City has all information that it requires to evaluate the proposed Sub-sublease or (b) of any additional information that the City reasonably requires to evaluate the proposed Sub-sublease, as applicable. The City shall notify RIDA that it consents or does not consent to the proposed Sub-sublease (including, if applicable, a reasonably detailed explanation for the City withholding its consent) not later than sixty (60) days after the City has received all information that the City reasonably Attachment K 68 US-DOCS\118371412.45 requested to evaluate the proposed Sub-sublease. Any Sub-sublease made without the City’s prior written consent shall, at the City’s option, be null, void and of no effect undone at RIDA’s sole cost and expense and shall not be binding on the City. RIDA shall pay to the City a commercially reasonable fee set by the City in connection with the City reviewing and approving each Sub- sublease for which the City’s consent is required pursuant to the Reimbursement Procedure, regardless of whether the Sub-sublease is consummated or the City’s consent thereto is granted. Any Sub-sublease shall be subject to the terms and provisions of this Sublease. The burden of producing evidence and the burden of proof showing the City that a prospective Sub-subtenant meets each and all of the aforesaid qualifications and standards and that the City breached, or did not act reasonably under, this Section 10.1, shall be on RIDA. (d) Consent Factors. If the City consents to any Sub-sublease, RIDA may within one hundred eighty (180) days after the date of delivery of the Sub-sublease Notice, enter into such Sub-sublease; provided that, if there is any material change to the financial condition of the Sub- subtenant or any other material change to any of the proposed terms or conditions of the Sub- sublease as set forth or attached to the Sub-sublease Notice, then RIDA shall again submit a Sub- sublease Notice to the City for its approval and take all other action required under this Section 10.1. Notwithstanding anything to the contrary herein, the City shall grant consent that is required hereunder to any Sub-sublease if all of the following conditions and requirements are satisfied in the City’s reasonable discretion: (i) Consistent Use. The Sub-subtenant’s proposed use of the Facility following the proposed Sub-sublease will be for the Permitted Use only or such proposed use as has been approved by the City in its sole and absolute discretion; (ii) Reputation. The Sub-subtenant is reputable (which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “reputable” shall not mean “prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference) and has no pattern of or reputation for, either discriminatory employment practices which violate any Laws or non-compliance with Environmental Laws; (iii) Financial Stability. The Sub-subtenant has sufficient financial resources for the Sub-subtenant to perform its obligations under the Sub-sublease; (iv) Event of Default. At the time of the delivery of the Sub-sublease Notice and at the time of the execution of the Sub-sublease, there is no Event of Default; (v) [Reserved]; and (vi) Term. The proposed Sub-sublease will be for no longer than the remainder of the Term. Section 10.2 Effect of Sub-sublease. If the City consents to a Sub-sublease, (i) the terms and conditions of this Sublease shall in no way be deemed to have been waived or modified, (ii) such consent shall not be deemed consent to any further Sub-sublease by either RIDA or a Sub-subtenant, and (iii) RIDA shall deliver to the City, within ten (10) days after execution, an original executed Attachment K 69 US-DOCS\118371412.45 copy of all documentation pertaining to the Sub-sublease, and any document evidencing a Sub- sublease shall be in form acceptable to the City. Section 10.3 Conditions. In the event the City consents to any Sub-sublease as required hereunder, then at the City’s election said consent shall be conditioned upon the following: (i) in the case of a Sub-subtenant under a Sub-sublease of all or Substantially All of the Facility, such Sub- subtenant shall agree to be bound by all provisions, and assume each and every obligation, under this Sublease (including those obligations arising or pertaining to periods prior to the effective date of the Sub-sublease), or, in the case of a Sub-subtenant under a Sub-sublease of less than all or Substantially All of the Facility, such Sub-subtenant shall execute a document reasonably acceptable to the City acknowledging that all rights of the Sub-subtenant are subject to all terms and conditions of this Sublease as the same relate to the space subject to the Sub-sublease; and (ii) the Sub-subtenant shall execute an attornment agreement as provided in Section 10.4 below. Section 10.4 Sub-subtenant Attornment. Every Sub-sublease hereunder is subject to the express condition, and by accepting a Sub-sublease hereunder each Sub-subtenant shall be conclusively deemed to have agreed, that if this Sublease terminates or if the City succeeds to RIDA’s estate in the Facility, the Sub-subtenant shall, at the option of the City, attorn to and recognize the City as the Sub-subtenant’s landlord under the Sub-sublease, provided that the City shall not (i) be liable for any act or omission or negligence of RIDA, (ii) be subject to any counterclaim, offset or defense which theretofore accrued to such Sub-subtenant against RIDA, (iii) be bound by any payment of Rent or other sums of money for more than one (1) month in advance or any security deposit (unless actually received by the City), (iv) be obligated to perform any work in the sublet space, (v) in the event of a casualty, be obligated to repair or restore the Improvements or the Site, (vi) in the event of a partial Taking, be obligated to repair or restore the Improvements or the Site, (vii) be obligated to make any payment to such Sub-subtenant, or (viii) be bound by any obligations that the City lacks the capacity to perform; provided, however, that, if the City elects not to perform any of the obligations set forth in clause (v) to the extent that the Sub- subtenant has not caused such casualty and such casualty affects the entirety of Sub-subtenant’s operations on the Site and/or the Improvements, as applicable, or clause (vi) to the extent that such partial Taking affects the Sub-subtenant’s operations in their entirety on the Site and/or the Improvements, as applicable, then Sub-subtenant shall have the right to terminate the applicable Sub- sublease, in its reasonable discretion, by providing notice thereof to the City. Any Sub-subtenant shall promptly execute and deliver any instrument that the City may reasonably request to evidence such attornment. Upon early termination of this Sublease, if the City requests that Sub-subtenant attorn to the City, then RIDA shall pay over to the City all sums held by RIDA for the benefit of such Sub-subtenant or as security under the provisions of the existing Sub-subleases for such Sub- subtenant. In addition, at RIDA’s request, the City may agree, in its sole and absolute discretion and without obligation to RIDA or Sub-subtenant and without liability to the City, to negotiate a non- disturbance agreement with a Sub-subtenant with a Sub-sublease in excess of 50% of the Project if the City has previously approved the Sub-sublease in writing to such Sub-subtenant pursuant to which such non-disturbance agreement the City would agree not to disturb the possession of such Sub-subtenant in the event this Sublease is terminated. Section 10.5 Sub-sublease Rent Requirements. Subject to the terms of any Permitted Financing Encumbrance, each Sub-sublease shall require the Sub-subtenant thereunder to make all payments of rent and other sums of money that are owed under the applicable Sub-sublease to the City during the existence of an Event of Default and following written notice of the same from the City, and the City shall apply said payments made to all Rent that is due and payable to the City Attachment K 70 US-DOCS\118371412.45 pursuant to this Sublease, and any remaining amounts will be held and applied to future Rent payable under this Sublease. Section 10.6 Reporting of Sub-sublease Information. If RIDA has entered into any Sub- subleases, then, within thirty (30) days of request from the City and within sixty (60) days after the end of each calendar year, RIDA shall submit to the City a rent roll in the form of Exhibit H attached hereto containing the information described therein for each Sub-sublease then in effect, along with a site plan showing locations of any Sub-subleases. Section 10.7 Assignment. Subject to the terms of this Section 10.7, Section 10.10, the terms of the definition of “Equity Collateral Enforcement Action”, and except for any Assignment or Transfer to a Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate, no Assignment or Change of Control of RIDA (collectively, “Transfer”) shall be made or permitted. If Landlord under the Ground Lease consents to any Transfer (as defined in the Ground Lease) under the Ground Lease, then the City shall be deemed to have consented to a Transfer under this Sublease on the terms and conditions that are the same as, or substantially the same as, the terms and conditions to the applicable Transfer (as defined in the Ground Lease) to which Landlord consented under the Ground Lease. Notwithstanding anything herein to the contrary, no Transfer is allowed prior to the date that the Convention Center is Completed and the City has issued the final certificate of occupancy with respect to the Convention Center. Section 10.8 Effect of Transfer. If the City is deemed to have consented to a Transfer, (i) the terms and conditions of this Sublease shall in no way be deemed to have been waived or modified, (ii) such deemed consent shall not be deemed consent to any further Transfer by either RIDA or a Transferee, and (iii) RIDA shall deliver to the City, within one hundred and eighty (180) days after the City’s deemed consent to such Transfer, an original executed copy of all documentation pertaining to the Transfer. In the case of an Assignment of this Sublease only, that complies with the terms of Section 10.7, RIDA and the Transferee shall enter into, and deliver to the City, an assignment and assumption agreement substantially in the form of Exhibit I attached hereto, with any deviations from such form being approved by the City in the City’s reasonable discretion. Upon the City’s receipt of such fully executed assignment and assumption agreement where Transferee assumes all liability and obligations under this Sublease and the Project Implementation Agreement first arising from and after the effective date of such Transfer, RIDA (but not the Completion Guarantor(s), if the Completion Guaranty is in effect on the effective date of the Transfer) shall be relieved from any liability under this Sublease first arising from and after the effective date of such Transfer. Attachment K 71 US-DOCS\118371412.45 Section 10.9 Conditions. In the event the City is deemed to have consented to any Assignment as required hereunder, then said deemed consent shall be conditioned upon (i) the assignee agreeing in writing to be bound by all provisions, and assuming each and every obligation, under this Sublease and the Project Implementation Agreement (including those obligations arising or pertaining to periods prior to the effective date of the Assignment) through an assignment and assumption agreement substantially in the form of Exhibit I hereto (with any deviations from such form being approved by the City in the City’s reasonable discretion) and executes and delivers such assignment and assumption agreement to the City; and (ii) the Completion Guarantor(s) (if applicable) delivering a written acknowledgement, in a form acceptable to the City, consenting to the Assignment and reaffirming their obligations under the Completion Guaranty. Section 10.10 Permitted Lender and Foreclosure Purchasers. The foregoing provisions of this Article 10 shall not apply to the Transfers which are governed by Sections 9.3 and 9.4. ARTICLE XI MISCELLANEOUS Section 11.1 Notices. All notices, certificates or other communications hereunder to RIDA, the City, the Port, the JEPA, or the Trustee shall be in writing and shall be sufficiently given and shall be deemed given when delivered or mailed by first class mail, postage prepaid, to the parties listed below: To RIDA: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner With copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton And Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine To the City: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager With copy to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney Attachment K 72 US-DOCS\118371412.45 With copy to: Port (at the address shown below) With copy to: JEPA (at the address shown below) To Port: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With copy to: Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With copy to: Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 To JEPA: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Manager And Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 With copies to: City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: Finance Director City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 Attention: City Attorney Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 Attachment K 73 US-DOCS\118371412.45 San Diego, CA 92112-0488 RIDA, the Port, the JEPA and the City, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent. Section 11.2 Binding Effect. This Sublease shall inure to the benefit of and shall be binding upon RIDA and the City and their respective successors and assigns. Section 11.3 Severability. In the event any provision of this Sublease shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 11.4 Execution in Counterparts. This Sublease may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 11.5 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State. Section 11.6 Captions. The captions or headings in this Sublease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Sublease. Section 11.7 No Merger. If both RIDA’s and the City’s estate under this or any other lease relating to the Facility or any portion thereof shall at any time by any reason become vested in one owner, this Sublease and the estate created hereby shall not be destroyed or terminated by the doctrine of merger unless (a) the City so elects as evidenced by recording a written declaration so stating, and, unless and until the City so elects, the City shall continue to have and enjoy all of its rights and privileges as to the separate estates and (b) RIDA has provided written consent to such election. Section 11.8 Third-Party Beneficiary. There are no third-party beneficiaries of this Sublease except as set forth in this Section 11.8. Each Permitted Lender shall be a third-party beneficiary of this Sublease as it relates to Section 5.1(g), Section 5.2(a) and Article 9 only and only to the extent such Permitted Lender has any rights to enforce against the City under Section 5.1(g), Section 5.2(a) or Article 9; provided, however, that Permitted Lender shall not have the right to enforce such rights against the City until Permitted Lender expressly agrees in writing that the City shall have the right to assert the City’s rights against Permitted Lender as it relates to Section 5.1(g), Section 5.2(a) or Article 9. As the owner and lessor of the Convention Center and the sublessor of the Site under the Facility Lease (with respect to the JEPA) and as the owner and lessor of the Site under the Site Lease (with respect to the Port), each of the JEPA and the Port has certain interests in the development, use and financing of the Facility and will benefit from the performance by RIDA of certain covenants to be performed by RIDA under this Sublease. The Parties agree that permitting any third party beneficiary under this Sublease to bring its own breach of contract action is consistent with the objectives of this Sublease and the reasonable expectations of the City and RIDA. As such, in order to induce the Port and JEPA to consent to the execution of this Sublease by the City, under this Sublease, (x) the JEPA shall be a third party beneficiary of this Sublease as it relates to any JEPA Attachment K 74 US-DOCS\118371412.45 Sublease Third Party Beneficiary Provision and (y) the Port shall be a third party beneficiary of this Sublease as it relates to any Port Sublease Third Party Beneficiary Provision. The JEPA and/or the Port will be permitted to exercise its respective third party beneficiary rights with respect to any breach of a JEPA Sublease Third Party Beneficiary Provision or a Port Sublease Third Party Beneficiary Provision, as applicable, either in conjunction with the City or on its own behalf subject to the terms and conditions of this Section 11.8. The JEPA or the Port will be permitted to exercise its respective third party beneficiary rights with respect to any breach of a JEPA Sublease Third Party Beneficiary Provision or a Port Sublease Third Party Beneficiary Provision, respectively, only if (a) the JEPA or the Port, as applicable, consults with the City regarding the exercise of their respective third party rights prior to the commencement of any action to enforce such rights and (b) the JEPA or the Port, as applicable, delivers written notice to RIDA of the JEPA’s or the Port’s, as applicable, intention to exercise such rights against RIDA (such notice, the “Third Party Beneficiary Notice”). If the JEPA or the Port, as applicable, delivers a Third Party Beneficiary Notice to RIDA with respect to a breach of a Sublease Third Party Beneficiary Provision and the City exercises remedies with respect to such breach of such Sublease Third Party Beneficiary Provision, then the JEPA or the Port, as applicable, must undertake (for the benefit of RIDA and the City) to cooperate and coordinate with the City, and City shall cooperate and coordinate with the JEPA or the Port, as applicable, so that all statements and positions taken by the JEPA, the Port or the City with respect to any dispute related to such breach in communications with RIDA or in any dispute resolution procedure will be joint statements or positions, as applicable, to the maximum extent possible. Notwithstanding anything to the contrary in any Contemporaneous Agreement, when pursuing its third party beneficiary rights under this Section 11.8 neither the JEPA nor the Port may exercise any right to terminate this Sublease. Section 11.9 Release of Encumbrance. Immediately following the end of the Term, the City shall execute, deliver, and cause to be recorded in the Office of the Recorder of San Diego County, all such documents as are necessary or advisable to fully release, of record, the encumbrance on title to the Site which is caused by the recording of this Sublease with the San Diego County Recorder; and shall thereafter take such actions and execute such documents as may further be necessary or advisable to fully evidence the termination of this Sublease and the release of RIDA from all obligations hereunder, except such obligations as survive the Term as expressly set forth herein. Section 11.10 Transaction Costs. To the extent RIDA requests any approval, consent or other action by the City (including, without limitation, in connection with any proposed Alterations, Financing Transaction or Transfer), RIDA shall pay or reimburse the City upon written demand therefor, all of the City’s reasonable attorneys’ fees and other third party costs incurred by the City in connection therewith, together with the City’s then current processing or cost recovery fee for similar transactions consistent with any schedule of such fees then utilized by the City. The City shall provide RIDA with a copy of any such fee schedule following written request therefor from RIDA. Such costs and fees shall be payable to the City whether or not the City grants such approval or consent, or undertakes the action requested by RIDA. Section 11.11 Drafting Presumption; Review Standard. The parties acknowledge that this Sublease has been agreed to by both the parties, that both City and RIDA have consulted with attorneys with respect to the terms of this Sublease and that no presumption shall be created against the drafting party. Any deletion of language from this Sublease prior to its execution by City and RIDA shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse Attachment K 75 US-DOCS\118371412.45 of the deleted language. Unless otherwise specified in this Sublease, any approval or consent to be given by City or the City Council may be given or withheld in the City’s or the City Council’s sole and absolute discretion. Section 11.12 Constitutional Rights and Compliance with Law. Nothing in this Sublease is intended to limit any rights that RIDA has under the Constitution of the United States of America or the California State Constitution with respect to any act, including the enactment of any Law, by City or any other Governmental Authority, including, without limitation, any claim for a taking, and this Sublease shall be construed as to give effect to such intent. Whenever this Sublease requires RIDA to comply with the requirements of any Law, then RIDA will be deemed in compliance with such Law if each applicable Governmental Authority has provided a written variance from or waiver of compliance therewith. Section 11.13 Time of Essence. Time is of the essence with respect to this Sublease and each of its provisions. Section 11.14 Entire Agreement. It is understood and acknowledged that there are no oral agreements between the Parties affecting this Sublease and this Sublease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties with respect to the subject matter hereof, except for the Prior Agreements, the Contemporaneous Agreements and the Approved Agreements. This Sublease contains all of the terms, covenants, conditions, warranties and agreements of the Parties relating in any manner to the rental, use and occupancy of the Site and the Improvements and shall be considered to be the only agreement between the Parties and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agreements and the applicable Approved Agreements. All negotiations and oral agreements acceptable to the Parties have been merged into and are included herein. There are no other representations or warranties between the Parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Sublease. However, RIDA acknowledges and agrees that other documents may restrict RIDA’s use of the Facility or impose other obligations not specifically referenced in this Sublease, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA. Section 11.15 Discharge of the Bonds. In the event that all Bonds and Additional Bonds issued under the Indenture shall be deemed to have been paid and discharged in accordance with Section 9.3 of the Indenture (the “Discharge of the Bonds”), then all references herein to the Bonds, Additional Bonds, Trustee, the Indenture and the Assigned Rights (as defined in the Indenture) shall be of no force and effect as of the effective date of the Discharge of the Bonds. On the effective date of the Discharge of the Bonds, (a) the Assigned Rights shall revert to the JEPA without any further action on the part of any Public Entity or the Trustee, (b) any amounts that were to have been paid to Trustee under the Facility Lease shall be paid to the JEPA, except for any Net Proceeds, which shall be held pursuant to the terms of this Sublease and distributed in accordance with the provisions of the Facility Lease, this Sublease, the Project Implementation Agreement and, subject to the provisions of the Facility Lease, this Sublease and the Project Implementation Agreement, the Revenue Sharing Agreement, or any other agreement between the Public Entities and RIDA governing the distribution of such amounts, and (c) all rights granted to the Trustee hereunder, including, but not limited to, the Assigned Rights (as defined in the Indenture) and the right to enforce any remedies, to provide consent and to receive notice, shall be of no further force and effect. Attachment K 1 US-DOCS\118371412.45 IN WITNESS WHEREOF, the City has caused this Sublease to be executed in its name by its duly authorized officers, and RIDA has caused this Sublease to be executed in its name by its duly authorized officers, as of the date first above written. CITY OF CHULA VISTA, as Sublessor By: Its: City Manager ATTEST: City Clerk RIDA CHULA VISTA, LLC, as Sublessee By: Its: By: Its: CONSENTED AND, WITH RESPECT TO SECTIONS 6.6(A), 6.8(A), 6.20(C) AND 11.8 OF THIS SUBLEASE, AGREED TO BY: SAN DIEGO UNIFIED PORT DISTRICT By: Its: ATTEST: Secretary Attachment K 2 US-DOCS\118371412.45 CONSENTED AND, WITH RESPECT TO SECTIONS 3.12(E), 6.8(a), 11.8 AND 11.15 OF THIS SUBLEASE, AGREED TO BY: CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers authority By: Its: ATTEST: Secretary Attachment K 1 US-DOCS\118371402.28 DEFINITIONS ADDENDUM 2021A ACCOUNT: defined in the Indenture 2021A BONDS: defined in the Indenture. ABANDONMENT: defined in Section 8.1(a) of this Sublease. ACCEPTABLE BRAND: shall mean the “Gaylord Hotels” brand or any other hotel brand that has achieved "AAA Four Diamond" rating standards in a reasonable number of its hotels or the equivalent as determined by the City in its reasonable discretion; provided that RIDA shall not terminate the Hotel Management Agreement that is in effect as of the Commencement Date before the date that is the third (3rd) anniversary of the later of: (a) the date that the Resort Hotel is open for business and (b) the date that the Convention Center is open for business, unless as set forth in this Sublease or the Ground Lease. ACTUAL CAPITAL INVESTMENT: defined in Exhibit B-2 attached to this Sublease. ADA: the Americans with Disabilities Act, 42 U.S.C. §12101 (et seq.) and the regulations promulgated thereunder, as the same may be amended from time to time. ADDITIONAL BONDS: defined in the Indenture. ADDITIONAL RENT: defined in Exhibit B-2 attached to this Sublease. ADDITIONAL RENT HURDLE: defined in Exhibit B-2 attached to this Sublease. ADDITIONAL RENT PERCENTAGE: defined in Exhibit B-2 attached to this Sublease. ADVERTISING DEVICES: defined in Section 6.21 of this Sublease. AFFILIATE: with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person. ALTERATION PLANS: defined in Section 6.10(a) of this Sublease. ALTERATIONS: any alterations, additions, installations, removals, demolitions, improvements or other physical changes to the Site and the Improvements following the Completion of the Convention Center, including the addition, installation or removal of any fixtures (other than trade fixtures) but excluding installation, maintenance, Attachment K 2 US-DOCS\118371402.28 DEFINITIONS ADDENDUM replacement or refreshing of any furniture, trade fixtures or equipment. APPROVED AGREEMENTS: defined in Section 6.6(f) of this Sublease. ASSIGNED RIGHTS: defined in the Facility Lease. ASSIGNMENT: any disposition, assignment, sale, conveyance, exchange or other transfer of all or any portion of RIDA’s interest in this Sublease (including without limitation any easements), the leasehold estate created thereby, the Site or the Improvements, whether by operation of law or otherwise, but, for the avoidance of doubt, excluding any Sub-sublease. ASTs: defined in Section 6.20(i)(i) of this Sublease. AUTHORITY SURPLUS FUND: defined in the Indenture. AUTHORIZED REPRESENTATIVE OF RIDA: any person or persons designated by RIDA and authorized to act on behalf of RIDA in accordance with its governing documents. AVAILABLE CASUALTY AMOUNT: defined in Section 5.2(b) of this Sublease. AVAILABLE CASUALTY AMOUNT ON DEPOSIT: defined in Section 5.2(b) of this Sublease. AVAILABLE CONDEMNATION AMOUNT: defined in Section 5.1(d) of this Sublease. AVAILABLE CONDEMNATION AMOUNT ON DEPOSIT: defined in Section 5.1(d) of this Sublease. BANKRUPTCY CODE: the United States Bankruptcy Code (11 U.S.C. § 101, et seq.), as amended, and any successor statute. BANKRUPTCY EVENT: the occurrence with respect to RIDA, any Completion Guarantor(s) or any other Person liable for RIDA’s obligations under this Sublease (including without limitation any member or manager of RIDA) of any of the following: (a) appointment of a receiver or custodian for any property of such Person, or the institution of a foreclosure or attachment action upon any property of such Person; (b) filing by such Person of a voluntary petition under the provisions of the Attachment K 3 US-DOCS\118371402.28 DEFINITIONS ADDENDUM Bankruptcy Code; or (c) such Person making or consenting to an assignment for the benefit of creditors or a composition of creditors. BASE RENT: the rent payments due from RIDA pursuant to Section 3.5 of this Sublease and as set forth in Exhibit B-1 attached to this Sublease. BOND YEAR: defined in the Indenture. BONDS: defined in the Indenture. BMPs: the Best Management Practices set forth in the Jurisdictional Runoff Management Program incorporated by reference in Article 10 of the San Diego Unified Port District Code. BPC: Board of Port Commissioners of the San Diego Unified Port District. BUILDABLE CONDITION: completion of the following work: (i) the demolition and removal of the Existing Improvements on the Site, and the public and private utilities on the Site (provided, however, that a “Buildable Condition” will not require the demolition or removal of such Existing Improvements and/or public and private utilities if the City instructs RIDA not to demolish and remove them in a written notice to RIDA), any Hazardous Materials and Pre-Existing Materials but only as and to the extent required under Section 6.20, and any debris resulting from such demolition and removal; (ii) the remediation of any Hazardous Materials and Pre-Existing Materials but only as and to the extent required under Section 6.20; and (iii) the repair of any damage to the Site, Existing Improvements on the Site and/or public and private utilities on the Site, caused by (i) and (ii) above, pursuant to plans and specifications approved by the City in the City’s reasonable discretion. BUSINESS DAY: a day (other than a Saturday or Sunday) on which banks in San Diego County, California are open for ordinary banking business. CASUALTY PROCEEDS: defined in Section 5.2(a) of this Sublease. CCC: defined in Section 6.14 of this Sublease. CDP: any Coastal Development Permit (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under CEQA) or any other CCC regulations or local, state or federal requirements now or hereafter affecting the Facility, including the use or development thereof. CEQA: defined in Section 6.14 of this Sublease. Attachment K 4 US-DOCS\118371402.28 DEFINITIONS ADDENDUM CHANGE OF CONTROL: with respect to any Person, a merger, consolidation, recapitalization or reorganization of such Person or other transaction or an amendment to any governing document of such Person that, in the case of any of the foregoing, results in any third party that is not an Affiliate of such Person having the ability to Control such Person; provided that, with respect to RIDA, as long as Ira Mitzner or any of his replacements set forth in the Original LLC Agreement is the manager of RIDA in accordance with the Original LLC Agreement, then there shall be no Change of Control of RIDA; and provided, further, that no merger, consolidation, recapitalization or reorganization of any Publicly Traded Person or other transaction with respect to any Publicly Traded Person or an amendment to any governing document of any Publicly Traded Person will result in a Change of Control. “Publicly Traded Person” means any Person, any of the equity securities in which are publicly traded. CITY: defined in the preamble. CITY PARTY: City and the officers, directors, members of the City Council, employees, partners, affiliates, agents, contractors, successors and assigns of the City, in each case, when acting only in the capacity of a City Party. CLAIMS: claims, actions, causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution. CLOSING DATE: defined in the Indenture. CODE: the Internal Revenue Code of 1986, as amended. COMMENCEMENT DATE: defined in Section 3.2 of this Sublease. COMMUNITY FACILITIES DISTRICT: a financing district established and existing pursuant to the Chula Vista Municipal Code Chapter 3.61. COMPLETION AND COMPLETE: shall mean, with respect to the Improvements (except the Convention Center) or any Alterations thereto, as the context may require, that RIDA has obtained and delivered to the City, (i) a certificate of occupancy or temporary certificate of occupancy for the Improvements or Alterations with respect to any of the foregoing, as applicable, from the appropriate Governmental Authority or (ii) equivalent certification from the appropriate Governmental Authority certifying that the Improvements or applicable Alterations to any of the foregoing, as applicable, may be used in accordance Attachment K 5 US-DOCS\118371402.28 DEFINITIONS ADDENDUM with the designs therefor; provided, however, that, if no Governmental Authority customarily provides certificates of occupancy, temporary certificates of occupancy or certifications like those described in clause (ii) for work similar in nature to the Improvements or Alterations, as applicable, then such Improvements or Alterations, as applicable, will be “Complete” when such Improvements or Alterations, as applicable, are substantially complete; and provided, further, that the Convention Center shall be complete when it is Complete as defined in the Project Implementation Agreement. CONDEMNATION: defined in Section 5.1(a) of this Sublease. “Condemned” shall have correlative meaning. CONDITION OF THE SITE: defined in Section 6.12(a) of this Sublease. CONSTRUCTION FUND: defined in the Indenture. CONSTRUCTION LATE CHARGES: defined in Section 5.1.2 of the Project Implementation Agreement. CONSTRUCTION PERIOD: defined in the Project Implementation Agreement. CONSTRUCTION REQUIREMENTS: those requirements, conditions and procedures regulating the installation, construction, modification and repair of the Improvements (except the Existing Improvements) and Alterations thereto as described in Exhibit “N” attached to the Sublease. CONSTRUCTION WORK: defined in Exhibit N to this Sublease. CONTEMPORANEOUS AGREEMENTS: generally, any agreements executed on or around the Commencement Date by the Parties with respect to the Development and the Project Implementation Agreement, the Convention Center Leases, the Ground Lease and the Completion Guaranty.1 CONTINUING DISCLOSURE AGREEMENT: that certain continuing disclosure agreement or certificate dated the Closing Date by and between RIDA and [____], as dissemination agent. CONTROL, CONTROLLED AND CONTROLLING: shall be deemed, with respect to any Person, to be either or both (i) the ownership of more than fifty percent (50%) of the stock or other voting interest of such Person or the ownership of beneficial interests in such Person, or (ii) the power to direct the management 1 List of documents to be confirmed prior to execution of this Sublease. Attachment K 6 US-DOCS\118371402.28 DEFINITIONS ADDENDUM of such Person with respect to major decisions of such Person, whether through voting interests or by way of agreement. CONVENTION CENTER: those certain permanent improvements that constitute real estate, with approximately 275,000 net usable square feet of associated meeting space, located on the Site, and which, for the avoidance of doubt, shall exclude any personal property of RIDA located in or upon any portion of the Facility. CONVENTION CENTER LEASES / CONVENTION CENTER LEASE: the Site Lease, the Facility Lease and/or this Sublease, as the context may require. CONVENTION CENTER OUTSIDE CONSTRUCTION COMPLETION DATE: forty-eight (48) months after the Outside Construction Commencement Date (as such date may be extended by one day for each day that a Force Majeure Event delays Completion of the Convention Center). COUNCIL / CITY COUNCIL: defined in the recitals. COURT: defined in Section 6.6(e)(ii) of this Sublease. CVBMP DOCUMENTS: the following documents: (i) the Settlement Agreement; (ii) Chula Vista Bayfront Development Policies (District Clerk No. 59407); (iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan (District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016-79, and the City Council of the City of Chula Vista on June 14, 2016, by Resolution No. 2016- 119; (iv) Chula Vista Bayfront Master Plan Public Access Program (District Clerk No. 59408); (v) Chula Vista Bayfront Design Guidelines (District Clerk No. 67959); (vi) Integrated Planning Vision (District Clerk No. 63989); (vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment (District Clerk Nos. 59406); (viii) Mitigation Monitoring and Reporting Program for the Chula Vista Bayfront Master Plan (District Clerk No. 56555); and (ix) the CDP for the Resort Hotel, the Convention Center and the Parking Improvements. DEFAULT RATE: an annual rate equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release Publication H.15(519), published weekly (or such other comparable index as City and RIDA shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and (ii) the highest rate permitted by applicable Law. Attachment K 7 US-DOCS\118371402.28 DEFINITIONS ADDENDUM DESIGNATED NOMINEE: defined in Section 9.3(b)(i) of this Sublease. DEVELOPMENT: RIDA’s development of, collectively, the Parking Improvements, the Resort Hotel, the Convention Center and RIDA’s Phase 1A Improvements. DIR: defined in Section 6.22(a)(iv)(2). DISCHARGE OF THE BONDS: defined in Section 11.15 of this Sublease. DISCRETIONARY ENTITLEMENT: any discretionary approval, permit or entitlement, including, without limitation, environmental analysis under CEQA or the National Environmental Policy Act, the PMP, a Port Master Plan Amendment, stormwater permits, a CDP and/or a California Coastal Act exclusion. DISTRICT DOCUMENTS: defined in Section 6.12(d)(ii) of this Sublease. EIR: defined in Section 6.1(a) of this Sublease. ENVIRONMENTAL CLEANUP: to investigate, remove or remediate such contamination in compliance with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority. ENVIRONMENTAL LAWS: Laws and other requirements in effect during the Term that regulate Hazardous Materials or otherwise relate to public health and safety or the protection of the environment. EQUITY COLLATERAL ENFORCEMENT ACTION: defined in Section 9.2 of this Sublease. EVENT OF DEFAULT: defined in Section 8.1 of this Sublease. EXCAVATED SOIL REMOVAL: defined in Section 6.20(j)(i) of this Sublease. EXISTING IMPROVEMENTS: any improvements (including utilities, storm drains and park ways) located upon the land (and water, if applicable) that are in existence and located on, in, over or under the Site as of the Commencement Date, whether constructed by Port, a prior tenant or another third party. EXPANSION DATE: defined in Section 1.2 of the Ground Lease. FACILITY: defined in the recitals. Attachment K 8 US-DOCS\118371402.28 DEFINITIONS ADDENDUM FACILITY LEASE: defined in the recitals. FACILITY LEASE LOST RENTAL INCOME INSURANCE: defined in Section 4.2(a) of this Sublease. FINANCING TRANSACTION: defined in Section 9.1 of this Sublease. FIRST-CLASS CONDITION: (x) the quality, condition, maintenance, and repair standards described in the Hotel Management Agreement in effect that shall be in accordance with the level of quality at the time of the opening of the Convention Center for business, subject to any ordinary wear and tear and any Alterations; or (y) if no Hotel Management Agreement is in effect, then the quality, condition, maintenance, and repair standards under the Hotel Management Agreement last consented to by the Port and deemed consented to by the City (until a new one is approved) and in accordance with the level of quality at the time of the opening of the Convention Center for business, subject to any ordinary wear and tear and any Alterations. FORCE MAJEURE EVENT: defined in Section 6.13(a) of this Sublease. FORCE MAJEURE NOTICE: defined in Section 6.13(e) of this Sublease. FORCE MAJEURE RESPONSE: defined in Section 6.13(e) of this Sublease. FORECLOSURE PURCHASER: defined in Section 9.3(c) of this Sublease. GOVERNMENTAL AUTHORITY: each and every governmental agency, authority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Site (or any activity this Sublease allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable Government Agencies, governmental authorities, and subdivisions thereof. GOVERNMENT AGENCY: any federal, state or local government agency (including, but not limited to, the United States Environmental Protection Agency, the Regional Water Quality Control Board, the Department of Toxic Substances Control or Air Resources Board). GROUND LEASE defined in the recitals. Attachment K 9 US-DOCS\118371402.28 DEFINITIONS ADDENDUM GROUND LEASE PROPERTY defined as “Premises” under the Ground Lease. HAZARDOUS MATERIAL: any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any applicable Law (including, but not limited to, hazardous substances as defined by Cal. Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance. Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws. HAZARDOUS MATERIALS ACTIVITY: generation, bringing, use, storage, emission, release, or disposal of any Hazardous Material, or products or materials which include any hazardous substance as a component. HMMD: defined in Section 6.20(i)(i) of this Sublease. HOTEL / RESORT HOTEL: that certain single-branded resort hotel with at least 1,570 Rooms but not more than 1,600 Rooms on the Ground Lease Property generally as shown on Exhibit B-1 attached to the Ground Lease with an Acceptable Brand. HOTEL AND CONVENTION CENTER PROJECT: the Ground Lease Property, the Site, the Convention Center, the Resort Hotel and any other personal or real property or improvements located on the Ground Lease Property or the Site. HOTEL MANAGEMENT AGREEMENT: management agreement for the Resort Hotel, the Parking Improvements and the Convention Center between RIDA and the Hotel Operator. HOTEL OPERATOR: RIDA’s counterparty to a Hotel Management Agreement that is in effect in accordance with the Sublease. IMPROVEMENTS: those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now (including any Existing Improvements) or hereafter (including the Initial Project Improvements, Alterations thereto and any other Attachment K 10 US-DOCS\118371402.28 DEFINITIONS ADDENDUM ancillary improvements constructed during the Term) located on, in, over or under the Site. INCENTIVE FEE HURDLE: defined in Exhibit B-2 attached to this Sublease. INCURABLE DEFAULT: defined in Section 9.3(b)(ii) of this Sublease. INDEPENDENT CONSULTANT: defined in Section 6.20(e) of this Sublease. INITIAL FORCE MAJEURE NOTICE: defined in Section 6.13(e) of this Sublease. INDENTURE: the Indenture, dated as of the date hereof, by and between Wilmington Trust, National Association, as trustee, and the JEPA, as amended, amended and restated, supplemented or otherwise modified from time to time. INITIAL PROJECT IMPROVEMENTS: the Improvements that are located on the Site and are initially developed by RIDA and described by the Plans (as opposed to Existing Improvements and subsequent Alterations to the Initial Project Improvements). INQUIRY: a notice, inquiry, investigation, proceeding, or claim by any government agency or other Person regarding the presence that occurs during the Term of any Hazardous Material on, in, under, from or about the Facility. INSPECTION REPORT: defined in Section 6.6(c) of this Sublease. INSURANCE AND CONDEMNATION FUND: defined in the Indenture. JEPA: defined in the recitals. JEPA PARTIES: The JEPA, and the officers, directors, members of the JEPA Board, employees, partners, affiliates, agents, contractors, successors and assigns of the JEPA, and staff members of the Port and City, in each case, when acting only in the capacity of a JEPA Party. JEPA SUBLEASE THIRD PARTY BENEFICIARY PROVISION: Section 2.1, Section 2.2, Section 3.4(b), Section 3.9, Section 3.12, Section 3.14, Section 4.1, Section 4.2(b), Section 5.1(d), Section 5.1(f), Section 5.1(g), Section 5.1(h), Section 5.2(a), Section 5.2(b), Section 5.2(f), Section 6.1, Section 6.6, Section 6.7, Section 6.8, Section 6.9, Section 6.10, Section 6.11(b), Section 6.11(c), Section 6.12(a), Section 6.12(b), Section 6.12(d), Section 6.14, Section 6.15, Section 6.16, Section 6.19(a), Section 6.20, Section 6.21, Section Attachment K 11 US-DOCS\118371402.28 DEFINITIONS ADDENDUM 11.1, Section 11.8, Section 11.15, and in each case, the definitions of terms used therein. JUDICIAL REFERENCE: defined in Section 6.6(e) of this Sublease. LANDLORD’S MATERIALS: defined in Section 6.12(d)(ii) of this Sublease. LATE CHARGES: defined in Section 3.5(c) of this Sublease. LAWS: all of the following to the extent (i) applicable to the Site, the Improvements or any activity under this Sublease, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, without limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Unified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; any applicable ordinances of the city in which the Site is located, including the building code thereof, and any permits and approvals by any Governmental Authority, the City, and the Port, including, without limitation, any California Coastal Development Permit, applicable to the Site or the use or development thereof. LEASE PAYMENTS: the scheduled rental payments to be made by the City to the JEPA pursuant to Section 4.4(a) of the Facility Lease. LEASE PERIOD: any of the following: First (1st) Lease Period: Lease Years 1 – 18 Second (2nd) Lease Period: Lease Years 19 – 23 Third (3rd) Lease Period: Lease Years 24 – 37 LEASE YEAR: each period of twelve (12) consecutive months commencing on the Commencement Date and each successive twelve (12) month period thereafter during the Term. Attachment K 12 US-DOCS\118371402.28 DEFINITIONS ADDENDUM LEASEHOLD AWARD: defined in Section 5.1(g)(i) of this Sublease. LETTER OF CREDIT: defined in Section 3.12(b) of this Sublease. LOAN DOCUMENT / LOAN DOCUMENTS: defined in the Ground Lease. MAJOR ALTERATIONS: defined in Section 6.10(a) of this Sublease. MANAGEMENT INCENTIVE FEE: defined in Exhibit B-2 attached to this Sublease. MATERIAL EXACERBATION / MATERIALLY EXACERBATE/ MATERIALLY EXACERBATED: any material increase in the cost or amount of investigation, removal or remediation action required. MAXIMUM INCENTIVE FEE PERCENTAGE: defined in Exhibit B-2 attached to this Sublease. MEET & CONFER PERIOD: defined in Section 6.13(e) of this Sublease. MEETING SPACE: defined in Section 5.4.1(b) of the Ground Lease. MEZZANINE INTERESTS: the equity interests in RIDA or in any Person or Persons that own(s) direct or indirect equity interests in RIDA. MICC: MICC (California), LLC, a Delaware limited liability company. MINOR ALTERATIONS: defined in Section 6.10(b) of this Sublease. MOODY’S: Moody’s Investors Service, Inc., its successors and assigns. NET OPERATING INCOME: defined in Exhibit B-2 attached to this Sublease. NET PROCEEDS: defined in the Indenture. NEW CONVENTION CENTER COMPLETION TIMETABLE: defined in Section 9.6(b) of this Sublease. NEW CONVENTION CENTER OUTSIDE defined in Section 9.6(b) of this Sublease. Attachment K 13 US-DOCS\118371402.28 DEFINITIONS ADDENDUM CONSTRUCTION COMPLETION DATE: NEW SUBLEASE: defined in Section 9.3(b)(iv) of this Sublease. NEW TENANT: defined in Section 9.3(b)(iv) of this Sublease. NOTICE OF ELECTION TO TERMINATE: defined in Section 5.2(b) of this Sublease. OFAC: defined in Section 6.15(c) of this Sublease. OPERATING EXPENSES: defined in Exhibit B-2 attached to this Sublease. OPERATION: defined in Exhibit B-2 attached to this Sublease. ORIGINAL LLC AGREEMENT: that certain Limited Liability Company Agreement of RIDA Chula Vista, LLC, dated as of February, 2018, as amended pursuant to any amendment that does not amend the management of RIDA. OUTSIDE CONSTRUCTION COMMENCEMENT DATE: ten (10) days after the Commencement Date. PARKING IMPROVEMENTS: defined in the Ground Lease. PARTY; PARTIES: the City and RIDA. PAYMENT BOND: defined in Exhibit N to this Sublease. PERIODIC RENT: collectively, the Base Rent and the Additional Rent. PERMITTED ENCUMBRANCES: as of any particular time: (1) liens for taxes and general ad valorem assessments, if any, (x) not then delinquent, (y) which RIDA may, pursuant to Section 6.19 of this Sublease, permit to remain unpaid or (z) being contested in good faith by appropriate proceedings and, if applicable, in accordance with Section 6.19 of this Sublease or Article 19 of the Project Implementation Agreement; (2) this Sublease; (3) the Facility Lease; (4) the Site Lease; (5) any right or claim of any mechanic, laborer, materialman, supplier or vendor filed or perfected in the manner prescribed by law after the Closing Date which is being contested by RIDA in accordance with Section 6.11 hereof; (6) easements, rights of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions which exist of record as of the Closing Date, including without limitation, those set forth in Exhibit K; (7) easements, rights Attachment K 14 US-DOCS\118371402.28 DEFINITIONS ADDENDUM of way, mineral rights, drilling rights and other rights, reservations, covenants, conditions or restrictions established following the Closing Date, to which RIDA and the JEPA, the Port and/or the City consent in writing and which the City certifies will not materially impair the use of the Facility for its intended purpose and will not, in and of itself, result in abatement of Lease Payments under the Facility Lease, or any extensions, renewals or permitted replacement thereof; (8) any encumbrance permitted under Article IX hereof, including any Permitted Financing Encumbrance; (9) any encumbrance permitted pursuant to Article X of the Ground Lease, including any Permitted Financing Encumbrance (as defined in the Ground Lease); (10) any pledges contained in the Indenture; and (11) any encumbrance with respect to the Site or the Ground Lease Property that is in effect as of the Commencement Date or permitted by Section 2(d) of the Site Lease. PERMITTED EQUITY FINANCING ENCUMBRANCE: defined in Section 9.2 of this Sublease. PERMITTED FINANCING ENCUMBRANCE: defined in Section 9.2 of this Sublease. PERMITTED LENDER: defined in Section 9.2 of this Sublease. PERMITTED MEZZANINE LENDER: (a) any Person that is deemed approved by the City pursuant to Section 9.1 of this Sublease and that is a party to a security agreement, pledge agreement or similar instrument or agreement that creates any security interest in the Mezzanine Interests securing RIDA’s payment and performance in connection with any Financing Transaction and (b) from and after the date when the Convention Center is Complete, any Person that holds an interest in a loan that is secured by any security interest in the Mezzanine Interests in circumstances where a permitted syndication has occurred and such security interest is held by, and the administration of such loan is done by, an agent that is deemed approved by the City. PERMITTED MORTGAGE LENDER: defined in Section 9.2 of this Sublease. PERMITTED SUBLEASE FINANCING ENCUMBRANCE: defined in Section 9.2 of this Sublease. PERMITTED USE: defined in Section 6.1(a) of this Sublease. Attachment K 15 US-DOCS\118371402.28 DEFINITIONS ADDENDUM PERSON: any individual, partnership, firm, joint venture, association, corporation, limited liability company, government agency or any other form of business entity. PLANS: defined as “Convention Center Plans” in the Project Implementation Agreement. PLEDGOR: a Person that, in the aggregate, directly or indirectly, owns all of the equity interests of RIDA. PMP: defined in Section 6.14 of this Sublease. PORT: defined in the recitals. PORT SUBLEASE THIRD PARTY BENEFICIARY PROVISION: Section 2.2(b), Section 3.9, Section 4.1(b), Section 5.1(g)(ii), Section 6.6(e), Section 6.12(a), (b) and (d), Section 6.17, Section 6.20, Section 11.8, and, solely upon the expiration or earlier termination of this Sublease, Section 3.13, Section 3.15, the last sentence of Section 5.1(d), Section 5.1(g)(i)(B), Section 5.2(b)(vi), Section 6.17, Section 11.9, and in each case, the definitions of terms used therein. PRE-APPROVED ADVERTISING DEVICES: defined in Section 6.21 of this Sublease. PRE-EXISTING HAZARDOUS MATERIAL: any Hazardous Material located on or under the Site prior to the Commencement Date, whether known or unknown, and any Hazardous Material located outside the Site (including any premises owned by the Port) prior to the Commencement Date that migrates onto the Site thereafter. PREMISES SURFACE PARKING: defined in the Ground Lease. PRIMARY USE: defined in Section 6.1(a) of this Sublease. PRIOR AGREEMENTS: the agreements listed on Exhibit O to this Sublease. PROHIBITED PERSON / PROHIBITED PERSONS: defined in Section 6.15(c) of this Sublease. PROJECT: RIDA’s development of the Initial Project Improvements, the Resort Hotel and the Parking Improvements. PROJECT IMPLEMENTATION AGREEMENT: defined in the recitals. Attachment K 16 US-DOCS\118371402.28 DEFINITIONS ADDENDUM PROJECT PROPERTY TAXES: possessory interest taxes or property taxes with respect to all or any portion of the Hotel and Convention Center Project. PROJECT REVENUES: defined in Exhibit B-2 of this Sublease. PROPERTY EXPENSES: defined in Section 6.18 of this Sublease. PROPERTY TAX CONTEST: defined in Section 6.19(b) of this Sublease. PROPERTY TAX EXPENSES: property taxes and assessments with respect to the Facility (including, without limitation, real estate taxes, possessory interest taxes, general and special taxes and assessments, leasehold taxes or taxes based upon RIDA’s receipt of rent, but excluding all taxes imposed upon net income or gain). PUBLIC ENTITY: JEPA, Port and/or City. PUBLIC ENTITY PARTIES: JEPA, Port and/or City, and their respective officers, directors, members of their respective governing boards, employees, partners, affiliates, agents, contractors, successors and assigns of the JEPA, Port and City, as applicable, in each case, when acting only in the capacity of a Public Entity Party. PWL: defined in Section 6.22(a)(i) of this Sublease. REFERENCE NOTICE: defined in Section 6.6(e)(ii) of this Sublease. REIMBURSEMENT PROCEDURE: defined in Section 3.9 of this Sublease. RELATED COSTS: any costs, damages (of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. For the avoidance of doubt, Related Costs shall not include any Tax Expenses or items excluded from the definition of “Tax Expenses” pursuant to Section 6.16. RENT collectively, the Periodic Rent, the Sublease Advance Rent and all other amounts treated as “supplemental Rent” under this Sublease. RESERVE FUND: defined in the Indenture. REVENUE FUND: defined in the Indenture. Attachment K 17 US-DOCS\118371402.28 DEFINITIONS ADDENDUM REVENUE SHARING AGREEMENT: that certain Third Amended and Restated Revenue Sharing Agreement by and among the City, Port and the JEPA dated [  ], 2021 and filed in the Office of the Port Clerk as Document No. [  ] (as amended, amended and restated, supplemented or otherwise modified from time to time). REVIEW PROCESSES: defined in Section 6.21 of this Sublease. RIDA: defined in the preamble. RIDA BASELINE INSURANCE: defined in Section 4.2(a) of this Sublease. RIDA MEMBER / RIDA MEMBERS: defined in Section 6.15(c) of this Sublease. RIDA PARTY: RIDA, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors and assigns of RIDA, and Sub-subtenants, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Sub-subtenants, in each case, when acting only in the capacity of a RIDA Party. RIDA’S PHASE 1A IMPROVEMENTS: defined in Section 6.11 of the Ground Lease. ROHR: Rohr, Inc., a United Technologies Aerospace Systems Company, and its successors and assigns. ROOM: a separately keyed lodging unit of the Resort Hotel. SDRWQCB: San Diego Regional Water Quality Control Board. SETTLEMENT AGREEMENT: Chula Vista Bayfront Master Plan Settlement Agreement, dated May 4, 2010, among the Bayfront Coalition Member Organizations identified therein, Port, the City and the Redevelopment Agency of the City of Chula Vista (District Clerk No. 56523). SITE: defined in the recitals. SITE LEASE defined in the recitals. SPECIAL TAX DISTRICT: defined in Section 6.16 of this Sublease. SPE LENDER AFFILIATE: defined in Section 9.3(c) of this Sublease. Attachment K 18 US-DOCS\118371402.28 DEFINITIONS ADDENDUM S&P / STANDARD & POOR’S: S&P Global Ratings, a Standard & Poor’s Financial Services LLC business, its successors and assigns. SUBJECT FISCAL YEAR: any of the first four fiscal years for the State of California that commence after the Completion of the Resort Hotel. SUBLEASE: defined in the preamble. SUBLEASE ADVANCE RENT: defined in Section 3.4(b) of this Sublease. SUBLEASE ADVANCE RENT NOTICE: a notice, delivered pursuant to Section 3.4 of this Sublease, specifying the amount of Sublease Advance Rent due and owing by RIDA. SUBLEASE ADVANCE RENT REGISTER: defined in Section 3.4(b) of this Sublease. SUBLEASE THIRD PARTY BENEFICIARY PROVISION: the JEPA Sublease Third Party Beneficiary Provision or the Port Sublease Third Party Beneficiary Provision, as applicable. SUBSTANTIAL COMPLETION: means, with respect to any improvements, that all work has been completed with respect to such improvements, except for any punch list items. SUBSTANTIALLY ALL: at least eighty percent (80%) of rentable square footage. SUB-SUBLEASE: defined in Section 10.1(a) of this Sublease. SUB-SUBLEASE NOTICE: defined in Section 10.1(c) of this Sublease. SUB-SUBTENANT: any sub-subtenant (or sub-sub-subtenant or other level of subtenant), occupant, franchisee, licensee, or concessionaire under any Sub- sublease; provided, however, that “Sub-subtenant” shall exclude the Hotel Operator. TAKING: a taking by exercise of the power of eminent domain. TAX EXPENSES: defined in Section 6.16(a) of this Sublease. TEMPORARY CONDEMNATION: defined in Section 5.1(f) of this Sublease. TENANT: defined in the Ground Lease. TENANT HAZARDOUS MATERIAL: any Hazardous Material either (i) brought onto the Site or Improvements during the Term by any Person or (ii) brought onto Attachment K 19 US-DOCS\118371402.28 DEFINITIONS ADDENDUM the Site, Improvements or any other property by RIDA, a RIDA Party, or Hotel Operator or generated by any of the same. TENANT’S INITIAL PROJECT IMPROVEMENTS: defined in the Ground Lease. TERM: defined in Section 3.2 of this Sublease. THIRD PARTY BENEFICIARY NOTICE: defined in Section 11.8 of this Sublease. TRANSFER: defined in Section 10.7(a) of this Sublease. TRANSFEREE: with respect to any Assignment or a Change of Control of RIDA, the proposed assignee or the Person(s) acquiring an interest resulting in a Change of Control of RIDA, respectively. TRUSTEE: defined in the Indenture. USA PATRIOT ACT: defined in Section 6.15(c) of this Sublease. USTs: defined in Section 6.20(i)(i) of the Sublease. Attachment K A-1 US-DOCS\118371412.45 EXHIBIT A DESCRIPTION OF THE SITE Attachment K B-1-1 US-DOCS\118371412.45 EXHIBIT B-1 SCHEDULE OF BASE RENT PAYMENTS Sublease Base Rental Periods: First (1st) Lease Period: Lease Years 1 – 18 Second (2nd) Lease Period: Lease Years 19 – 23 Third (3rd) Lease Period: Lease Years 24 – 37 Base Rent: First (1st) Lease Period: $0 per Lease Year, Second (2nd) Lease Period: $2,100,000 per Lease Year, Third (3rd) Lease Period: $2,450,000 per Lease Year Attachment K B-2-1 US-DOCS\118371412.45 EXHIBIT B-2 CALCULATION OF ADDITIONAL RENT Pursuant to Section 3.5(b) of the Sublease, RIDA shall pay to City Additional Rent in the amount calculated pursuant to this Exhibit B-2. 1. Additional Rent. For each calendar year of the First (1st) Lease Period, Second (2nd) Lease Period, and Third (3rd) Lease Period, RIDA shall pay additional rent (“Additional Rent”) to the City equal to fourteen percent (14%) (“Additional Rent Percentage”) of the amount by which the Net Operating Income for such calendar year exceeds eleven percent (11%) of the Actual Capital Investment (“Additional Rent Hurdle”). For purposes of this Exhibit B-2, the following definitions shall apply: “Net Operating Income” shall mean, for any calendar year, the total Project Revenues less all Operating Expenses calculated on an annual basis. “Actual Capital Investment” shall mean (a) the Sublease Advance Rent paid by RIDA under the Sublease that is not captured in clause (b) and (b) the actual cost incurred by RIDA (but neither funded nor reimbursed by proceeds of casualty or condemnation (net of any taxes) or by the Port, the City, or JEPA) to design, construct and develop the Initial Project Improvements and the Tenant’s Initial Project Improvements, including, without limitation, all financing costs and other costs that are capitalized in accordance with generally accepted accounting principles, as certified by a reputable, certified public accountant as of the latest of the following dates: Completion of the Convention Center and Completion (as defined in the Ground Lease) of the Tenant’s Initial Project Improvements. “Project Revenues” shall mean all income, receipts, proceeds, amounts, money, cash, assets, property or things of value actually received by RIDA for all goods and merchandise sold, room revenues derived from hotel operations, food and beverages sold, the charges for all services performed, or any other revenues generated by or otherwise payable to RIDA (and RIDA Parties) (including, without limitation, user fees, retail and commercial rent, revenue from rooms, accommodations, food and beverage, and the proceeds of business interruption insurance) in, at or from the Site, the Ground Lease Property, the Initial Project Improvements and the Tenant’s Initial Project Improvements, whether collected, uncollected, received, payable or accrued, and all rent actually received by RIDA from any Sub-subtenant pursuant to the applicable Sub-sublease and all rent actually received by Tenant from any Subtenant (as defined in the Ground Lease) pursuant to the applicable Sublease (as defined in the Ground Lease). For the avoidance of doubt and by way of example, Project Revenues from lodging will include only Room revenues derived from the use of Rooms in the Resort Hotel; Project Revenues from food and beverage sales will be limited to income from food and beverages served or delivered at or from the Site, the Convention Center, the Ground Lease Property and the Resort Hotel; Project Revenues from Meeting Space usage will be limited to revenue from the use of Meeting Space located within the Convention Center, the Site, the Resort Hotel and the Ground Lease Property; and Project Revenues from retail sales will be limited to revenues from the sales of goods that are delivered at the Convention Center or the Resort Hotel or for which the purchaser pays at the Convention Center or the Resort Hotel. Project Revenues shall exclude (a) any promotional allowances, (b) proceeds from any sale of the Project (or any portion thereof) or any refinancing of the Project (or any portion thereof), in each case, that are not Attachment K B-2-2 US-DOCS\118371412.45 prohibited by this Sublease or the Ground Lease, (c) proceeds of any disposition of RIDA’s trade fixtures (that is fixtures that relate uniquely to RIDA and which are removable without non- repairable damage to the Improvements), furnishings, moveable equipment and other personal property of RIDA located on the Site or the Ground Lease Property or at the Initial Project Improvements or the Tenant’s Initial Project Improvements, (d) bad debt losses, (e) all income, receipts, proceeds, amounts, money, cash, assets, property or things of value received by any Sub- subtenant or any Subtenant (as defined in the Ground Lease) (but this exclusion (e) is not intended to exclude from Project Revenues rent actually received by RIDA from any Sub-subtenant pursuant to the applicable Sub-sublease or rent actually received by Tenant from any Subtenant (as defined in the Ground Lease) pursuant to the applicable Sublease (as defined in the Ground Lease)), (f) interest received or accrued with respect to the funds in any repair and replacement reserve required to be maintained under a Hotel Management Agreement; provided that such interest is required to be credited to the reserve, (g) any refunds, rebates, discounts and credits of a similar nature that are given, paid or returned in the course of obtaining income or components thereof, which will be deducted from the Project Revenues for the period in which such income was earned; or (h) any insurance proceeds or Condemnation proceeds. Any “Project Revenue” shall be calculated on an accrual basis promptly after an audit with respect to such Project Revenue has been completed. “Operating Expenses” shall mean expenses, costs, and amounts of every kind that RIDA pays or incurs during any calendar year because of or in connection with the ownership, operation, management, maintenance, repair, replacement, or restoration of, or Alterations to, the Site, the Ground Lease Property, the Initial Project Improvements and the Tenant’s Initial Project Improvements, or the operation or management of the business conducted thereon consistent with this Sublease and the Ground Lease, as applicable (collectively, “Operation”), including, by way of example, all direct and indirect employment expense (including wages, salaries, and other compensation and benefits of all persons engaged in Operation, including employer’s social security taxes, unemployment taxes, insurance, and any other taxes imposed on RIDA that may be levied on those wages, salaries, and other compensation and benefits), cost of goods sold, costs of supplies or materials consumed and any other cost or expense of any kind incurred in connection therewith; cost of equipment and fixtures installed in the Initial Project Improvements, the Site, the Ground Lease Property or the Tenant’s Initial Project Improvements (to the extent not included in the calculation of Actual Capital Investment); the cost of any utilities; the cost of operating, managing, maintaining, and repairing any building system; the cost of licenses, certificates, permits, and inspections; the cost of any Property Tax Contest; the costs incurred in connection with the implementation and operation of a transportation system management program or similar program; advertising and marketing expense of any kind (including the cost of participating in a reservation management or loyalty program); fees, charges, and other costs including management fees (or amounts in lieu of such fees), consulting fees, legal fees, and accounting fees of all persons engaged by RIDA or otherwise reasonably incurred by RIDA in connection with the operation, management, maintenance, and repair of the Site, the Ground Lease Property, the Initial Project Improvements and the Tenant’s Initial Project Improvements, or the operation of the business conducted thereon; payments under any easement, license, operating agreement, declaration, restrictive covenant, or instrument relating to the sharing of costs by the Site, the Ground Lease Property, the Initial Project Improvements and the Tenant’s Initial Project Improvements; payments under any operating agreement, including industry standard operator and franchise fees, replacement reserves, and replacement costs in excess of reserves; asset management fees for the Tenant’s Initial Project Improvements and the Initial Project Improvements (which shall not exceed one percent (1%) of the Project Revenues); gross tax receipts for the Tenant’s Initial Project Improvements or the Initial Project Improvements; sales, use, transient occupancy or similar tax; the cost of maintaining insurance premiums for the Tenant’s Attachment K B-2-3 US-DOCS\118371412.45 Initial Project Improvements, the Initial Project Improvements and the Parking Improvements (including liability insurance); property taxes for the Tenant’s Initial Project Improvements and the Initial Project Improvements; possessory interest tax on RIDA’s leasehold interest (land value); incentive management fees (“Management Incentive Fee”) for the Tenant’s Initial Project Improvements and the Initial Project Improvements (which, for any calendar year, shall not exceed twenty percent (20%) (“Maximum Incentive Fee Percentage”) of the portion of the Net Operating Income for such calendar year that exceeds Seventy-Five Million Six Hundred and Eighty Thousand Dollars ($75,680,000) (“Incentive Fee Hurdle”)); Rent actually paid by RIDA under this Sublease; any other cost or expense that is properly allocated to the operation of the Ground Lease Property, the Site, the Tenant’s Initial Project Improvements or the Initial Project Improvements under USALI; and all other expenses categorized as “deductions” under the Hotel Management Agreement that are agreed to by the City in the reasonable exercise of its discretion. Operating Expenses shall exclude debt service (principal and interest) paid by RIDA for the Tenant’s Initial Project Improvements or its leasehold interest in the Initial Project Improvements; depreciation of the Tenant’s Initial Project Improvements and the Initial Project Improvements; income taxes paid by RIDA for Project Revenues related to the Tenant’s Initial Project Improvements or the Initial Project Improvements; and the costs or expenses of operating any business within any portion of the Ground Lease Property, the Site, the Tenant’s Initial Project Improvements or the Initial Project Improvements that is subleased to any Sub-subtenant or any Subtenant (as defined in the Ground Lease) (but not the costs incurred by RIDA (as sublandlord and as RIDA) in operating such portion of the Ground Lease Property, the Site, the Tenant’s Initial Project Improvements or the Initial Project Improvements (such as insurance costs, maintenance and repair costs and Property Tax Expenses)). Any “Operating Expense” shall be calculated on an accrual basis promptly after an audit with respect to such Operating Expense has been completed. With respect to each calendar year in the First (1st) Lease Period, Second (2nd) Lease Period, and Third (3rd) Lease Period, on or before the fifteenth (15th) day after the earlier of: (a) the completion of RIDA’s audit of the Project’s financial records for such calendar year and (b) the date (as extended in accordance with the Law) by which RIDA is required by Law to file its U.S. federal income tax for the last taxable year that includes a portion of such calendar year, RIDA shall render to Port, City and JEPA, a monthly report of Net Operating Income for the immediately preceding month of such calendar year and the Additional Rent due, if any. Each report shall be signed by an Authorized Representative of RIDA under penalty of perjury and shall be accompanied by payment of all Additional Rent due. 2. Additional Rent Example Calculation. For the purpose of this Additional Rent example calculation only, the variables are as follows: AR = Additional Rent MIF = Management Incentive Fee a = Additional Rent Percentage b = Maximum Incentive Fee Percentage c = Incentive Fee Hurdle Attachment K B-2-4 US-DOCS\118371412.45 d = Additional Rent Hurdle LNR = Landlord Net Revenue (Net Operating Income without deducting MIF) ONR = Operator Net Revenue (Net Operating Income without deducting AR) Assuming that the Net Operating Income for a year is $100 million, the Additional Rent will be calculated as follows: AR = a(LNR - b(ONR - c) - d) 1-ab AR = 14% ($100M - 20% ($100M - $75.68M) - $86.35M) 1 – (14% x 20%) AR = 14% ($100M - 20% x $24.32M - $86.35M) 1-.028 AR = 14% ($100M - $4.864M - $86.35M) .972 AR = 14% x $8.786M .972 AR = $1.23M .972 AR = approximately $1.265 Million Attachment K C-1 US-DOCS\118371412.45 EXHIBIT C FORM OF LETTER OF CREDIT (to be attached prior to execution) Attachment K D-1 US-DOCS\118371412.45 EXHIBIT D LETTER OF CREDIT ISSUERS Wells Fargo Bank, N.A. Bank of America, N.A. Cullen/Frost Bankers, Inc. Crédit Agricole S.A. The Bank of Nova Scotia, operating as Scotiabank BBVA Compass Bancshares, Inc. Attachment K E-1 US-DOCS\118371412.45 EXHIBIT E FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT FOR PERMITTED MORTGAGE LENDER Attachment K F-1 US-DOCS\118371412.45 EXHIBIT F FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT FOR PERMITTED MEZZANINE LENDER Attachment K G-1 US-DOCS\118371412.45 EXHIBIT G FORM OF ESTOPPEL CERTIFICATE Name Address RE: [_______________________________] (“Premises”) Ladies and Gentlemen: This Estoppel Statement (“Statement”) is issued by the CITY OF CHULA VISTA, a charter city of the State of California (hereinafter referred to as “Landlord”), as landlord under that certain sublease dated [____________], between Landlord and RIDA Chula Vista, LLC, a Delaware limited liability company (hereinafter referred to as “Tenant”), as tenant (the “Sublease”). Capitalized terms used herein without definition have the meanings given in the Sublease. To the actual knowledge of Landlord (without any duty of investigation or inquiry), Landlord hereby acknowledges and confirms to Recipient (as defined below) the following: 1. The Sublease is currently in full force and effect and has not been modified in whole or in part, except as provided by [that/those] certain amendment[s] described and dated as follows: [N/A or list amendment(s)]. 2. The Sublease is for a term of [thirty-seven (37) years], commencing [_______________] and ending [_______________]. 3. As of the date of this Statement, Tenant [is/is not], to the actual knowledge of Landlord (without any duty of investigation or inquiry), in default or in breach under the provisions of the Sublease. 4. Landlord has consented (or is deemed to have consented) to a Permitted Lease Financing Encumbrance created in favor of [____________] for a loan in the amount of [__________] Dollars ($[__________]), and such consent in based on Port’s approval of a Permitted Lease Financing Encumbrance (as defined in the Ground Lease) created in favor of [____________] for a loan in the amount of [__________] Dollars ($[__________]) through [an Administrative Approval / Resolution No. [__________]], a copy of which is attached hereto and by reference incorporated herein. 5. Except for the items set forth in Section 4, Landlord has no actual knowledge (without any duty of investigation or inquiry) of any other assignment or hypothecation of said leasehold estate, or any pledge or assignment of rents with respect to said Premises. 6. All rent, and any other charges payable by Tenant pursuant to the Sublease (referred to collectively hereinafter as “Rent”) has been paid through and including [______________]; provided, however, there may be Rent still due and owing which will be discovered at the time of audit by Landlord and, to that extent, Landlord cannot represent that all Rent has been paid. Attachment K B-2-2 US-DOCS\118371412.45 7. This Statement is given by Landlord with the understanding that the statements herein made may be relied upon only by [______________] (the “Recipient”) and only for the purpose of estopping Landlord from asserting contrary facts against Tenant which Tenant also has no knowledge of. Recipient acknowledges and agrees that nothing in this Statement shall be construed as a consent to any lender, loan, or assignment, a waiver of any of the Landlord’s rights under the Sublease or at law or equity, or a modification or amendment to the Sublease and to the extent there may be any conflict between the terms of this Statement and the terms of the Sublease, the Sublease shall control and prevail. Executed this _________ day of ______________________, 20___. APPROVED AS TO FORM AND LEGALITY CITY OF CHULA VISTA, GENERAL COUNSEL a charter city of the State of California By: ______________________________ By: _______________________________ Assistant/Deputy [_________________________] [_________________________] Attachment K -1- EXHIBIT H US-DOCS\118371412.45 SUBLESSEE (TENANT )DBA SUITE/ADDRESS USE LEASE COMMENCEMENT LEASE EXPIRATION CURRENT LEASE TERM (MO) OPTIONS SQ FT RENT PSF BASE RENT % RENT COLA CAM SECURITY DEPOSIT OTHER PROVISIONS 0.0 #DIV/0!0 TOTAL NNN:0 0 0.0 #DIV/0!0 NNN LEASED:0 0.0 0.0 0.0 NNN VACANT:0.0 MASTER LESSEE: DATE: TENANT RENT ROLL EXHIBIT H RENT ROLL [EXCEL COPY OF THE FOLLOWING AVAILABLE ON REQUEST] Attachment K 2 US-DOCS\118371412.45 EXHIBIT I FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: [  ] NO FEE FOR RECORDING PURSUANT TO GOVERNMENT CODE SECTION 27383 [Space above for Recorder’s use.] THIS DOCUMENT IS RECORDED FOR THE BENEFIT OF THE CITY OF CHULA VISTA, AND THE RECORDING IS FEE-EXEMPT UNDER SECTION 27383 OF THE GOVERNMENT CODE. [FORM OF] ASSIGNMENT AND ASSUMPTION AGREEMENT This ASSIGNMENT AND ASSUMPTION OF LEASE (this “Agreement”) is made as of [  ] (the “Effective Date”), by and between [RIDA CHULA VISTA, LLC, a Delaware limited liability company] (“Assignor”), and [  ], a [  ] (“Assignee”). RECITALS A. Assignor is the sublessee under that certain Sublease Agreement, dated as of [  ]2 (the “Commencement Date”), between the City of Chula Vista, a charter city of the State of California duly organized and existing under and by virtue of the Constitution and laws of the State of California (“Sublessor”), as sublessor, and Assignor, as sublessee (as amended to date, the “Lease”), with respect to the real property more particularly described therein and located in the City of Chula Vista, California. Capitalized terms used herein without definition have the meanings given in the Lease. B. The Lease is evidenced by a [Memorandum of Lease] dated as of [  ] and recorded in the Official Records of the San Diego County Recorder as Document Number [  ] (together with the Lease, the “Lease Agreements”). C. Assignor [and/or its predecessor in interest] constructed various improvements on the Site and remains the sublessee of the Improvements. 2 NTD: To be completed before being attached to the execution version of the Lease. Attachment K 3 US-DOCS\118371412.45 D. Assignor desires to assign its interest under the Lease to Assignee, and Assignee desires to assume all of Assignor’s obligations under the Lease accruing or arising from and after the Commencement Date. AGREEMENT NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Assignment. As of the Effective Date, Assignor hereby assigns, transfers, and sets over to Assignee all of its right, title, and interest in, to and under the Lease Agreements and the Facility and Assignee hereby accepts such assignment and (x) assumes and agrees to perform and be bound by all of the terms, covenants, and conditions of the Lease Agreements that are to be performed by, and are binding upon, the [] thereunder arising on and after the Commencement Date and (y) assumes any and all obligations of Assignor as the sublessee of the Facility arising on and after the Commencement Date (the foregoing, collectively, the “Assignee Obligations”). 2. Indemnities. Assignee agrees to indemnify, protect, defend and hold Assignor harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses) incurred by Assignor as a result of Assignee’s failure to perform the Assignee Obligations. Assignor agrees to indemnify, protect, defend and hold Assignee and Sublessor harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses) incurred by Assignee as a result of Assignor’s failure to perform the terms, covenants, obligations and conditions required to be performed by Assignor under and pursuant to the Lease Agreements prior to the Effective Date. Assignor agrees to indemnify, protect, defend and hold the Port harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses) incurred by the Port as a result of Assignor’s failure to perform the terms, covenants, obligations and conditions required to be performed by Assignor under the Port Sublease Third Party Beneficiary Provisions prior to the Effective Date. Assignor agrees to indemnify, protect, defend and hold the JEPA harmless from and against any and all liabilities, losses, costs, damages and expenses (including reasonable attorneys’ fees and expenses) incurred by the JEPA as a result of Assignor’s failure to perform the terms, covenants, obligations and conditions required to be performed by Assignor under the JEPA Sublease Third Party Beneficiary Provisions prior to the Effective Date. 3. No Broker Involvement. Assignor and Assignee represent and warrant each to the other that neither one has employed a broker or agent in connection with the transactions under this Agreement[, except [  ], which has been retained by [  ] as its advisor on this transaction. Any compensation of any kind owing to [  ] shall be the responsibility of [  ].] No brokerage commissions or finders’ fees are to be paid by either Assignor or Assignee in connection with this Agreement. Should any broker or agent assert a claim for a fee or commission in connection with the transaction under this Agreement, the party through whom such claim is shown to have been derived 3 Insert applicable entity (i.e., sublessee). Attachment K 4 US-DOCS\118371412.45 shall be solely responsible for the payment of such fee or commission or the defense of a claim in connection with the payment of any such fee or commission. Each party indemnifies and agrees to hold the other harmless of any claim, cause of action or damages occasioned by a breach of representations and warranties contained in this Section [3], including the payment of reasonable attorneys’ and expert witness fees in defense of same. 4. Notices. Any notices to be given by either party to this Agreement shall be given in writing and may be effected by personal delivery, electronic mail, or delivery by national overnight courier service, or mailed by deposit of into the care and custody of the United States Postal Service, certified, return receipt requested, and postage prepaid, as follows: To Assignor: [RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Ira Mitzner With copy to: RIDA Chula Vista, LLC 1777 Walker Street, Suite 501 Houston, Texas 77010 Attention: Luke Charlton and Latham & Watkins 12670 High Bluff Drive San Diego, CA 92130 Attention: Steven Levine] To Assignee: [  ] To Sublessor: City Manager City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 With copy to: City Attorney City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attachment K 5 US-DOCS\118371412.45 With copy to: Executive Director San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Director, Real Estate Department San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 Port Attorney San Diego Unified Port District Post Office Box 120488 San Diego, CA 92112-0488 5. Acknowledgement. Assignor and Assignee acknowledge and agree that the Effective Date shall not be a date earlier than the date that the Sublessor consents to this Agreement by executing the Agreement as set forth below and delivering the same to Assignor. 6. Miscellaneous. This Agreement shall be construed in accordance with the laws of the State of California, without regard to conflict of laws principles. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which constitute one and the same agreement. Electronic copies of original signatures of any of the parties hereto shall be binding as if they were original signatures. [signatures appear on following page] Attachment K 6 US-DOCS\118371412.45 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date. ASSIGNOR: [RIDA CHULA VISTA, LLC] By: ____________________________ Name: Title: ASSIGNEE: [  ] By: ____________________________ Name: Title: Attachment K Exhibit [  ] – 1 US-DOCS\118371412.45 By its execution hereof, Sublessor hereby (i) consents to the assignment of the Lease by Assignor to Assignee and the transfer of Assignor’s right, title and interest in and to the Facility to Assignee, and (ii) releases Assignor from all obligations and liabilities of the Assignor, as sublessee, arising under the Lease from and after the Effective Date. Dated: [_____________,__] CITY OF CHULA VISTA, a charter city of the State of California By: ____________________________ Name:__________________________ Title:___________________________ APPROVED AS TO FORM AND LEGALITY: GENERAL COUNSEL By: ____________________________ General Counsel/Assistant General Counsel/Deputy General Counsel Attachment K L&W Draft 4-28-2021 I-1 US-DOCS\118371412.45 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF ____________ ) On ____________________________ , before me, _______________________________ , Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual Corporate Officer ____________________________________________________________ Title(s) __________________________________________________ Title Or Type Of Document Partner(s) Limited General Attorney-In-Fact __________________________________________________ Number Of Pages Attachment K B-2-2 US-DOCS\118371412.45 Trustee(s) Guardian/Conservator Other: _____________________________________ Signer is representing: Name Of Person(s) Or Entity(ies) ____________________________________________________________ ____________________________________________________________ __________________________________________________ Date Of Documents __________________________________________________ Signer(s) Other Than Named Above Attachment K L&W Draft 4-28-2021 J-1 US-DOCS\118371412.45 EXHIBIT J [RESERVED] Attachment K K-1 US-DOCS\118371412.45 EXHIBIT K DISTRICT DOCUMENTS [Insert list of documents that were provided by the Office of the District Clerk to Chicago Title Company that are part of the Approved Title Exceptions (as defined in the DDA).] Attachment K -1- EXHIBIT N US-DOCS\118371412.45 EXHIBIT L PRE-APPROVED ADVERTISING DEVICES Prior to execution of the Sublease, the Parties will list any Advertising Devices which have been previously approved by the City in writing. (to be attached prior to execution.) Attachment K L-1 US-DOCS\118371412.45 Attachment K M-1 US-DOCS\118371412.45 EXHIBIT M APPROVED AGREEMENTS CVBMP Documents Approved Title Exceptions Convention Center Plans [Insert all other documents, including financing documents, that are approved prior to the Commencement Date] (to be revised / completed prior to execution.) Attachment K 1 US-DOCS\118371412.45 EXHIBIT N CONSTRUCTION REQUIREMENTS (Alterations) 1. GENERALLY. TENANT SHALL COMPLY WITH THE PROVISIONS OF THIS EXHIBIT N, THOSE CERTAIN [CONDITIONS OF PROJECT APPROVAL] (DISTRICT CLERK NO. [  ]), AND THE PROVISIONS OF THE SUBLEASE IN CONNECTION WITH ALL CONSTRUCTION OR DEMOLITION WORK AT THE SITE WITH RESPECT TO ALTERATIONS TO THE IMPROVEMENTS (EXCEPT THE EXISTING IMPROVEMENTS) (“CONSTRUCTION WORK”). 2. Contractors. The City shall have the right to approve the general contractor for Construction Work (other than Minor Alterations), in its reasonable discretion. All contractors and subcontractors performing any Construction Work must be licensed in the State of California. 3. Architects and Engineers. All architects and engineers must have an active license to practice in the State of California. 4. Contractors, Architects and Engineers Agreements. The City shall have the right to approve the architectural, engineering and construction contracts for all of Major Alterations with respect to the Improvements (except the Existing Improvements), in its reasonable discretion. 5. Construction Barricades. RIDA shall install a construction barricade around the area of Construction Work (other than Minor Alterations), and erect such other protective measures as may be reasonably required by the City. 6. Dust and Trash Control. RIDA shall take commercially reasonable steps to minimize dust resulting from any Construction Work, and shall promptly dispose of all trash generated from the Construction Work. 7. Payment Bond. Prior to RIDA commencing any Major Alterations, RIDA shall furnish the City with the following separate corporate surety bonds in connection with such Major Alteration: (i) To the extent required by law, a corporate surety payment bond (“Payment Bond”) issued by a surety company licensed and admitted to transact business as such in the State of California, in an amount equal to one hundred percent (100%) of the estimated Hard Construction Costs of the applicable Major Alteration, guaranteeing payment for all materials, provisions, supplies and equipment used in, upon, for or about the performance of the Major Alteration and for labor done thereon and protecting the City from any and all liability, loss or damages arising out of or in connection with any failure to make any such payments. The Payment Bond shall name RIDA as principal and the City as obligee. (ii) The Payment Bond shall be in form and content reasonably satisfactory to the City. 8. Financial Assurances. At least ten (10) days prior to commencing any Construction Work (other than Minor Alterations), RIDA shall deliver to the City evidence reasonably demonstrating to the City that RIDA has obtained or retains financial resources and capabilities in an amount sufficient to complete the Construction Work. Attachment K 2 US-DOCS\118371412.45 9. Construction Schedule. RIDA shall, at least ten (10) days prior to date on which RIDA intends to commence construction of any Construction Work (other than Minor Alterations), deliver to the City a construction schedule. RIDA shall use commercially reasonable efforts to perform the Construction Work in accordance with the construction schedule. 10. Contractor Insurance. RIDA shall ensure that all contractors and subcontractors performing Construction Work shall obtain and thereafter maintain so long as such Construction Work is occurring, at least the minimum insurance coverages set forth below, which insurance coverages may be modified by the City from time to time in its reasonable discretion: (i) Workers’ compensation and employer’s liability insurance: (a) Workers’ compensation insurance as required by any applicable law or regulation. (b) Employer’s liability insurance in the amount of $1,000,000 each accident/employee/disease. (ii) General liability insurance: Commercial General Liability insurance covering all operations by or on behalf of the contractor, which shall include the following minimum limits of liability and coverages: (a) Required coverages: (1) Premises and Operation; (2) Products and Completed Operations; (3) Contractual Liability; (4) Broad Form Property Damage (including Completed Operations); (5) Explosion, Collapse and Underground Hazards; and (6) Personal Injury Liability. (b) Minimum limits of liability: (1) $2,000,000 each occurrence (for bodily injury and property damage); (2) $2,000,000 for Personal Injury Liability; (3) $2,000,000 aggregate for Products and Completed Operations (which shall be maintained for a three (3) year period following final completion of the Work); and (4) $2,000,000 general aggregate applying separately to this Project. (iii) Automobile Liability Insurance: Automobile liability insurance including coverage for owned, leased, rented, hired, and/or non-owned automobiles. The limits of liability shall Attachment K 3 US-DOCS\118371412.45 not be less than $1,000,000 for each accident limit for bodily injury, death and property damage. (iv) Umbrella/Excess Liability Insurance: The general contractor shall also carry umbrella/excess liability insurance in the amount of $5,000,000. If there is no per project aggregate under the Commercial General Liability policy, the limit shall be $10,000,000. (v) Contractor’s Pollution Liability Coverage: If the City determines, in its sole and reasonable discretion, that RIDA performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, RIDA shall obtain or cause its contractor to obtain Contractor’s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $10,000,000 aggregate per policy period of one year. Any and all of the insurance described above may be obtained and maintained by RIDA through an owner-controlled insurance program instead of by a contractor and/or a subcontractor. City Parties shall be named as an additional insured on the forgoing insurance, and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the requirements of this Sublease, nor shall it be allowed to expire, without at least thirty (30) days prior written notice to the City. The foregoing insurance shall include a waiver of subrogation in favor of City Parties. 11. Notice of Completion. Within ten (10) days after Completion of any Construction Work (other than Minor Alterations), RIDA shall record a Notice of Completion in the office of the San Diego County Recorder and furnish a copy thereof to the City upon such recordation. 12. Lien Releases. Within sixty (60) days after Completion, RIDA shall deliver to the City unconditional final lien waivers from all contractors and materialmen. 13. Copy of Record Set of Plans and Certificate of Completion. Following the conclusion of any Construction Work (other than Minor Alterations), deliver to each of the Public Entities (i) a set of “as-built drawings”, (ii) a certificate from RIDA’s architect in favor of such Public Entity stating that, to the best knowledge of such certifying party, the Construction Work has been Completed substantially in accordance with the approved plans therefor, and (iii) a copy of the certificate of completion issued by the applicable government agency, if any such certificate of completion must be issued. 14. Conflict. In the event of conflict between the terms of these Construction Requirements and terms of the Sublease, the terms of the Sublease shall control. Attachment K EXHIBIT O PRIOR AGREEMENTS Disposition and Development Agreement (Sections 4.1(f), 4.7(c), 4.7(d), 4.17, 8.2, and 8.3) Right of Entry for Pre-Closing Phase 1A Improvements [Insert any other documents that qualify as Prior Agreements prior to execution of this Sublease.] (to be attached prior to execution.) Attachment K US-DOCS\118371412.45 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORNIA ) ) ss. COUNTY OF ____________ ) On _____________________________, before me, _______________________________ , Notary Public, (Print Name of Notary Public) personally appeared who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual Corporate Officer ____________________________________________________________ Title(s) ____________________________________________________________ Title Or Type Of Document Partner(s) Limited General Attorney-In-Fact Trustee(s) Guardian/Conservator Other: _____________________________________ Signer is representing: Name Of Person(s) Or Entity(ies) ____________________________________________________________ ____________________________________________________________ ____________________________________________________________ Number Of Pages ____________________________________________________________ Date Of Documents ____________________________________________________________ Signer(s) Other Than Named Above Attachment K US-DOCS\118371412.45 Attachment K 4833-3850-0563v6/024036-0079 RESOLUTION NO. ________ CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY RESOLUTION OF THE BOARD OF DIRECTORS OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY SELECTING THE CHAIR AND VICE-CHAIR OF THE AUTHORITY AND CONFIRMING THE DESIGNATION OF THE OTHER OFFICERS OF THE AUTHORITY; AUTHORIZING THE EXECUTION AND DELIVERY BY THE AUTHORITY OF A THIRD AMENDED AND RESTATED REVENUE SHARING AGREEMENT; AUTHORIZING THE EXECUTION AND DELIVERY BY THE AUTHORITY OF A SITE LEASE, FACILITY LEASE, SUPPORT AGREEMENT, LOAN AGREEMENT, INDENTURE OF TRUST, PROJECT IMPLEMENTATION AGREEMENT, AND BOND PURCHASE AGREEMENT IN CONNECTION WITH THE ISSUANCE OF ONE OR MORE SERIES OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY REVENUE BONDS; AUTHORIZING THE ISSUANCE OF SUCH BONDS IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $400,000,000; AND AUTHORIZING THE EXECUTION OF NECESSARY DOCUMENTS AND CERTIFICATES AND RELATED ACTIONS WHEREAS, the City of Chula Vista, California (the “City”) and the San Diego Unified Port District (the “Port District”) are undertaking a collaborative planning process with the community to develop a comprehensive Chula Vista Bayfront Master Plan (the “CVBMP”); and WHEREAS, to further the objectives of the CVBMP, the City and the Port District have established the Chula Vista Bayfront Facilities Financing Authority (the “Authority”), a joint exercise of powers entity created pursuant to Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code (as amended from time to time, the “Act”) and the Joint Exercise of Powers Agreement, dated as of May 1, 2014, by and between the City and the Port District, as amended and restated by the Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 (the “JEPA Agreement”), by and between the City and the Port District (each, a “Member of the Authority”); and WHEREAS, the JEPA Agreement and the bylaws of the Authority (“Authority Bylaws”) require the selection annually of a member of the Board of Directors of the Authority (the “Board of Directors”) to serve as the Chair of the Authority and a member of the Board of Directors to serve as the Vice-Chair of the Authority; and WHEREAS, the JEPA Agreement and the Authority Bylaws require the annual confirmation of the designation of the other officers of the Authority; and 2 4833-3850-0563v6/024036-0079 WHEREAS, pursuant to the Act, the Authority intends to issue revenue bonds (the “Authority Bonds”) in one or more series pursuant to an Indenture of Trust by and between Wilmington Trust, National Association, as trustee (the “Trustee”) and the Authority (the “Indenture”) to finance certain public capital improvements to be constructed in the CVBMP as described herein; and WHEREAS, the public capital improvements to be financed with proceeds of the Authority Bonds consist of public infrastructure improvements as described in Exhibit A hereto (the “Phase 1A Infrastructure Improvements”) and an approximately 275,000 net usable square foot convention center (the “Convention Center”); and WHEREAS, the Phase 1A Infrastructure Improvements and the Convention Center will be located within the boundaries of the City and, as a result, as a Member of the Authority, the City is authorized to conduct the public hearing required by Section 6586.5 of the Act as a precondition to the issuance of the Authority Bonds; WHEREAS, the City Council of the City held a public hearing as required by Section 6586.5 of the Act on June 15, 2021 regarding the proposed financing of the Phase 1A Infrastructure Improvements and the Convention Center by the Authority through the issuance of the Authority Bonds and made a finding that such financing will provide significant public benefits of the type described in Section 6586 of the Act; and WHEREAS, in order to provide a portion of the revenues needed to repay the Authority Bonds, concurrent with the issuance of the Authority Bonds, the Port District and the Authority intend to enter into a Site Lease between the Port District, as lessor, and the Authority, as lessee (the “Site Lease”) pursuant to which the Port District will lease certain real property and existing improvements described therein (together, the “Site”) to the Authority, and the Authority and the City intend to enter into a Facility Lease between the Authority, as sublessor, and the City, as sublessee, (the “Facility Lease”), pursuant to which the City will sublease the Site and lease the Convention Center (together, the “Facility”) from the Authority, and pay certain Lease Payments (as defined in the Facility Lease), which will be pledged to the owners of the Authority Bonds pursuant to the Indenture; and WHEREAS, to provide the additional revenues needed to repay the Authority Bonds, concurrent with the issuance of the Authority Bonds, the Authority and the Bayfront Project Special Tax Financing District (the “Bayfront Financing District”), which has been established by the City pursuant to Chapter 3.61 of the Chula Vista Municipal Code, will enter into a Loan Agreement (the “Loan Agreement”) pursuant to which the Authority will make a loan (the “Loan”) to the Bayfront Financing District and the Bayfront Financing District will agree to make loan payments to the Authority which will be pledged to the Trustee under the Indenture, and the Authority and the Port District will enter into a Support Agreement (the “Support Agreement”) pursuant to which the Port District will make certain payments to the Authority which will be pledged to the Trustee under the Indenture; and WHEREAS, the City and the Port District have entered into a Joint Community Facilities Agreement (the “Original JCFA”) in which the City and the Port District agree that proceeds of 3 4833-3850-0563v6/024036-0079 the special taxes of the Bayfront Financing District may be used to finance the construction of the Phase 1A Infrastructure Improvements and the Convention Center; and WHEREAS, in furtherance of the CVBMP, the City, as sub-sublessor, and RIDA Chula Vista, LLC (“RIDA”), as sub-sublessee, will enter into a Sublease Agreement (the “Sublease Agreement”) pursuant to which the City will sub-sublease the Facility to RIDA; and WHEREAS, to address certain interests of the City and the Port District with respect to the Sublease Agreement and the Ground Lease between the Port District and RIDA (the “Ground Lease”) with respect to the construction of a resort hotel (the “Hotel”) adjacent to the Convention Center, the City and the Port District intend to enter into that certain Mutual Lease and Sublease Enforcement Agreement (the “Enforcement Agreement”); and WHEREAS, to address the use and application of certain revenues of the City and the Port District and the residual revenues to be transferred to the Authority pursuant to the terms of the Indenture, the Authority, the Port District and the City intend to enter into a Third Amended and Restated Revenue Sharing Agreement (the “Revenue Sharing Agreement”); and WHEREAS, the Convention Center will be owned by the Authority and will be constructed for the Authority by RIDA as further set forth in the Project Implementation Agreement (the “Project Implementation Agreement”) to be entered into by and among the Authority, the City, the Port District, the Bayfront Financing District and RIDA; and WHEREAS, the Project Implementation Agreement will set forth certain provisions regarding the construction of the Convention Center by RIDA on behalf of the Authority and the construction of the Phase 1A Infrastructure Improvements by RIDA which will be conveyed to the City and the Port District, as applicable, as described in the Project Implementation Agreement; and WHEREAS, the Authority Bonds will be sold to J.P. Morgan Securities LLC (the “Underwriter”) pursuant to the terms of a Bond Purchase Agreement (the “Bond Purchase Agreement”) by and among the Underwriter, the Authority, the City, the Port District and the Bayfront Financing District; and WHEREAS, good faith estimates of certain information relating to the Authority Bonds are set forth in Exhibit B attached hereto as required by California Government Code Section 5852.1; and WHEREAS, prior to the issuance of the Authority Bonds, the Authority will execute the Revenue Sharing Agreement; and WHEREAS, in connection with the issuance of the Authority Bonds, the Authority will execute the Bond Purchase Agreement, the Site Lease, the Facility Lease, the Indenture, the Loan Agreement, the Support Agreement, the Project Implementation Agreement, and certain of the exhibits attached to the foregoing documents, including the Completion Guaranty (as defined in the Project Implementation Agreement) (together with the Revenue Sharing Agreement collectively referred to herein as the “Authority Agreements”); and 4 4833-3850-0563v6/024036-0079 WHEREAS, in connection with the issuance of the Authority Bonds, other documents to which the Authority is not a party will also be executed and delivered, including the Ground Lease, the Sublease, the Enforcement Agreement, an Amended and Restated Joint Community Facilities Agreement, which will amend and restate the Original JCFA, an Amendment No. 1 to the Amended and Restated Joint Exercise of Powers Agreement, which will amend, in part, the JEPA Agreement, (together with the exhibits attached to the foregoing documents, the “Related Bayfront Documents”); and WHEREAS, the Board of Directors has been presented with the form of each document referred to herein, and the Board of Directors has examined and approved each document; WHEREAS, the Board of Directors desires to authorize and direct the execution and delivery of the Authority Agreements and the consummation of the financing of the Phase 1A Infrastructure Improvements and the Convention Center through the preparation, sale and delivery of the Authority Bonds; and WHEREAS, the proposed actions by the Board of Directors authorized herein, including selecting the Chair and Vice Chair, confirming the designation of the other officers of the Authority and approving the issuance of the Authority Bonds and the execution of the Authority Agreements and other documents related to the issuance of the Authority Bonds, were previously analyzed in the Final Environmental Impact Report (FEIR) for the Chula Vista Bayfront Master Plan (UPD #83356-EIR-658; SCH #2005081077; Clerk Document No. 56562), certified by the Port District on May 18, 2010 (Resolution No. 2010-78), the Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on August 13, 2013 (Resolution No. 2013-138), the Second Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on April 10, 2018 (Resolution No. 2018-0069), and the Third Addendum to the FEIR, which was adopted by the Port District Board of Commissioners on December 8, 2020 (Resolution No. 2020- 116); and the proposed actions of the Board of Directors are not a separate “project” for California Environmental Quality Act (“CEQA”) purposes but are 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.); and additionally, pursuant to CEQA Guidelines Sections 15162 and 15163, and based on the review of the entire record, including without limitation, the FEIR and Addendums, the Authority finds that the proposed actions of the Board of Directors described herein do not require further environmental review as: 1) no substantial changes are proposed to the project and no substantial changes have occurred that require major revisions to the FEIR and Addendums due to the involvement of new significant environmental effects or an increase in severity of previously identified significant effects; 2) no new information of substantial importance has come to light that (a) shows the project will have one or more significant effects not discussed in the FEIR and Addendums, (b) identifies significant impacts would not be more severe than those analyzed in the FEIR and Addendums, or (c) shows that mitigation measures or alternatives are now feasible that were identified as infeasible and those mitigation measures or alternatives would reduce significant impacts, and 3) no changes to mitigation measures or alternatives have been identified or are required; and pursuant to CEQA Guidelines §15162(b), the Authority finds that no further analysis or environmental documentation is necessary and that the proposed actions by the Authority Board of Directors are merely a step-in furtherance of the original project for which 5 4833-3850-0563v6/024036-0079 environmental review was performed and no supplemental or subsequent CEQA has been triggered, and no further environmental review is required; and WHEREAS, this Resolution is being adopted at a regular meeting of the Board of Directors; and WHEREAS, based on the foregoing and on the additional information provided in the staff report prepared in connection with the adoption of this Resolution and presented at the meeting at which this Resolution is being adopted, all acts, conditions and things required by the laws of the State of California to exist, to have happened and to have been performed precedent to and in connection with the consummation of the financing of the Phase 1A Infrastructure Improvements and the Convention Center and the issuance of the Authority Bonds authorized hereby do exist, have happened and have been performed in regular and due time, form and manner as required by law, and the Authority is now duly authorized and empowered, pursuant to each and every requirement of law, to undertake the actions described herein related to the financing of the Phase 1A Infrastructure Improvements and the Convention Center and the issuance of the Authority Bonds for the purpose, in the manner and upon the terms herein provided; and NOW, THEREFORE, the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority does hereby resolve as follows: SECTION 1. All of the recitals set forth above are true and correct and the Board of Directors so finds. SECTION 2. Pursuant to Section 4.D(1)(A) of the JEPA Agreement ____________________ is hereby elected to serve as Chair of the Authority. Pursuant to Section 4.D(1)(B) of the JEPA Agreement ____________________ is hereby elected to serve as Vice- Chair of the Authority. SECTION 3. The Board of Directors hereby determines that the City has held the public hearing required by Section 6586.5 of the Act and made the finding of significant public benefit required under Section 6586 of the Act and based on such finding the Authority may authorize the issuance of the Authority Bonds. SECTION 4. The forms of the Authority Agreements presented to the Board of Directors at this meeting, are hereby approved, and each of the Executive Director and Treasurer of the Authority, and their written designees (each, an “Authorized Officer”) acting alone, is authorized and directed to fill in any blanks in the Authority Agreements and attach any blank exhibits following the guidance set forth in the Authority Agreements, execute and deliver the Authority Agreements, in substantially said forms, with such changes as may be made in accordance with the delegation authority provided in the following paragraph. The Board of Directors hereby delegates to each Authorized Officer the authority to make and consent to changes to one or more of the Authority Agreements and/or the Related Bayfront Documents to facilitate the financing and construction of the Phase 1A Infrastructure Improvements and the Convention Center which an Authorized Officer determines are needed (i) to eliminate any inconsistencies among any of the Authority Agreements or any of the Related 6 4833-3850-0563v6/024036-0079 Bayfront Documents; (ii) to cure any ambiguity or defective provision in any of the Authority Agreements or any of the Related Bayfront Documents; (iii) to respond to market conditions related to the structuring and marketing of the Authority Bonds as identified by the Underwriter, including, but not limited to, rating requirements; (iv) to reflect the final terms of the sale by the Underwriter of the Authority Bonds; and/or (v) to facilitate the required private financing for the Convention Center and/or Hotel or are otherwise necessary to facilitate the issuance of the Authority Bonds and the construction of the Phase 1A Infrastructure Improvements, the Convention Center and/or Hotel; provided, however that such changes shall not (w) increase the indemnification obligations of the Authority; (x) result in an additional contribution of funds by the Authority (except to a de minimis amount (not to exceed $500,000 in total)); (y) materially increase the obligations of the Authority; or (z) exceed any of the limitations set forth in Section 5 of this Resolution with respect to the Authority Bonds. Approval of any of the foregoing changes shall be based on the advice of the Co-General Counsel to the Authority, and be approved by an Authorized Officer through the Authorized Officer’s execution (or as to documents to which the Authority is not a party, such Authorized Officer’s written consent) of the Authority Agreement or Related Bayfront Document incorporating the changes proposed, and shall be conclusively evidenced by the delivery by the Authority of the executed Authority Agreement with the changes included, or by the delivery by the Authority of the Authority’s written consent to changes to a Related Bayfront Document. SECTION 5. The issuance of not to exceed $400,000,000 aggregate principal amount of Authority Bonds in one or more series, in the principal amounts, bearing interest at the rates and maturing on the dates as specified in the Indenture as finally executed, is hereby authorized and approved; provided, however, the final maturity date of the Authority Bonds shall not be more than forty (40) years from the date of issuance of the Authority Bonds, the Authority Bonds shall bear interest at fixed rates to be determined by the Underwriter based upon market conditions on the sale date for the Authority Bonds, no Authority Bond shall have an interest rate in excess of twelve percent (12%) per annum and the Underwriter’s discount shall not exceed one percent (1%) of the principal amount of Authority Bonds issued. Subject to the foregoing limitations, each Authorized Officer is authorized to determine the final principal amount and the maturity dates of the Authority Bonds to be sold in each series, the interest rates for each series and the Underwriter’s discount to be paid, with all of such final terms to be included in the Bond Purchase Agreement to be executed by an Authorized Officer in accordance with the provisions of Section 4 above. SECTION 6. The Authorized Officers and the Co-General Counsel are authorized to take whatever steps are necessary and appropriate for a judicial validation action to be filed pursuant to Code of Civil Procedure Section 860 et seq. to obtain a court ruling on the validity of some or all of the Authority Agreements, the Authority Bonds or any of the Related Bayfront Documents. SECTION 7. The Authorized Officers, and other officers, employees and agents of each of the Members of the Authority, are hereby authorized and directed, jointly and severally, to do any and all things which they may deem necessary or advisable in order to consummate the transactions herein authorized and otherwise to carry out, give effect to and comply with the terms and intent of this Resolution, including, but not limited to, the execution and delivery of easement agreements related to the Facility, a Tax Certificate for any of the Authority Bonds and other certificates or agreements required pursuant to the terms of the Bond Purchase Agreement or by the City or the Port District as a condition to their consummating the transactions described herein 7 4833-3850-0563v6/024036-0079 related to the Authority Bonds, including executing any consent and/or agreement of the Authority to any of the Related Bayfront Documents. In addition, following the issuance of the Authority Bonds, each of the Authorized Officers, acting alone, is authorized to take any and all actions required of the Authority under the Authority Agreements including, but not limited to, executing required certificates, granting consents, filing reports and sending notices on behalf of the Authority. All actions heretofore taken by the Authorized Officers and other officers and agents of the Authority, including officers and agents of the Members of the Authority, acting with respect to the CVBMP and the matters described herein are hereby approved, confirmed and ratified. SECTION 8. This Resolution shall take effect from and after its date of adoption. 8 4833-3850-0563v6/024036-0079 ADOPTED AND APPROVED this 28th day of June, 2021, by the following vote: AYES: NOES: ABSTENTIONS: ABSENT: APPROVED AS TO FORM AND LEGALITY: Co-Counsel, Thomas A. Russell, General Counsel of the San Diego Unified Port District __________________________________ Co-Counsel, Glen Googins, City Attorney of the City of Chula Vista 9 4833-3850-0563v6/024036-0079 EXHIBIT A DESCRIPTION OF PHASE 1A INFRASTRUCTURE IMPROVEMENTS Description Developer’s Phase 1A Infrastructure Improvements 1 E Street (G Street to H Street) 2 G Street Connection 3 H Street (Bay Blvd to Street A) 4 H Street (Marina Pkwy to E Street) 5 H-3 Utility Corridor 6 H-3 Site Prep 7 Harbor Park (Initial Phase) Phase 1A Infrastructure to be Constructed by City 8 G Street Sewer Pump Station Phase 1A Infrastructure to be Constructed by Port District 9 S-2 Sweetwater Signature Park (Initial Phase) 10 4833-3850-0563v6/024036-0079 EXHIBIT B SECTION 5852.1 GOOD FAITH ESTIMATES∗ The good faith estimates set forth herein are provided with respect to the Authority Bonds in accordance with California Government Code Section 5852.1. Except for the information provided by Harrell & Company Advisors, LLC as municipal advisor to the City (the "Municipal Advisor") as noted below, these good faith estimates have been provided to the Board of Directors by J.P. Morgan Securities LLC (the “Underwriter”). Principal Amount. The Underwriter has informed the Authority that, based on the financing plan, market conditions as of May 11, 2021 and information provided by the Authority, the City, the Port and the Municipal Advisor, its good faith estimate of the aggregate principal amount of the Authority Bonds is $353,000,000 (the “Estimated Principal Amount”). True Interest Cost of the Bonds. The Underwriter has informed the Authority that, assuming that the Estimated Principal Amount of the Authority Bonds is sold, and based on market interest rates prevailing on May 11, 2021 for bonds with similar characteristics, demand and credit profile, its good faith estimate of the true interest cost of the Authority Bonds, which means the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the Authority Bonds, is 5.00%. Finance Charge of the Bonds. The Municipal Advisor has informed the Authority that, assuming that the Estimated Principal Amount of the Authority Bonds is sold, its good faith estimate of the finance charge for the Authority Bonds (the “Finance Charge”), which means the sum of all fees and charges paid to third parties (or costs associated with the Authority Bonds), is $8,821,000, of which $3,400,000 is allocable to the loan (the “Loan”) to be made to the Financing District pursuant to the Loan Agreement. Amount of Proceeds to be Received. The Underwriter has informed the Authority that, assuming that the Estimated Principal Amount of the Authority Bonds is sold, and based on market interest rates prevailing on May 11, 2021 for bonds with similar characteristics, demand and credit profile, its good faith estimate of the amount of proceeds expected to be received by the Authority for sale of the Authority Bonds, less the Finance Charge of the Authority Bonds, as estimated above, and any reserves or capitalized interest on the Authority Bonds paid or funded with proceeds of the Authority Bonds, is $286,500,000, of which $102,600,000 is allocable to the Loan. Total Payment Amount. The Underwriter has informed the Authority that, assuming that the Estimated Principal Amount of the Authority Bonds is sold, and based on market interest rates prevailing on May 11, 2021 for bonds with similar characteristics, demand and credit profile, its good faith estimate of the total payment amount, which means the sum total of all payments the Authority will make to pay the Authority Bonds, calculated to the final maturity of the Authority ∗ All capitalized terms used and not otherwise defined in this Exhibit B shall have the meanings assigned to such terms in the Resolution to which this Exhibit B is attached. 11 4833-3850-0563v6/024036-0079 Bonds, is $832,000,000 and the annual cost to administer the Authority Bonds, not paid with the proceeds of the Authority Bonds, is $25,000. The foregoing estimates constitute good faith estimates only and are based on market conditions prevailing at the time of preparation of such estimates on May 11, 2021, which the Underwriter has confirmed to the Authority continue to provide an accurate basis for good faith estimates as of the date of adoption of this Resolution, as well as input from the Municipal Advisor and discussions with Authority, the City and the Port. The Underwriter has also informed the Authority that there is no guarantee that there will be a market for the Authority Bonds as of the sale date. The Underwriter has been retained by the Authority to purchase the Authority Bonds and is not financial advisor, agent or fiduciary to the Authority, the City, the Port District or the Bayfront Financing District, and has not assumed any advisory or fiduciary responsibility to the Authority, the City, the Port District, the Bayfront Financing District or any of their respective affiliates with respect to the offering of the Authority Bonds, and the transaction contemplated by this Resolution. The actual principal amount of the Authority Bonds, the true interest cost thereof, the finance charges thereof, the amount of proceeds received therefrom and total payment amount with respect thereto may differ from such good faith estimates due to a variety of factors including but not limited to: (a) the rating of the Authority Bonds being different than that assumed for purposes of such estimates, (b) the actual principal amount of the Authority Bonds being different from the Estimated Principal Amount, (c) the actual amortization of the Authority Bonds being different than the amortization assumed for purposes of such estimates, (d) the actual market interest rates at the time of sale of the Authority Bonds being different than those estimated for purposes of such estimates, (e) other market conditions, or (f) alterations in the Authority’s financing plan, or a combination of such factors. The actual date of sale of the Authority Bonds and the actual principal amount of the Authority Bonds will be determined by the Authority based on various factors. The actual interest rates borne by the Authority Bonds will depend on market interest rates at the time of sale thereof. The actual amortization of the Authority Bonds will also depend, in part, on market interest rates at the time of sale thereof. Market interest rates are affected by economic and other factors beyond the control of the Authority, the City, the Port, the Municipal Advisor and the Underwriter.