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Meeting Agenda
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Chula Vista Bayfront Facilities Financing Authority
Wednesday,September 1,2021 3:00 PM Virtual Meeting
****Pursuant to Governor Newsom's Executive Order N-29-20 pertaining to the
convening of public meetings in response to the COVID-19 pandemic, the CHULA
VISTA BAYFRONT FACILITIES FINANCING AUTHORITY (AUTHORITY) hereby provides
notice that it will hold a regular meeting of the BOARD OF DIRECTORS OF THE
AUTHORITY(BOARD). The BOARD will attend the meeting and participate remotely to
the same extent as if they were present.
Due to Governor Newsom's Executive Order, the Board Chambers will remain closed to
the public.
MEMBERS OF THE PUBLIC MAY VIEW THIS MEETING VIA LIVESTREAM at:
https://portofsandiego.legistar.com/Calendar.aspx
REMOTE PUBLIC COMMENT IS AVAILABLE FOR THIS MEETING DOING ONE OF THE
FOLLOWING NO LATER THAN 2:00 PM on Wednesday, September 1, 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.
San Diego Unified Port District Page 1 Printed on 8/27/2021
Chula Vista Bayfront Facilities Meeting Agenda September 1,2021
Financing Authority
Board of Directors
Honorable City of Chula Vista Mayor Mary Casillas Salas
City of Chula Vista Councilman Stephen Padilla
Port Commissioner Ann Moore
Port Commissioner Rafael Castellanos
Port Commissioner Dan Malcolm
A. Call to Order
B. Roll Call
C. Non-Agenda Public Comment
Each individual speaker is limited to two (2)minutes
D. Approval of Minutes for:
1. June 28, 2021 Board Meeting
E. Consent Items
Resolution:
1. Authorizing the Execution and Delivery of the Chula Vista Bayfront Project Phase 1A
Early Work Implementation and Right of Entry License Agreement among RIDA Chula
Vista, LLC (RIDA), the City of Chula Vista (City), the San Diego Unified Port District
(District), and the Chula Vista Bayfront Facilities Financing Authority (Authority), to
Construct Certain Phase 1A Improvements Located in the City of Chula Vista (Phase 1A
Early Work) and Necessary for the Construction of a Convention Center, Hotel, and Other
Phase 1A Improvements (Right of Entry); The Making of Necessary Findings for RIDA to
Serve as the Prime Contractor of the Phase 1A Early Work; And Confirming the
Authority's Obligations Regarding the Payment of the Costs of Phase 1A Early Work to
RIDA on Behalf of the City and The District Should the Close of Escrow Not Occur
F. Action Items
None
G. Staff Comments
H. Board Comment
I. Adjournment
San Diego Unified Port District Page 2 Printed on 8/27/2021
MEETING OF THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
BOARD OF DIRECTORS
Minutes
Monday, June 28, 2021
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
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 3:11 p.m., on
Monday, June 28, 2021, via Microsoft Teams meeting.
Roll Call
Board of Directors Present: Mary Casillas Salas, Dan Malcolm, Ann Moore, and Stephen
Padilla
Excused: Rafael Castellanos
Officers Present: Joe Stuyvesant (Executive Director), and Donna Morales (Secretary)
Non-Agenda Public Comment
None.
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
The following member(s) of the public addressed the Board with agenda-related comments:
None.
Page 1 of 4
Moved by Board Member Moore, seconded by Board Member Padilla, the Board approved the
minutes for: January 8, 2020; February 26, 2020; April 1, 2020; April 27, 2020; May 20, 2020;
June 8, 2020; and December 2, 2020.
The motion carried by the following vote: Yeas: Casillas Salas, Malcolm, Moore, and Padilla
Excused: Castellanos
E. 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
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
1) 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
The following member(s) of the public addressed the Board with agenda-related comments:
None.
Page 2 of 4
Moved by Board Member Malcolm, seconded by Board Member Padilla, the Board adopted
Item A— and reappointed Mayor Casillas Salas as the Chair and Ann Moore as Vice Chair of the Chula
Vista Bayfront Facilities Financing Authority (Authority).
The motion carried by the following vote: Yeas: Casillas Salas, Malcolm, Moore, and Padilla
Excused: Castellanos
Moved by Chair Salas, seconded by Board Member Malcolm, The Board adopted Items B — K
The motion carried by the following vote: Yeas: Casillas Salas, Malcolm, Moore, and Padilla
Excused: Castellanos
Board Member Malcolm made a companion motion to designate Joe Stuyvesant as Executive
Director, Donna Morales as Secretary, Tracy McCraner as interim Auditor & Treasurer, and
Tom Russell and Glen Googins as JEPA Co-Counsel.
Elizabeth Alonso, Deputy General Counsel, Port of San Diego, clarified that JEPA Co-Counsel
are not designated as officers for the JEPA, so they do not need to be included in the motion.
Board Member Malcolm amended his motion to not include JEPA Co-Counsel. Board Member
Padilla seconded the motion.
The motion carried by the following vote: Yeas: Casillas Salas, Malcolm, Moore, and Padilla
Excused: Castellanos
F. Staff Comments
Glen Googins, City Attorney, City of Chula Vista, requested that the staff presentation be
submitted as part of the record, per the suggestion of Bond Counsel.
Mr. Googins also made special note of thanks to Elizabeth Alonso for her work on the attorney-
side bringing the JEPA package together, along with Bob Whalen and Vanessa Legbandt.
G. Board Comments
Chair Salas expressed her deep appreciation to City and Port staff that worked to bring the
complex agreements together. Vice-Chair Moore added her appreciation for Glen Googins.
Board Member Padilla added his gratitude to staff as mentioned. Board Member Malcolm
added that it is nice to see two agencies working so collaboratively on a very complex
transaction.
H. Adjournment
The meeting adjourned at 3:28 p.m.
Page 3 of 4
Mary Casillas Salas, Chair
Board of Directors
ATTEST:
Donna Morales
Secretary
Page 4 of 4
DATE: September 1, 2021
SUBJECT:
RESOLUTION APPROVING THE CHULA VISTA BAYFRONT PROJECT PHASE 1A
EARLY WORK IMPLEMENTATION AND RIGHT OF ENTRY LICENSE AGREEMENT
AMONG RIDA CHULA VISTA, LLC ("RIDA"), THE CITY OF CHULA VISTA ("CITY"),
THE SAN DIEGO UNIFIED PORT DISTRICT ("DISTRICT"), AND THE CHULA VISTA
BAYFRONT FACILITIES FINANCING AUTHORITY ("AUTHORITY") TO CONSTRUCT
CERTAIN PHASE 1A IMPROVEMENTS LOCATED IN THE CITY OF CHULA VISTA
("PHASE 1A EARLY WORK") AND NECESSARY FOR THE CONSTRUCTION OF A
CONVENTION CENTER, RESORT HOTEL, AND OTHER PHASE 1A
IMPROVEMENTS ("RIGHT OF ENTRY"); THE MAKING OF NECESSARY FINDINGS
FOR RIDA TO SERVE AS THE PRIME CONTRACTOR OF THE PHASE 1A EARLY
WORK; AND CONFIRMING THE AUTHORITY'S OBLIGATIONS REGARDING THE
PAYMENT OF THE COSTS OF PHASE 1A EARLY WORK TO RIDA ON BEHALF OF
THE CITY AND THE DISTRICT SHOULD THE CLOSE OF ESCROW NOT OCCUR
EXECUTIVE SUMMARY:
The Board of Directors of the Chula Vista Bayfront Facilities Financing Authority
("Authority Board") recently approved a Project Implementation Agreement ("Project
Implementation Agreement") among RIDA Chula Vista, LLC ("RIDA"), the San Diego
Unified Port District ("Port"), the City of Chula Vista ("City"), the Chula Vista Bayfront
Facilities Financing Authority("Authority"), and the Bayfront Project Special Tax Financing
District ("Special Tax District") at its June 28, 2021 Authority Board meeting. The Project
Implementation Agreement, among other things, is to enable the construction of the
following improvements within the Harbor District of the Chula Vista Bayfront ("CVB"): (i)
a convention center consisting of approximately 275,000 net usable square feet of
associated meeting space ("Convention Center"); and (ii) surrounding infrastructure
improvements (collectively, "Phase 1A Improvements").
RIDA has requested early access to Parcel H-3 (excluding the Chula Vista RV Park
located on Parcel H-3) and adjacent areas to perform some of the Phase 1A
Improvements required under the Project Implementation Agreement ("Early Work")
which RIDA contends will allow for greater efficiency in the construction of the Convention
Center, the remaining Phase 1A Improvements, and a resort hotel with 1,570 to 1,600
rooms ("Resort Hotel") once full construction begins and will shorten RIDA's construction
schedule. To allow RIDA to perform this Early Work, a Chula Vista Bayfront Project Phase
1A Early Work Implementation and Right Of Entry License Agreement in substantially the
form attached hereto as Attachment A (the "Right of Entry") needs to be entered into
among the District, the City, the Authority, and RIDA. RIDA has indicated their intent to
serve as the prime contractor, which will result in overall cost savings as opposed to hiring
a third-party contractor. The proposed Resolution before the Authority Board contains
findings that RIDA may serve as the prime contractor.
The Right of Entry has a term of up to one (1) year, unless extended by the parties, and
the Early Work has an estimated construction timeline of approximately four (4) months
and an estimated cost of $696,448 ("Budgeted Amount"). If the close of escrow occurs
under the Disposition and Development Agreement(District Clerk's Doc. No. 68398, Filed
May 14, 2018) ("DDA"), and the Authority enters into the Project Implementation
Agreement, the Authority will reimburse RIDA for this Early Work under the Project
Implementation Agreement. If the close of escrow does not occur due to a termination of
the DDA, the District and City would each be responsible for reimbursing RIDA for fifty
percent (50%) of the Early Work completed as of the termination of the DDA provided
that the termination was not the result of RIDA's breach under the DDA, the Right of Entry,
or any other agreement setting forth RIDA's obligations to the Authority, City, or District
prior to the close of escrow. Under the Third Amended and Restated Revenue Sharing
Agreement approved by the Authority on June 28, 2021 ("RSA"), Section 3.2 provides
that the District or City may deduct the cost of any Phase 1A Improvements constructed
by or at the direction of RIDA pursuant to the Right of Entry, from such party's contribution
of funds prior to the "Contribution Date" as defined therein.
If the termination of the DDA occurs prior to the Contribution Date (as defined in the RSA),
the District and the City may reimburse RIDA for the cost of the Early Work through the
funds to be contributed through the RSA. These costs would then be part of the final
accounting required under Section 3.2 of the RSA, where the District and City would each
prepare an accounting of the amounts contributed and approved through the RSA and
the party with the lower deductions would reimburse the other party sufficient to equalize
the pre-closing costs. Under the Right of Entry, the District and City agree to approve
any such accounting of amounts provided by one another that reasonably details the
payment of such amounts provided that such amounts do not exceed each party's
contribution.
If the termination of the DDA occurs after the Contribution Date (as defined in the RSA)
such that the close of escrow under the DDA does not occur, the District and the City
desire that the Authority pay RIDA, on behalf of the District and the City, for the costs of
the Early Work incurred by RIDA for any Early Work completed prior to the termination of
the DDA that are due and payable by the District and the City in such amounts to be
confirmed by the District and the City at the termination of the DDA("Approved Early Work
Costs"). Therefore, the Authority shall pay the Approved Early Work Costs to RIDA prior
to reimbursing any amounts to the District and the City.
Staff recommends the Authority adopt the proposed Resolution (1) approving the Right
of Entry in substantially the form attached as Attachment A to expedite the construction
of the Convention Center, Resort Hotel, and the remaining Phase 1A Improvements; (2)
making the necessary findings for RIDA to serve as the prime contractor of the Early
Work; and (3) confirming the Authority's obligations regarding the payment of the
Approved Early Work Costs to RIDA on behalf of the City and the District should the close
of escrow not occur.
RECOMMENDATION:
Adopt Resolution (1) approving the Right of Entry to construct certain Phase 1A
Improvements located in the City of Chula Vista, California and necessary for the
construction of a Convention Center, Resort Hotel, and other Phase 1A Improvements;
(2) making the necessary findings for RIDA to serve as the prime contractor of the Early
Work; and (3) confirming the Authority's obligations regarding the payment of the
Approved Early Work Costs to RIDA on behalf of the City and the District should the close
of escrow not occur.
FISCAL IMPACT:
If the escrow does not close because the DDA is terminated, the District and City are
each responsible for reimbursing RIDA 50% of the cost for the Early Work performed up
to the termination of the DDA, respectively, currently estimated at $696,448 ("Budgeted
Amount"). If the termination of the DDA occurs prior to the "Contribution Date", such
funds would be contributed pursuant to Section 3.2(D) of the RSA. The RSA defines the
Contribution Date as "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 posting of the Preliminary Official Statement customarily
occurs approximately one month before the issuance of the bonds. If the termination of
the DDA occurs after the "Contribution Date", the Authority shall pay RIDA for the cost of
the Early Work on behalf of the City and the District using the funds that it has collected
from the City and the District as of the Contribution Date.
The Right of Entry contains a change order procedure for certain "cost increase events,"
which requires RIDA to timely notify Authority staff and receive the Authority's approval
before incurring any unforeseen costs that increase the budget above the Budgeted
Amount. The Procurement Policy (as defined below) delegates to the Authority's
Executive Director the approval of any change order costs, provided the overall cost of
the Early Work remains less than $2,000,000. The Authority Board therefore does not
have to approve a contingency amount for this work since the contingency would be within
staff's approval limits.
DISCUSSION:
In anticipation of the commencement of construction following the recent approval of the
Project Implementation Agreement and the movement of the transaction closer to the
close of escrow, RIDA has requested early access to Parcel H-3 (excluding the Chula
Vista RV Park) and adjacent areas to perform some of the Phase 1A Improvements. RIDA
contends this will allow for greater efficiency in the construction of the Convention Center,
Resort Hotel, and remaining Phase 1A Improvements once full construction begins and
shorten RIDA's construction schedule. To allow RIDA to perform this Early Work, a Right
of Entry in substantially the form attached as Attachment A needs to be entered into
among the District, the City, the Authority, and RIDA. The Right of Entry has a term of up
to one (1) year (unless extended by the parties) and the Early Work has an estimated
approximate construction cost of $696,448. The Authority will reimburse RIDA for this
Early Work through the Project Implementation Agreement if escrow closes under the
DDA and the parties enter into the Project Implementation Agreement and the District
and the City would reimburse RIDA for this Early Work if the escrow does not close under
the DDA as further discussed in the "Executive Summary" section above.
The Early Work includes but is not limited to the following construction items:
• Trenching, backfilling, and installing SDG&E conduits.
• Installing of AT&T conduits.
• Underground excavation, trenching, conduit, and pavement repair for SDG&E and
AT&T overhead poles and wiring installations.
• Capping of water mains.
• Capping sewer mains.
By performing the Early Work, RIDA will be in a position to commence grading and
construction on Parcel H-3 once the close of escrow occurs and the bonds are issued.
Existing adjacent tenants will also continue to receive utilities without interruption during
construction. The proposed Right of Entry will allow RIDA to perform the Early Work and
more efficiently proceed with the construction on Parcel H-3 during the construction
phase.
The Authority Board previously adopted a Procurement Policy for Developer-Performed
Public Works that was ratified pursuant to Authority Resolution 2020-007 that governs
work performed by developers that is subject to reimbursement from the Authority
("Procurement Policy"). RIDA has indicated that RIDA intends to serve as the prime
contractor, which will result in overall cost savings as opposed to hiring a third party
contractor. RIDA is an affiliate of RIDA Development Corporation, which is a full service
real estate organization that has created, invested in and developed office, residential,
industrial, hospitality and retail developments for more than forty years, including five
hotels (each with over 800 rooms) in the United States since 2004. The Vice President
of Construction Operations and Responsible Managing Officer of RIDA is Kipland
Howard, who has 40 years of experience working on projects similar and more complex
than the Early Work in the State of California, including in the City of Chula Vista and on
tidelands. The Early Work involves minor construction that will be done in collaboration
with local utility companies and the expertise of RIDA for this work is appropriate.
The Procurement Policy allows a developer to serve as a prime contractor provided that
it: (1) has made a written request and provided information demonstrating its competence,
(2) is competent and qualified to complete the work, and (3) will publicly bid out all
subcontracts. RIDA is a licensed contractor in good standing (CSLB #1039979) and is
currently registered with the Department of Industrial Relations to perform public works.
RIDA is experienced in the type of work contained in the Right of Entry. The Right of Entry
obligates RIDA to procure subcontractors for the work using a public bidding process.
RIDA must post a formal advertisement for bids at least 21 days prior to the deadline for
receiving and must award contracts to either the lowest bidder or the "best qualified
contractor", as defined in the Procurement Policy. The Right of Entry also contains
additional protections, such as a requirement that RIDA procure performance bonds to
ensure completion of the Early Work. The proposed Resolution before the Authority Board
contains findings that RIDA may serve as the prime contractor.
In order to expedite RIDA's construction schedule, staff recommends that the Authority
Board adopt the proposed Resolution (1) approving the Right of Entry substantially in the
form attached as Attachment A; (2) making the necessary findings for RIDA to serve as
the prime contractor of the Early Work; and (3) confirming the Authority's obligations
regarding the payment of the Approved Early Work Costs to RIDA on behalf of the City
and the District should the close of escrow not occur.
Co-Counsel's Comments:
Each Co-Counsel has reviewed this agenda sheet and Attachment A as presented to him
or her and approves the same as to form and legality.
Environmental Review:
The proposed Authority Board action to adopt a resolution approving a Chula Vista
Bayfront Project Phase 1A Early Work Implementation and Right of Entry License
Agreement among the District, the City, the Authority, and RIDA for construction of certain
Phase 1A Improvements, make necessary findings for RIDA to serve as the prime
contractor of the Early Work, and confirm the Authority's obligations regarding the
payment of the Approved Early Work Costs to RIDA on behalf of the City and the District
should the close of escrow not occur under the DDA, 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 Addendum to the FEIR, which
was adopted by the Board of Port Commissioners ("BPC") on August 13, 2013
(Resolution No. 2013-138), the Second Addendum to the FEIR, which was adopted by
the BPC on April 10, 2018 (Resolution No. 2018-0069), and the Third Addendum to the
FEIR, which was adopted by the BPC on December 8, 2020 (Resolution No. 2020-116).
The proposed Authority Board action is not a separate "project" for CEQA purposes but
is a subsequent discretionary approval related to a previously approved project. (CEQA
Guidelines § 15378(c); Van de Kamps Coalition v. Board of Trustees of Los Angeles
Comm. College Dist. (2012) 206 Cal.AppAth 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 action does 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 action is merely
a step-in furtherance of the original project for which environmental review was performed
and no supplemental or subsequent CEQA has been triggered, and no further
environmental review is required.
The proposed Authority Board action is consistent with the Public Trust Doctrine.
The project related to the proposed Authority Board action is 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 BPC on June 18, 2019 (Resolution No. 2019-080). The proposed
Authority Board action is consistent with the project in the CDP. No additional action under
the California Coastal Act is required at this time.
PREPARED BY:
Matthew Ostlund
Asset Manager, Real Estate, District
Attachment(s):
Attachment A: Chula Vista Bayfront Project Phase 1A Early Work Implementation
and Right Of Entry License Agreement
Attachment A Page 1 of 38A
GHULA VISTA BAYFRONT PROJECT
PHASE 1A EARLY WORK IMPLEMENTATION AND RIGHT OF ENTRY LICENSE
AGREEMENT
This Phase 1A Early Work Implementation and Right of Entry License Agreement,
hereinafter "Agreement", is entered into as of , 2021 (the "Effective Date"), by and
among the San Diego Unified Port District, a public corporation ("District"), the City of
Chula Vista, a chartered municipal corporation ("City"), the Chula Vista Bayfront Facilities
Financing Authority, a California joint exercise of powers authority ("Authority"), and RIDA
Chula Vista, LLC, a Delaware limited liability company ("Developer"). District, City, and
Authority may be referred to collectively herein as the "Public Entities". The Public Entities
and Developer may each be individually referred to herein as a "Party", or collectively
herein as the "Parties".
RECITALS
a. On or about May 7, 2018, the District, City, and Developer entered into a
Disposition and Development Agreement ("DDA") to construct, among other
things, a convention center, resort hotel and public infrastructure improvements,
which includes Developer's Phase 1A Infrastructure Improvements (as defined in
the DDA). Pursuant to the DDA, at the Close of Escrow (as defined in the DDA),
the District and Developer will enter into a ground lease for the construction of the
resort hotel. The Board of Port Commissioners approved the ground lease on June
15, 2021 (the "Ground Lease").
b. At the Close of Escrow, the District, the City, the Authority, the Bayfront Project
Special Tax Financing District and the Developer will enter into a project
implementation agreement (as amended, amended and restated, supplemented
or otherwise modified from time to time, the "Project Implementation Agreement"),
pursuant to which, among other things, the Authority will pay the Developer's
Phase 1A Contract Sum (as defined therein) to the Developer in connection with
the development and construction of the Developer's Phase 1A Infrastructure
Improvements (as defined in the DDA). The Board of Port Commissioners
approved the Project Implementation Agreement on June 15, 2021, the City
Council of the City of Chula Vista approved the Project Implementation Agreement
on June 15, 2021, and the governing board of the Authority approved the Project
Implementation Agreement on June 28, 2021.
C. The District owns certain real property located in Chula Vista, California, more
particularly described on Exhibit "A-1" and delineated on Exhibit "A-2", which is
attached hereto and incorporated herein by this reference (the "Premises").
d. The Developer's Phase 1A Infrastructure Improvements (as defined in the DDA)
Attachment A Page 2 of 38A
include the work that is more particularly described on Exhibit "B", which is
attached hereto and incorporated herein by this reference (the "Work"), and more
particularly described in the work plan attached as Exhibit "B-1" ("Work Plan").
e. As described in the Work Plan, the Work generally consists of construction and
backfill of a trench with installation of electrical facilities across the Premises, which
will provide electrical power to adjoining tenants during Developer's construction
of the Developer's Phase 1A Infrastructure Improvements, convention center, and
resort hotel. As described in the Work Plan, some of the electrical facilities are
intended to serve temporarily during construction of the Developer's Phase 1A
Infrastructure Improvements, convention center, and resort hotel, and to be
removed by Developer upon completion of the construction of the Developer's
Phase 1A Infrastructure Improvements, resort hotel, and convention center.
f. The DDA contemplates that the Developer will develop Developer's Phase 1A
Infrastructure Improvements, including the Work, after the Close of Escrow (as
defined in the DDA).
g. Developer has now requested early access to the Premises— i.e., prior to the Close
of Escrow— in order to perform the Work, which Developer contends will allow for
greater efficiency in the construction of the Developer's Phase 1A Infrastructure
Improvements post-Close of Escrow and shorten Developer's construction
schedule.
h. The Public Entities are willing to permit Developer to perform the Work subject to
the terms and conditions set forth herein.
i. Under the DDA, the Developer is to be reimbursed for the Phase 1A Infrastructure
Costs (as defined in the DDA) if certain requirements are met, including but not
limited to, the issuance of bonds by the Authority at the Close of Escrow.
j. On January 8, 2020, the Board of Directors of the Authority ("Authority Board")
adopted Resolution 2020-001 initially establishing a Procurement Policy for
developer-performed public works, which the Authority Board further ratified
through Resolution 2020-007 ("Procurement Policy").
k. Pursuant to Section 5 of the Procurement Policy, the Authority may require a
developer to enter into an agreement to clarify the procurement procedures for a
particular project.
I. The Parties therefore intend to enter into this Agreement in order to
comprehensively address each Party's respective obligations with respect to the
Work, and in particular: (1) the terms and conditions upon which the District will
grant Developer a license for the right to enter the Premises prior to Close of
Escrow, (2) the terms and conditions upon which the Developer may perform the
2
Attachment A Page 3 of 38A
Work, (3) the terms and conditions upon which the Developer will be paid for the
Work, and (4) the process that the Developer will follow to procure the Work.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto mutually agree as follows:
1
REFERENCES
1.1. Effective Date. This Agreement shall become effective upon the completion of the
following two conditions precedent: (1) each of the Parties duly approves this
Agreement through its respective Board of Directors, Board of Port
Commissioners, City Council, principals or members, as the case may be, and the
authorized representative of each Party executes this Agreement, and (2) the
Authority adopts a Resolution making findings on the procurement process set
forth in this Agreement.
1.2. Right of Entry License. Article 7 of this Agreement contains the terms and
conditions upon which the District grants a license to Developer and its authorized
agents and contractors to enter the Premises to perform the Work. (Article 7 will
be referred to as the "Right of Entry License.")
1.3. DDA. The Parties acknowledge and agree that the District, City, and Developer
are all parties to the DDA, and this Agreement is not intended to be a limitation of
any rights or obligations contained in the DDA, unless expressly stated herein. In
the event of a conflict between the DDA and this Agreement, the terms of this
Agreement shall control.
1.4. Representatives. Each Party to this Agreement shall have a designated
representative to serve as the primary contact person with regard to various
aspects of the implementation of this Agreement (each, a "Representative").
The Representatives of the Parties shall be:
Developer: Luke Charlton, Chief Operating Officer
District: Adam Meyer, Assistant Director of Real Estate and Stephanie Shook,
Department Manager, Real Estate
City: Tiffany Allen, Director of Development Services and Kimberly Elliot, Facilities
Financing Manager
Authority: For the District, Adam Meyer, Assistant Director of Real Estate and
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Stephanie Shook, Department Manager, Real Estate; for the City, Tiffany Allen,
Director of Development Services and Kimberly Elliot, Facilities Financing
Manager.
The Representatives for each Party may be changed from time to time upon written
notice to the other Parties. The roles and obligations of the Representatives shall
be limited to those set forth in this Agreement.
2
WORK TO BE PERFORMED AT DEVELOPER'S RISK
2.1. Limitations. Developer agrees to perform the Work at Developer's own cost and
expense subject to Developer's right to reimbursement as set forth in Sections 2.2
and 2.3 of this Agreement. Except as set forth in this Agreement, Developer shall
have no recourse against the Public Entities for any costs or expenses incurred by
Developer related to this Agreement or the Work. Notwithstanding anything to the
contrary herein, nothing in this Agreement shall amend, modify, limit or supersede
Developer's right to reimbursement or payment for any work other than the Work
from any of the Public Entities under any other agreement between Developer and
such Public Entity.
a. No Consequential Damages. No Public Entity shall, in any event, be liable
to Developer or any other person, either in contract, tort or otherwise, for
any consequential, incidental, indirect, special or punitive damages,
including loss of future revenue, income or profits, diminution of value or
loss of business reputation or opportunity relating to the breach or alleged
breach hereof, whether or not the possibility of such damages has been
disclosed to the other Party in advance or could have been reasonably
foreseen by such other Party. The foregoing shall not preclude the
Developer from enforcing its right to receive reimbursement as set forth in
Section 2.2 or 2.3 of this Agreement.
2.2. Reimbursement from Authority if the Close of Escrow Occurs. Provided that the
Close of Escrow has occurred and the Project Implementation Agreement has
been executed by the parties thereto in connection with the Close of Escrow, then
the costs and expenses actually incurred by Developer in performing the Work
hereunder, and not already paid or reimbursed by the Public Entities and in an
amount not to exceed the Budget (defined below), shall be deemed to be part of
Developer's Phase 1A Contract Sum (as defined in the Project Implementation
Agreement), and the Developer shall be entitled to reimbursement of such part of
Developer's Phase 1A Contract Sum under and in accordance with the Project
Implementation Agreement and this Section 2.2.
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a. Buffet. Attached hereto as Exhibit "E" is the line item budget for the Work,
which has been approved by the Public Entities (such budget and any
amendments, supplements or other modifications thereto, in each case, as
approved by the Public Entities from time to time in accordance with this
Agreement, the "Budget").
b. Budget Increases. The appropriate line item on the Budget will increase by
the amount of incremental costs that Developer actually incurs in
connection with the Work (including, without limitation, as a result of any
Cost Increase Event (as defined below) (less the amount of insurance
proceeds that Developer receives for such Cost Increase Event)), and such
incremental costs shall be part of the Budget if and to the extent permitted
by this Agreement. Developer shall use reasonable efforts to prosecute
each and every insurance claim with respect to any Cost Increase Event
that is covered by the insurance policies procured in accordance with this
Agreement. During the Work, Developer shall promptly notify the Public
Entities of any additional costs for the Work that are not included in the
Budget, including, without limitation, as a result of any Cost Increase Event,
and if applicable, request that such additional costs be included in the
Budget. Developer shall not request the inclusion of additional costs in the
Budget to the extent resulting from Developer's or Developer Affiliates' (as
defined below) negligence or willful misconduct, and such additional costs
shall not constitute a "Cost Increase Event".
"Cost Increase Event" shall include any of the following events individually
or in any combination, to the extent that (x) such event is not caused by the
negligence or willful misconduct of Developer or Developer Affiliates and (y)
such event increases the cost of performing the Work:
(i) a strike, or similar labor disturbances causing a work stoppage,
excluding any such strike or work stoppage that could have been
avoided had Developer or Developer Affiliates complied with
applicable laws or labor agreements with respect to the Work, 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 District's jurisdiction;
(iv) an earthquake, volcanic eruptions, explosions, disease, epidemics
or other natural disaster;
(v) fires (including wildfires);
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(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 Developer's or Developer
Affiliates' 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) delays in the issuance of any approvals or authorizations from any
governmental authority (excluding any of the Public Entities) that is
necessary to proceed with the performance of the Work (provided
that Developer or Developer Affiliates have 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 Developer or Developer
Affiliates are not responsible for the delay in the issuance of such
approvals or authorizations);
(ix) an act of God;
(x) embargoes or blockades;
(xi) Pre-Existing Hazardous Material (as defined in the Ground Lease)
that is not the result of Material Exacerbation (as defined in the
Ground Lease); or
(xii) closures ordered by any Governmental Authority that do not arise
from a breach of this Agreement or misconduct by Developer or
Developer Affiliates;
(xiii) any change in applicable law that is first effective after the Effective
Date;
(xiv) any breach or interference with performance of the Work by the
governmental entities, including any Public Entity;
(xv) any changes to the Work required by any public utility entity or any
governmental entity, including any Public Entity; or
(xvi) any other event or circumstance (including, without limitation, bids
for the Work, and expenses described in Section 7.12, that exceed
the Budget) resulting in an unforeseen cost or cost increase not
otherwise contained in the Budget and that does not result from the
negligence or willful misconduct of Developer or any Developer
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Affiliate.
If any Cost Increase Event shall occur, Developer shall, promptly but in no
event later than ten (10) days after Developer learns of the occurrence of
such Cost Increase Event, notify the Public Entities thereof, which notice
must be made in good faith and describe the Cost Increase Event, why such
cost increase is occurring, the estimated expected amount of the cost
increase, and the commercially reasonable efforts that the Developer is
taking to minimize the cost increase. The Public Entities shall, promptly but
in no event later than ten (10) days after receipt of such notice, notify
Developer whether (x) Developer shall continue with performing the Work,
in which case the appropriate line item on the Budget shall increase by the
amount of incremental costs that Developer reasonably and actually incurs
as a result of any Cost Increase Event in accordance with this Agreement,
or (y) Developer shall stop performing the Work, in which case Developer
shall immediately stop all Work except any Work required to secure the
Work, Work area and the Premises to the satisfaction of the District, and
the Parties shall proceed under Section 2.3.
C. Increase in Payment Bonds. Any adjustment to the Budget in accordance
with Section 2.2(b) shall include a proportional increase in the penal sums
of the Payments Bonds (as defined below). Authority's reimbursement of
such bond cost increases shall not exceed the actual cost of increasing the
penal sum of such bonds.
d. Work Reimbursement Costs. During each month after the commencement
of the Work, Developer shall submit to the Public Entities a record of costs
that have been incurred with respect to the Work during the immediately
preceding month (a "Record of Costs"). No later than thirty (30) Business
Days after the Public Entities receive a Record of Costs, the Public Entities
shall review such Record of Costs and shall, in their reasonable discretion,
determine whether the costs set forth in such Record of Costs have been
incurred by Developer in performance of the Work and do not cause the
aggregate amount of such costs to exceed the Budget, and shall provide a
notice of their determination to Developer. Any costs so determined by the
Public Entities to have been incurred by Developer in performance of the
Work up to the amount of the Budget shall hereinafter be referred to as
"Work Reimbursement Costs". After the Close of Escrow, the Authority
shall reimburse Developer for all Work Reimbursement Costs.
2.3. Reimbursement from Public Entities if the Close of Escrow Does Not Occur. In the
event that the Close of Escrow does not occur due to a termination of the DDA by
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Attachment A Page 8 of 38A
any of the Parties, and such termination was not the result of a breach of
Developer's obligations under the DDA, this Agreement, or any other agreement
setting forth Developer's obligations to the Public Entities prior to the Close of
Escrow, Developer shall be entitled to reimbursement for the Work
Reimbursement Costs incurred as of the date of the termination, with each of the
District and the City being responsible for payment to Developer of fifty percent
(50%) of the Work Reimbursement Costs incurred by Developer as of the date of
the termination. Provided that such termination occurs prior to the Contribution
Date (as defined in the RSA (as defined below)), the Authority, the District, and the
City acknowledge and agree that the Work Reimbursement Costs may be paid by
the District and the City from Existing Funds (as defined in the RSA) pursuant to
Section 3.2(D) of the RSA (defined below) and each of the City and the District
agree to approve any accounting submitted to one another pursuant to Section
3.2(F) of the RSA that reasonably details the payment of such Work
Reimbursement Costs to Developer that does not exceed such party's share of the
Work Reimbursement Costs.
a. This Agreement is not intended to amend, modify, limit or supersede any
separate agreement or understanding of the Public Entities as to the
allocation of costs between City, District, and Authority related to the
Developer's Phase 1A Infrastructure Improvements, including but not
limited to the Project Implementation Agreement and that certain Third
Amended and Restated Revenue Sharing Agreement, dated June 28, 2021 ,
by and among the City, the District and the Authority (as amended,
amended and restated, supplemented or otherwise modified from time to
time, the "RSA").
3
DEVELOPER'S RESPONSIBILITIES
3.1. Conditions. Prior to and as a condition of performing any Work and entering onto
the Premises pursuant to the Right of Entry License:
a. Insurance. Developer shall purchase and maintain insurance that will
protect District, City, and Authority from claims which may result from the
undertakings of the Developer and Developer's Affiliates, under this
Agreement, including without limitation the performance of the Work and
use of the Premises, in the applicable limits set forth in Section 4.11 of the
DDA and in the manner set forth in Sections 4.10 and 4.12-4.13 of the DDA,
if and to the extent applicable to the Work, with the exception that (x)
Worker's Compensation may be carried by the prime contractor (including
Developer to the extent Developer is serving as prime contractor) or
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Attachment A Page 9 of 38A
applicable subcontractors for their own workers and (y) General Liability
limits are amended to read $1,000,000 per occurrence and $2,000,000 in
the aggregate; provided, that at all times such insurance shall cover the
Work, the Premises, and any person or entity performing Work or on the
Premises pursuant to this Agreement or the Right of Entry License. The
insurance certificates shall be in the form attached as Exhibit "D".
b. Bonds. Developer shall furnish to the District, City, and Authority a Payment
Bond and Performance Bond (each as defined in the DDA), which shall be
procured in the same manner and to the same extent as required for
Developer's Phase 1A Infrastructure Improvements as provided in Section
4.14 of the DDA. Each Bond shall be in an amount equal to 100% of the
Budget.
C. Prevailing Wages. The Work is "Public Work" pursuant to the PWL (as
defined in Section 4.16 of the DDA) and Developer and Developer's
Affiliates shall comply with all requirements of section 4.16 of the DDA in
their performance and completion of the Work.
d. Indemnity. 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 applicable Public Entities, each in its reasonable
discretion, and approved by Developer in its reasonable discretion, to
indemnify, defend and hold harmless the District, the City and the Authority,
and their respective officers, directors, commissioners, employees,
partners, affiliates, agents, contractors, successors and assigns ("Public
Entities Parties")from any claims, demands, actions, causes of action, suits
(collectively, "Claims") and 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 such
costs (collectively, the "Related Costs") and amounts paid in settlement of
any claims or actions related to the subject matter of the Related Costs (as
determined by the District, City and/or Authority, as applicable), arising out
of:
(a) the obligations undertaken by the Developer and its officers, directors,
employees, partners, affiliates, agents, contractors, consultants,
invitees, successors and assigns (each a "Developer Affiliate", and
collectively, the "Developer Affiliates") in connection with this
Agreement, including the Right of Entry License;
(b) the possession, use, occupancy, operation or development of the
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Attachment A Page 10 of 38A
Premises by the Developer or the Developer Affiliates;
(c) the approval of this Agreement or the approval of permits or approvals
granted to the Developer or a Developer Affiliate related to the Work or
the Premises, including, but not limited to, approvals or permits for the
development of any structures, buildings, installations, and
improvements on the Premises, or use of the Premises (collectively,
"Related Approvals");
(d) any third party challenges to the approval of the Work and the Related
Approvals;
(e) the granting or failure to grant any approvals set forth in this Agreement
(collectively, "Discretionary Approvals");
(f) environmental documents, mitigation and/or monitoring plans, or
determinations conducted and adopted pursuant to CEQA or the
National Environmental Policy Act for this Agreement, Related
Approvals or Discretionary Approvals; and
(g) the Developer's obligation to comply with the PWL with respect to the
Work.
If any Public Entity determines in its reasonable discretion that there is a
conflict of interest with the Developer's counsel representing an applicable
Public Entity and the Developer, then such Public Entity, at the election of
the relevant Public Entity, may conduct such defense with its own counsel
independent from the Developer's counsel that is selected by such Public
Entity in its reasonable discretion and is approved by the Developer in its
reasonable discretion (and in that event the Developer 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. 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 the Developer 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.
e. Survival. This Article 3 shall survive the expiration or earlier termination of
this Agreement.
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4
PROCUREMENT OF THE WORK
4.1. Procurement Rules. Developer acknowledges that, as a condition for Authority to
reimburse the Work, the procurement of the Work must be done in accordance
with Authority's Procurement Policy. Except where provisions of the Procurement
Policy are duly and expressly waived in this Agreement, by resolution of the
Authority Board or by the Executive Director of the Authority, as applicable,
Developer shall comply with, and cause its contractor(s) for the Work to comply
with, the terms of the Procurement Policy.
4.2. Agreement as to Procurement Process. Pursuant to Section 5 of the Procurement
Policy, the Authority may require developers to enter into an agreement to clarify
the procurement procedures for developer-performed public work. This Agreement
shall serve to clarify the procurement procedures for the Work.
4.3. Developer as Prime Contractor. Pursuant to Section 1.c of the Procurement
Policy, a developer may serve as a prime contractor, provided that the Authority
finds, in accordance with the Procurement Policy, that the developer is qualified
and competent to complete the work. Developer has informed the Public Entities
that it intends to serve as the prime contractor for the Work, and Developer agrees
to: (1) competitively bid the subcontracts for the Work in the manner set forth in
Section 4.6 of this Agreement, and (2) not seek reimbursement from Authority for
any contractor fee Developer pays itself for serving as prime contractor.
4.4. Public Entities' Approval. Prior to the commencement of the Work, the Public
Entities shall approve the plans and specifications with respect to the Work;
provided that in the case of the City only, such plans and specifications shall be
deemed approved if and when the City issues a building permit with respect to the
Work. For this particular Work, Developer shall not be required to contribute toward
the District's Art Program as set forth in the District's Tenant Percent For Art
Program (BPC Policy No. 608) as provided in Section 4.1(c) of the DDA, but by
excluding the Work from the requirements of BPC Policy No. 608, the District does
not waive any of its rights to require Developer's participation as it relates to other
work to be performed by Developer pursuant to the DDA.
4.5. Authority Approval of Bid and Contract Documents. Pursuant to Section 2.b of the
Procurement Policy, Developer shall submit bid and contract documents to the
Authority for approval prior to commencement of the Work. Developer's submittal
shall include any applicable governmental approvals, including any applicable City
permits. Bid and contract documents for the Work shall comply with this
Agreement. Developer shall not advertise for bids until Authority has approved the
bid and contract documents. Approval by any of the Public Entities of Developer's
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Attachment A Page 12 of 38A
bid and contract documents, including plans and specifications, shall not relieve
Developer of liability for any improper design or construction of the Work.
4.6. Process for Subcontractor Bids. Developer will conduct the subcontractor bidding
process and shall take responsibility for its implementation in accordance with the
Procurement Policy and this Agreement. Nothing shall preclude Developer from
proceeding with a bidding process that Developer performed prior to the Effective
Date, provided that the bidding process satisfies the requirements of the
Procurement Policy and this Agreement. The bidding process shall be as follows:
a. Budget. The line items within the Budget shall be the engineer's estimate
referenced in the Procurement Policy.
b. Advertisement. Developer will post a formal advertisement for bids (the
"Advertisement for Bids") at least twenty-one (21) business days prior to the
deadline for receiving bids (the "Bid Receipt Deadline"). The Advertisement
for Bids will be in the publications selected by Developer. The
Advertisement for Bids will generally describe the scope of the work and
process to be used.
C. Pre-Bid Meeting. No sooner than 5 business days, and no later than 10
business days, following the posting of the Advertisement for Bids,
Developer or its authorized representative will hold an electronic pre-bid
meeting in order to answer any questions that prospective bidders may
have.
d. Bidder Qualifications. All bidders shall be licensed for such bidder's
respective scope of work in the State of California, shall be registered with
the Department of Industrial Relations to perform public works prior to
submitting their respective bids, and shall not be debarred from performing
work by any federal or state agency or by the City or District.
e. Sealed Bids. All bids shall be sealed and opened concurrently at a public
bid opening.
f. Bid Awards. Developer shall consider all sealed responsive bids that are
submitted on or before the Bid Receipt Deadline. Developer shall award
subcontracts to the lowest responsive and responsible bidder, or the bidder
that is determined by Developer to be the "best qualified contractor" (as
defined in Section 2.d. of the Procurement Policy), subject to Authority's
reasonable approval. Developer may, at its option, waive any defect in any
bid. Developer shall not award any bid that is more than 10% above the
Budget for the Work, in the case where the bid is for the entire Work, or the
line item in the Budget where the bid is only for a portion of the Work, unless
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Attachment A Page 13 of 38A
the Developer receives the Authority's written consent (in the Authority's
sole discretion). This Section 4.6(f) shall not limit Developer's right to seek
an adjustment to the Budget for any cost or expense actually incurred by
Developer in performing the Work hereunder and that exceeds such 10%
threshold, pursuant to Section 2.2(b) for a Cost Increase Event. Developer
shall provide copies of the bids to the Public Entities prior to making an
award or rejecting a bid. Developer may, in its sole and absolute discretion,
reject any and all bids and repeat the bidding process. Developer may
require the bidder receiving the award to furnish security in addition to that
required of Developer under this Agreement.
g. Developer shall defend, indemnify and hold harmless the Public Entities
Parties from any Claims related to Developer's procurement of
subcontractors in accordance with Section 3.1(d).
5
PERFORMANCE OF THE WORK
5.1. Project Updates. Developer shall provide the Public Entities with regular updates
regarding the performance and progress of the Work.
5.2. Standard of Performance. Developer and its agents, contractors, and
subcontractors, if any, shall perform all Work in a skillful and workmanlike manner,
and, with respect to the provisions of engineering services only, consistent with the
standards generally recognized as being employed by professionals in the same
discipline in the State of California. Developer represents and warrants that all of
its employees, agents, contractors, and subcontractors shall have all licenses,
permits, qualifications and approvals of whatever nature that are legally required
for them to perform the Work or a portion thereof, as applicable, and that such
licenses, permits, qualifications and approvals shall be maintained throughout the
term of this Agreement.
5.3. Liens and Claims. Developer agrees to cause all liens and security interests filed
in connection with the Work to be discharged in the same manner and to the same
extent as provided in Section 4.18 of the DDA for Developer's Improvements (as
defined in the DDA).
5.4. Change Orders. Developer may request that the Public Entities approve a change
in the scope of the Work and/or a change to the approved plans and specifications
relating to the Work (a "Change Order"), in accordance with Section 3.b of the
Procurement Policy. All Change Orders shall be subject to the prior written
approval of the Public Entities (such approval not to be unreasonably withheld,
conditioned or delayed), unless exempt from prior approval pursuant to Section
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3.b of the Procurement Policy. Any Change Orders with respect to the approved
plans and specifications shall also be subject to District's BPC Policy No. 357, and
Developer shall obtain District's approval in accordance with such BPC Policy No.
357. A Change Order shall not result in an automatic increase to the Budget, but
this Section 5.4 shall not limit Developer's right to seek an adjustment to the Budget
for any Change Order pursuant to the applicable provisions of Section 2.2(b) for a
Cost Increase Event.
5.5. Completion. Upon completing the Work, Developer shall notify the Public Entities
that the Work is complete (such notification, "Developer's Completion Notice"). The
Public Entities shall have thirty (30) days after receipt of Developer's Completion
Notice to inspect the Work and determine in their reasonable discretion if there are
any defects in the Work, any incomplete Work, any Work that does not conform to
the approved plans or specifications for the Work, or any damage to the Work or
the Premises (collectively, "Outstanding Work"), and either notify the Developer of
such Outstanding Work (such notification, "Public Entities' Outstanding Work
Notice") or notify Developer that the Work is complete (such notification, "Public
Entities' Completion Notice"), as applicable. Developer shall complete to the
reasonable satisfaction of the Public Entities any Outstanding Work within thirty
(30) days after Developer receives Public Entities' Outstanding Work Notice. If the
Public Entities deliver Public Entities' Outstanding Work Notice to Developer, then
the process set forth in this Section 5.5 shall be repeated until the Public Entities
deliver to the Developer Public Entities' Completion Notice. Developer
acknowledges and agrees that the inspection by the Public Entities shall not void,
alter, or modify any warranties for the Work.
a. As-Builts. Within thirty (30) days of Public Entities' Completion Notice,
Developer shall provide one (1) set of"as-built" or record drawings or plans
to the District and City. The drawings shall be certified and shall reflect the
condition of the Work as constructed, with all changes incorporated therein.
b. Notice of Completion. Developer shall record a notice of completion within
the statutory time for recording such notice and shall provide a conformed
copy of same to the Public Entities. Upon recording of such notice of
completion and, if applicable, acceptance of the improvement by any
applicable public utility receiving the improvement (provided that, in
absence of receiving a written notice of such acceptance from a public
utility, any use of the applicable improvement by such public entity shall
constitute deemed approval of such improvement by such public utility for
purposes of this Agreement), (i) neither Developer nor any Developer
Affiliate shall have care, custody, or control of any improvement that is
subject to such notice of completion, and (ii) neither Developer, nor any
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Attachment A Page 15 of 38A
Developer Affiliate, nor any Public Entity shall have the risk of loss with
respect to any improvement that is subject to such notice of completion
(where "risk of loss" means any risk of loss in connection with any casualty
event with respect to such improvement that occurs after such time and
that results in the loss of use of such improvement).
C. Removal of Liens and Security Interests. Pursuant to Section 5.3 above
and Section 4.18 of the DDA, within thirty(30)days after Developer receives
notice of filing of any lien or security interest with respect to the Work, it shall
cause such lien or security interest, as applicable, to be discharged of
record by payment, deposit, bond, order of court of competent jurisdiction
or otherwise. Notwithstanding the foregoing, Developer shall not be
required to discharge of record any such lien or security interest, as
applicable, if Developer is in good faith, and consistent with applicable law,
at its own expense, currently and diligently contesting the same; provided
that Developer first records a surety bond sufficient to release such lien or
such security interest, as applicable. Developer shall certify to the Public
Entity accepting the improvement that it has complied with the requirements
of this Section 5.5(c).
d. Utility Easement. Parties hereto acknowledge and agree that San Diego
Gas & Electric ("SDG&E") is scheduled to commence certain work on the
Premises on or around November 1, 2021 and, as a prerequisite for SDG&E
to commence such work, District shall grant a utility easement to SDG&E,
on terms satisfactory to the District and SDG&E. For avoidance of doubt,
neither the Public Entities nor Developer shall be responsible for any actions
or omissions by SDG&E. Once the Developer has completed the necessary
work to allow SDG&E to install the cabling work for the Sandpiper SDG&E
Re-Feed Work (as described in the Work Plan), Developer shall notify
SDG&E and the Public Entities. If SDG&E is unable to install the cabling
work due to defects in Developer's work, Developer shall repair or correct
the defects promptly.
e. Post-Completion/Restoration. The acceptance of any portion of the Work
shall not create any obligation upon any Public Entity to Developer to repair
or correct any defects in the Work.
(i) If the Close of Escrow occurs, Developer shall, at its sole cost and
expense, permanently remove the Sandpiper SDG&E Re-Feed
Work constructed pursuant to the Work Plan, and restore to its pre-
Work condition the portion of the Premises that is affected by such
removal, prior to Completion (as defined in the Ground Lease) of the
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Attachment A Page 16 of 38A
resort hotel.
(ii) If the Close of Escrow does not occur, Developer shall have no
obligation to remove the Work or restore the Premises except as
provided in this Agreement.
f. Survival. This Article 5 shall survive the earlier termination or expiration of
this Agreement.
6
TERMINATION AND DEFAULT
6.1. Term and Termination. This Agreement shall remain in effect from the Effective
Date until the earlier of: (1) Developer completes the Work and all Work is accepted
by the appropriate Public Entity(ies), or (2) one (1) year, unless extended or
terminated earlier as provided herein (the "Termination Date").
a. Extension. The Public Entities may, in each of their sole and absolute
discretion, agree in writing to extend the Termination Date; provided, that,
if Developer has performed substantial work on the Work (more than 60%),
is diligently pursuing completion of the Work, the DDA has not expired or
terminated, and Developer is not otherwise in breach of this Agreement,
then the Public Entities shall not unreasonably refuse to grant an extension.
b. Event of Default. If Developer neglects, refuses, or fails to fulfill or timely
complete any obligation, term, or condition of this Agreement, or abandons
the Work, or if the Public Entities determine there is a violation of any
federal, state, or local law, ordinance, policy, regulation, code, standard, or
other requirement, Developer shall be in default of this Agreement, upon
which the Public Entities shall make written demand upon Developer to
immediately remedy the default in accordance with this Agreement
("Notice"). Developer shall substantially commence the work required to
remedy the default within fifteen (15) business days of receipt of the Notice.
If the default constitutes an immediate threat to the public health, safety, or
welfare, District's Representative may provide the Notice verbally, and
Developer shall substantially commence to remedy the default within
twenty-four (24) hours thereof. Immediately upon issuance of the Notice,
Developer and its surety shall be liable to the Public Entities for all costs of
the Work and all other administrative costs and expenses as provided for in
this Section 6.1 .
(i) Nothing herein prevents the Public Entities from notifying
Developer's surety of any default or demand to remedy a default;
provided, however, failure to give or receive notice to the surety shall
16
Attachment A Page 17 of 38A
not exonerate the surety of any obligations under the Performance
Bond.
C. Remedies for Event of Default. If Developer does not cure the default as
provided in Section 6.1(b), the Public Entities may elect to terminate this
Agreement. If the Public Entities elect to terminate this Agreement, the
District may elect that the Developer and the surety either (i) restore the
Premises to the same condition as the Premises existed prior to the
commencement of the Work; or (ii) complete and convey any particular
portion of the Work to the District in lieu of restoration of some or all of the
Premises under (i), and Developer shall proceed with such restoration or
completion of the Work at no cost to the District. If the Developer fails to
comply with any of its obligations contained herein, Developer and its surety
shall be jointly and severally liable to the Public Entities for all administrative
expenses, fees, and costs, including reasonable attorneys' fees and costs,
incurred by the Public Entities in obtaining Developer's compliance with this
Agreement or in processing any legal action or for any other remedies
permitted by law or equity.
d. Survival. This Article 6 shall survive the expiration or earlier termination of
this Agreement.
7
RIGHT OF ENTRY LICENSE
7.1. Right-of-Entry: District hereby grants Developer, and its authorized agent(s) and
contractor(s), the right to enter upon the Premises to perform and complete the
Work, subject to the terms and conditions in this Article 7 ("Right-of-Entry
License").
7.2. Use of Premises. The use of the Premises by the Developer and Developer's
Affiliates for the Right of Entry License, shall be limited to the following activities:
a. Performance and completion of the Work;
b. Ingress and egress for purposes of Paragraph 7.2(a) above through roads
owned by the District and located adjacent to the Premises as shown in
Exhibit "A-2" (collectively, "Approved Routes"); and
C. Inspections, commissioning, and maintenance of the Work.
Developer's "authorized agents and contractors" shall include the employees,
contractors, subcontractors, and agents of public utilities that Developer authorizes
to enter the Premises to perform, complete, inspect, commission, maintain or
otherwise participate in the Work.
17
Attachment A Page 18 of 38A
7.3. [INTENTIONALLY OMITTED.]
7.4. Term. This Right-of-Entry License shall commence on the Effective Date and
terminate on the Termination Date.
7.5. No Additional Rights or Interests. District's grant of the Right-of Entry License does
not: (i) confer any right or interest on Developer other than those rights or interests
expressly granted to Developer in this Right-of Entry License, as such rights or
interests are limited and qualified herein; or (ii) create or impose any obligations
on District other than those obligations expressly set forth in this Right-of Entry
License.
7.6. Consideration for Access. Developer shall pay to the District the Cost Recovery
Fees pursuant to Board of Port Commissioners Policy No. 106 in the total amount
of Five Hundred and Fifty Dollars ($550.00) payable concurrently with Developer's
execution of this Agreement.
7.7. Indemnification of District. Except for claims or litigation arising through the sole
negligence or willful misconduct of any Indemnitee or Indemnitees, Developer shall
defend, indemnify, and hold harmless District and its officers, directors, members
of the Board of Port Commissioners, employees, contractors, agents, affiliates and
successors and assigns (collectively with the District, the "Indemnitees") for any
and all causes of action, liability, claims, judgments, or demands, plus expenses
in connection therewith, arising out of or as the result of: (i) this Right-of Entry
License; (ii) Developer's and/or its authorized agents', employees', invitees' or
contractors' activities undertaken pursuant to this Right-of Entry License, including
without limitation, the performance of the Work; (iii) any accident or occurrence in
connection with the Work or the operation, use, condition, or possession of the
Premises, Approved Routes, or any portion thereof during the term of this Right-of
Entry License; (iv) PWL (defined above); or (v) the District's approval or issuance
of this Right-of Entry License, including but not limited to the District's review and
approval under the California Environmental Quality Act and the California Coastal
Act (collectively, an "Indemnified Claim"). Said expenses shall include without
limitation costs of investigation and remediation of environmental conditions,
counsel, consultant and/or expert fees and expenses, and penalties and interest
as incurred, regardless of the cause thereof or the cause of action, liability, claim,
judgment, or demand, no matter when made or filed. Developer's obligation to
indemnify Indemnitees pursuant to this Section 7.7 shall apply regardless of the
extent, if any, to which such Indemnified Claim is based, in whole or in part, on
preexisting conditions at the Premises, including without limitation Environmental
Conditions, as defined in the Acknowledgment and Disclosure Regarding
Environmental Conditions, attached hereto as Exhibit "C", and incorporated by
18
Attachment A Page 19 of 38A
reference herein. Notwithstanding the foregoing, Developer shall have no
obligation to indemnify, defend or hold harmless any Indemnitee for any
Indemnified Claim that arises out of any preexisting hazardous material condition
that is not known to Developer, unless such Indemnified Claim arises out of the
negligence of, or breach of this Agreement by, Developer or one or more of the
contractors, agents, employees or invitees. For purposes of this Section 7.7, a
preexisting hazardous material condition shall be deemed to be known to
Developer if (1) Developer has actual knowledge of the condition through its
employees, consultants, agents or anyone hired by Developer to investigate the
conditions of the Premises, or (2) should have reasonably been anticipated by
Developer through review of the District files, Developer's files, other public files,
readily available information or information described in Exhibit "C", an ALTA
survey, walk through, and any other reasonable pre-construction investigation or
assessment of the Premises.
7.8. [Intentionally Omitted.]
7.9. Modifications. District and Developer may only modify the Right-of-Entry License
in writing, and a written modification shall not require the consent of the City or
Authority to be effective. Developer shall give prompt notice to City of any
modification to the Right-of-Entry License that materially impact Developer's
performance of, or ability to complete, the Work.
7.10. Work Product Related to Condition of Premises. At the request of District,
Developer shall provide the District with complete copies of any information, data,
studies, analyses, sampling results, and results, in each case, to the extent they
are prepared for or result from the Work, including without limitation any
investigation and/or remediation activities and any reports and/or work plans
related thereto which Developer prepares or obtains, or contracts with third parties
to prepare or obtain, regarding the condition of the Premises. Developer shall
provide a copy to City and Authority of anything provided to District pursuant to this
Section 7.10.
7.11. Additional Work and Documentation. Developer shall provide the District with any
additional information and documentation, that is reasonably requested by the
District and that developers performing work similar to the Work customarily
provide to their respective right of entry licensors, relating to the Work, the activities
of Developer and its authorized agents and contractors on or in connection with
the Premises and the Work that is necessary to coordinate access to the Premises
and the performance of the Work. Developer shall pay any costs and expenses
related to the relocation of any construction equipment, debris, asphalt, soil, or
improvements necessary to perform the Work and to access the Premises.
19
Attachment A Page 20 of 38A
Developer may seek reimbursement of such costs and expenses only if subject to
reimbursement pursuant to Section 2.2 or Section 2.3, as applicable. Developer
shall pay any costs and expenses related to the Work and access to the Premises
by Developer and its authorized agent(s) and contractors. Developer may seek
reimbursement of such costs and expenses only if subject to reimbursement
pursuant to Section 2.2 or Section 2.3, as applicable.
7.12. Permits. Developer shall acquire all permits required by applicable law, including
without limitation, the ordinances and policies of the Public Entities. Developer
shall perform and complete the Work in strict accordance with this Agreement, all
permits for the Work, and all applicable District construction and design standards.
Developer shall obtain all permits and authority from governmental entities and
agencies that are necessary for the performance of the Work and access to the
Premises. Except as set forth herein, the District shall not incur any cost or
expense as a result of this Agreement. Developer agrees that any costs (including
but not limited to plan checking, inspection, materials furnished and other
incidental expenses) incurred by the District in connection with the inspection,
approval or the installation of the Work, will be paid by Developer. Such costs and
expenses in connection with permitting and the inspection, approval or the
installation of the Work shall be included in the Budget and subject to
reimbursement.
7.13. Conformance with Laws. Developer agrees that, in all activities on or in connection
with the Premises, and in all uses thereof, including without limitation the Work and
access to the Premises, it shall abide by and conform to all laws and regulations.
Said laws and regulations shall include, but are not limited to those prescribed by
the San Diego Unified Port District Act; any applicable ordinances of the City,
including the Building Code thereof; any ordinances and general rules of District,
including tariffs and policies; and any applicable laws of the state of California and
federal government, as any of the same now exist or may hereafter be adopted or
amended. In particular and without limitation, Developer shall have the sole and
exclusive responsibility to comply with the requirements of: (i) Article 10 of District
Code entitled "Stormwater Management and Discharge Control", and (ii) the
Americans With Disabilities Act of 1990, including but not limited to regulations
promulgated thereunder. At no time shall Developer or its authorized agents or
contractors park vehicles on the Approved Routes, place or store any materials or
equipment on the Approved Routes, or limit, block or impede the ability of any
person to use any of the Approved Routes.
7.14. Utilities. Developer shall determine the location of all utilities in, on, under, and
over the Premises and take necessary precautions to prevent interruption of any
utility service. However, should any interruption of any utility service occur as a
20
Attachment A Page 21 of 38A
result of the Work, Developer shall bear the sole expense and cost regarding said
interruption.
7.15. Engineering and Inspection. Developer must at all times maintain proper facilities
and safe access for inspection of the Work by District and City inspectors.
7.16. Outside Agency Inspections. Developer shall make available for District inspection
all final outside agency inspection approvals (including but not limited to City
inspection approvals) when the Work is completed.
7.17. Hazardous Materials. Developer is alerted that Work in this Agreement involves
working environments that may be hazardous, contaminated, or non-hazardous to
activities associated with the excavation, handling, transportation, and disposal of
all excavated materials and other wastes in the project area with emphasis to
hazardous and contaminated materials. Such hazardous, contaminated, and non-
hazardous environments include, and are not limited to hazardous and non-
hazardous materials, soils, groundwater, heavy metals, petroleum hydrocarbons,
polynuclear aromatic hydrocarbons, organic compounds, serpentine rock and
ultramafic material (which may contain natural occurring asbestos - NOA), lead-
based paint materials, sewage, sludge, debris, grit, sewer gases,
bacterial/biological contamination, railroad ties, oxygen deficiency, and confined
spaces. In the performance of the Work, Developer shall implement a Health and
Safety Plan (HSP), provide full-time environmental oversite during drilling, and
utilize a Photoionization detector (PID) and visual observation to evaluate if spoils
are impacted with chemicals of potential concern (COPCs).
Developer shall legally dispose of off tidelands all hazardous waste, hereinafter
"Waste", extracted or removed by Developer in connection with this Agreement
and the Work on the Premises. Developer shall be responsible for managing and
disposing of said Waste in accordance with all applicable laws and regulations. All
Waste, including but not limited to hazardous and non-hazardous Waste, shall only
be disposed at permitted California landfills (22 CCR 66262), equivalent out-of-
state landfills (40 CFR 262), and permitted recycling facilities. In addition,
Developer or its contractor shall list itself as the generator of said Waste on the
disposal facility's waste manifest and any waste disposal profile. In any event,
Developer shall not store such Waste on the Premises for any period of time.
Notwithstanding the foregoing, Developer shall be permitted to store all spoils on
the Premises for such period of time as is reasonably necessary to classify such
spoils as hazardous or non-hazardous and to await transportation of the hazardous
spoils in conformance with all applicable laws and regulations.
7.18. Assumption of Risk. Developer assumes all responsibility and risk for any damage
and/or consequence resulting from Developer's activities, including without
21
Attachment A Page 22 of 38A
limitation access to the Premises, the Work and all costs associated therewith.
Developer shall repair any damage to the Premises, including without limitation,
any damage to the improvements of the District, arising out of or resulting from
Developer's activities, including without limitation, the Work and access to the
Premises, and at the election of the District, restore the Premises, to the
reasonable satisfaction of the District. Developer shall repair any damage to the
Premises including without limitation, any damage to the improvements of the
District, prior to the expiration of this Agreement. Developer agrees to perform the
Work in accordance with the plans and specifications approved by the District.
7.19. Securing Premises. Prior to commencement of construction of the Work, where
applicable, Developer shall secure the Premises where Work is being performed
with temporary fencing which shall remain until such time as that Work is complete.
7.20. RV Park Excluded. Notwithstanding anything in this Agreement to the contrary,
the Right-of-Entry License shall not include the right to enter any portion of the
Premises set forth on Exhibit "A-2" as "Encumbered," which is currently occupied
by Sun Chula Vista Existing Park RV LLC, a Michigan limited liability company
operating as the Chula Vista RV Resort pursuant to Tideland Use and Occupancy
Permit dated February 28, 2019 between the District and Sun Chula Vista filed in
the Office of the District Clerk as Document No. 69412.
8
MISCELLANEOUS PROVISIONS
8.1. Draftinq Party. The District, City, Authority, and Developer acknowledge and agree
that this Agreement has been agreed to by the District, City, Authority, and
Developer, that the District, City, Authority, and Developer 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 District, City, Authority, or Developer shall not
be construed to raise any presumption, canon of construction or implication,
including, without limitation, any implication that the District, City, Authority, or
Developer intended thereby to state the converse of the deleted language. Unless
otherwise specified in this Agreement, any approval or consent to be given by
District, City, Authority, or Developer may be given or withheld in the sole and
absolute discretion of District, City, Authority, or Developer, respectively.
8.2. Incorporation of Recitals. All recitals above are incorporated into this Agreement
and are made a part hereof.
8.3. Venue. 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
22
Attachment A Page 23 of 38A
the State of California.
8.4. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one Agreement after
each Party has signed such a counterpart.
8.5. 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 transactions contemplated hereby shall
be deemed to include electronic signatures and contract formations on electronic
platforms approved by the Parties, or the keeping of records 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.
8.6. Dispute Resolution. The Parties shall, before the filing of any lawsuit or court
action against any other Party relating to this Agreement or the Work, attempt in
good faith to settle the dispute through non-binding third party mediation.
8.7. Administrative Claims Requirements and Procedures. No suit shall be brought
arising out of this Agreement against City unless a claim has first been presented
in writing and filed with City and acted upon by City in accordance with the
procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same
may be amended, the provisions of which, including such policies and procedures
used by City in the implementation of same, are incorporated herein by this
reference. No suit shall be brought arising out of this Agreement against District or
Authority unless a claim has first been presented in writing and filed with District or
Authority, respectively, and acted upon by District or Authority, respectively, in
accordance with the procedures set forth in the Government Claims Act
(Government Code sections 900 et seq.)
8.8. 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
23
Attachment A Page 24 of 38A
THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX
26000, SACRAMENTO, CA 95826.
[Remainder of page intentionally left blank.]
24
Attachment A Page 25 of 38A
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date and year first written above.
SAN DIEGO UNIFIED PORT APPROVED AS TO FORM AND LEGALITY:
DISTRICT, a public corporation GENERAL COUNSEL
By: By:
Tony Gordon Assistant/Deputy
Director, Real Estate
RIDA CHULA VISTA, LLC, a Delaware limited liability company
By:
Name:
Its:
California Contractor License Number: 1039979
CITY OF CHULA VISTA, a municipal corporation
By:
Name
Title
Approved as to form:
25
Attachment A Page 26 of 38A
By:
Glen R. Googins
City Attorney
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY,
a California joint exercise of powers authority
By:
1, Executive Director
Approved as to form and legality:
COUNSEL
By:
Thomas A. Russell, General Counsel, San Diego Unified Port District
Co-Counsel
By:
Glen Googins, City Attorney, City of Chula Vista
Co-Counsel
26
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Attachment A Page 29 of 38A
EXHIBIT "B"
DESCRIPTION OF EARLY PHASE 1A INFRASTRUCTURE WORK
1. Sandpiper SDG&E Re-feed
Trench, backfill, and install conduits and cabling on Marina Parkway from approximately 100'
southerly of Sandpiper, northerly along Marina Parkway, then westerly along Sandpiper to an
existing SDGE service point at the corner of N-S and E-W Sandpiper. Includes the installation of
SDGE Infrastructure. Upon completion of connections, remove all SDG&E cabling in N-S section
of Sandpiper to G Street.
Sandpiper SDG&E Re-feed is temporary. The Phase 1A infrastructure includes services that will
feed this service from H Street (when constructed).
Easements required: E-W Sandpiper is a Port Street, an easement for SDGE is required.
Expected duration of easement necessity is 2 years after which time the easement could be
terminated and new permanent easement and service from H Street is provided.
Trenching, backfill, and conduit work will be performed by RIDA Chula Vista, LLC, Subcontractor
yet to be selected. Cabling work will be performed by SDG&E.
2. Sandpiper AT&T Re-feed
Trench and install conduits and cabling on Marina Parkway from G Street southerly along Marina
Parkway, then westerly along Sandpiper to an existing AT&T service point adjacent to the existing
RV Park. Includes the installation of AT&T Infrastructure. Upon completion of connections,
remove all AT&T cabling in N-S section of Sandpiper to G Street.
That portion of the Sandpiper AT&T on Marina Parkway and Utility Corridor is Permanent. That
portion of the Sandpiper AT&T Re-feed on E-W Sandpiper is temporary and will be replaced with
a service from H Street (when constructed).
Easements required: AT&T has no existing easements in the H-3 project area. Marina Parkway
is currently a City of CV Street. No temporary easements to AT&T are currently proposed. A
permanent easement in the Utility Corridor will be provided prior to Hotel Occupancy.
Conduit work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected.
Cabling work will be performed by AT&T.
3. G Street and Sandpiper Gas removal/abandonment
Cap existing gas main at G Street/Marina Parkway. Excavate and remove existing gas main on
G Street from Marina Parkway to Sandpiper. Abandon existing gas main in Sandpiper from G
Street south.
Work is permanent. No easements are required.
All work will be performed by SDG&E.
4. Rohr Gas RFS
Cap existing Rohr Gas main in Marina Parkway at the Sandpiper Intersection. Excavate and
remove existing Rohr Gas main in Marina Parkway from Sandpiper, northerly to existing service
at Rohr. All work is performed by SDG&E.
B-1 Exhibit B
Attachment A Page 30 of 38A
Work is permanent. Marina Parkway is currently a City of CV street. No temporary easements
are required. H Street(Marina Parkway to Bay) must be dedicated as a public street or permanent
easement prior to Hotel Occupancy.
All work will be performed by SDG&E.
5. G Street Overhead Interim Relocation
Install interim overhead utility poles and SDG&E and AT&T cabling from Marina Parkway/G Street
Intersection, westerly at the edge of the limits of work of the Gaylord Pacific Project (northerly of
existing and proposed G Street) to the Sandpiper/G Street Intersection. Trench and install
conductors to the existing underground SDGE and AT&T infrastructure in G Street. Remove
existing overhead utility poles and cabling on G Street from Marina Parkway westerly.
G Street OH Interim relocation is temporary. The Phase 1A infrastructure includes services that
will feed this service in G Street (when constructed).
Easements required: An easement for the alignment is required and combined with the temporary
construction site power. Expected duration of easement necessity is 3 years.
Underground excavation, trenching, conduit, and pavement repair will be performed by RIDA. All
overhead pole and wiring installations and removals will be performed by SDG&E and AT&T.
6. Sandpiper Water and Sewer Caps
Cap existing sewer at G Street/Sandpiper intersection. Cap existing water mains at G
Street/Sandpiper, the Southwest Sandpiper turn, westerly end of Bayside Parkway, and north end
of Quay Avenue all to remove water service from the North-South section of Sandpiper Way
Work is permanent. No easements are required.
All work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected.
B-2 Exhibit B
Attachment A Page 31 of 38A
EXHIBIT "C"
ACKNOWLEDGMENT AND DISCLOSURE
REGARDING ENVIRONMENTAL CONDITIONS
C-1 Exhibit C
Attachment A Page 32 of 38A
ACKNOWLEDGMENT AND DISCLOSURE REGARDING ENVIRONMENTAL
CONDITIONS
IT IS HEREBY ACKNOWLEDGED BY RIDA Chula Vista, LLC, a Delaware limited liability
company, a "Right of Entry Developer", hereinafter "Developer", and the San Diego
Unified Port District, a public corporation, hereinafter "District", that:
1. Certain Environmental Conditions may: (a) exist at, under, on, or near: (i) the Premises,
as defined in the Chula Vista Bayfront Project Phase 1A Early Work Implementation and
Right of Entry License Agreement by and among the District, Developer, City of Chula
Vista, a chartered municipal corporation ("City"), and the Chula Vista Bayfront Facilities
Financing Authority, a California joint exercise of powers authority ("Authority") dated
2021, hereinafter "Agreement"; (ii) the Approved Routes, as defined in the
Agreement; and (iii) property which is contiguous, upgradient, or otherwise in the vicinity
of the Premises and Approved Routes, hereinafter "Surrounding Property"; and (b) be
encountered during activity undertaken pursuant to the Agreement, including without
limitation the Work, as defined therein.
For purposes of this Acknowledgment and Disclosure, the term "Environmental
Conditions" means: (a) any environmental conditions, circumstances, or other matters of
fact pertaining to, relating to, or otherwise affecting the environment, including without
limitation: (i) any natural resources (including flora and fauna), soil, surface water,
groundwater, any present or potential drinking water supply, subsurface strata, or the
ambient air; and (ii) the presence, use, handling, storage, treatment, recycling,
generation, transportation, release, spilling, leaking, pumping, pouring, emptying,
discharging, injecting, escaping, leaching, dumping, or disposal (including without
limitation the abandonment or discarding of barrels, containers, and other closed
receptacles and fill materials containing any hazardous materials, hazardous wastes, or
toxic substances); and (iii) the threatened release of hazardous materials, hazardous
wastes, or toxic substances; and (b) the exposure of any persons (including without
limitation lessees, licensees, permittees, or other users of the Premises, Approved
Routes and/or Surrounding Property) to hazardous materials, hazardous wastes, or toxic
substances; and (c) the exposure of other natural persons within or outside the
boundaries of the Premises, Approved Routes, and/or the Surrounding Property to
hazardous materials, hazardous wastes, or toxic substances related to or otherwise
arising from operations, acts, omissions, or other conduct at the Premises, Approved
Routes, and/or Surrounding Property (as the case may be).
2. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property developed as a result of sampling,
C-2 Exhibit C
Attachment A Page 33 of 38A
testing, and analysis undertaken from time to time by District, District tenants, third-party
contractors and/or others, may be contained in certain District files, hereinafter "District
Files". Subject to reasonable confidentiality assurances from Developer, District will make
District Files available to Developer for review. District has not undertaken to conduct,
and District Files do not represent a comprehensive analysis of Environmental Conditions
at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property.
3. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property may be contained in Developer's files,
hereinafter "Developer's Files".
4. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property may be contained in the files of other
governmental entities or agencies, including without limitation the San Diego Regional
Water Quality Control Board, San Diego Department of Health Services, San Diego Air
Pollution Control District, Chula Vista Fire Department, City of Chula Vista, California
Department of Toxic Substances Control, California Environmental Protection Agency,
and Region IX of the United States Environmental Protection Agency, hereinafter
"Agency Files". Said Agency Files are readily available to Developer.
District's knowledge and files regarding Environmental Conditions at, under, on, or near
the Premises, Approved Routes, and/or Surrounding Property are not complete. District
has encouraged Developer to review all readily available information relating to such
Environmental Conditions, including the: (a) EIR/RAP/RIFS, etc., if available; (b) District
Files; (c) Developer's Files: and (d) Agency Files, hereinafter collectively "Readily
Available Information", to ascertain to the fullest extent possible the nature and existence
of Environmental Conditions at, under, on, or near the Premises, Approved Routes,
and/or Surrounding Property. Developer hereby assumes responsibility for ascertaining
any information contained in the Readily Available Information.
5. Neither District nor Developer makes any representation or warranty, express or implied,
in this Acknowledgment and Disclosure, the Agreement or otherwise, regarding the: (a)
presence, extent, impact, or consequences, whether foreseeable or unforeseeable, of
any Environmental Conditions at, under, on, or near the Premises, Approved Routes,
and/or Surrounding Property, or (b) suitability of the Premises in any respect for any
purpose intended by Developer under the Agreement.
C-3 Exhibit C
Attachment A Page 34 of 38A
ACKNOWLEDGED AND DISCLOSED:
SAN DIEGO UNIFIED PORT APPROVED AS TO FORM AND LEGALITY:
DISTRICT, a public corporation GENERAL COUNSEL
By: By:
Tony Gordon Assistant/Deputy
Director, Real Estate
ACKNOWLEDGED AND ACCEPTED:
RIDA Chula Vista, LLC, a Delaware
limited liability company
By:
Name:
Its:
California Contractor License
Number: 1039979
C-4 Exhibit C
Attachment A Page 35 of 38A
EXHIBIT "D"
CERTIFICATE OF INSURANCE
(See attached)
D-1 Exhibit D
Attachment A Page 36 of 38A
SDIJPD - REAL ESTATE
SAN DIEGO UNIFIED PORT DISTRICT
CERTIFICATE OF INSURANCE
By signing this form,the authorized agent or broker certifies the following,
(1) The Policy or Policies described below have been issued by the noted Insurer(s)[Insurance Company(ies)]to the Insured and
is(are)in force at this time.
(2) As required in the Insured's agreement(s)with the District,the policies include,or have been endorsed to include,the
coverages or conditions of coverage noted on page 2 of this certificate.
(3) Signed copies of all endorsements issued to effect require coverages or conditions of coverage are attached to this
certificate.
Return this form to: San Diego Unified Port District
c/o Elbix
P.O.Box 100085-1 85
Duluth,GA 30096 –OR—
Email: Portofsandregro0ebix.corn
–OR—
Fax: 1-866-866-6516
Name and Address of Insured (Tenant)
SIDLIPID Agreement Number
This certificate applies to all operations of named insureds in
connection wrath this agreement between the District and Insured.
CO LTR TYPE OF INSURANCE POLICY NO. DATES LIMITS
Commercial General Liability Inception Date: Each occurrenc®:
E, Occurrence Form
L Liquor Liability
Deductible/SIR Expiration Date: General Aggregate:
Property Inception Date Real Property
0 All Risk of Physical Damage $
Deductible/SIR Expiration Date: Personal Property
Excess/Umbrella Liability Inception Date Each Occurrence:
Expiration Date:
General Aggregate:
CO LTR COMPANIES AFFORDING COVERAGE BEsrS RATING
A
B
C
D
A.M.Best Financial Ratings of Insurance Companies Affording Coverage Must be A-VII or better unless approved in vvriting by the District.
Name and Address of Authorized Agent(s)or Broker(s) Phone Numbers
Toll Free. Fax Number:
e-mail address:
Signature of Authorized Agent(s)or Broker(s)
Date:
D-2 Exhibit D
Attachment Page 37 of 38A
oDuPo ' REAL ESTATE
SAN DIEGO UNIFIED PORT DISTRICT
REQUIRED INSURANCE ENDORSEMENT
ENDORSEMENT NO. EFFECTIVE DATE POLICY NO.
NAMED INSURED:
GENERAL DESCRIPTION OF AGREEMENT(S)AND/OR ACTIVITY(IES):
All written agreements, contracts, and leases with the San Diego Unified Port District and/or any
and all activities or work performed on District owned premises.
Notwithstanding any inconsistent statement in the policy to which this endorsement is attached or
|nany endorsement now orhereafter attached thereto, itisagreed asfollows:
1. The San Diego Unified Port [}istrici, its uDicors, agents, and employees are additional insureds in
relation to those opanaiions, uses, occupations, aots, and activities described generally abnva, including
activities of the named insured, its officers, uAenta, employees or invitees, or activities performed on
behalf o0the named insured.
2. Insurance under the pm|imy(iem) listed on this endorsement is primary and no other insurance orself-
insured retention carried by the Son Diego Unified Port District will be called upon to contribute to a loss
covered byinsurance for the named insured.
3. This endorsement shall include a waiver of transfer of rights of recovery against the San Diego Unit ied
Port District('VVaiverofSubrogetion').
4. The pm|icy(|es) listed on this endorsement will apply separately toeach |nmmn*d against whom claim is
made or suit is brought except with respect to the limits of the insurer's liability.
S. As respects the po[ioy(i*e) listed on this endorsement with the exception of cancellation due to
nonpayment ofpremium, thirty (3D) days whftan notice by certified mail, return receipt requested,will be
given to the San Diego Unified Port District prior to the effective date of cancellation. In the event of
cancellation due to nonpayment of premium,ten (10)days written notice shall be given.
Except as stated above, and not in conflict m/i|hthis endorsement, nothing contained herein shall be held
to wmive, alter or extend any of the [|mUm, agreements or exclusions of the po|ioy(ies) to which this
endorsement applies.
(NAM E(]F |NSURANCECC}MPANY)
(SIGNATURE DFINSURANCE COMPANY AUTHORIZED REPRESENTATIVE)
MAIL THIS ENDORSEMENT AND NOTICES OF CANCELLATION TO:
San Diego Unified Port District
do Ebix
P.O. Box 100085-185
Email to: portofsandiectoOebix.com
Fax: 1-866-866-6516
O-3 Exhibit ID
Attachment A Page 38 of 38A
EXHIBIT "E"
BUDGET
RIDA Chula Vista, LLC Phase 1A Early-Work Draft
Item Desr.wiption Project Goal
A HARD CONSTRUCTION COSTS S 36.1,000
-SDG&E conduit&ATT reroute
B SI)GckE,COSTS S 62,924
-Sandpiper electrical refeed&disconnect RA"pard{
C A'Y&TCOSTS 120,000
-Sandpiper electrical refeed
D G&A S 20,000
F PAYMENT BONDS S 11,000
G PERMIT FEES S 20,000
H INSURANCE, S 2,000
1 CONTINGENCY 10%of total S 62,404
J SDG&E POTHOLING S 36,120
TOTAL PROJECT COST: r S 777
E-1 Exhibit E
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
RESOLUTION xxxx
APPROVAL OF CHULA VISTA BAYFRONT
PROJECT PHASE 1A EARLY WORK
IMPLEMENTATION AND RIGHT OF ENTRY
LICENSE AGREEMENT AMONG RIDA CHULA
VISTA, LLC ("RIDA"), THE CITY OF CHULA VISTA
("CITY"), THE SAN DIEGO UNIFIED PORT
DISTRICT ("DISTRICT"), AND THE CHULA VISTA
BAYFRONT FACILIITIES FINANCING AUTHORITY
("AUTHORITY")TO CONSTRUCT CERTAIN PHASE
1A IMPROVEMENTS LOCATED IN THE CITY OF
CHULA VISTA ("PHASE 1A EARLY WORK") AND
NECESSARY FOR THE CONSTRUCTION OF A
CONVENTION CENTER, RESORT HOTEL, AND
OTHER PHASE 1A IMPROVEMENTS ("RIGHT OF
ENTRY"); THE MAKING OF NECESSARY
FINDINGS FOR RIDA TO SERVE AS THE PRIME
CONTRACTOR OF THE PHASE 1A EARLY WORK;
AND CONFIRMING THE AUTHORITY'S
OBLIGATIONS REGARDING THE PAYMENT OF
THE COSTS OF PHASE 1A EARLY WORK TO RIDA
ON BEHALF OF THE CITY AND THE DISTRICT
SHOULD THE CLOSE OF ESCROW NOT OCCUR
WHEREAS, the the Chula Vista Bayfront Facilities Financing Authority
("Authority") is a public agency created by the City of Chula Vista ("City") and the
San Diego Unified Port District ("District") through that certain Joint Exercise of
Powers Agreement by and between the City and the District dated as of May 1,
2014 (District Clerk No. 61905, Filed June 3, 2014) as amended and restated
pursuant to that certain Amended and Restated Joint Exercise of Powers
Agreement between the City and the District dated July 25, 2019 (District Clerk
No. 70245, Filed August 7, 2019); and
WHEREAS, the Board of Directors of the Chula Vista Bayfront Facilities
Financing Authority ("Authority Board") recently approved a Project
Implementation Agreement ("Project Implementation Agreement") among the
Authority, RIDA Chula Vista, LLC ("RIDA"), the District, the City, and the Bayfront
Project Special Tax Financing District ("Special Tax District") at its June 28, 2021
meeting; and
Page 1 of 45
xxxx
WHEREAS, the Project Implementation Agreement, among other things, is
to enable the construction of the following improvements within the Harbor District
of the Chula Vista Bayfront ("CVB"): (i) a convention center consisting of
approximately 275,000 net usable square feet of associated meeting space
("Convention Center"); and (ii) surrounding streets and infrastructure
improvements (collectively, "Phase 1A Improvements"); and
WHEREAS, the Authority Board previously adopted a Procurement Policy
for Developer-Performed Public Works that was ratified pursuant to Authority
Resolution 2020-007 that governs work performed by developers that is subject to
reimbursement from the Authority ("Procurement Policy"); and
WHEREAS, RIDA has requested early access to Parcel H-3 (excluding the
Chula Vista RV Park located on Parcel H-3) and adjacent areas to perform certain
Phase 1A Improvements required under the Project Implementation Agreement
("Early Work") which RIDA contends will allow for greater efficiency in the
construction of the Convention Center, the remaining Phase 1A Improvements,
and a resort hotel with 1,570 to 1,600 rooms ("Resort Hotel") once full construction
begins and will shorten RIDA's construction schedule; and
WHEREAS, to allow RIDA to perform this Early Work, a Chula Vista
Bayfront Project Phase 1A Early Work Implementation and Right Of Entry License
Agreement ( "Right of Entry") in substantially the form attached hereto as Exhibit
A needs to be entered into among the District, the City, the Authority, and RIDA;
and
WHEREAS, RIDA has indicated their intent to serve as the prime
contractor, which will result in overall costs savings as opposed to hiring a third-
party contractor; and
WHEREAS, the Right of Entry has a term of up to one (1) year, unless
extended by the parties, and the Early Work has an estimated approximate
construction timeline of approximately 4 months and an estimated cost of$696,448
("Budgeted Amount"); and
WHEREAS, the Right of Entry contains a change order procedure for
certain "cost increase events," which requires RIDA to timely notify Authority staff
and receive the Authority's approval before incurring any unforeseen costs that
increase the budget above $696,448; and
WHEREAS, the Procurement Policy delegates to the Authority's Executive
Director the approval of any change order costs, provided the overall cost of the
Early Work remains less than $2,000,000 and the Authority Board therefore does
not have to approve a contingency amount for this work since the contingency
would be within staff's approval limits; and
Page 2 of 45
xxxx
WHEREAS, if the close of escrow occurs under the Disposition and
Development Agreement (District Clerk's Doc. No. 68398, Filed May 14, 2018)
("DDA"), and the Authority enters into the Project Implementation Agreement, the
Authority will reimburse RIDA for this Early Work under the Project Implementation
Agreement; and
WHEREAS, if the close of escrow does not occur due to a termination of
the DDA, the District and City would each be responsible for reimbursing RIDA for
fifty percent (50%) of the Early Work completed as of the termination of the DDA
provided that the termination was not the result of RIDA's breach under the DDA,
the Right of Entry, or any other agreement setting forth RIDA's obligations to the
Authority, City, or District prior to the close of escrow; and
WHEREAS, under the Third Amended and Restated Revenue Sharing
Agreement approved by the Authority Board on June 28, 2021 ("RSA"), Section
3.2 provides that the District or City may deduct the cost of any Phase 1A
Improvements constructed by or at the direction of RIDA pursuant to the Right of
Entry, from such party's contribution of funds prior to the "Contribution Date" as
defined therein; and
WHEREAS, the RSA defines the "Contribution Date" as "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"; and
WHEREAS, the posting of the Preliminary Official Statement customarily
occurs approximately one month before the issuance of the bonds; and
WHEREAS, if the termination of the DDA occurs prior to the Contribution
Date (as defined in the RSA), the District and the City may reimburse RIDA for the
cost of the Early Work through the funds to be contributed through the RSA; and
WHEREAS, these costs would then be part of the final accounting required
under Section 3.2 of the RSA, where the District and City would each prepare an
accounting of the amounts contributed and approved through the RSA and the
party with the lower deductions would reimburse the other party sufficient to
equalize the pre-closing costs; and
WHEREAS, under the Right of Entry, the District and the City agree to
approve any such accounting of amounts provided by one another that reasonably
details the payment of such amounts provided that such amounts do not exceed
each party's contribution; and
WHEREAS, if the termination of the DDA occurs after the Contribution Date
(as defined in the RSA) such that the close of escrow under the DDA does not
occur, the District and the City desire that the Authority pay RIDA, on behalf of the
Page 3 of 45
xxxx
District and the City, for the costs of the Early Work incurred by RIDA for any Early
Work completed prior to the termination of the DDA that are due and payable by
the District and the City in such amounts to be confirmed by the District and the
City at the termination of the DDA ("Approved Early Work Costs"); and
WHEREAS, the Authority shall pay the Approved Early Work Costs to RIDA
prior to reimbursing any amounts to the District and the City; and
WHEREAS, the Early Work includes but is not limited to the following
construction items:
• Trenching, backfilling, and installing SDG&E conduits;
• Installing of AT&T conduits;
• Underground excavation, trenching, conduit, and pavement repair for
SDG&E and AT&T overhead poles and wiring installations;
• Capping of water mains;
• Capping sewer mains; and
WHEREAS, the Right of Entry is consistent with the Procurement Policy,
and the Right of Entry is intended to implement the Procurement Policy pursuant
to Section 5 of the Procurement Policy; and
WHEREAS, the Vice President of Construction Operations and
Responsible Managing Officer of RIDA is Kipland Howard, who has 40 years of
experience working on projects similar or more complex than the Early Work in the
State of California, including in the City of Chula Vista and on tidelands; and
WHEREAS, RIDA is an affiliate of RIDA Development Corporation, which
is a full service real estate organization that has created, invested in and developed
office, residential, industrial, hospitality and retail developments for more than forty
years, including five hotels (each with over 800 rooms) in the United States since
2004; and
WHEREAS, the Early Work involves minor construction that will be done in
collaboration with local utility companies and the expertise of RIDA for this work is
appropriate; and
WHEREAS, pursuant to Section 1.c. of the Procurement Policy, the
Authority Board finds that RIDA may act as prime contractor for the Early Work
because: (1) RIDA has made a written request to serve as a prime contractor and
provided information demonstrating its competence, (2) RIDA is competent and
qualified to complete the work under the Right of Entry, and (3) RIDA will publicly
bid out subcontracts for the work in accordance with the Procurement Policy; and
WHEREAS, the Executive Director of the Authority is authorized to issue
change orders in relation to the Right of Entry and Early Work in accordance with
Section 3.b. of the Procurement Policy; and
Page 4 of 45
xxxx
WHEREAS, in order to expedite RIDA's construction schedule, staff
recommends that the Authority Board adopt this Resolution (1)approving the Right
of Entry in substantially the form attached hereto as Exhibit A; (2) making the
necessary findings for RIDA to serve as the prime contractor of the Early Work;
and (3) confirming the Authority's obligations regarding the payment of the
Approved Early Work Costs to RIDA on behalf of the District and the City should
the close of escrow under the DDA not occur.
NOW, THEREFORE, BE IT RESOLVED by the Board of Directors of the
Chula Vista Bayfront Facilities Financing Authority ("Authority Board") as follows:
(1) The above-stated Recitals are true and correct and represent the
findings of the Authority Board; and
(2) The Chula Vista Bayfront Project Phase 1A Early Work Implementation
and Right of Entry License Agreement among the San Diego Unified
Port District ("District"), City of Chula Vista ("City"), the Chula Vista
Bayfront Facilities Financing Authority ("Authority") and RIDA Chula
Vista, LLC ("RIDA") ("Right of Entry") is hereby approved and the
Executive Director of the Authority, or his designee, is hereby authorized
and directed to enter into the Right of Entry substantially in the form
presented to the Authority Board at the September 1, 2021 Authority
Board meeting and attached hereto as Exhibit A; and
(3) In the event that the Disposition and Development Agreement (District
Clerk's Doc. No. 68398, Filed May 14, 2018) ("DDA") is terminated after
the Contribution Date (as defined in the Recitals) and the close of
escrow under the DDA does not occur, the Authority shall pay to RIDA,
on behalf of the City and the District, any amounts due and payable by
the District and the City to RIDA for the work performed by RIDA
pursuant to the Right of Entry prior to the termination of the DDA
("Approved Early Work Costs") before reimbursing any funds to the City
and the District and no operating memorandum or further action of the
Authority Board will be required to pay the Approved Early Work Costs
except that the Executive Director of the Authority shall verbally confirm
the amount of the Approved Early Work Costs with the City Manager of
the City and the Executive Director of the District prior to making such
payment.
APPROVED AS TO FORM AND LEGALITY:
CO-COUNSEL
Thomas A. Russell, General Counsel, San Diego Unified Port District
Page 5 of 45
XXXX
Glen R. Googins, City Attorney, City of Chula Vista
PASSED AND ADOPTED by the Board of Directors of the Chula Vista
Bayfront Facilities Financing Authority, this 1st day of September 2021, by the
following vote:
Page 6 of 45
xxxx
Exhibit A
Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right Of
Entry License Agreement
(See attached.)
Page 7 of 45
XXXX
Exhibit A Page 1 of 38A
CHULA VISTA BAYFRONT PROJECT
PHASE 1A EARLY WORK IMPLEMENTAMN AND RIGHT OF ENTRY LICENSE
AGREEMENT
This Phase 1A Early Work Implementation and Right of Entry License Agreement,
hereinafter"Agreement", is entered into as of , 2021 (the "Effective Date"), by and
among the San Diego Unified Port District, a public corporation ("District"), the City of
Chula Vista,a chartered municipal corporation("City"),the Chula Vista Bayfront Facilities
Financing Authority,a California joint exercise of powers authority("Authority"),and RIDA
Chula Vista, LLC, a Delaware limited liability company ("Developer"). District, City, and
Authority may be referred to collectively herein as the"Public Entities".The Public Entities
and Developer may each be individually referred to herein as a "Party", or collectively
herein as the"Parties".
RECITALS
a. On or about May 7, 2018, the District, City, and Developer entered into a
Disposition and Development Agreement ("DDA") to construct, among other
things, a convention center, resort hotel and public infrastructure improvements,
which includes Developer's Phase 1A Infrastructure Improvements(as defined in
the DDA). Pursuant to the DDA, at the Close of Escrow (as defined in the DDA),
the District and Developer will enter into a ground lease for the construction of the
resort hotel.The Board of Port Commissioners approved the ground lease on June
15, 2021 (the"Ground Lease").
b. At the Close of Escrow, the District, the City, the Authority, the Bayfront Project
Special Tax Financing District and the Developer will enter into a project
implementation agreement (as amended, amended and restated, supplemented
or otherwise modified from time to time,the"Project Implementation Agreement"),
pursuant to which, among other things, the Authority will pay the Developer's
Phase 1A Contract Sum (as defined therein)to the Developer in connection with
the development and construction of the Developer's Phase 1A Infrastructure
Improvements (as defined in the DDA). The Board of Port Commissioners
approved the Project Implementation Agreement on June 15, 2021, the City
Council of the City of Chula Vista approved the Project Implementation Agreement
on June 15, 2021, and the governing board of the Authority approved the Project
Implementation Agreement on June 28,2021.
C. The District owns certain real property located in Chula Vista, California, more
particularly described on Exhibit "A-1" and delineated on Exhibit "A-2", which is
attached hereto and incorporated herein by this reference (the"Premises").
d. The Developer's Phase 1A Infrastructure Improvements(as defined in the DDA)
Page 8 of 45
XXXX
Exhibit A Page 2 of 38A
include the work that is more particularly described on Exhibit "B", which is
attached hereto and incorporated herein by this reference(the"Work"), and more
particularly described in the work plan attached as Exhibit"B-1"("Work Plan").
e. As described in the Work Plan, the Work generally consists of construction and
backfill of a trench with installation of electrical facilities across the Premises,which
will provide electrical power to adjoining tenants during Developer's construction
of the Developer's Phase 1A Infrastructure Improvements, convention center,and
resort hotel. As described in the Work Plan, some of the electrical facilities are
intended to serve temporarily during construction of the Developer's Phase 1A
Infrastructure Improvements, convention center, and resort hotel, and to be
removed by Developer upon completion of the construction of the Developer's
Phase 1A Infrastructure Improvements, resort hotel,and convention center.
f. The DDA contemplates that the Developer will develop Developer's Phase 1A
Infrastructure Improvements, including the Work, after the Close of Escrow (as
defined in the DDA).
g. Developer has now requested early accessto the Premises—i.e.,priorto the Close
of Escrow—in order to perform the Work,which Developer contends will allow for
greater efficiency in the construction of the Developer's Phase 1A Infrastructure
Improvements post-Close of Escrow and shorten Developer's construction
schedule.
h. The Public Entities are willing to permit Developer to perform the Work subject to
the terms and conditions set forth herein.
i. Under the DDA,the Developer is to be reimbursed for the Phase 1A Infrastructure
Costs (as defined in the DDA) if certain requirements are met, including but not
limited to,the issuance of bonds by the Authority at the Close of Escrow.
j. On January 8, 2020, the Board of Directors of the Authority ("Authority Board")
adopted Resolution 2020-001 initially establishing a Procurement Policy for
developer-performed public works, which the Authority Board further ratified
through Resolution 2020-007("Procurement Policy").
k. Pursuant to Section 5 of the Procurement Policy, the Authority may require a
developer to enter into an agreement to clarify the procurement procedures for a
particular project.
I. The Parties therefore intend to enter into this Agreement in order to
comprehensively address each Party's respective obligations with respect to the
Work, and in particular: (1) the terms and conditions upon which the District will
grant Developer a license for the right to enter the Premises prior to Close of
Escrow, (2)the terms and conditions upon which the Developer may perform the
2
Page 9 of 45
XXXX
Exhibit A Page 3 of 38A
Work, (3)the terms and conditions upon which the Developer will be paid for the
Work, and(4)the process that the Developer will follow to procure the Work.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged,the Parties hereto mutually agree as follows:
1
REFERENCES
1.1. Effective Date. This Agreement shall become effective upon the completion of the
following two conditions precedent: (1) each of the Parties duly approves this
Agreement through its respective Board of Directors, Board of Port
Commissioners,City Council, principals or members,as the case may be,and the
authorized representative of each Party executes this Agreement, and (2) the
Authority adopts a Resolution making findings on the procurement process set
forth in this Agreement.
1.2. Right of Entry License. Article 7 of this Agreement contains the terms and
conditions upon which the District grants a license to Developer and its authorized
agents and contractors to enter the Premises to perform the Work. (Article 7 will
be referred to as the"Right of Entry License.")
1.3. DDA. The Parties acknowledge and agree that the District, City, and Developer
are all parties to the DDA,and this Agreement is not intended to be a limitation of
any rights or obligations contained in the DDA, unless expressly stated herein. In
the event of a conflict between the DDA and this Agreement, the terms of this
Agreement shall control.
1.4. Representatives. Each Party to this Agreement shall have a designated
representative to serve as the primary contact person with regard to various
aspects of the implementation of this Agreement(each,a "Representative").
The Representatives of the Parties shall be:
Developer: Luke Charlton, Chief Operating Officer
District: Adam Meyer, Assistant Director of Real Estate and Stephanie Shook,
Department Manager, Real Estate
City:Tiffany Allen, Director of Development Services and Kimberly Elliot, Facilities
Financing Manager
Authority: For the District, Adam Meyer, Assistant Director of Real Estate and
3
Page 10 of 45
XXXX
Exhibit A Page 4 of 38A
Stephanie Shook, Department Manager, Real Estate; for the City, Tiffany Allen,
Director of Development Services and Kimberly Elliot, Facilities Financing
Manager.
The Representatives for each Party may be changed from time to time upon written
notice to the other Parties. The roles and obligations of the Representatives shall
be limited to those set forth in this Agreement.
2
WORK TO BE PERFORMED AT DEVELOPER'S RISK
2.1. Limitations. Developer agrees to perform the Work at Developer's own cost and
expense subject to Developer's right to reimbursement as set forth in Sections 2.2
and 2.3 of this Agreement. Except as set forth in this Agreement, Developer shall
have no recourse against the Public Entities for any costs or expenses incurred by
Developer related to this Agreement or the Work. Notwithstanding anything to the
contrary herein, nothing in this Agreement shall amend, modify, limit or supersede
Developer's right to reimbursement or payment for any work other than the Work
from any of the Public Entities under any other agreement between Developer and
such Public Entity.
a. No Consequential Damages. No Public Entity shall, in any event, be liable
to Developer or any other person, either in contract, tort or otherwise, for
any consequential, incidental, indirect, special or punitive damages,
including loss of future revenue, income or profits, diminution of value or
loss of business reputation or opportunity relating to the breach or alleged
breach hereof, whether or not the possibility of such damages has been
disclosed to the other Party in advance or could have been reasonably
foreseen by such other Party. The foregoing shall not preclude the
Developer from enforcing its right to receive reimbursement as set forth in
Section 2.2 or 2.3 of this Agreement.
2.2. Reimbursement from Authority if the Close of Escrow Occurs. Provided that the
Close of Escrow has occurred and the Project Implementation Agreement has
been executed by the parties thereto in connection with the Close of Escrow,then
the costs and expenses actually incurred by Developer in performing the Work
hereunder, and not already paid or reimbursed by the Public Entities and in an
amount not to exceed the Budget (defined below), shall be deemed to be part of
Developer's Phase 1A Contract Sum (as defined in the Project Implementation
Agreement), and the Developer shall be entitled to reimbursement of such part of
Developer's Phase 1A Contract Sum under and in accordance with the Project
Implementation Agreement and this Section 2.2.
4
Page 11 of 45
XXXX
Exhibit A Page 5 of 38A
a. Budget. Attached hereto as Exhibit"E"is the line item budget for the Work,
which has been approved by the Public Entities (such budget and any
amendments,supplements or other modifications thereto, in each case, as
approved by the Public Entities from time to time in accordance with this
Agreement,the "Budget").
b. Budget Increases. The appropriate line item on the Budget will increase by
the amount of incremental costs that Developer actually incurs in
connection with the Work (including, without limitation, as a result of any
Cost Increase Event (as defined below) (less the amount of insurance
proceeds that Developer receives for such Cost Increase Event)),and such
incremental costs shall be part of the Budget if and to the extent permitted
by this Agreement. Developer shall use reasonable efforts to prosecute
each and every insurance claim with respect to any Cost Increase Event
that is covered by the insurance policies procured in accordance with this
Agreement. During the Work, Developer shall promptly notify the Public
Entities of any additional costs for the Work that are not included in the
Budget,including,without limitation,as a result of any Cost Increase Event,
and if applicable, request that such additional costs be included in the
Budget. Developer shall not request the inclusion of additional costs in the
Budget to the extent resulting from Developer's or Developer Affiliates' (as
defined below) negligence or willful misconduct, and such additional costs
shall not constitute a"Cost Increase Event".
"Cost Increase Event"shall include any of the following events individually
or in any combination,to the extent that(x)such event is not caused by the
negligence or willful misconduct of Developer or Developer Affiliates and(y)
such event increases the cost of performing the Work:
(i) a strike, or similar labor disturbances causing a work stoppage,
excluding any such strike or work stoppage that could have been
avoided had Developer or Developer Affiliates complied with
applicable laws or labor agreements with respect to the Work, 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 District's jurisdiction;
(iv) an earthquake, volcanic eruptions, explosions, disease, epidemics
or other natural disaster;
(v) fires(including wildfires);
5
Page 12 of 45
XXXX
Exhibit A Page 6 of 38A
(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 Developer's or Developer
Affiliates'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) delays in the issuance of any approvals or authorizations from any
governmental authority (excluding any of the Public Entities)that is
necessary to proceed with the performance of the Work (provided
that Developer or Developer Affiliates have 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 Developer or Developer
Affiliates are not responsible for the delay in the issuance of such
approvals or authorizations);
(ix) an act of God;
(x) embargoes or blockades;
(xi) Pre-Existing Hazardous Material (as defined in the Ground Lease)
that is not the result of Material Exacerbation (as defined in the
Ground Lease); or
(xii) closures ordered by any Governmental Authority that do not arise
from a breach of this Agreement or misconduct by Developer or
Developer Affiliates;
(xiii) any change in applicable law that is first effective after the Effective
Date;
(xiv) any breach or interference with performance of the Work by the
governmental entities, including any Public Entity;
(xv) any changes to the Work required by any public utility entity or any
governmental entity, including any Public Entity;or
(xvi) any other event or circumstance (including, without limitation, bids
for the Work, and expenses described in Section 7.12, that exceed
the Budget) resulting in an unforeseen cost or cost increase not
otherwise contained in the Budget and that does not result from the
negligence or willful misconduct of Developer or any Developer
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Exhibit A Page 7 of 38A
Affiliate.
If any Cost Increase Event shall occur, Developer shall, promptly but in no
event later than ten (10) days after Developer learns of the occurrence of
such Cost Increase Event, notify the Public Entities thereof, which notice
must be made in good faith and describe the Cost Increase Event,why such
cost increase is occurring, the estimated expected amount of the cost
increase, and the commercially reasonable efforts that the Developer is
taking to minimize the cost increase. The Public Entities shall, promptly but
in no event later than ten (10) days after receipt of such notice, notify
Developer whether(x) Developer shall continue with performing the Work,
in which case the appropriate line item on the Budget shall increase by the
amount of incremental costs that Developer reasonably and actually incurs
as a result of any Cost Increase Event in accordance with this Agreement,
or (y) Developer shall stop performing the Work, in which case Developer
shall immediately stop all Work except any Work required to secure the
Work, Work area and the Premises to the satisfaction of the District, and
the Parties shall proceed under Section 2.3.
C. Increase in Payment Bonds. Any adjustment to the Budget in accordance
with Section 2.2(b) shall include a proportional increase in the penal sums
of the Payments Bonds (as defined below). Authority's reimbursement of
such bond cost increases shall not exceed the actual cost of increasing the
penal sum of such bonds.
d. Work Reimbursement Costs. During each month after the commencement
of the Work, Developer shall submit to the Public Entities a record of costs
that have been incurred with respect to the Work during the immediately
preceding month (a "Record of Costs"). No later than thirty (30) Business
Days after the Public Entities receive a Record of Costs,the Public Entities
shall review such Record of Costs and shall, in their reasonable discretion,
determine whether the costs set forth in such Record of Costs have been
incurred by Developer in performance of the Work and do not cause the
aggregate amount of such costs to exceed the Budget, and shall provide a
notice of their determination to Developer. Any costs so determined by the
Public Entities to have been incurred by Developer in performance of the
Work up to the amount of the Budget shall hereinafter be referred to as
"Work Reimbursement Costs". After the Close of Escrow, the Authority
shall reimburse Developer for all Work Reimbursement Costs.
2.3. Reimbursement from Public Entities if the Close of Escrow Does Not Occur. In the
event that the Close of Escrow does not occur due to a termination of the DDA by
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Exhibit A Page 8 of 38A
any of the Parties, and such termination was not the result of a breach of
Developer's obligations under the DDA, this Agreement, or any other agreement
setting forth Developer's obligations to the Public Entities prior to the Close of
Escrow, Developer shall be entitled to reimbursement for the Work
Reimbursement Costs incurred as of the date of the termination,with each of the
District and the City being responsible for payment to Developer of fifty percent
(50%)of the Work Reimbursement Costs incurred by Developer as of the date of
the termination. Provided that such termination occurs prior to the Contribution
Date(as defined in the RSA(as defined below)),the Authority,the District,and the
City acknowledge and agree that the Work Reimbursement Costs may be paid by
the District and the City from Existing Funds(as defined in the RSA) pursuant to
Section 3.2(D) of the RSA (defined below) and each of the City and the District
agree to approve any accounting submitted to one another pursuant to Section
3.2(F) of the RSA that reasonably details the payment of such Work
Reimbursement Coststo Developerthat does not exceed such party's share of the
Work Reimbursement Costs.
a. This Agreement is not intended to amend, modify, limit or supersede any
separate agreement or understanding of the Public Entities as to the
allocation of costs between City, District, and Authority related to the
Developer's Phase 1A Infrastructure Improvements, including but not
limited to the Project Implementation Agreement and that certain Third
Amended and Restated Revenue Sharing Agreement,dated June 28,2021,
by and among the City, the District and the Authority (as amended,
amended and restated, supplemented or otherwise modified from time to
time,the"RSA").
3
DEVELOPER'S RESPONSIBILITIES
3.1. Conditions. Prior to and as a condition of performing any Work and entering onto
the Premises pursuant to the Right of Entry License:
a. Insurance. Developer shall purchase and maintain insurance that will
protect District, City, and Authority from claims which may result from the
undertakings of the Developer and Developer's Affiliates, under this
Agreement, including without limitation the performance of the Work and
use of the Premises, in the applicable limits set forth in Section 4.11 of the
DDA and in the manner set forth in Sections 4.10 and 4.12-4.13 of the DDA,
if and to the extent applicable to the Work, with the exception that (x)
Worker's Compensation may be carried by the prime contractor(including
Developer to the extent Developer is serving as prime contractor) or
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Exhibit A Page 9 of 38A
applicable subcontractors for their own workers and (y) General Liability
limits are amended to read $1,000,000 per occurrence and $2,000,000 in
the aggregate; provided, that at all times such insurance shall cover the
Work, the Premises, and any person or entity performing Work or on the
Premises pursuant to this Agreement or the Right of Entry License. The
insurance certificates shall be in the form attached as Exhibit"D".
b. Bonds. Developer shall furnish to the District,City,and Authority a Payment
Bond and Performance Bond (each as defined in the DDA),which shall be
procured in the same manner and to the same extent as required for
Developer's Phase 1A Infrastructure Improvements as provided in Section
4.14 of the DDA. Each Bond shall be in an amount equal to 100° of the
Budget.
C. Prevailing Wages. The Work is "Public Work" pursuant to the PWL (as
defined in Section 4.16 of the DDA) and Developer and Developer's
Affiliates shall comply with all requirements of section 4.16 of the DDA in
their performance and completion of the Work.
d. Indemnity. 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 applicable Public Entities, each in its reasonable
discretion, and approved by Developer in its reasonable discretion, to
indemnify,defend and hold harmless the District,the City and the Authority,
and their respective officers, directors, commissioners, employees,
partners, affiliates, agents, contractors, successors and assigns ("Public
Entities Parties")from any claims,demands,actions,causes of action,suits
(collectively, "Claims") and 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 such
costs (collectively,the "Related Costs") and amounts paid in settlement of
any claims or actions related to the subject matter of the Related Costs(as
determined by the District, City and/or Authority, as applicable),arising out
of:
(a)the obligations undertaken by the Developer and its officers, directors,
employees, partners, affiliates, agents, contractors, consultants,
invitees, successors and assigns (each a "Developer Affiliate", and
collectively, the "Developer Affiliates") in connection with this
Agreement, including the Right of Entry License;
(b) the possession, use, occupancy, operation or development of the
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Exhibit A Page 10 of 38A
Premises by the Developer or the Developer Affiliates;
(c)the approval of this Agreement or the approval of permits or approvals
granted to the Developer or a Developer Affiliate related to the Work or
the Premises, including, but not limited to, approvals or permits for the
development of any structures, buildings, installations, and
improvements on the Premises, or use of the Premises (collectively,
"Related Approvals");
(d)any third party challenges to the approval of the Work and the Related
Approvals;
(e)the granting or failure to grant any approvals set forth in this Agreement
(collectively,"Discretionary Approvals");
(f) environmental documents, mitigation and/or monitoring plans, or
determinations conducted and adopted pursuant to CEQA or the
National Environmental Policy Act for this Agreement, Related
Approvals or Discretionary Approvals;and
(g)the Developer's obligation to comply with the PWL with respect to the
Work.
If any Public Entity determines in its reasonable discretion that there is a
conflict of interest with the Developer's counsel representing an applicable
Public Entity and the Developer, then such Public Entity, at the election of
the relevant Public Entity, may conduct such defense with its own counsel
independent from the Developer's counsel that is selected by such Public
Entity in its reasonable discretion and is approved by the Developer in its
reasonable discretion (and in that event the Developer 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. 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 the Developer 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.
e. Survival. This Article 3 shall survive the expiration or earlier termination of
this Agreement.
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Exhibit A Page 11 of 38A
4
PROCUREMENT OF THE WORK
4.1. Procurement Rules. Developer acknowledges that,as a condition for Authority to
reimburse the Work, the procurement of the Work must be done in accordance
with Authority's Procurement Policy. Except where provisions of the Procurement
Policy are duly and expressly waived in this Agreement, by resolution of the
Authority Board or by the Executive Director of the Authority, as applicable,
Developer shall comply with, and cause its contractor(s) for the Work to comply
with,the terms of the Procurement Policy.
4.2. Agreement as to Procurement Process. Pursuant to Section 5 of the Procurement
Policy, the Authority may require developers to enter into an agreement to clarify
the procurement procedures for developer-performed public work.This Agreement
shall serve to clarify the procurement procedures for the Work.
4.3. Developer as Prime Contractor. Pursuant to Section 1.c of the Procurement
Policy, a developer may serve as a prime contractor, provided that the Authority
finds, in accordance with the Procurement Policy, that the developer is qualified
and competent to complete the work. Developer has informed the Public Entities
that it intends to serve as the prime contractor for the Work,and Developer agrees
to: (1)competitively bid the subcontracts for the Work in the manner set forth in
Section 4.6 of this Agreement, and (2) not seek reimbursement from Authority for
any contractor fee Developer pays itself for serving as prime contractor.
4.4. Public Entities' Approval. Prior to the commencement of the Work, the Public
Entities shall approve the plans and specifications with respect to the Work;
provided that in the case of the City only, such plans and specifications shall be
deemed approved if and when the City issues a building permit with respect to the
Work. For this particular Work,Developer shall not be required to contribute toward
the District's Art Program as set forth in the District's Tenant Percent For Art
Program (BPC Policy No. 608) as provided in Section 4.1(c) of the DDA, but by
excluding the Work from the requirements of BPC Policy No.608,the District does
not waive any of its rights to require Developer's participation as it relates to other
work to be performed by Developer pursuant to the DDA.
4.5. Authority Approval of Bid and Contract Documents. Pursuant to Section 2.b of the
Procurement Policy, Developer shall submit bid and contract documents to the
Authority for approval prior to commencement of the Work. Developer's submittal
shall include any applicable governmental approvals,including any applicable City
permits. Bid and contract documents for the Work shall comply with this
Agreement. Developer shall not advertise for bids until Authority has approved the
bid and contract documents.Approval by any of the Public Entities of Developer's
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Exhibit A Page 12 of 38A
bid and contract documents, including plans and specifications, shall not relieve
Developer of liability for any improper design or construction of the Work.
4.6. Process for Subcontractor Bids. Developer will conduct the subcontractor bidding
process and shall take responsibility for its implementation in accordance with the
Procurement Policy and this Agreement. Nothing shall preclude Developer from
proceeding with a bidding process that Developer performed prior to the Effective
Date, provided that the bidding process satisfies the requirements of the
Procurement Policy and this Agreement. The bidding process shall be as follows:
a. Budget. The line items within the Budget shall be the engineer's estimate
referenced in the Procurement Policy.
b. Advertisement. Developer will post a formal advertisement for bids (the
"Advertisement for Bids")at least twenty-one(21)business days prior to the
deadline for receiving bids(the"Bid Receipt Deadline").The Advertisement
for Bids will be in the publications selected by Developer. The
Advertisement for Bids will generally describe the scope of the work and
process to be used.
C. Pre-Bid Meeting. No sooner than 5 business days, and no later than 10
business days, following the posting of the Advertisement for Bids,
Developer or its authorized representative will hold an electronic pre-bid
meeting in order to answer any questions that prospective bidders may
have.
d. Bidder Qualifications. All bidders shall be licensed for such bidder's
respective scope of work in the State of California, shall be registered with
the Department of Industrial Relations to perform public works prior to
submitting their respective bids,and shall not be debarred from performing
work by any federal or state agency or by the City or District.
e. Sealed Bids. All bids shall be sealed and opened concurrently at a public
bid opening.
f. Bid Awards. Developer shall consider all sealed responsive bids that are
submitted on or before the Bid Receipt Deadline. Developer shall award
subcontracts to the lowest responsive and responsible bidder,or the bidder
that is determined by Developer to be the "best qualified contractor" (as
defined in Section 2.d. of the Procurement Policy), subject to Authority's
reasonable approval. Developer may,at its option,waive any defect in any
bid. Developer shall not award any bid that is more than 10% above the
Budget for the Work, in the case where the bid is for the entire Work,or the
line item in the Budget where the bid is only for a portion of the Work,unless
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Exhibit A Page 13 of 38A
the Developer receives the Authority's written consent (in the Authority's
sole discretion). This Section 4.6(f) shall not limit Developer's right to seek
an adjustment to the Budget for any cost or expense actually incurred by
Developer in performing the Work hereunder and that exceeds such 10%
threshold, pursuant to Section 2.2(b)for a Cost Increase Event. Developer
shall provide copies of the bids to the Public Entities prior to making an
award or rejecting a bid. Developer may, in its sole and absolute discretion,
reject any and all bids and repeat the bidding process. Developer may
require the bidder receiving the award to furnish security in addition to that
required of Developer under this Agreement.
g. Developer shall defend, indemnify and hold harmless the Public Entities
Parties from any Claims related to Developer's procurement of
subcontractors in accordance with Section 3.1(d).
6
PERFORMANCE OF THE WORK
5.1. Prosect Updates. Developer shall provide the Public Entities with regular updates
regarding the performance and progress of the Work.
5.2. Standard of Performance. Developer and its agents, contractors, and
subcontractors,if any,shall perform all Work in a skillful and workmanlike manner,
and,with respect to the provisions of engineering services only,consistent with the
standards generally recognized as being employed by professionals in the same
discipline in the State of California. Developer represents and warrants that all of
its employees, agents, contractors, and subcontractors shall have all licenses,
permits, qualifications and approvals of whatever nature that are legally required
for them to perform the Work or a portion thereof, as applicable, and that such
licenses, permits,qualifications and approvals shall be maintained throughout the
term of this Agreement.
5.3. Liens and Claims. Developer agrees to cause all liens and security interests filed
in connection with the Work to be discharged in the same manner and to the same
extent as provided in Section 4.18 of the DDA for Developer's Improvements(as
defined in the DDA).
5.4. Change Orders. Developer may request that the Public Entities approve a change
in the scope of the Work and/or a change to the approved plans and specifications
relating to the Work (a "Change Order"), in accordance with Section 3.b of the
Procurement Policy. All Change Orders shall be subject to the prior written
approval of the Public Entities (such approval not to be unreasonably withheld,
conditioned or delayed), unless exempt from prior approval pursuant to Section
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Exhibit A Page 14 of 38A
3.b of the Procurement Policy. Any Change Orders with respect to the approved
plans and specifications shall also be subject to District's BPC Policy No.357,and
Developer shall obtain District's approval in accordance with such BPC Policy No.
357. A Change Order shall not result in an automatic increase to the Budget, but
this Section 5.4 shall not limit Developer's right to seek an adjustment to the Budget
for any Change Order pursuant to the applicable provisions of Section 2.2(b)for a
Cost Increase Event.
5.5. Completion. Upon completing the Work, Developer shall notify the Public Entities
that the Work is complete(such notification,"Developer's Completion Notice").The
Public Entities shall have thirty (30)days after receipt of Developer's Completion
Notice to inspect the Work and determine in their reasonable discretion if there are
any defects in the Work,any incomplete Work,any Work that does not conform to
the approved plans or specifications for the Work, or any damage to the Work or
the Premises(collectively,"Outstanding Work"),and either notify the Developer of
such Outstanding Work (such notification, "Public Entities' Outstanding Work
Notice") or notify Developer that the Work is complete (such notification, "Public
Entities' Completion Notice"), as applicable. Developer shall complete to the
reasonable satisfaction of the Public Entities any Outstanding Work within thirty
(30)days after Developer receives Public Entities'Outstanding Work Notice. If the
Public Entities deliver Public Entities' Outstanding Work Notice to Developer,then
the process set forth in this Section 5.5 shall be repeated until the Public Entities
deliver to the Developer Public Entities' Completion Notice. Developer
acknowledges and agrees that the inspection by the Public Entities shall not void,
alter,or modify any warranties for the Work.
a. As-Builts. Within thirty (30) days of Public Entities' Completion Notice,
Developer shall provide one(1)set of"as-built"or record drawings or plans
to the District and City. The drawings shall be certified and shall reflect the
condition of the Work as constructed,with all changes incorporated therein.
b. Notice of Completion. Developer shall record a notice of completion within
the statutory time for recording such notice and shall provide a conformed
copy of same to the Public Entities. Upon recording of such notice of
completion and, if applicable, acceptance of the improvement by any
applicable public utility receiving the improvement (provided that, in
absence of receiving a written notice of such acceptance from a public
utility, any use of the applicable improvement by such public entity shall
constitute deemed approval of such improvement by such public utility for
purposes of this Agreement), (i) neither Developer nor any Developer
Affiliate shall have care, custody, or control of any improvement that is
subject to such notice of completion, and (ii) neither Developer, nor any
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Exhibit A Page 15 of 38A
Developer Affiliate, nor any Public Entity shall have the risk of loss with
respect to any improvement that is subject to such notice of completion
(where"risk of loss"means any risk of loss in connection with any casualty
event with respect to such improvement that occurs after such time and
that results in the loss of use of such improvement).
C. Removal of Liens and Security Interests. Pursuant to Section 5.3 above
and Section 4.18 of the DDA,within thirty(30)days after Developer receives
notice of filing of any lien or security interest with respect to the Work,it shall
cause such lien or security interest, as applicable, to be discharged of
record by payment, deposit, bond, order of court of competent jurisdiction
or otherwise. Notwithstanding the foregoing, Developer shall not be
required to discharge of record any such lien or security interest, as
applicable, if Developer is in good faith, and consistent with applicable law,
at its own expense, currently and diligently contesting the same; provided
that Developer first records a surety bond sufficient to release such lien or
such security interest, as applicable. Developer shall certify to the Public
Entity accepting the improvement that it has complied with the requirements
of this Section 5.5(c).
d. Utility Easement. Parties hereto acknowledge and agree that San Diego
Gas & Electric ("SDG&E") is scheduled to commence certain work on the
Premises on or around November 1,2021 and,as a prerequisite for SDG&E
to commence such work, District shall grant a utility easement to SDG&E,
on terms satisfactory to the District and SDG&E. For avoidance of doubt,
neither the Public Entities nor Developer shall be responsible for any actions
or omissions by SDG&E. Once the Developer has completed the necessary
work to allow SDG&E to install the cabling work for the Sandpiper SDG&E
Re-Feed Work (as described in the Work Plan), Developer shall notify
SDG&E and the Public Entities. If SDG&E is unable to install the cabling
work due to defects in Developer's work, Developer shall repair or correct
the defects promptly.
e. Post-Completion/Restoration. The acceptance of any portion of the Work
shall not create any obligation upon any Public Entity to Developer to repair
or correct any defects in the Work.
(i) If the Close of Escrow occurs, Developer shall, at its sole cost and
expense, permanently remove the Sandpiper SDG&E Re-Feed
Work constructed pursuant to the Work Plan, and restore to its pre-
Work condition the portion of the Premises that is affected by such
removal,prior to Completion(as defined in the Ground Lease)of the
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Exhibit A Page 16 of 38A
resort hotel.
(ii) If the Close of Escrow does not occur, Developer shall have no
obligation to remove the Work or restore the Premises except as
provided in this Agreement.
f. Survival. This Article 5 shall survive the earlier termination or expiration of
this Agreement.
6
TERMINATION AND DEFAULT
6.1. Term and Termination. This Agreement shall remain in effect from the Effective
Date until the earlier of:(1)Developer completesthe Work and all Work is accepted
by the appropriate Public Entity(ies), or (2) one (1) year, unless extended or
terminated earlier as provided herein (the "Termination Date").
a. Extension. The Public Entities may, in each of their sole and absolute
discretion, agree in writing to extend the Termination Date; provided, that,
if Developer has performed substantial work on the Work(more than 60%),
is diligently pursuing completion of the Work, the DDA has not expired or
terminated, and Developer is not otherwise in breach of this Agreement,
then the Public Entities shall not unreasonably refuse to grant an extension.
b. Event of Default. If Developer neglects, refuses, or fails to fulfill or timely
complete any obligation,term,or condition of this Agreement,or abandons
the Work, or if the Public Entities determine there is a violation of any
federal, state,or local law,ordinance, policy, regulation, code, standard,or
other requirement, Developer shall be in default of this Agreement, upon
which the Public Entities shall make written demand upon Developer to
immediately remedy the default in accordance with this Agreement
("Notice"). Developer shall substantially commence the work required to
remedy the default within fifteen(15)business days of receipt of the Notice.
If the default constitutes an immediate threat to the public health,safety,or
welfare, District's Representative may provide the Notice verbally, and
Developer shall substantially commence to remedy the default within
twenty-four (24) hours thereof. Immediately upon issuance of the Notice,
Developer and its surety shall be liable to the Public Entities for all costs of
the Work and all other administrative costs and expenses as provided for in
this Section 6.1.
(i) Nothing herein prevents the Public Entities from notifying
Developer's surety of any default or demand to remedy a default;
provided,however,failure to give or receive notice to the surety shall
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Exhibit A Page 17 of 38A
not exonerate the surety of any obligations under the Performance
Bond.
C. Remedies for Event of Default. If Developer does not cure the default as
provided in Section 6.1(b), the Public Entities may elect to terminate this
Agreement. If the Public Entities elect to terminate this Agreement, the
District may elect that the Developer and the surety either (i) restore the
Premises to the same condition as the Premises existed prior to the
commencement of the Work; or (ii) complete and convey any particular
portion of the Work to the District in lieu of restoration of some or all of the
Premises under(i), and Developer shall proceed with such restoration or
completion of the Work at no cost to the District. If the Developer fails to
comply with any of its obligations contained herein, Developer and its surety
shall be jointly and severally liable to the Public Entities for all administrative
expenses, fees, and costs, including reasonable attorneys'fees and costs,
incurred by the Public Entities in obtaining Developer's compliance with this
Agreement or in processing any legal action or for any other remedies
permitted by law or equity.
d. Survival. This Article 6 shall survive the expiration or earlier termination of
this Agreement.
7
RIGHT OF ENTRY LICENSE
7.1. Right-of-Entry: District hereby grants Developer, and its authorized agent(s)and
contractor(s), the right to enter upon the Premises to perform and complete the
Work, subject to the terms and conditions in this Article 7 ("Right-of-Entry
License").
7.2. Use of Premises. The use of the Premises by the Developer and Developer's
Affiliates for the Right of Entry License, shall be limited to the following activities:
a. Performance and completion of the Work;
b. Ingress and egress for purposes of Paragraph 7.2(a)above through roads
owned by the District and located adjacent to the Premises as shown in
Exhibit"A-2" (collectively, "Approved Routes");and
C. Inspections,commissioning, and maintenance of the Work.
Developer's "authorized agents and contractors" shall include the employees,
contractors,subcontractors,and agents of public utilities that Developer authorizes
to enter the Premises to perform, complete, inspect, commission, maintain or
otherwise participate in the Work.
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Exhibit A Page 18 of 38A
7.3. [INTENTIONALLY OMITTED.
7.4. Term. This Right-of-Entry License shall commence on the Effective Date and
terminate on the Termination Date.
7.5. No Additional Rights or Interests. District's grant ofthe Right-of Entry License does
not:(i)confer any right or interest on Developer other than those rights or interests
expressly granted to Developer in this Right-of Entry License, as such rights or
interests are limited and qualified herein; or(ii) create or impose any obligations
on District other than those obligations expressly set forth in this Right-of Entry
License.
7.6. Consideration for Access. Developer shall pay to the District the Cost Recovery
Fees pursuant to Board of Port Commissioners Policy No. 106 in the total amount
of Five Hundred and Fifty Dollars($550.00)payable concurrently with Developer's
execution of this Agreement.
7.7. Indemnification of District. Except for claims or litigation arising through the sole
negligence or willful misconduct of any Indemnitee or Indemnitees, Developer shall
defend, indemnify,and hold harmless District and its officers, directors, members
of the Board of Port Commissioners,employees,contractors,agents,affiliates and
successors and assigns (collectively with the District, the "Indemnitees") for any
and all causes of action, liability, claims, judgments, or demands, plus expenses
in connection therewith, arising out of or as the result of: (i) this Right-of Entry
License; (ii) Developer's and/or its authorized agents', employees', invitees' or
contractors'activities undertaken pursuant to this Right-of Entry License,including
without limitation,the performance of the Work; (iii)any accident or occurrence in
connection with the Work or the operation, use, condition, or possession of the
Premises,Approved Routes,or any portion thereof during the term of this Right-of
Entry License; (iv) PWL (defined above); or(v)the District's approval or issuance
of this Right-of Entry License, including but not limited to the District's review and
approval under the California Environmental Quality Act and the California Coastal
Act (collectively, an "Indemnified Claim"). Said expenses shall include without
limitation costs of investigation and remediation of environmental conditions,
counsel, consultant and/or expert fees and expenses, and penalties and interest
as incurred, regardless of the cause thereof or the cause of action, liability, claim,
judgment, or demand, no matter when made or filed. Developer's obligation to
indemnify Indemnitees pursuant to this Section 7.7 shall apply regardless of the
extent, if any, to which such Indemnified Claim is based, in whole or in part, on
preexisting conditions at the Premises, including without limitation Environmental
Conditions, as defined in the Acknowledgment and Disclosure Regarding
Environmental Conditions, attached hereto as Exhibit "C", and incorporated by
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Exhibit A Page 19 of 38A
reference herein. Notwithstanding the foregoing, Developer shall have no
obligation to indemnify, defend or hold harmless any Indemnitee for any
Indemnified Claim that arises out of any preexisting hazardous material condition
that is not known to Developer, unless such Indemnified Claim arises out of the
negligence of, or breach of this Agreement by, Developer or one or more of the
contractors, agents, employees or invitees. For purposes of this Section 7.7, a
preexisting hazardous material condition shall be deemed to be known to
Developer if (1) Developer has actual knowledge of the condition through its
employees, consultants, agents or anyone hired by Developer to investigate the
conditions of the Premises, or (2) should have reasonably been anticipated by
Developer through review of the District files, Developer's files, other public files,
readily available information or information described in Exhibit "C", an ALTA
survey, walk through, and any other reasonable pre-construction investigation or
assessment of the Premises.
7.8. rintentionally Omitted.]
7.9. Modifications. District and Developer may only modify the Right-of-Entry License
in writing, and a written modification shall not require the consent of the City or
Authority to be effective. Developer shall give prompt notice to City of any
modification to the Right-of-Entry License that materially impact Developer's
performance of,or ability to complete,the Work.
7.10. Work Product Related to Condition of Premises. At the request of District,
Developer shall provide the District with complete copies of any information,data,
studies, analyses, sampling results, and results, in each case, to the extent they
are prepared for or result from the Work, including without limitation any
investigation and/or remediation activities and any reports and/or work plans
related thereto which Developer prepares or obtains,or contracts with third parties
to prepare or obtain, regarding the condition of the Premises. Developer shall
provide a copy to City and Authority of anything provided to District pursuant to this
Section 7.10.
7.11. Additional Work and Documentation. Developer shall provide the District with any
additional information and documentation, that is reasonably requested by the
District and that developers performing work similar to the Work customarily
provide to their respective right of entry licensors,relating to the Work,the activities
of Developer and its authorized agents and contractors on or in connection with
the Premises and the Work that is necessary to coordinate access to the Premises
and the performance of the Work. Developer shall pay any costs and expenses
related to the relocation of any construction equipment, debris, asphalt, soil, or
improvements necessary to perform the Work and to access the Premises.
19
Page 26 of 45
XXXX
Exhibit A Page 20 of 38A
Developer may seek reimbursement of such costs and expenses only if subject to
reimbursement pursuant to Section 2.2 or Section 2.3, as applicable. Developer
shall pay any costs and expenses related to the Work and access to the Premises
by Developer and its authorized agent(s) and contractors. Developer may seek
reimbursement of such costs and expenses only if subject to reimbursement
pursuant to Section 2.2 or Section 2.3, as applicable.
7.12. Permits. Developer shall acquire all permits required by applicable law, including
without limitation, the ordinances and policies of the Public Entities. Developer
shall perform and complete the Work in strict accordance with this Agreement, all
permits for the Work,and all applicable District construction and design standards.
Developer shall obtain all permits and authority from governmental entities and
agencies that are necessary for the performance of the Work and access to the
Premises. Except as set forth herein, the District shall not incur any cost or
expense as a result of this Agreement. Developer agrees that any costs(including
but not limited to plan checking, inspection, materials furnished and other
incidental expenses) incurred by the District in connection with the inspection,
approval or the installation of the Work,will be paid by Developer. Such costs and
expenses in connection with permitting and the inspection, approval or the
installation of the Work shall be included in the Budget and subject to
reimbursement.
7.13. Conformance with Laws. Developer agrees that,in all activities on or in connection
with the Premises,and in all uses thereof,including without limitation the Work and
access to the Premises, it shall abide by and conform to all laws and regulations.
Said laws and regulations shall include, but are not limited to those prescribed by
the San Diego Unified Port District Act; any applicable ordinances of the City,
including the Building Code thereof; any ordinances and general rules of District,
including tariffs and policies;and any applicable laws of the state of California and
federal government,as any of the same now exist or may hereafter be adopted or
amended. In particular and without limitation, Developer shall have the sole and
exclusive responsibility to comply with the requirements of: (i)Article 10 of District
Code entitled "Stormwater Management and Discharge Control", and (ii) the
Americans With Disabilities Act of 1990, including but not limited to regulations
promulgated thereunder. At no time shall Developer or its authorized agents or
contractors park vehicles on the Approved Routes, place or store any materials or
equipment on the Approved Routes, or limit, block or impede the ability of any
person to use any of the Approved Routes.
7.14. Utilities. Developer shall determine the location of all utilities in, on, under, and
over the Premises and take necessary precautions to prevent interruption of any
utility service. However, should any interruption of any utility service occur as a
20
Page 27 of 45
XXXX
Exhibit A Page 21 of 38A
result of the Work, Developer shall bear the sole expense and cost regarding said
interruption.
7.15. Engineering and Inspection. Developer must at all times maintain proper facilities
and safe access for inspection of the Work by District and City inspectors.
7.16. Outside Agency Inspections. Developer shall make available for District inspection
all final outside agency inspection approvals (including but not limited to City
inspection approvals)when the Work is completed.
7.17. Hazardous Materials. Developer is alerted that Work in this Agreement involves
working environments that may be hazardous,contaminated,or non-hazardous to
activities associated with the excavation, handling,transportation,and disposal of
all excavated materials and other wastes in the project area with emphasis to
hazardous and contaminated materials. Such hazardous, contaminated,and non-
hazardous environments include, and are not limited to hazardous and non-
hazardous materials, soils, groundwater, heavy metals, petroleum hydrocarbons,
polynuclear aromatic hydrocarbons, organic compounds, serpentine rock and
ultramafic material (which may contain natural occurring asbestos - NOA), lead-
based paint materials, sewage, sludge, debris, grit, sewer gases,
bacterial/biological contamination, railroad ties, oxygen deficiency, and confined
spaces. In the performance of the Work, Developer shall implement a Health and
Safety Plan (HSP), provide full-time environmental oversite during drilling, and
utilize a Photoionization detector(PID)and visual observation to evaluate if spoils
are impacted with chemicals of potential concern (COPCs).
Developer shall legally dispose of off tidelands all hazardous waste, hereinafter
"Waste", extracted or removed by Developer in connection with this Agreement
and the Work on the Premises. Developer shall be responsible for managing and
disposing of said Waste in accordance with all applicable laws and regulations.All
Waste,including but not limited to hazardous and non-hazardous Waste,shall only
be disposed at permitted California landfills (22 CCR 66262), equivalent out-of-
state landfills (40 CFR 262), and permitted recycling facilities. In addition,
Developer or its contractor shall list itself as the generator of said Waste on the
disposal facility's waste manifest and any waste disposal profile. In any event,
Developer shall not store such Waste on the Premises for any period of time.
Notwithstanding the foregoing, Developer shall be permitted to store all spoils on
the Premises for such period of time as is reasonably necessary to classify such
spoils as hazardous or non-hazardous and to await transportation of the hazardous
spoils in conformance with all applicable laws and regulations.
7.18. Assumption of Risk. Developer assumes all responsibility and risk for any damage
and/or consequence resulting from Developer's activities, including without
21
Page 28 of 45
XXXX
Exhibit A Page 22 of 38A
limitation access to the Premises, the Work and all costs associated therewith.
Developer shall repair any damage to the Premises, including without limitation,
any damage to the improvements of the District, arising out of or resulting from
Developer's activities, including without limitation, the Work and access to the
Premises, and at the election of the District, restore the Premises, to the
reasonable satisfaction of the District. Developer shall repair any damage to the
Premises including without limitation, any damage to the improvements of the
District, prior to the expiration of this Agreement. Developer agrees to perform the
Work in accordance with the plans and specifications approved by the District.
7.19. Securing Premises. Prior to commencement of construction of the Work, where
applicable, Developer shall secure the Premises where Work is being performed
with temporary fencing which shall remain until such time as that Work is complete.
7.20. RV Park Excluded. Notwithstanding anything in this Agreement to the contrary,
the Right-of-Entry License shall not include the right to enter any portion of the
Premises set forth on Exhibit"A-2"as"Encumbered,"which is currently occupied
by Sun Chula Vista Existing Park RV LLC, a Michigan limited liability company
operating as the Chula Vista RV Resort pursuant to Tideland Use and Occupancy
Permit dated February 28,2019 between the District and Sun Chula Vista filed in
the Office of the District Clerk as Document No. 69412.
8
MISCELLANEOUS PROVISIONS
8.1. Draftinq Party. The District,City,Authority,and Developer acknowledge and agree
that this Agreement has been agreed to by the District, City, Authority, and
Developer, that the District, City, Authority, and Developer 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 District, City,Authority, or Developer shall not
be construed to raise any presumption, canon of construction or implication,
including, without limitation, any implication that the District, City, Authority, or
Developer intended thereby to state the converse of the deleted language. Unless
otherwise specified in this Agreement, any approval or consent to be given by
District, City, Authority, or Developer may be given or withheld in the sole and
absolute discretion of District, City,Authority,or Developer, respectively.
8.2. Incorporation of Recitals. All recitals above are incorporated into this Agreement
and are made a part hereof.
8.3. Venue. 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
22
Page 29 of 45
XXXX
Exhibit A Page 23 of 38A
the State of California.
8.4. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which shall constitute one Agreement after
each Party has signed such a counterpart.
8.5. 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 transactions contemplated hereby shall
be deemed to include electronic signatures and contract formations on electronic
platforms approved by the Parties, or the keeping of records 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.
8.6. Dispute Resolution. The Parties shall, before the filing of any lawsuit or court
action against any other Party relating to this Agreement or the Work, attempt in
good faith to settle the dispute through non-binding third party mediation.
8.7. Administrative Claims Requirements and Procedures. No suit shall be brought
arising out of this Agreement against City unless a claim has first been presented
in writing and filed with City and acted upon by City in accordance with the
procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same
may be amended,the provisions of which, including such policies and procedures
used by City in the implementation of same, are incorporated herein by this
reference. No suit shall be brought arising out of this Agreement against District or
Authority unless a claim has first been presented in writing and filed with District or
Authority, respectively, and acted upon by District or Authority, respectively, in
accordance with the procedures set forth in the Government Claims Act
(Government Code sections 900 et seq.)
8.8. 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
23
Page 30 of 45
XXXX
Exhibit A Page 24 of 38A
THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX
26000, SACRAMENTO, CA 95826.
[Remainder of page intentionally left blank.]
24
Page 31 of 45
XXXX
Exhibit A Page 25 of 38A
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the
date and year first written above.
SAN DIEGO UNIFIED PORT APPROVED AS TO FORM AND LEGALITY:
DISTRICT,a public corporation GENERAL COUNSEL
By: By:
Tony Gordon Assistant/Deputy
Director, Real Estate
RIDA CHULA VISTA,LLC,a Delaware limited liability company
By:
Name:
Its:
California Contractor License Number: 1039979
CITY OF CHULA VISTA,a municipal corporation
By:
Name
Title
Approved as to form:
25
Page 32 of 45
XXXX
Exhibit A Page 26 of 38A
By:
Glen R. Googins
City Attorney
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY,
a California joint exercise of powers authority
By:
], Executive Director
Approved as to form and legality:
COUNSEL
By:
Thomas A. Russell,General Counsel, San Diego Unified Port District
Co-Counsel
By:
Glen Googins, City Attorney, City of Chula Vista
Co-Counsel
26
Page 33 of 45
XXXX
Exhibit A Page 27 of 38A
EXHIBIT"A-1"
PROPERTY DESCRIPTION
Those areas generally shown as the"Premises"in the attached Exhibit"A-2"(Map Identifying the Premises)which include
portions of Parcel H-3,Parcel H-8,Parcel HP-1(N),Parcel HP-1 S,Parcel HP-313,Parcel HP-11,and Parcel H-9 ofthe Chula
Vista Bayfront Master Plan and surrounding areas,but specifically excluding that portion marked as"Encumbered".Such
"Premises"shall not include any areas outside the premises boundary of the Coastal Development Permit filed in the Office
of the District Clerk as Document No,70152.
A-1 Exhibit A
Page 34 of 45
XXXX
Exhibit A Page 23 of 33A
EXHIBIT"A.2"
MAP IDENTIFYING THE PREMISES
(See attached)
i
Encumber�d � i,
vf
)Y
0
A-2 Exhibit A
Page 35 of 45
XXXX
Exhibit A Page 29 of 38A
EXHIBIT"B"
DESCRIPTION OF EARLY PHASE 1A INFRASTRUCTURE WORK
1. Sandpiper SDG&E Re-feed
Trench, backfill, and install conduits and cabling on Marina Parkway from approximately 100'
southerly of Sandpiper, northerly along Marina Parkway, then westerly along Sandpiper to an
existing SDGE service point at the corner of N-S and E-W Sandpiper. Includes the installation of
SDGE Infrastructure. Upon completion of connections,remove all SDG&E cabling in N-S section
of Sandpiper to G Street.
Sandpiper SDG&E Re-feed is temporary. The Phase 1A infrastructure includes services that will
feed this service from H Street(when constructed).
Easements required: E-W Sandpiper is a Port Street, an easement for SDGE is required.
Expected duration of easement necessity is 2 years after which time the easement could be
terminated and new permanent easement and service from H Street is provided.
Trenching,backfill,and conduit work will be performed by RIDA Chula Vista, LLC,Subcontractor
yet to be selected. Cabling work will be performed by SDG&E.
2. Sandpiper AT&T Re-feed
Trench and install conduits and cabling on Marina Parkway from G Street southerly along Marina
Parkway,then westerly along Sandpiper to an existing AT&T service point adjacent to the existing
RV Park. Includes the installation of AT&T Infrastructure. Upon completion of connections,
remove all AT&T cabling in N-S section of Sandpiper to G Street.
That portion of the Sandpiper AT&T on Marina Parkway and Utility Corridor is Permanent. That
portion of the Sandpiper AT&T Re-feed on E-W Sandpiper is temporary and will be replaced with
a service from H Street(when constructed).
Easements required: AT&T has no existing easements in the H-3 project area. Marina Parkway
is currently a City of CV Street. No temporary easements to AT&T are currently proposed. A
permanent easement in the Utility Corridor will be provided prior to Hotel Occupancy.
Conduit work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected.
Cabling work will be performed by AT&T.
3. G Street and Sandpiper Gas removal/abandonment
Cap existing gas main at G Street/Marina Parkway. Excavate and remove existing gas main on
G Street from Marina Parkway to Sandpiper. Abandon existing gas main in Sandpiper from G
Street south.
Work is permanent. No easements are required.
All work will be performed by SDG&E.
4. Rohr Gas RFS
Cap existing Rohr Gas main in Marina Parkway at the Sandpiper Intersection. Excavate and
remove existing Rohr Gas main in Marina Parkway from Sandpiper,northerly to existing service
at Rohr. All work is performed by SDG&E.
B-1 Exhibit B
Page 36 of 45
XXXX
Exhibit A Page 30 of 38A
Work is permanent. Marina Parkway is currently a City of CV street. No temporary easements
are required. H Street(Marina Parkwayto Bay)must be dedicated as a public street or permanent
easement prior to Hotel Occupancy.
All work will be performed by SDG&E.
5. G Street Overhead Interim Relocation
Install interim overhead utility poles and SDG&E and AT&T cabling from Marina Parkway/G Street
Intersection,westerly at the edge of the limits of work of the Gaylord Pacific Project(northerly of
existing and proposed G Street) to the Sandpiper/G Street Intersection. Trench and install
conductors to the existing underground SDGE and AT&T infrastructure in G Street. Remove
existing overhead utility poles and cabling on G Street from Marina Parkway westerly.
G Street OH Interim relocation is temporary. The Phase 1A infrastructure includes services that
will feed this service in G Street(when constructed).
Easements required: An easement for the alignment is required and combined with the temporary
construction site power. Expected duration of easement necessity is 3 years.
Underground excavation,trenching,conduit,and pavement repair will be performed by RIDA. All
overhead pole and wiring installations and removals will be performed by SDG&E and AT&T.
6. Sandpiper Water and Sewer Caps
Cap existing sewer at G Street/Sandpiper intersection. Cap existing water mains at G
Street/Sandpiper,the Southwest Sandpiper turn,westerly end of Bayside Parkway,and north end
of Quay Avenue all to remove water service from the North-South section of Sandpiper Way
Work is permanent. No easements are required.
All work will be performed by RIDA Chula Vista, LLC,Subcontractor yet to be selected.
B-2 Exhibit B
Page 37 of 45
XXXX
Exhibit A Page 31 of 38A
EXHIBIT"C"
ACKNOWLEDGMENT AND DISCLOSURE
REGARDING ENVIRONMENTAL CONDITIONS
C-1 Exhibit C
Page 38 of 45
XXXX
Exhibit A Page 32 of 38A
ACKNOWLEDGMENT AND DISCLOSURE REGARDING ENVIRONMENTAL
CONDITIONS
IT IS HEREBY ACKNOWLEDGED BY RIDA Chula Vista, LLC,a Delaware limited liability
company, a "Right of Entry Developer", hereinafter "Developer", and the San Diego
Unified Port District, a public corporation, hereinafter "District",that:
1. Certain Environmental Conditions may: (a) exist at, under, on,or near: (i)the Premises,
as defined in the Chula Vista Bayfront Project Phase 1 A Early Work Implementation and
Right of Entry License Agreement by and among the District, Developer, City of Chula
Vista, a chartered municipal corporation ("City"), and the Chula Vista Bayfront Facilities
Financing Authority, a California joint exercise of powers authority ("Authority") dated
, 2021, hereinafter"Agreement", (ii) the Approved Routes, as defined in the
Agreement; and (iii)property which is contiguous, upgradient,or otherwise in the vicinity
of the Premises and Approved Routes, hereinafter "Surrounding Property"; and (b) be
encountered during activity undertaken pursuant to the Agreement, including without
limitation the Work,as defined therein.
For purposes of this Acknowledgment and Disclosure, the term "Environmental
Conditions" means: (a)any environmental conditions,circumstances,or other matters of
fact pertaining to, relating to, or otherwise affecting the environment, including without
limitation: (i) any natural resources (including flora and fauna), soil, surface water,
groundwater, any present or potential drinking water supply, subsurface strata, or the
ambient air; and (ii) the presence, use, handling, storage, treatment, recycling,
generation, transportation, release, spilling, leaking, pumping, pouring, emptying,
discharging, injecting, escaping, leaching, dumping, or disposal (including without
limitation the abandonment or discarding of barrels, containers, and other closed
receptacles and fill materials containing any hazardous materials, hazardous wastes, or
toxic substances); and (iii) the threatened release of hazardous materials, hazardous
wastes, or toxic substances; and (b) the exposure of any persons (including without
limitation lessees, licensees, permittees, or other users of the Premises, Approved
Routes and/or Surrounding Property)to hazardous materials,hazardous wastes,or toxic
substances; and (c) the exposure of other natural persons within or outside the
boundaries of the Premises, Approved Routes, and/or the Surrounding Property to
hazardous materials, hazardous wastes, or toxic substances related to or otherwise
arising from operations, acts, omissions, or other conduct at the Premises, Approved
Routes,and/or Surrounding Property(as the case may be).
2. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property developed as a result of sampling,
C-2 Exhibit C
Page 39 of 45
XXXX
Exhibit A Page 33 of 38A
testing, and analysis undertaken from time to time by District, District tenants,third-party
contractors and/or others, may be contained in certain District files, hereinafter"District
Files".Subject to reasonable confidentiality assurances from Developer, District will make
District Files available to Developer for review. District has not undertaken to conduct,
and District Files do not represent a comprehensive analysis of Environmental Conditions
at, under,on, or near the Premises,Approved Routes,and/or Surrounding Property.
3. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property may be contained in Developer's files,
hereinafter"Developer's Files".
4. Information relating to Environmental Conditions at, under, on, or near the Premises,
Approved Routes, and/or Surrounding Property may be contained in the files of other
governmental entities or agencies, including without limitation the San Diego Regional
Water Quality Control Board, San Diego Department of Health Services, San Diego Air
Pollution Control District, Chula Vista Fire Department, City of Chula Vista, California
Department of Toxic Substances Control, California Environmental Protection Agency,
and Region IX of the United States Environmental Protection Agency, hereinafter
"Agency Files".Said Agency Files are readily available to Developer.
District's knowledge and files regarding Environmental Conditions at, under, on, or near
the Premises,Approved Routes, and/or Surrounding Property are not complete. District
has encouraged Developer to review all readily available information relating to such
Environmental Conditions, including the: (a) EIR/RAP/RIFS,etc., if available; (b) District
Files; (c) Developer's Files: and (d) Agency Files, hereinafter collectively "Readily
Available Information",to ascertain to the fullest extent possible the nature and existence
of Environmental Conditions at, under, on, or near the Premises, Approved Routes,
and/or Surrounding Property. Developer hereby assumes responsibility for ascertaining
any information contained in the Readily Available Information.
S. Neither District nor Developer makes any representation or warranty,express or implied,
in this Acknowledgment and Disclosure,the Agreement or otherwise, regarding the: (a)
presence, extent, impact, or consequences,whether foreseeable or unforeseeable, of
any Environmental Conditions at, under, on, or near the Premises, Approved Routes,
and/or Surrounding Property, or (b) suitability of the Premises in any respect for any
purpose intended by Developer under the Agreement.
C-3 Exhibit C
Page 40 of 45
XXXX
Exhibit A Page 34 of 38A
ACKNOWLEDGED AND DISCLOSED:
SAN DIEGO UNIFIED PORT APPROVED AS TO FORM AND LEGALITY:
DISTRICT,a public corporation GENERAL COUNSEL
By: By:
Tony Gordon Assistant/Deputy
Director, Real Estate
ACKNOWLEDGED AND ACCEPTED:
RIDA Chula Vista,LLC,a Delaware
limited liability company
By:
Name:
Its:
California Contractor License
Number: 1039979
C-4 Exhibit C
Page 41 of 45
XXXX
Exhibit A Page 35 of 38A
EXHIBIT"D"
CERTIFICATE OF INSURANCE
(See attached)
D-1 Exhibit D
Page 42 of 45
XXXX
Exhibit A Page 36 of 38A
SDUPD - REAL ESTATE
SAN DIEGO UNIFIED PORT DISTRICT
CERTIFICATE OF INSURANCE
By signing this form,the authorized agent or broker certifies the following;
(1) The Policy or Policies described below have been issued by the rioted Insunyi(s)[Insurance Cornpany(ies)j to the Insured and
is(are)In force at this time.
(2) As required in the Insureds a9fisement(s)with the District,the policies include,or have been endorsed to include,the
coverages.,conditions of coverage noted an page 2 ofribis certificate.
(3) Signed copies of all endorsements issued to effect require coverages or conditions of coverage are attached to this
certificate.
Return thisform to; San Diego Unified Port District
c/o I
P.O.Box 100085-185
Duluth,GA 30099—OR—
Email:port gt
flandrisoo fteox.com
—OR—
Fax: 1-866-866-6516
Name and Address of Insured (Tenant)
SDUPD Agreement Number
This certificate applieslo all operations of named Insureds In
connection with this agreement botmen the District and Ensured_
COLTR TYPE OF INSURANCE POLICY NO. DATES LIMITS
Crua—Cl.]General Liability Inception Date: Each Occurrence:
F, 0-ricede Rxm
L Liquor Liability
DedububldISIR: Expiration Date: General Aggral
Property Inception Date Real Property
D All Ri,k.fPhysical Damage $
Dedi Expiration Date: Personal Property
Excess/Umbrella Liability Inception Date Each giccurrenco:
Expiration Date:
General Aggregate:
CO LTR COMPANIESAFFORDING COVERAGE BESrS RATING
A
B
C
D
A M Best Fine,64 Ratings of In-c—c C.rursu—Affa ding Coverage Must be A-VII or better unless approved in valung by the District.
Name and Address of Authodzed Agent(s)or 81 Phone.Numbers
Toll Free: Nurnbec
a mail address
Signature of Authorized Agent s)or Brokerts)
Date
D-2 Exhibit D
Page 43 of 45
XXXX
Exhibit A Page 37 of 38A
SDUPD - REAL ESTATE
SAN DIEGO UNIFIED PORT DISTRICT
REQUIRED INSURANCE ENDORSEMENT
ENDORSEMENT NO. EFFECTIVE DATE POLICY NO.
NAMED INSURED:
GENERAL DESCRIPTION OF AGREEMENT(S)ANWOR ACTIVITY(IES):
All written agreements,contracts,and leases with the San Diego Unified Port District and/or any
and all activities or work performed on District owned premises.
Notwithstanding any inconsistent statement in the policy to which this endorsement is attached or
in any endorsement now or hereafter attached thereto,it is agreed as follows:
1. The San Diego Unified Port District, its officers,agents,and employees are additional insureds in
relation to those operations, uses,occupations,acts,and activities described generally above, including
activities of the named insured, its officers, agents, employees or invitees, or activities performed on
behalf of the named insured.
2. Insurance under the policy(ies)listed on this endorsement is primary and no other insurance or self-
insured retention carried by the San Diego Unified Port District will be called upon to contribute to a loss
covered by insurance for the named insured.
3. This endorsement shall include a waiver of transfer of rights of recovery against the San Diego Unified
Port District("Waiver of Subrogation").
4. The policy(ies)listed on this endorsement will apply separately to each insured against whom claim is
made or suit is brought except with respect to the limits of the insurer's liability,
5. As respects the potcy(ies) listed on this endorsement, with the exception of cancellation due to
nonpayment of premium,thirty(30)days written notice by certified mail,return receipt requested,will be
given to the San Diego Unified Port District prior to the effective date of cancellation. In the event of
cancellation due to nonpayment of premium,ton(10)days written notice shall he given.
Except as stated above,and not in conflict with this endorsement,nothing contained herein shall be held
to waive, after or extend any of the limits, agreements or exclusions of the policy(ies) to which this
endorsement applies
(NAME OF INSURANCE COMPANY)
(SIGNATURE OF INSURANCE COMPAtdY AUTI IORIZED REPRESENTATIVE)
MAIL THIS ENDORSEMENT AND NOTICES OF CANCELLATION TO:
San Diego Unified Port District
clo Ebix
P.O.Box 100085-105
Duluth,GA 30096-OR-
Email to:Portolsangreagagpix.corn
-OR-
Fax; 1-866-866-6516
D-3 Exhibit D
Page 44 of 45
XXXX
Exhibit A Page 38 of 38A
EXHIBIT"E"
BUDGET
RIDA Chula Vista, LLC Phase IA Early-Work.Draft
It., D-1 1ptl.11
A FLkRD CONSTRUC"FlON"COSTS S 362,000
-SDG&E conduit&AT,I reroute
B SDG&E COSTS S 62,924
Smulpip.,el-trical Weed&di,,.u.-t Rl'pnrk
AT&T COSTS S 120,000
Sandpiper d-fii,.l rd—i
D G&A 5 20,000
F PAYMENT DONDS S 11,660
G PERME1 FEES S 20,000
H INSURANCE 1., 2,000
I CONEEN GENC Y 10-i d tots] S 62,404
J SDC;,',E TOT HOLING S 36,120
TOTAL PROJEC T COST: ' S
E-1 Exhibit E
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