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SITE LEASE
(CHULA VISTA BAYFRONT CONVENTION CENTER)
by and between
SAN DIEGO UNIFIED PORT DISTRICT, as Lessor
and
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY,
as Lessee
Dated as of ___________, 2022
Relating to
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
(CHULA VISTA BAYFRONT CONVENTION CENTER)
$__________
Series 2022A (Federally Taxable)
$__________
Series 2022B (Tax-Exempt
TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS .......................................................................................................... 2 SECTION 2. TERMS AND LIMITATIONS ON LEASE OF SITE .............................................. 2 SECTION 3. TERM ........................................................................................................................ 3 SECTION 4. CONSIDERATION FOR LEASE OF THE SITE .................................................... 3 SECTION 5. PURPOSE .................................................................................................................. 3 SECTION 6. REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS ........................................................................................................ 5 SECTION 7. ASSIGNMENTS, SUBLEASES AND OTHER TRANSFERS ............................... 7 SECTION 8. ENCUMBRANCES NO RIGHT TO BIND PORT .................................................. 7 SECTION 9. QUIET ENJOYMENT .............................................................................................. 7 SECTION 10. ACTIONS ON TERMINATION; RELEASE OF ENCUMBRANCE ..................... 7 SECTION 11. EFFECT OF DISCHARGE OF ALL BONDS AND ADDITIONAL BONDS ...................................................................................................................... 8 SECTION 12. INSPECTION OF FACILITY AND ACCESS TO RECORDS ............................... 9 SECTION 13. EMINENT DOMAIN ................................................................................................ 9 SECTION 14. DAMAGE OR DESTRUCTION ............................................................................ 10 SECTION 15. HAZARDOUS MATERIALS ................................................................................. 10 SECTION 16. EVENTS OF DEFAULT ......................................................................................... 11 SECTION 17. REMEDIES ON DEFAULT ................................................................................... 11 SECTION 18. “AS-IS LEASE AND WAIVERS.” ........................................................................ 11 SECTION 19. EQUAL EMPLOYMENT OPPORTUNITY/NONDISCRIMINATION AND OFAC ............................................................................................................. 14 SECTION 20. WAIVER ................................................................................................................. 15 SECTION 21. END OF TERM ....................................................................................................... 15 SECTION 22. BINDING EFFECT ................................................................................................. 15 SECTION 23. NO MERGER .......................................................................................................... 15 SECTION 24. PARTIAL INVALIDITY ........................................................................................ 16 SECTION 25. GOVERNING LAW; COMPLIANCE WITH LAW; VENUE .............................. 16 SECTION 26. LANDLORD TRANSFER ...................................................................................... 16 SECTION 27. TIME OF ESSENCE ............................................................................................... 16 SECTION 28. REPRESENTATIVES ............................................................................................. 17 SECTION 29. LIMITATION ON LIABILITY .............................................................................. 17 SECTION 30. NOTICES ................................................................................................................ 17 SECTION 31. FURTHER ASSURANCES AND CORRECTIVE INSTRUMENTS ................... 19
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SECTION 32. AMENDMENT ....................................................................................................... 19 SECTION 33. ENTIRE AGREEMENT; THIRD PARTY BENEFICIARY .................................. 20 SECTION 34. BROKERS ............................................................................................................... 20 SECTION 35. CAPTIONS .............................................................................................................. 20 SECTION 36. EXECUTION IN COUNTERPARTS ..................................................................... 20 SECTION 37. DRAFTING PRESUMPTION; REVIEW STANDARD ........................................ 21 SECTION 38. TRANSACTION COSTS ........................................................................................ 21 SECTION 39. CONSTITUTIONAL RIGHTS ............................................................................... 21 SECTION 40. CONSENTS ............................................................................................................. 21 SECTION 41. MEMORANDUM OF LEASE ................................................................................ 21 SECTION 42. PROJECT IMPLEMENTATION AGREEMENT .................................................. 21
EXHIBIT A Legal Description of Site
EXHIBIT B Plat Map of Site
EXHIBIT C Facility Lease
EXHIBIT D Sublease
EXHIBIT E Definitions Addendum
EXHIBIT F Port Documents
EXHIBIT G Port Documents to be Assumed on Landlord Transfer EXHIBIT H Approved Agreements
EXHIBIT I Prior Agreements
EXHIBIT J Memorandum of Lease
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SITE LEASE
THIS SITE LEASE (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Site Lease”) is made and entered into as of ___________, 2022, by and between the SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (the “Port”), as lessor, and the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a Californi a joint exercise of powers authority (the “JEPA”) established and existing pursuant to an Amended and Restated Joint Exercise of Powers Agreement, dated and effective as of July 25, 2019 ( as amended, amended and restated, supplemented or otherwise modified from time to time, the “JEPA Agreement”) by and between the City of Chula Vista, a California charter city (the “City”) and the Port, as lessee.
WITNESSETH:
WHEREAS, the JEPA, the Port and the City have determined it to be beneficial, for the JEPA to acqu ire a leasehold interest in certain real property described in Exhibit A hereto and depicted in Exhibit B hereto (the “Site”) and the Existing Improvements (defined herein) thereon upon which the Convention Center (defined herein) to be owned by the JEPA will be constructed and operated; and
WHEREAS, RIDA Chula Vista, LLC, a Delaware limited liability company (together with its permitted successors and assigns as the tenant under the Sublease, “RIDA”) holds a leasehold interest in certain real property whic h is immediately adjacent to the Site (the “Ground Lease Property”) described in and pursuant to a Lease, entered into as of ______, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Ground Lease”), by and b etween the Port, as landlord, and RIDA, as tenant on which RIDA will be constructing a resort hotel (the “Hotel”) in accordance with the requirements of the Ground Lease; and WHEREAS, given the proximity of the proposed Hotel to the Site, the JEPA, the Port and the City have determined it to be beneficial to have RIDA construct the Convention Center on behalf of the JEPA and operate the Convention Center; and
WHEREAS, the Port and the City have agreed to cause the JEPA to pay for the costs of the Convention Center and for certain infrastructure benefiting the Hotel and Convention Center, and a portion of such costs will be financed by the JEPA through the issuance of the Bonds (defined herein); and
WHEREAS, such financing will be accomplished through the iss uance of the Bonds by the JEPA which will be payable, in part, from lease payments made by the City to the JEPA under a Facility Lease, dated as of the date hereof, in the form attached hereto as Exhibit C (as amended, amended and restated, supplemented or otherwise modified from time to time , the “Facility Lease”), by and between the JEPA, as lessor, and the City, as lessee, pursuant to which the City will sublease from the JEPA the Site and the Existing Improvements (defined herein) and lease from the JEP A the Convention Center (the Convention Center, the Site and the Existing Improvements are referred to collectively herein as the “Facility”); and
WHEREAS, the City will sub -sublease the Site and Existing Improvements to RIDA and sublease the Convention Ce nter to RIDA in accordance with the terms of a Sublease dated the date
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hereof, in the form attached hereto as Exhibit D (as amended, amended and restated, supplemented or otherwise modified from time to time , the “Sublease”), by and between the City, as su blessor, and RIDA, as sublessee; and
WHEREAS, the JEPA, Port, City, and RIDA are entering into that certain Project Implementation Agreement (Chula Vista Bayfront Resort Hotel and Convention Center), dated concurrently herewith (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Project Implementation Agreement”); and WHEREAS, the parties hereto intend that, during the Term, the Convention Center will be owned by the JEPA and operated and maintained by RIDA pursuant to the Sublease so long as the Sublease is in effect; and
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other valuable consideration, it is hereby mutually agreed as follows:
Section 1. Definitions. Capitalized terms used but no t defined herein shall have the meanings set forth in Exhibit E hereto and if not defined therein then shall have the meaning set forth in the Indenture, dated as of the date hereof (the “Indenture”), by and between the JEPA and Wilmington Trust, N.A., as trustee (the “Trustee”), pursuant to which the Bonds are issued.
Section 2. Terms and Limitations on Lease of Site.
(a) Lease of the Site/Commencement of the Lease Term . The Port consents to the terms of the Facility Lease and the Sublease in the form attached as Exhi bit C and Exhibit D, respectively. The Port hereby leases the Site and the Existing Improvements to the JEPA and the JEPA hereby leases the Site and the Existing Improvements from the Port, on the terms and conditions set forth herein. For purposes of Se ction 1938 of the California Civil Code, the Port hereby discloses to the JEPA and the JEPA hereby acknowledges, the Site has not undergone an inspection by a Certified Access Specialist.
(b) Reservations. The JEPA shall take possession of the Site subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit H attached hereto and incorporated herein by reference (“Approved Agreements”). (c) Limitation on Port Encumbrances . The Port shall not, without the prior written consent of the JEPA, the subtenant under the Facility Lease and the sub -subtenant under the Sublease and, while any Permitted Financing Encumbrance remains outstanding or during any New Lease Period (as defined in the Sublease) , each Permitted Lender, which consent shall not be unreasonably withheld, conditioned or delayed, encumber the Facility during the Term or during any New Lease Period, except for (i ) the Financing District and any modifications thereto to which each of the JEPA, the subtenant under the Facility Lease and the sub -subtenant under the Sublease agrees, in each of their reasonable discretion, (ii) as permitted under this Section 2(c), or (iii) as required by Laws; provided, that no lien or encumbrance pursuant to this clause (iii) shall be senior in priority to this Site Lease, the Facility Lease or the Sublease . The Trustee is a third party beneficiary of this Section 2(c).
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Section 3. Term.
(a) The term of this Site Lease (the “Term”) shall commence on the Closing Date and shall remain in effect until the earlier of: (i) _____________, 2059; or (ii) the date of termination of the Facility Lease as provided for in Sections 4.2, 6.1(c) and 6.1(d)(ii) of the Facility Lease.
(b) Notwithstanding anything to the contrary contained h erein (but subject to Section 3(d) below), i f (i) the Ground Lease has terminated for a reason other than ( A) an Event of Default (as defined in the Ground Lease) or (B) pursuant to RIDA ’s exercise of a right to terminate the Ground Lease and ( ii) in accor dance with Laws, RIDA remains in possession of the Ground Lease Property notwithstanding such termination, then, on the date that is the 37th anniversary of the Closing Date, this Site Lease shall be extended for 29 years on the terms and conditions set fo rth in this Site Lease with such modifications to the provisions with respect to the payment of rent so that for any period of time following such extension, the sum of the rent to be paid under this Site Lease and the Rent (as defined in the Ground Lease) to be paid under the Ground Lease will equal the Rent (as defined in the Ground Lease) that would have been paid under the Ground Lease as if the Expansion Date had occurred and the Ground Lease had not been terminated. (c) If any Ground Lease Expansion Amendment (as defined in the Ground Lease) is not executed before the expiration or termination of the Sublease (except for any termination pursuant to Section 5.1(d), Section 5.2(b) or Section 8.2(a) of the Sublease), then the Term shall be extended to the d ate that is sixty-six years from the Closing Date, on the terms and conditions set forth in this Site Lease with such modifications to the provisions with respect to the payment of Rent so that for any period of time following such extension, the Rent to b e paid under this Site lease will be the amount equal to the difference between (x) the Rent (as defined under the Ground Lease) that would have been paid under the Ground Lease without the Expansion Date having occurred. [RIDA is a third party beneficiary of this Section 3(c).]
(d) Notwithstanding anything in this Site Lease to the contrary, (i) this Site Lease shall not terminate or be rejected while any of the Facility Lease or the Sublease are in effect; provided, however, in no event shall the Term be extended beyond the date which is sixty -six (66) years from the Closing Date; and (ii) the Ground Lease shall not be deemed terminated for any purpose under this Site Lease if a New Lease (as defined in the Ground Lease) is entered into pursuant to the terms of the Ground Lease.
Section 4. Consideration for Lease of the Site . The JEPA shall pay, upon the commencement of this Site Lease, to the account of the Port as and for rental of the Site hereunder for the entire Term, the sum of $1. As additional consideration for the leasing of the Site to it hereunder, the JEPA covenants to execute and deliver the Facility Lease, the Indenture, the CFD Loan Agreement and the Project Implementation Agreement, perform its obligations thereunder and, pursuant to the Indenture, as sign certain of its rights under the Project Implementation Agreement, the Facility Lease, the CFD Loan Agreement and this Site Lease to the Trustee for the benefit of the Owners of the Bonds, cause the City to enter into the Sublease, and cause RIDA to co nstruct the Convention Center pursuant to the terms of the Project Implementation Agreement.
Section 5. Purpose. The JEPA shall use the Site solely for the Permitted Use which shall be (i) the construction and operation of the Convention Center on the Site (the “Pr imary Use”); (ii) any use which is ancillary or incidental to the Primary Use as described in the following
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paragraph; and (iii) any other use of the Facility that is approved by the Port in its sole and absolute discretion in writing; provided that any such uses are not restricted or prohibited by the CDP or any Laws.
The Permitted Use shall include the following uses that are ancillary or incidental to the Primary Use and that are designed primarily for Convention Center guests, visitors or employees:
(i) Rental of meeting space;
(ii) Full-service restaurant and/or limited service restaurant, including cocktail lounge and any standalone bar or cocktail lounge;
(iii) Snack bar, delicatessen and/or coffee shop(s);
(iv) Banquet and other food and beverage uses;
(v) Retail shop(s);
(vi) Barber and beauty shop;
(vii) Spa services;
(viii) Health, recreational, and tennis facilities, including recreational lessons; (ix) Bicycle rentals;
(x) Rental of automobiles;
(xi) Motorcycle rentals;
(xii) Boat rentals, beach equipment rentals and beach-related services; (xiii) Special tempora ry exhibition(s), including production shows (including any and all uses in connection with the production of ICE! (including the use of the ICE! tent as temporary additional meeting space when such ICE! tent is not used for purposes of the ICE! production)) and outdoor entertainment (including ice skating and carnivals); (xiv) Vending machines, including telephones;
(xv) Office and counter areas for Convention Center management and other ancillary services that are consistent with services provided by a convention ce nter and/or a conference center comparable with the Convention Center; (xvi) Back-of-house activities consistent with services provided by a convention center and/or conference center comparable with the Convention Center, including but not limited to a shipping center, truck yard loading and unloading, sales, human resources, management, information technology management, repair and storage, employee cafeteria, employee gymnasium or other recreation space, and employee locker room or other storage and changing areas; (xvii) Office and logistics services;
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(xviii) Construction, operation and maintenance of central plant facilities (including to serve the Resort Hotel);
(xix) Installation and hosting of telecommunications equipment; (xx) Building maintenance and workshop area;
(xxi) Parking and valet parking services;
(xxii) A security office;
(xxiii) A parking management office;
(xxiv) Storage areas consistent with services provided by a convention center or conference center comparable with the Convention Center; (xxv) Bicycle parking;
(xxvi) Electronic vehicle charging stations;
(xxvii) Shuttle bus loading, unloading and management areas; (xxviii) Restrooms;
(xxix) Any sign or other advertising device that complies with the CDP (as may be amended with the consent of the sub -subtenant under the Sublease ), the EIR and Laws and is (A) maintained or used to identify or advertise an establishment, occupancy, or service available on the Site, (B) temporarily displayed in conjunction with promotional events, (C) related to the construction or operation of the Improvements (including, for example, directional, identification and related signage) or (D) approved by the Port in its sole and absolute discretion; and (xxx) Each other use that (i) is ancillary or incidental to the Primary Use, (ii) is customary for a convention center and/or conference cen ter in the United States of America that is comparable with the Convention Center and (iii) is not prohibited by the CDP or any Laws.
The JEPA’s obligations and liabilities under this Section 5 are subject to Section 29(b).
Subject to Section 29(b), the JE PA agrees to comply with all project conditions and all applicable mitigation measures, including, without limitation, those contained in the final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environment al Impact Report,” (UPD# #83356-EIR-658, SCH #2005081077 ; Document 56562), including, but not limited to, the “Mitigation Monitoring and Reporting Program”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010 -79, adopted by the BPC on May 18, 2010 (collectively, the “EIR”), and in the CVBMP Documents.
Section 6. Representations, Warranties, Covenants and Agreements. (a) The Port represents and warrants to the JEPA that (i) it is duly authorized to execute, deliver and perform its obligations under this Site Lease, (ii) the execution, delivery and performance by the Port of this Site Lease will not conflict with or constitute a breach of any
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agreement or instrument by which the Port or its property are bound, (iii) upon execution an d delivery by the Port and the JEPA, this Site Lease will constitute a legally valid and binding obligation of the Port, enforceable pursuant to its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or sim ilar laws or equitable principles affecting the rights of creditors generally, and (iv) there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened against the Port in any way contesting or affecting the validity of this Site Lease or the authority of the Port to enter into this Site Lease.
(b) The JEPA represents and warrants to the Port that (i) it is duly authorized to execute, deliver and perform its obligations under this Site Lease, (ii) the execution, delivery and performance by the JEPA of this Site Lease will not conflict with or constitute a breach of the JEPA Agreement or any law, other agreement or instrument by which the JEPA or its property are bound, (iii) upon execution and delivery by the Port and the JEPA, this Site Lease will constitute a legally valid and binding obligation of the JEPA, enforceable pursuant to its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization, mo ratorium or similar laws or equitable principles affecting the rights of creditors generally , and (iv) there is no action, suit, proceeding or investigation at law or in equity before or by any court or governmental agency or body pending or threatened aga inst the JEPA in any way contesting or affecting the validity of this Site Lease or the authority of the JEPA to enter into this Site Lease. (c) The JEPA covenants that it shall use the Facility solely for the purpose set forth in Section 5 above.
(d) The JEPA cov enants that it will enter into the Facility Lease and diligently enforce the terms of the Facility Lease against the City, including the requirement that the City enter into the Sublease, which diligence shall be satisfied by providing written notice to th e City, with a copy to the Port and RIDA, of the City’s failure to comply with a term of the Facility Lease and proceeding to take such action or actions at law or in equity against the City, as are required under and pursuant to the terms of the Facility Lease.
(e) The JEPA and the Port each agree that the JEPA will be the owner of the Convention Center during the Term and , the Port will be the owner of the Convention Center upon the termination of this Site Lease and all tax filings will be made consistent wi th this understanding; provided, that the Parties acknowledge that the Port may not be the owner of the Convention Center upon the termination of this Site Lease in the event of (i) a casualty event that would result in the demolition of the Convention Cen ter with no replacement Convention Center being constructed, or (ii) the taking of the Convention Center in whole.
(f) The JEPA and Port each represents and warrants that, simultaneously with the execution and delivery of this Site Lease, it has executed and d elivered the Project Implementation Agreement pursuant to which RIDA is required to construct the Convention Center on the Site. (g) The JEPA covenants that if it receives any notice from the City of the expiration or intended cancelation of any insurance or reduction of coverage required under the Facility Lease or the Sublease, it shall promptly deliver such notice to the Port.
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Section 7. Assignments, Subleases and Other Transfers.
(a) The Port consents to the assignment by the JEPA of the Assigned Rights under the terms of the Indenture for the benefit of the Owners of the Bonds; provided, however, in no event shall the obligations of the JEPA hereunder be assigned to the Trustee. No other assignment of any of the JEPA’s rights hereunder shall be permitted without the c onsent of the Port, the JEPA and the Trustee. Upon the occurrence of an event of default under the Facility Lease, the Trustee may exercise any remedies assigned to it in the Facility Lease and in this Site Lease. (b) Except for the Facility Lease and Subleas e and any sublease, assignment or other transfer permitted pursuant to the terms of the Sublease, no other sublease, assignment or other transfer of the Facility or any portion thereof may be entered into or made without the written consent of the Port.
Section 8. Encumbrances No Right to Bind Port.
(a) Limitation on Encumbrances . Except for the Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances, the JEPA shall neither directly or indirectly, create, incur assume, nor suffer to exist any mortgage, pledge, liens, charges, encumbrances, claims, or hypothecation, on, with, or of this Site Lease or with respect to the Facility, or any part thereof or interest therein, without the prior written consent of the Port as to each such transaction, which consent shall not be unreasonably withheld, conditioned or delayed.
(b) Notice of Liens. Should any claims of lien be filed against the Facility or any action affecting the title to the Facility be commenced of which the JEPA has notice, the JEPA shall give the Port written notice thereof within five (5) Business Days of receipt , including any notice received by the JEPA from the City pursuant to Section 6.11 of the Sublease. (c) No Right to Bind the Port . The JEPA shall have no power or authority to do any act or thing, or to make any contract or agreement which shall bind the Port in any way whatsoever, and the Port shall have no responsibility to the JEPA or other Person who performs, causes to perform, engages in or participat es in any construction of any Improvements or any work on the Facility at the request of the JEPA or such other Persons. The Port shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom.
Section 9. Quiet Enjoyment. Subject to Sections 18 and 26 below, the JEPA at all times during the Term shall peaceably and quietly have, hold and enjoy all of the Site, subject to Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances.
Section 10. Actions on Termination; Release of Encumbrance. (a) Upon the expiration or earlier termination of this Site Lease, the JEPA shall peaceably surrender the Site to the Port in accordance with the end of Term obligations se t forth in this Site Lease, including without limitation, in the same good order and condition as of the commencement of the Term, reasonable wear and tear and any improvements permitted by this Site Lease, the Facility Lease, the Sublease or the Project Implementation Agreement excepted (subject to
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any demolition obligations with respect to any such improvements under the Sublease). If JEPA fails to surrender the Site at the expiration of this Site Lease or the earlier termination or cancellation thereof in the condition required under this Site Lease, in addition to Port’s other remedies, JEPA shall defend and indemnify Port from all liability and expense resulting from the delay or failure to surrender, including without limitation any succeeding tenant claims based on JEPA’s failure to surrender or Port’s failure to deliver the Site and loss of profits. (b) Immediately following the expiration or earlier termination of this Site Lease in accordance with its terms, the JEPA shall execute, deliver, and cause t o be recorded in the Office of the Recorder of San Diego County, all such documents, including but not limited to a quitclaim deed, as are necessary or advisable to fully release, of record, the encumbrance on title to the Facility which is caused by the t erms of this Site Lease and convey the Convention Center (excluding any trade fixtures, installed or constructed on the Site, which shall remain the personal property of RIDA) to the Port free and clear of any mechanics’ or materialmen’s liens and other en cumbrances (other than any lien for taxes that are not due and payable and, if the Expansion Date occurs, subject to RIDA’s interest in the Convention Center under the Ground Lease) and without compensation to the JEPA, City or RIDA. The JEPA shall therea fter take such actions and execute such documents as may further be necessary or advisable to fully evidence the termination of this Site Lease and the release of the Port and the JEPA from all of their respective obligations hereunder. Without limitation of the foregoing, JEPA hereby appoints the Port as JEPA’s attorney-in-fact to execute such deed in the name and on behalf of the JEPA and to record same in the official records of San Diego County, California. This power of attorney is irrevocable and co upled with an interest. Immediately following the expiration or earlier termination of this Site Lease in accordance with its terms, the JEPA agrees to cause the City to deliver to the JEPA all such documents as are necessary or advisable to fully release, of record, the encumbrances on title to the Facility which are caused by the terms of the Facility Lease and the Sublease, including, without limitation, any Site Lease Permitted Encumbrances, Facility Lease Permitted Encumbrances and Sublease Permitted Encumbrances, and transfer ownership of the Convention Center to the Port, including any such documents as are required from RIDA.
(c) This Site Lease shall terminate without further notice at expiration of the Term. Any holding over by the JEPA after either e xpiration or earlier termination of this Site Lease without Port’s prior written consent shall be tenancy at -sufferance upon all of the provisions of this Site Lease, except those pertaining to the Term, and except that the rent due hereunder shall be 150% of the Rent in effect under the Sublease prior to such expiration or termination; provided, however, that in the event of any holding over resulting from a failure by the City or RIDA to surrender the Facility to the JEPA, the JEPA’s liability to pay rent in such event will be limited as set forth in Section 29(b) herein. If the JEPA, with the Port’s consent, remains in possession of the Site after the expiration or earlier termination of this Site Lease, such possession shall be deemed a month -to- month tenancy terminable upon thirty (30) days’ notice furnished at any time by either party to the other party. All provisions of this Site Lease, except those pertaining to the Term, shall apply to the month-to-month tenancy, and the JEPA shall continue to pay all rent required by this Site Lease.
Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years.
Section 11. Effect of Discharge of All Bonds and Additional Bonds . In the event that all Bonds and Additional Bonds issued under the Indenture shall be deemed to have been paid and discharged in accordance with Section 9.3 of the Indenture (the “Discharge of the Bonds”) , then all references herein to the Bonds, Additional Bonds, Owners of the Bonds, Trustee, the Indenture and
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the Assigned Rights shall be of no force and effect as of the effective date of the Discharge of the Bonds. On the effective date of the Discharge of the Bonds, (i) the Assigned Rights shall revert to the JEPA without any further action on the part of the Trustee, the JEPA, the City or the Port, (ii) any amounts that were to have been paid to the Trustee shall be paid to the JEPA except for any Net Proceeds which shall be held pursuant to the terms of the Sublease and distributed in accordance with the provisions of the Facility Lease, the Sublease and the Project Implementation Agreement and, subject to the provisions of the Facility Lease, the Sublease and the Project Implementation Agreement, the Revenue Sharing Agreeme nt, or any other agreement between the Port, the City, the JEPA and RIDA governing the distribution of such amounts, and (iii) all rights granted to the Trustee and the Owners of the Bonds hereunder, including, but not limited to, the Assigned Rights and the right to enforce any remedies, to provide consent and to receive notice, shall be of no further force and effect.
Section 12. Inspection of Facility and Access to Records. (a) Inspection and Right of Entry . From and after the Convention Center Delivery Date, the Por t shall have the right but not an obligation to enter, view, inspect and determine the condition of the Facility, and protect its interests in the Site, during normal business hours and upon a three (3) Business Days’ prior notice to the JEPA, the subtenan t under the Facility Lease and the sub-subtenant under the Sublease (except in the case of an emergency in which case no prior notice shall be required but the Port shall notify the sub -subtenant under the Sublease) and the Port shall: (a) comply with all applicable security and safety procedures of the sub-subtenant under the Sublease , of which the sub-subtenant under the Sublease informs the Port in writing and with which the Port can reasonably comply, and (b) use commercially reasonable efforts to minim ize any interference with the operation and use of the Facility by the sub -subtenant under the Sublease , and by the tenant under the Ground Lease of the Ground Lease Property, the Hotel and the Parking Improvements (defined in the Ground Lease), while on the Site and at the Convention Center . If the Port determines that the Site and/or the Improvements are not in the condition required pursuant to the terms of the Facility Lease and the Sublease, the Port shall deliver written notice to the JEPA detailing the items to be corrected and the JEPA shall deliver such notice to the City and direct the City to deliver such notice to RIDA and to cause RIDA to undertake the necessary maintenance, alteration, repair, replacement and rebuilding work necessary to reme dy the issues set forth in the Port’s notice to be commenced within ten (10) days after receipt of such written notice from the Port and diligently pursue such work to completion, as and to the extent required pursuant to the terms of the Sublease.
(b) Records. The Port shall have the right to examine and receive electronic copies of all records of the JEPA and any records of the sub -tenant under the Facility Lease and the sub-subtenant under the Sublease required to be maintained thereunder and to which the J EPA has the right of access.
Section 13. Eminent Domain. In the event the whole or any part of the Facility is taken by eminent domain proceedings, the interest of the Port shall be recognized by the JEPA and the Trustee. The JEPA shall pay, or cause the Trustee to pay, to the Port any and all awards and/or settlements or other compensation or damages which may be given for the land (and water, if applicable) comprising the Site, but the JEPA shall not pay, nor cause the Trustee to pay, to the Port any condemnation proceeds that are (a) paid or required to be paid to RIDA under the Sublease, the Facility Lease, the Project Implementation Agreement or the Indenture, or (b) used or required to be used to redeem Bonds.
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Section 14. Damage or Destruction . In the event that the Facili ty is damaged or destroyed, the interest of the Port shall be recognized by the JEPA and the Trustee. The JEPA shall pay, or cause the Trustee to pay, to the Port any insurance proceeds received as a result of such damage or destruction, but the JEPA shall not pay, nor cause the Trustee to pay, to the Port any insurance proceeds that are (a) paid or required to be paid to RIDA under the Sublease, the Facility Lease, the Project Implementation Agreement or the Indenture, or (b) used or required to be used to redeem Bonds.
Section 15. Hazardous Materials.
(a) Notice of Release or Inquiry. If the JEPA becomes aware of (i) any actual or threatened release that occurs during the Term of any Hazardous Material on, in, under, from, or about the Facility or (ii) any Inquiry, the JEPA shall give the Port and RIDA written notice of such release or Inquiry within twenty-four (24) hours after the JEPA learns that there has been a release or Inquiry and shall simultaneously furnish to the Port, the City and RIDA copies of any notices of inquiry or investigation, claims, notices of violation, reports, warning or other writings received by the JEPA that concern such release or Inquiry. Unless the Port, the City and RIDA each receives separate notice, the JEPA shall provide the Port, the C ity and RIDA with advance written notice of any meeting scheduled between any Tenant Party or Hotel Operator, on the one hand, and any Government Agency, on the other hand, where a material item of discussion is directly related to the subject matter of Hazardous Materials, at least five (5) Business Days prior to such meeting or as soon as reasonably possible if the Government Agency schedules such meeting with any Tenant Party or Hotel Operator for less than five (5) Business Days from the date the meet ing is proposed.
The Port and the City shall be entitled to have its representatives attend and participate in any and all such meetings. If the Government Agency brings up Hazardous Material on, in, under, from, or about the Facility in any other schedu led meeting, the JEPA shall suggest that a separate meeting should be scheduled so that the Port can participate in such meeting. (b) Port Right to Inspect and Data . If Hazardous Materials Activity has occurred during the Term or is ongoing, the Port or its designated representatives, at the Port’s sole discretion, may, but are not obligated to, enter upon the Facility and make any inspections, non-intrusive tests or measurements that the Port deems necessary or desirable to determine if a release or dischar ge of Hazardous Materials has occurred.
(c) Environmental Covenants.
(i) The JEPA hereby acknowledges that excavation of soils from the Site could result in exportation of a regulated waste requiring appropriate characterization, handling, transport and disposal (collectively, “Excavated Soil Removal”). The Port takes no responsibility and assumes no liability whatsoever for Excavated Soil Removal. Accordingly, the JEPA hereby waives any claim, or potential claim, it may have to recover costs or expenses from the Port arising out of or associated with Excavated Soil Removal.
(ii) The JEPA hereby RELEASES the Site Lease Landlord Parties from, COVENANTS NOT TO SUE the Site Lease Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of the JEPA under Section 18, including for claims for contribution, e quitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of the JEPA under Section 18. With respect to all releases made by the JEPA under or pursuant to this Section 15, the JEPA hereby waives the applicat ion and benefits of
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California Civil Code § 1542 and hereby verifies that it has read and understands the provision of California Civil Code § 1542 set forth in Section 18.
(d) The terms of this Section 15 shall survive the expiration or earlier termination of this Site Lease.
Section 16. Events of Default.
(a) The occurrence of the following events shall constitute an event of default by the JEPA hereunder (each, a “JEPA Event of Default”): failure by the JEPA to perform any express or implied covenants or conditions in this Site Lease, where such failure continues for thirty (30) days after written notice thereof from the Port, with a copy thereof to the City and RIDA; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such t hirty (30) day period, and the JEPA diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute a JEPA Event of Default; and provided, further , that if such failure is due to a Force Majeure Event, then such failure shall not constitute a JEPA Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists. (b) The occurrence of the following events shall constitute an event of default by the Port hereunder (each, a “Port Event of Default ”): failure by the Port to perform any express or implied covenants or conditions in this Site Lease, where such failure continues for thirty (30) days after written notice thereof from the JEPA, with a copy thereof to the City and RIDA; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and the Port diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute a Port Event of Default; and provided, further, that if such failure is due to a Force Majeure Event, then such failure shall not constitute a Port Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists.
Section 17. Remedies on Default.
(a) Upon the occurrence and during the continuance of a JEPA Event of Default, the Port may exercise any and all remedies granted by law or equity which do not adversely affect the i nterests of the Owners of the Bonds, provided that so long as the Bonds are Outstanding pursuant to the Indenture, the Port may not terminate this Site Lease without the consent of the Owners of a majority in the aggregate of the principal amount of the Bo nds outstanding under the Indenture, and shall have no right to any Revenues pledged under the Indenture with respect to any JEPA Event of Default. The Trustee is a third party beneficiary of this Section 17(a). (b) Upon the occurrence and during the continua nce of a Port Event of Default, the JEPA, or the Trustee with respect to the enforcement of any Assigned Rights, shall have the right to bring an action to compel the Port to specifically perform any of its express or implied covenants or agreements contained herein.
Section 18. “As-Is Lease and Waivers.”
(a) JEPA’s Acknowledgment . The JEPA acknowledges that prior to entering into this Site Lease, the Port has given the JEPA sufficient opportunity to consider, inspect and
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review, to the JEPA’ s complete satisfaction: (1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; (2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; (3) the risk of climate change and the possible adverse consequences thereof, including, without limitation, rises in sea level and possible damage to and dest ruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and ma intenance, endangered species, and traffic regulation; (6) the financial prospects of the Site and local market conditions; (7) the JEPA’s determination of the feasibility of the JEPA’s intended use and enjoyment of the Site; (8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater and adjacent to San Diego Bay water and sediment; and (9) all other facts, circumstances, and conditions affecting, concerning or rel ating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; the feasibility of the JEPA’s intended use and enjoyment of the Site; and such other facts, circum stances and conditions being collectively referred to herein as the “Condition of the Site”; and, without limitation on any other provision of this Site Lease, the JEPA expressly assumes the risk that adverse conditions affecting the Site have not been revealed by the JEPA’s investigations. (b) Only the Port ’s Express Written Agreements Binding . The JEPA acknowledges and agrees that no Person acting on behalf of the Port is authorized to make, and that except as expressly set forth in this Site Lease, neither the Port nor anyone acting for or on behalf of the Port has made, any representation, warranty, agreement, statement, guaranty or promise to the JEPA, or to anyone acting for or on behalf of the JEPA, concerning the Condition of the Site or any other aspect of the Site. The JEPA further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of the Port which is not expressly set forth in this Site Lease will be valid or binding on the Port. (c) As-Is Lease . The JEPA further acknowledges and agrees that the JEPA’ s execution of this Site Lease shall constitute the JEPA’s representation, warranty and agreement that the Condition of the Site has been independently verified by the JEPA to its full satisfaction, and that, except to the extent of the express covenants of the Port set forth in this Site Lease, the JEPA will be leasing the Site based solely upon and in reliance on its own inspections, evalu ations, analyses and conclusions, or those of the JEPA’s representatives; and that THE JEPA IS LEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS ” CONDITION AND STATE OF REPAIR INCLUSIVE
OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE JEPA’S EXECUTION OF THIS SITE LEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, the JEPA expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect. (d) Waivers, Disclaimers and Indemnity.
(i) Waiver and Disclaimer . The JEPA hereby fully and forever waives, and the Port hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use.
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(ii) Port’s Materials. The JEPA acknowledges that any information and reports, including, without limitation, any engineering reports, archi tectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which the JEPA has received or may hereafter receive from Site Lease Landlord Parties (collectively, the “Landlord’s Materials ”) have been furnished without warranty of any kind other than that the Port has delivered true and correct copies of each of the items set forth on Exhibit F attached hereto as each is filed in the Office of the District Clerk (“Port Documents”) and on the express condition that the JEPA will make its own independent verification of the accuracy, reliability and completeness of such Landlord ’s Materials and that the JEPA will not rely thereon . Accordingly, subject to terms of Section 18(d)(iii) below, the JEPA agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Site Lease Landlord Parties or any of the Persons that prepared or furnished any of the Landlord ’s Materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such Landlord ’s Materials, and the JEPA hereby fully and forever releases, acquits and discharges Site Lease Landlord Parties and each Person furnishing such Landlord ’s Materials of and from, any such claims, actions, causes o f action, proceedings or liability, whether known or unknown (other than in connection with the Port’s breach of its representation and warranty set forth in this Section 18(d)(ii) that the Port has delivered to the JEPA true and correct copies of each of the Port D ocuments set forth on Exhibit F attached hereto).
(iii) Release and Waiver . Except to the extent of Claims (as defined below) against the Port arising from any breach by the Port of its covenants and obligations expressly provided in this Site Lease or the Port’s representation and warranty set forth in Section 18(d)(ii), the JEPA, on behalf of the JEPA, its successors and assigns, hereby fully and forever releases, acquits and discharges the Site Lease Landlord Parties of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions , causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever (individually and collectively, “Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that the JEPA, the City, or any Tenant Party, Hotel Operator or any of the JEPA’s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of the Port (or any Person acting for or on behalf of the Port or for whose conduct the Port may be liable), whether or not such act be the active, passive or sole negligence of the Port, in connection with prior ownership, maintenance, operation or use of th e Site; (ii) any condition of environmental contamination or pollution at the Site (including, without limitation, any Pre -Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean -up or abatement order effecting the Site); (iii) to the extent not already included in clause (ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Site (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Site or into any soils, subsoils, surface waters or ground waters at the Site); (iv) the violation of, or noncompliance with, any Enviro nmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; (v) the condition of the soil and groundwater at the Site; (vi) the Condition of the Site, including, without limitation, the condition of any improvements loca ted on the Site including, without limitation, the structural integrity and seismic compliance of such improvements; (vii) any matters which would be shown on an accurate ALTA land survey of the Site (including, without limitation, all existing easements a nd encroachments, if any); (viii) all applicable Laws now
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or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Site; or (x) to the extent not already covered by any of the foregoing clauses (i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Site by the Port or any predecessor(s)-in-interest in the Site of the Port.
The JEPA hereby RELEASES the Site Lease Landlord Parties from, COVENANTS NOT TO SUE the Site Lease Landlord Parties for and ASSUMES FOR ITSELF all obligations, requirements and liabilities of the JEPA under this Section 18, including any claims for contrib ution, equitable indemnity or otherwise seeking to transfer or limit the obligations, requirements and liabilities of the JEPA under this Section 18. With respect to all releases made by the JEPA under or pursuant to this Section 18, the JEPA hereby waive s the application and benefits of California Civil Code §1542 and hereby verifies that it has read and understands the provision of California Civil Code §1542 set forth below.
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that , if known by him or her , would have materially affected his or her settlement with the debtor or released party.”
JEPA: _____________________
(iv) Survival. The terms of this Section 18 shall survive the expiration or earlier termination of this Site Lease.
Section 19. Equal Employment Opportunity/Nondiscrimination and OFAC. (a) Nondiscrimination. The JEPA shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibit ing discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual ori entation, pregnancy, or other non -job related criteria. In complying with all such Laws, including, without limitation the ADA, the JEPA shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such re sponsibility between the Port and the JEPA. The subtenant under the Facility Lease, the sub -subtenant under the Sublease, the Hotel Operator and any sub -sub-tenant of the sub -subtenant under the Sublease (with respect to their operation of the Facility only) shall comply with the requirements of this Section 19. (b) Compliance with Employment and Labor Requirements . The JEPA shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor -Management Reporting and Disclosure Act of 1959; the O ccupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices. The JEPA shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize. (c) OFAC Compliance. The JEPA represents and warrants that (i) the JEPA and, to the best of the JEPA’ s knowledge, the Port and the City (collectively, “the JEPA’ s Members ”,
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each a “JEPA Member”) is not now a Person with whom the Port or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 (commonly known as the “USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities (“Prohibited Persons ”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury ( “OFAC”) or a Person with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economi c sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, (ii) to the best of the JEPA’ s knowledge, none of the funds or other assets of the JEPA constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons (iii) to the best of the JEPA’s knowledge, no Prohibited Person directly or indirectly Controls the JEPA, or any of the JEPA’s Members, either individually or in the aggregate and (iv) to the best o f the JEPA’s knowledge, none of the funds of the JEPA have been derived from any unlawful activity with the result that the investment in the JEPA is prohibited by Laws or that this Site Lease is in violation of Laws. The JEPA covenants and agrees that at no time during the Term shall the JEPA Member with a twenty percent (20%) or more direct or indirect interest in the JEPA be a Prohibited Person. The JEPA shall reimburse the Port for all reasonable costs, including, without limitation, attorneys’ fees, resulting from the JEPA’s failure to comply with this Section 19 other than a failure caused by the Port in its capacity as a JEPA Member. If the JEPA receives written notice that any of the JEPA’s Members (other than any such Person that holds an interest in the JEPA through publicly traded securities) is a Prohibited Person, then the JEPA shall promptly use the JEPA’s best and reasonable efforts to cause such Person to divest such Person ’s interests in the JEPA . Notwithstanding any limits set forth in t his Section 19, any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder.
Section 20. Waiver. No waiver of any provision of this Site Lease shall be implied b y any failure of a party to enforce any remedy on account of the violation of such provision, even if such violation shall continue or be repeated subsequently. Any waiver by a party of any provision of this Site Lease may only be in writing, and no expre ss waiver shall affect any provision other than the one specified in such waiver and that one only for the time and in t he manner specifically stated.
Subject to Section 29, t he Port shall have the power and authority to waive any requirement of the JEPA under this Site Lease.
Section 21. End of Term . This Site Lease shall terminate without further notice at expiration of the Term. Notwithstanding anything herein to the contrary, in no event shall the Term, together with any holdover period, exceed sixty-six (66) years.
Section 22. Binding Effect. Each of the provisions of this Site Lease shall extend to and shall, as the case may require, bind or inure to the benefit not only of the Port and of the JEPA, but also of their respective heirs, successors or assigns, provided this clause shall not perm it any assignment, sublease or transfer by the JEPA contrary to the provisions of Section 7 of this Site Lease.
Section 23. No Merger. During the Term, the Port’s fee interest in the Site shall never be merged with the JEPA’s leasehold interest in the Site pursuant to this Site Lease.
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Section 24. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a co urt of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Site Lease shall be affected thereby, and each and every other term, provision, covenant or cond ition of this Site Lease shall be valid and enforceable to the fullest extent permitted by Laws.
Section 25. Governing Law; Compliance with Law; Venue.
(a) This Site Lease shall be governed by and construed in accordance with the laws of the State of California.
(b) The JEPA shall in all activities on or in connection with the Facility, and in all uses thereof, including without limitation the Permitted Use and any construction of the Convention Center or the making of any Alterations, abide by and comply with, and cause the City to abide by and comply with, and require the City to enforce the requirement under the Sublease to have the Tenant Parties and Hotel Operator to comply with, all Laws at RIDA’s sole cost and expense, and the Port shall not have any obligations or r esponsibilities to comply with any Laws as to the Facility or any use thereby by the JEPA, the City, the Tenant Parties or Hotel Operator. In particular and without limitation, the JEPA, subject to the limitations set forth in Section 29(b), shall have the sole and exclusive obligation and responsibility to comply with the requirements of the following: (i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control), (ii) the ADA, includ ing but not limited to regulations promulgated thereunder, (iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 19, (iv) any Coastal Development Permit (“CDP”) (including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act ( “CEQA”)) or any other California Coastal Commission regulations or local, stat e or federal requirements now or hereafter affecting the Facility, including the use or development thereof, (v) the Port Master Plan ( “PMP”), (vi) any other development permits or approvals accepted by the JEPA, and (vii) the policies adopted by the BPC.
(c) The venue for any legal proceeding shall be in San Diego County, California.
Section 26. Landlord Transfer. The JEPA acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, the Port may be required by applicable law to transfer all or any portion of its interest in the Site and in this Site Lease, and the JEPA agrees that in the event of any such transfer and the concurrent express assumption of all of the Port's obligations hereunder and under each of the documents s et forth on Exhibit G attached hereto (a “Landlord Transfer”), the Port shall automatically be released from all liability under this Site Lease for periods after the date of such Landlord Transfer, and the JEPA agrees to look solely to such transferee for the performance of the Port's obligations hereunder that arise after the date of such Landlord Transfer.
Each landlord hereunder shall be liable only for those obligations arising during its period of ownership and shall be released from further obligations after it completes a Landlord Transfer.
Section 27. Time of Essence . Time is of the essence with respect to this Site Lease and each of its provisions.
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Section 28. Representatives. Whenever under the provisions of this Site Lease the approval of the JEPA or the Port is r equired, or the JEPA or the Port is required to take some action at the request of the other, such approval or such request shall be given for the JEPA by an Authorized Representative of the JEPA and for the Port by an Authorized Representative of the Port (except as such authority may be limited by the Port Act or BPC) from time to time; provided, however, the Port may elect to obtain approval of the BPC as a condition to exercising this authority and any party hereto shall be authorized to rely upon any s uch approval or request; provided, further, that any election by the Port to obtain approval of the BPC shall not affect the standard applicable to the Port’s approval under this Site Lease.
Section 29. Limitation on Liability.
(a) All liabilities under this Site Lease on the part of the Port shall be solely liabilities of the Port as a public corporation, and the JEPA hereby releases each and every officer, director, member of the BPC, employee, partner, affiliate, agent, or contractor of the Port of and from any personal or individual liability under this Site Lease. No officer, director, member of the BPC, employee, partner, affiliate, agent, or contractor of the Port shall at any time or under any circumstances be individually or personally liable under this Site Lease to the JEPA or to any other party whomsoever for anything done or omitted to be done by the Port hereunder. (b) All liabilities under this Site Lease on the part of the JEPA shall be solely liabilities of the JEPA as a joint exercise of powers entity, and the Port hereby releases each and every member of the Board of Directors of the JEPA and any officer, employee, staff member, or agent of the JEPA, the City, or the Port, including without limitation any officer, employee, staff member or agent of the JEPA th at is also an officer, employee or agent of the City or Port (collectively, the “JEPA Parties”) of and from any personal or individual liability under this Site Lease. None of the JEPA Parties shall at any time or under any circumstances be individually o r personally liable under this Site Lease to the Port or to any other party whomsoever for anything done or omitted to be done by the JEPA hereunder. Notwithstanding anything to the contrary set forth in this Site Lease: (i) except for liability related to the JEPA’s negligence, willful misconduct or breach by the JEPA of its obligations under this Site Lease, liability for payment and performance of any and all of its obligations hereunder is a limited liability of the JEPA payable only from amounts paid to the JEPA by the City under the Facility Lease or by RIDA under the Sublease, and (ii) the JEPA shall have no obligation to appropriate amounts from any other source of funds to pay any amount due hereunder or to perform any covenant herein.
Section 30. Notices. Al l notices or other communications hereunder shall be in writing and shall be sufficiently given and shall be deemed given when delivered or , if mailed by first class mail, postage prepaid , on the third day after deposit in the U.S. Mail to each of the part ies listed below at the addresses set forth below. Copies of any notice given to a Party shall also be given to the City, the Port, RIDA and the Trustee.
To JEPA: Chula Vista Bayfront Facilities Financing Authority PO Box 5296
Chula Vista, CA 91912
Attention: Executive Director
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With copies to: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: Finance Director
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Attention: Executive Director
Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
To the City: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
With copies to: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Attorney
To the Trustee: Wilmington Trust, National Association
650 Town Center Drive, Suite 800,
Costa Mesa, CA 92626
Attention: Corporate Trust Services
Fax No.: (714) 384-4151
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To the Port: Executive Director
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
With copies to: Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
To RIDA: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner
With copies to: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Luke Charlton
Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
The JEPA, the City, the Port, RIDA and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices or other communications will be sent.
Notices to the Trustee may be given by electronic mail but shall not be deem ed delivered until delivered by first class mail, postage prepaid.
Section 31. Further Assurances and Corrective Instruments. The JEPA and the Port shall execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered, such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Site hereby leased or intended to be leased or for carrying out the expressed intention of this Site Lease. Notwithstanding the foregoing, even if the Executive Director (or other applicable representative) of the Port has authority to enter into such supplements and instruments, the Executive Director (or other applicable representative) of the Port may elect to obtain the approval of the BPC as a condition to exercising such authority.
Section 32. Amendment. The terms of this Site Lease shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, except by written instrument signed by the JEPA and the Port; provided an y amendment shall be made in accordance with the Indenture; provided, further, that the consent of the subtenant under the Facility Lease and the sub -subtenant under the Sublease shall be required for any waiver, alteration, modification, supplement or oth er
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amendment of the terms of this Site Lease if such consent is required under the terms of the Project Implementation Agreement. The JEPA shall not consent to a waiver, alteration, modification, supplement or other amendment of the terms of the Facility L ease, the Sublease, the CFD Loan Agreement, or the Indenture without the consent of the Port.
Section 33. Entire Agreement ; Third Party Beneficiary . It is understood and acknowledged that there are no oral agreements between the JEPA and the Port affecting this Site Lease and this Site Lease supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the JEPA and the Port with respect to the subject matter hereof, except for the Prior Agreements (as set forth on Exhibit I, the “Prior Agreements”), the Contemporaneous Agreements and the Approved Agreements to which both are a party . This Site Lease contains all of the terms, covenants, conditions, warranties and agreements of the JEPA and the Port relating in any manner to the rental, use and occupancy of the Facility and shall be considered to be the only agreement between the JEPA and the Port and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agre ements, and the applicable Approved Agreements . All negotiations and oral agreements acceptable to the JEPA and the Port have been merged into and are included herein. There are no other representations or warranties between the JEPA and the Port , and al l reliance with respect to representations is based totally upon the representations and agreements contained in this Site Lease.
However, the JEPA acknowledges and agrees that other documents may restrict the JEPA’s use of the Facility or impose other ob ligations not specifically referenced in this Site Lease, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA.
Notwithstanding anything in this Site Lease to the contrary, (i) the Senior Permitted Mortgage Lender is a third party beneficiary of Sections 2(c), 3(d), 17(a) and 33 of this Site Lease; (ii) neither Section 2(c), 3(d) or 17(a) of this Site Lease may be amended or modified, nor may any other provision of this Site Lease be modified or amended in an y way that impairs the effect of any of Sections 2(c), 3(d), 17(a) and/or 33 of this Site Lease, in each such case, without the prior written consent of the Senior Permitted Mortgage Lender; and (iii) the only remedies that the Senior Permitted Mortgage Lender shall have in enforcing its third party beneficiary rights under this Section against the JEPA or the Port shall be the right to pursue declaratory relief and/or specific performance.
Section 34. Brokers. The Port and the JEPA each hereby warrant to each other t hat neither has retained or employed any real estate broker or agent in connection with the negotiation of this Site Lease. The JEPA shall be solely responsible for the payment of any fee or commission due to any broker and agrees to indemnify and defend and hold the Port harmless from any and all claims, demands, losses, liabilities, lawsuits and costs and expenses (including without limitation reasonable attorneys ’ fees) with respect to any leasing commission or equivalent compensation alleged to be owing by the Port.
Section 35. Captions. The captions or headings in this Site Lease are for convenience only and in no way define, limit or describe the scope or intent of any provision or section of this Site Lease.
Section 36. Execution in Counterparts . This Site Lease may be executed in any number of counterparts, each of which shall be deemed to be an original, but all together shall constitute but one and the same instrument.
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Section 37. Drafting Presumption; Review Standard . The parties acknowledge that this Site Lease has been agreed to by both the parties, that both the JEPA and the Port have consulted with attorneys with respect to the terms of this Site Lease and that no presumption shall be created against the drafting party. Any deletion of language from this Site Lease prior to its execution by the JEPA and the Port shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Site Lease, any approval or consent to be given by Port or BPC may be given or withheld in Port's or BPC’s sole and absolute discretion.
Section 38. Transaction Costs. To the extent the JEPA requests any approval, consent or other a ction by the Port (including, without limitation, in connection with any proposed encumbrance, easement, Alterations, Financing Transaction or Transfer), the JEPA shall pay or reimburse the Port, upon written demand therefor, all of the Port ’s reasonable a ttorneys’ fees and other third party costs incurred by the Port in connection therewith, together with the Port ’s then current processing or cost recovery fee for similar transactions consistent with any schedule of such fees then utilized by the Port. The Port shall provide the JEPA with a copy of any such fee schedule following written request therefor from JEPA. Such costs and fees shall be payable to the Port whether or not the Port grants such approval or consent, or undertakes the action requested by the JEPA. The JEPA’s obligation to make payments pursuant to this Section 38 is limited as set forth in Section 29(b) hereof.
Section 39. Constitutional Rights . Nothing in this Site Lease is intended to limit any rights that any party has under the Constitution of the United States of America or the California State Constitution with respect to any act, including the enactment of any Law, by the Port or any other Governmental Authority, including, without limitation, any claim for a taking, and this Site Lease shall be construed as to give effect to such intent.
Section 40. Consents. The Port agrees that whenever the JEPA requests the Port’s consent in connection with the City’s request for the JEPA’s consent under the Facility Lease due to RIDA’s request for the City’s cons ent under the Sublease, the Port will grant or deny such request using the same standard of discretion, and within the same time period, as would be applicable to the City under the Sublease with respect to such request.
Section 41. Memorandum of Lease . The Port an d the JEPA shall each execute and properly acknowledge a short form memorandum of this Site Lease in the form attached hereto as Exhibit J. The JEPA may record a copy of such memorandum at its cost and expense. Upon the expiration or earlier termination of this Site Lease in accordance with its terms, the JEPA agrees to execute, acknowledge and deliver to the Port a quitclaim deed in recordable form, releasing and quitclaiming to the Port all right, title and interest of JEPA in and to the Site and termin ating the short form memorandum.
Section 42. Project Implementation Agreement. Certain rights and obligations of the Port and the JEPA with respect to the Facility are set forth in the Project Implementation Agreement.
Among other provisions, the Project Implementation Agreement includes certain rights of the Port to grant easements, licenses, and access agreements with respect to the Site and such rights are expressly reserved herein by the Port.
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IN WITNESS WHEREOF, the parties have caused this Site Lease to be executed by their duly authorized representatives on the date and year first above written.
Port: SAN DIEGO UNIFIED PORT DISTRICT, a public
corporation
By:
Its:
APPROVED AS TO FORM AND LEGALITY:
Thomas A. Russell, General Counsel
JEPA: CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY, a California joint
exercise of powers authority
By:
Its:
APPROVED AS TO FORM AND LEGALITY:
Co-Counsel, Thomas A. Russell, General
Counsel of the San Diego Unified Port District
Co-Counsel, Glen R. Googins, City Attorney of
the City of Chula Vista
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CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real pro perty conveyed under the foregoing to the Chula Vista Bayfront Facilities Financing Authority (the “JEPA”), is hereby accepted by the undersigned officer or agent on behalf of the Board of the JEPA, pursuant to authority conferred by resolution of the said Board adopted on _____, 2022, and the grantee consents to recordation thereof by its duly authorized officer.
Dated: ______, 2022 CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY
By:
Its: Executive Director
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EXHIBIT A
LEGAL DESCRIPTION
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B-1
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EXHIBIT B
PLAT MAP OF SITE
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C-1
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EXHIBIT C
FACILITY LEASE
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EXHIBIT D
SUBLEASE
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EXHIBIT E
DEFINITIONS ADDENDUM1
This Definitions Addendum constitutes a part of that certain Site Lease entered into as of _______________, 20__ by and between the Port District and the Authority reference to the same in the Site Lease, the following definitions are incorporated into and constitute a part of the Site Lease.
DEFINITIONS ADDENDUM
2010 TITLE 24: the Building Energy Efficiency Standards, Title 24, Part 6, of the California Code of Regulations in effect as of May 4, 2010. 2022A CONSTRUCTION
ACCOUNT:
the 2022A Account of the Construction Fund maintained by the Trustee pursuant to the Authority Indenture.
2022B BOND PROCEEDS
SUBACCOUNT:
the 2022B Bond Proceeds Subaccount established within the 2022B Construction Account and maintained by the Trustee pursuant to the Indenture.
2022B CONSTRUCTION
ACCOUNT:
2022B Account of the Construction Fund maintained by the Trustee pursuant to the Authority Indenture.
50% ENERGY
STANDARD:
the requirement in Section 15 of the Settlement Agreement that requires all Developme nts within the Proposed Project (as defined in the Settlement Agreement) area achieve, in the aggregate, a fifty percent (50%) reduction in annual energy compared to that allowed under 2010 Title 24.
75% COMPLETION: the date on which Developer’s Phase 1A Infrastructure Improvements (other than Harbor Park) are seventy -five percent (75%) Complete, as reasonably determined by the Developer.
ACCEPT / ACCEPTANCE /
ACCEPTED:
With respect to the Developer’s Phase 1A Infrastructure Improvements or any component thereof, acceptance of the Developer’s Phase 1A Infrastructure Improvements or such component by the City and the Port District, as applicable, which shall occur pursuant to Section 10.1 of the Agreement.
With respect to the Convention Center, acceptance of the Convention Center by the Authority, which shall occur pursuant to Section 10.2 of the Agreement and shall be evidenced by a certificate of the Authority confirming the Authority’s Acceptance of the Convention Center.
1 Definitions Addendum to be updated.
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ACCEPTANCE NOTICE: defined in Section 10.2.1.
ADA: the Americans with Disabilities Act, 42 U.S.C. §12101 (et seq.) and the regulations promulgated thereunder, as the same may be amended from time to time.
ADDITIONAL ENERGY
SAVINGS MEASURES:
energy savings measures, programs or credits available to achieve the 50% Energy Standard. Such Additional Energy Savings Measures may include, without limitation, Developer’s participation in renewable or “time of use” energy purchase programs, and/or other measures identified in Section 15.2 of the Settlement Agreement.
ADEQUATE INSURANCE: insurance that using standards customary in the insurance industry provides adequate protection for the Site and Improvements (other than the Existing Improvements) and for the Port District Parties and/or members of the public using the Site or Improvements (other than the Existing Improvements) or using services connected with the use, operation or occupancy of the Site and Imp rovements (other than the Existing Improvements) by Developer Parties and Hotel Operator.
ADVANCE RENT: the rent payable by RIDA pursuant to Section 3.4 of the Sublease to the extent the right to such payment has been assigned by the City to the Authority under the Facility Lease.
ADVANCE RENT SIDE
LETTER:
the letter agreement, dated as of the Effective Date, by and among the Parties.
AFFILIATE: with respect to any Person, any Person that Controls, is directly or indirectly Controlled by, or is under common ownership or Control with, such Person.
AGREEMENT: this Project Implementation Agreement between the Authority, the City, the Financing District, the Port District and the Developer. The term “Agreement” shall include any amendment to the Agreemen t properly approved and executed pursuant to the terms of the Agreement.
ALTERATIONS: any alterations, additions, installations, removals, demolitions, improvements or other physical changes to the Site and the Improvements following the Completion of the Convention Center, including the addition, installation or removal of any fixtures (other than trade fixtures) but excluding installation, maintenance, replacement or refreshing of any furniture, trade fixtures or equipment.
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ANTICIPATED
ASSISTANCE COSTS:
with respect to any assistance that Developer requests that Port District provide to Developer, the total amount of Assistance Costs that Port District reasonably anticipates to incur in connection with such assistance.
APPROVED
AGREEMENTS:
defined in Section 24.1.
APPROVED DRAWINGS
AND SPECIFICATIONS:
with respect to the Developer’s Phase 1A Infrastructure Improvements means the drawings and specifications for the Developer’s Phase 1A Infrastructure Improvements attached as Exhibit X -1, as amended or otherwise modified from time to time in accordance wi th Section 2.1.6 of the Agreement; and (b) with respect to the Remaining Phase 1A Infrastructure Improvements means the drawings and specifications for the Remaining Phase 1A Infrastructure Improvements attached as Exhibit X -2, as revised by the Port Distr ict from time to time before Developer exercises a Sweetwater Park Option.
ARCHITECT: HKS Inc. d/b/a HKS Architects Inc. or any other architect or engineer selected by Developer and approved by Authority (such approval not to be unreasonably withheld, conditioned or delayed).
ARCHITECT’S
CERTIFICATE:
a certification from Architect in the form of the Certificate of Architect attached as Exhibit 1 to the Developer Phase 1A Payment Request or the Convention Center Payment Request, as applicable.
ASSIGNMENT: any disposition, assignment, sale, conveyance, exchange or other transfer of all or any portion of Developer’s interest in the Sublease (including without limitation any easements), the leasehold estate created thereby, the Site or the Improvements, whet her by operation of law or otherwise, but, for the avoidance of doubt, excluding any Sublease (as defined in the Sublease).
ASSIGNMENT
PARTICIPATION FEE:
defined in Section 22.1.
ASSIGNMENT
PROCEEDS:
defined in Section 22.1.
ASSISTANCE COSTS: with respect to any assistance that Developer requests that Port District provide to Developer, the amount of costs and expenses reasonably incurred or to be incurred by Port District in providing such assistance.
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AUTHORITY: defined in the preamble to the Agreement.
AUTHORITY ACCOUNT: defined in Section 9.1.1.3(b).
AUTHORITY BOARD: the Board of Directors of the Chula Vista Bayfront Facilities Financing Authority.
AUTHORITY BONDS: the Authority Tax-Exempt Bonds and the Authority Taxable Bonds.
AUTHORITY BYLAWS: the Bylaws of the Chula Vista Bayfront Facilities Financing Authority adopted by the Authority Board on July 25, 2019.
AUTHORITY COUNSEL: the Port District General Counsel and the City Attorney acting as co - counsel to the Authority.
AUTHORITY EMAIL
ADDRESSES:
[Insert initial Authority Email Addresses for Payment Request notices/links], and such other electronic mail addresses as shall be provided or substituted by Authority from time to time by written notice to Developer.
AUTHORITY EVENT OF
DEFAULT:
defined in Section 21.5.
AUTHORITY
INDENTURE:
the Indenture of Trust, dated as of _____________, 2022, by and between the Authority and ____________.
AUTHORITY PARTIES: the Authority and the officers, directors, members of the Authority Board, employee s, partners, affiliates, agents, contractors, successors and assigns of the Authority, City employees and agents, and Port District employees and agents, in each case, when acting only in the capacity of an Authority Party.
AUTHORITY
PROCUREMENT POLICY:
the “Chula Vista Bayfront Facilities Financing Authority Procurement Policy for Developer -Performed Public Works” ratified by the Authority Board by the adoption of Authority Resolution 2020-002.
AUTHORITY
RESOLUTION 2020-002:
the final form of such resolu tion as ratified by Authority Resolution 2020-007.
AUTHORITY SURPLUS
FUND:
defined in the Authority Indenture.
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AUTHORITY TAXABLE
BONDS:
the $_____________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022A (Federally Taxable) issued to finance a portion of the Project Costs.
AUTHORITY TAX-
EXEMPT BONDS:
the $_____________ Chula Vista Bayfront Facilities Financing Authority Revenue Bonds (Chula Vista Bayfront Convention Center) Series 2022B (Tax-Exempt) issued to finance a portion of the Developer’s Phase 1A Infrastructure Improvements Costs and a portion of the Remaining Phase 1A Infrastructure Improvements.
AUTHORITY’S
CONVENTION CENTER
FINAL REVIEW:
defined in Section 9.2.6.1.
AUTHORITY’S PHASE 1A
FINAL REVIEW:
defined in Section 9.1.6.1.
BFDIF / BFDIF
PROGRAM:
the Bayfront Transportation Development Impact Fee program, as authorized by Chula Vista Municipal Code Chapter 3.54.
BMP: defined in Section 8.1.3.
BPC: Board of Port Commissioners of the San Diego Unified Port District.
BUSINESS DAY(S): Monday through Friday, excluding Holidays.
CASUALTY PROCEEDS: defined in Section 5.2(a) of the Sublease.
CCC: defined in Section 7.2.2.
CDP: defined in Section 7.2.2.
CEQA: defined in Section 7.2.2.
CERTIFICATES: defined in Section 15.3.1.
CHULA VISTA BUILDING
CODE:
Chula Vista Building Standards Code (Title 15 of the Chula Vista Municipal Code), as amended, and any successor statute.
CHULA VISTA
STANDARD SPECIAL
PROVISIONS
Section 1 -2 of Part 1, Part 2, Part 3, and Part 4 of the City of Chula Vista Standard Special Provisions.
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CITY: the City of Chula Vista, a charter city and municipal corporation.
Unless specifically provided otherwise, whenever the Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement.
CITY ATTORNEY: the City Attorney of the City or that person’s duly authorized deputy set forth in Schedule 1 of the Authority Bylaws.
CITY COUNCIL: The City Council of the City of Chula Vista.
CITY MANAGER: the City Manager of City or his or her designee.
CITY PARTIES: the City and the officers, directors, members of the City Council, employees, partners, affiliates, agents, contractors, successors and assigns of the City, in each case, when acting only in the capacity of a City Party.
CLAIMS: defined in Section 25.4.3.1.
CODE: the Internal Revenue Code of 1986, as amended.
COMMENCEMENT DATE: the date on which the term of the Site Lease commences.
COMPLETE AND
COMPLETION:
(a) with respect to the Convention Center, means that the Developer has obtained and delivered to Authority a certificate of occupancy or temporary certificate of occupancy for the Convention Center from the City,
(b) with respect to the Developer’s Phase 1A Infrastructure Improvements, means that the Developer’s Phase 1A Infrastructure Improvements are sufficiently complete in accordance with the Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Developer’s Phase 1A Infrastructure Improvements can be utilized for their intended use,
(c) with respect to the Remaining Phase 1A Infrastructure Improvements, means that the Remaining Phase 1A Infrastructure Improvements are sufficiently complete in accordance with the Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Remaining Phase 1A Infrastructure Improvements can be utilized for their intended use; and
(d) with respect to the Resort Hotel, as defined in the Ground Lease.
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COMPLETION
GUARANTOR(S):
defined in each Completion Guaranty.
COMPLETION
GUARANTY:
defined in Section 5.6.
CONDEMNATION AND
CONDEMNED:
defined in Section 5.1 of the Sublease.
CONDITION OF THE
SITE:
defined in Section 25.1.
CONSTRUCTION LATE
CHARGES:
defined in Section 5.1.2.
CONSTRUCTION FUND: defined in the Authority Indenture.
CONSTRUCTION PERIOD: the period between the Commencement Date and the date when the Project is Complete.
CONSTRUCTION
REQUIREMENTS:
those requirements, conditions and procedures regulating the installation, construction, modification and repair of applicable Improvements and Alterations as described in Exhibit “E” attached to the Agreement.
CONSULTANT
SERVICES:
defined in Section 5.7.1.
CONTEMPORANEOUS
AGREEMENTS:
generally, any agreements executed on or around the Commencement Date by the Port District, RIDA, City, Authority, and/or Financing District with respect to the Development (as defined in the Sublease), including, but not limited to the Project Implementat ion Agreement, this Site Lease, the Facility Lease, the Sublease, the Ground Lease, and the Completion Guaranty.
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CONTRACT
DOCUMENTS:
the following to the extent applicable to the construction of the Project:
the prime construction contract(s), prime const ruction contract(s) exhibits and addenda, subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice inviting bids, instructions to bidders, bid (including documentation accompanying bid and any post - bid documentation submitted p rior to notice of award), the bonds, the general conditions, permits from the Authority, City and/or, the Port District, as applicable, or other agencies, the special provisions, the plans, standard plans, standard specifications and reference specifications that are incorporated into such prime contract(s) or subcontract(s), the Approved Drawings and Specifications, and all modifications issued after the execution of the subcontract(s), in each case, in connection with the Project or the Remaining Phase 1A Infrastructure Improvements, as applicable.
CONTROL, CONTROL,
CONTROLLED AND
CONTROLLING:
shall be deemed, with respect to any Person, to be either or both (i) the ownership of more than fifty percent (50%) of the stock, membership interests or other vot ing interest of such Person or the ownership of beneficial interests in such Person, or (ii) the power to direct the management of such Person with respect to major decisions of such Person, whether through voting interests or by way of agreement.
CONVENTION CENTER: defined in Recital B.
CONVENTION CENTER
BUDGET:
a budget for all anticipated Convention Center Costs, including a contingency reserve, broken down by line item, as amended from time to time.
CONVENTION CENTER
CONTESTED CHARGES:
defined in Section 9.2.4.2.
CONVENTION CENTER
CONTRACT SUM:
the sum of (i) the Convention Center Costs, plus (ii) the Total Convention Center Development Fee, plus (iii) the Stipulated Convention Center Overhead Amount.
CONVENTION CENTER
COSTS:
the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction , maintenance and permitting of the Convention Center; provided, that Convention Center Costs shall not include Non-Project Costs.
CONVENTION CENTER
FINAL AMOUNT:
defined in Section 9.2.6.1.
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CONVENTION CENTER
LEASES:
defined in Recital D.
CONVENTION CENTER
PAYMENT REQUEST:
the Convention Center Payment Request in the form set forth in Exhibit K-2.
CONVENTION CENTER
PLANS:
the plans and specifications described in Exhibit F -1 attached to the Agreement, as amended or otherwise modified from time to time in accordance with Section 5.1 of the Agreement.
COUNTY: the County of San Diego.
COUNTY FUNDED
BAYFRONT
IMPROVEMENTS
SUBACCOUNT:
the County Funded Bayfront Improvements Subaccount established within the 2022B Construction Account and maintained by the Trustee pursuant to the Indenture.
COUNTY FUNDED
DEVELOPER’S PHASE 1A
SUBACCOUNT:
the County Funded Developer’s Phase 1A Subaccoun t established within the 2022B Construction Account and maintained by the Trustee pursuant to the Indenture.
COUNTY FUNDING
AGREEMENT:
defined in Recital F.
COUNTY FUNDS: the amount actually paid by the County to the Authority pursuant to the County Funding Agreement.
COUNTY FUNDS
RELEASE DATE:
the latest to occur of (i) the Cutoff Date; (ii) the date on which all claims with respect to Developer’s Phase 1A Infrastructure Improvements Costs have been finally resolved; and (iii) the date on which all amou nts that are owing to Developer in respect of the Developer’s Phase 1A Infrastructure Improvements Costs have been paid to Developer.
COUNTY SWEETWATER
PARK FUNDS:
defined in Section 9.1.1.3(a) of this Agreement.
CPM: defined in Section 5.4.2.
CUTOFF DATE: with respect to each of the Developer’s Phase 1A Infrastructure Improvements, two (2) years from the date of Completion, and with respect to the Convention Center, two (2) years from the date of Completion.
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CVBMP: defined in Recital J.
CVBMP DOCUMENTS: the following documents: (i) the Settlement Agreement; (ii) Chula Vista Bayfront Development Policies (District Clerk No. 59407); (iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan (District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016 -79, and the City Council on June 14, 2016, by Resolution No. 2016 -119; (iv) Chula Vista Bayfront Master Plan Public Access Program (District Clerk No. 59408); (v) Chula Vista Bayfront Design Guidelines (District Cle rk No. 67959); (vi) Integrated Planning Vision (District Clerk No. 63989); (vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment (District Clerk Nos. 59406); (viii) Mitigation Monitoring and Reporting Program for the Chula Vista Bayfront Mast er Plan (District Clerk No. 56555) and (ix) the CDP for the Resort Hotel, the Convention Cent er and the Parking Improvements.
CVMC: the Chula Vista Municipal Code.
DEFAULT RATE: an annual rate equal to the lesser of (i) the annual “Bank Prime Loan” rate cited in the Federal Reserve Statistical Release Publication H.15(519), published weekly (or such other comparable index as Port District and Developer shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and ( ii) the highest rate permitted by applicable Law.
DEFECTIVE WORK: all work, material, or equipment that does not substantially conform to the Contract Documents.
DESIGN AND
CONSTRUCTION
STANDARDS:
the edition of the Design and Construction Standards adopted by the City for public works projects that is in effect when the Approved Drawings and Specifications are approved by the City for purposes of the bids and which is available in the City’s Department of Engineering and Capital Projects, acting on b ehalf of the Authority, and on the City’s website.
DEVELOPER: RIDA Chula Vista, LLC, a Delaware limited liability company.
DEVELOPER ART
INVESTMENT:
$4,774,400.
DEVELOPER FUNDING: defined in Section 19.4.
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DEVELOPER MEMBER /
DEVELOPER MEMBERS:
defined in Section 20.3.
DEVELOPER PARTY: RIDA, and the agents, employees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, licensees, concessionaires, Affiliates and successors and assigns of RIDA, and Subtenants, and the agents, em ployees, representatives, contractors, subcontractors, suppliers, materialmen, workmen, concessionaires, licensees, Affiliates and successors and assigns of each of such Subtenants, in each case, when acting only in the capacity of a Developer Party.
DEVELOPER’S PHASE 1A
CONTESTED CHARGES:
defined in Section 9.1.4.3.
DEVELOPER’S PHASE 1A
CONTRACT SUM:
the sum of (i) the Developer’s Phase 1A Infrastructure Improvements Costs, plus (ii) the Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Costs. Amounts available to be reimbursed to Developer under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’s Phase 1A Contract Sum.
DEVELOPER’S PHASE 1A
FINAL AMOUNT
defined in Section 9.1.6.1.
DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS:
the public improvements set forth in Exhibit C attached hereto.
DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS
BUDGET:
a budget for all anticipated Developer’s Phase 1A Infrastructure Improvements Costs, including a contingency reserve, broken down by line item, as amended or otherwise modified from time to time.
DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS COSTS:
(a) the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction, maintenance and permitting of Developer’s Phase 1A Infrastructure Improvements and (b) the Early Work Costs; provided, that Developer’s Phase 1A Infrastructure Improvements Costs shall include neither Non -Project Costs nor Excluded Costs.
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DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS SITE:
the location of the Developer’s Phase 1A Infrastructure Improvements for purposes of pre-construction services and construction.
DEVELOPER’S PHASE 1A
PAYMENT REQUEST:
the Developer Phase 1A Payment Request in the form set forth in Exhibit K-1.
DEVELOPER’S PHASE 1A
PROJECT
ADMINISTRATION FEE:
Five percent (5%) of the Developer’s Phase 1A Project Administration Fee Eligible Costs actually incurred by Developer.
DEVELOPER’S PHASE 1A
PROJECT
ADMINISTRATION FEE
ELIGIBLE COSTS:
hard costs of constructing the components of the Developer’s Phase 1A Infrastructure Improvements that are eligible for reimbursement under the Sewer Agreement and improvements referenced in the Bayfront Transportation Development Impact Fee Nexus Study dated October 2014, which is on file in the office of the City Clerk.
DEVELOPMENT: Developer’s development of, collectively, the Parking Improvements, the Resort Hotel, the Convention Center and Developer’s Phase 1A Infrastructure Improvements.
DIR: defined in Section 7.2.3.1(d)(ii).
DISCRETIONARY
ENTITLEMENT:
defined in Section 5.7.1.
DISCRETIONARY
PROJECT:
defined in Section 5.7.1.
DISTRICT DOCUMENTS: defined in Section 25.4.2.
DISTRICT SUPPORT
PAYMENT / DSP:
defined in Section 5.1.2.
EARLY WORK
AGREEMENT:
defined in Recital O.
EARLY WORK COSTS: the Work Reimbursement Costs (as defined in the Early Work Agreement).
EFFECTIVE DATE: the Closing Date, as defined in the Authority Indenture.
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EIR: final Environment Impact Report “Chula Vista Bayfront Master Plan and Port Master Plan Amendment Final Environmental Impact Report,” (UPD# #83356 -EIR-658, SCH #2005081077; Document 56562), including, but not limited to, the “Mitigation Monitoring and Reporting Program”, and the resolution certifying said final Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010.
ENVIRONMENTAL
CLEANUP:
to investigate, remove or remediate such contamination in compliance with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority.
ENVIRONMENTAL
LAWS:
all applicable Laws and other requirements in effect during the Term, including, without limitation, Laws and requirements that regulate Hazardous Materials or otherwise relate to public health and safety or the protection of the environment.
EVENT OF DEFAULT: defined in Section 21.1.
EQUITY COLLATERAL
ENFORCEMENT ACTION:
defined in Section 9.2 of the Sublease.
ESTIMATED
CONVENTION CENTER
COSTS:
solely as to the Convention Center, the total cost of development and construction of the Convention Center, as shown in Section 4.2.1.
EXCLUDED COSTS: (a) costs incurred by the Developer in connection with the design, architectural work, and engineering work for the Developer’s Phase 1A Infrastructure Improvements for which the Developer has been reimbursed by the City pursuant to the Reimbursement Agreement and (b) costs incurred by the Developer in connection with the construction of specified sewer improvements included in the Developer’s Phase 1A Infrastructure Improvements for which the Developer has been reimbursed, or is eligible to be reimbursed, by the City pursuant to the Sewer Agreement.
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EXCLUDED MECHANICS
LIEN WAIVERS:
statutory lien/stop payment notice conditional waivers and releases that are or would be from any contractor, mechanic, subcontractor, materialman or other Person if: (a) if the expected aggregate amount to be paid to such Person in connection with the Project is l ess than $200,000 individually; (b) Authority has received a bond or other security that is reasonably satisfactory to the Authority with respect to mechanics lien claims and stop payment notices by such Person or (c) because of the nature of work, service s, materials or supplies to be provided by such Person in connection with the Project, such Person is not, under California law, entitled to record a mechanics lien or deliver a stop payment notice in connection with the Project.
EXECUTIVE DIRECTOR: the E xecutive Director of the Authority or his or her designees. The Executive Director, or his or her designees, may delegate the authority granted in Authority Resolution 2020 -002 to two or more members of the staff of the Authority, provided that such deleg ation is made to a contingent comprised of an equal number of City and Port District staff members respectively. In making such a delegation, the Executive Director or his or her designees, shall provide notice of such delegation to the Parties hereto pursuant to Section 26.1 hereto.
EXISTING FUNDS / EF: defined in Section 5.1.2 of the Agreement.
EXISTING
IMPROVEMENTS:
any Improvements (including utilities, storm drains and park ways) located upon the land (and water, if applicable) that are in existence and located on, in, over or under the Site as of the Commencement Date, whether constructed by Port District, a prior tenant or another third party.
EXPANDED SOFT COST
COVERAGE:
defined in Section 15.2.2.
EXPANSION: defined in the Ground Lease.
EXPANSION DATE: defined in the Ground Lease.
EXPIRATION DATE: defined in Section 1.1.2 of the Ground Lease.
EXTENDED
CONSTRUCTION PERIOD
DEADLINE:
defined in Section 5.1.2.
FACILITY: defined in Recital B.
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FACILITY LEASE: that certain Facility Lease, da ted as of ____________, 2022 by and between the Authority, as sublessor, and the City as sublessee, as amended from time to time.
FACILITY LEASE
ADVANCE RENT
NOTICE:
defined in the Facility Lease.
FINAL ACCOUNTING: (a) with respect to the Developer’s Phase 1A Infrastructure Improvements, the final accounting of costs prepared in accordance with Section 9.1.6, and (b) with respect to the Convention Center the final accounting of costs prepared in accordance with Section 9.2.6.
FINANCING DISTRICT: the Chula Vista Bayfront Project Special Tax Financing District.
FINANCING
TRANSACTION:
defined in Section 9.1 of the Sublease.
FIRST DEVELOPER
COMPLETION NOTICE:
defined in Section 2.3.2.1.
FIRST SWEETWATER
PARK END DATE:
defined in Section 2.3.2.
FIRST SWEETWATER
PARK OPTION:
defined in Section 2.3.2.
FISCAL YEAR: a fiscal year of the City ending on June 30 of each calendar year.
FORCE MAJEURE
EVENT:
defined in Section 5.5(a).
FORCE MAJEURE
NOTICE:
defined in Section 5.5(e).
FORCE MAJEURE
PARTY:
defined in Section 5.5(a).
FORCE MAJEURE
RESPONSE:
defined in Section 5.4(e).
FORECLOSURE
PURCHASER:
defined in Section 9.3(c)(iv) of the Sublease.
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FULL PAYMENT: shall be deemed to have occurred when the following conditions are satisfied: (a) the Port District, the City and the Authority shall have confirmed in writing to RIDA that the Completion Guaranty has terminated and (b) Developer shall have confirmed in writing to Authority that Developer has received payme nt of (i) the Project Public Investment Amount, (ii) the Developer’s Phase 1A Contract Sum, (iii) and all interest due to Developer pursuant to Sections 9.2.3 and
9.2.4.2(b) of the Agreement, and (iv) the Payment and Performance Bond Reimbursement Amount. For the avoidance of doubt, the occurrence of “Full Payment” does not require completion of the Final Accounting with respect to the Convention Center or the Developer’s Phase 1A Infrastructure Improvements.
GENERAL CONTRACT: each of the construction con tract between the Developer and the General Contractor for the Developer’s Phase 1A Infrastructure Improvements and the construction contract between the Developer and the General Contractor for the Convention Center.
GENERAL
CONTRACTOR:
with respect to Developer, a party or parties under any contract with the Developer to perform the work or provide supplies for the Developer’s Phase 1A Infrastructure Improvements and/or the Convention Center.
GOVERNMENTAL
AUTHORITY:
each and every governmental agency, a uthority, bureau, department, quasi-governmental body, or other entity or instrumentality having or claiming jurisdiction over the Site (or any activity this Site Lease allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions and municipalities, and all applicable Government Agencies, governmental authorities, and subdivisions thereof.
GREENBOOK: the 2012 edition of the Standard Specifications for Public Works Construction.
GROUND LEASE: defined in Recital E.
GROUND LEASE
PROPERTY:
defined in Recital E.
GROUND LEASE TERM: means the Term (as defined in the Ground Lease).
GUARANTEED
MAXIMUM PRICE:
The Guaranteed Maximum Price under the General Contract.
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HARBOR PARK: a park contemplated to be constructed pursuant the Approved Drawings and Specifications with respect to the Developer’s Phase 1A Infrastructure Improvements as of the Effective Date.
HARBOR PARK BUDGET: defined in Section 5.4.4.
HARBOR PARK PLANS: defined in Section 5.4.4.
HAZARDOUS MATERIAL: any pollutant, contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, including, without limitation, asbestos and oil and petroleum products, which is a “Hazardous Material” or “Hazardous Substance” within the meaning of any applicable Law (including, but not limited to, hazardous substances as defined by Cal.
Health & Safety Code § 25316 and anything that may result in contamination or pollution as defined by Cal. Water Code § 13050), and at any concentration that is subject to regulation under any Law relating to such Hazardous Material or Hazardous Substance.
Notwithstanding any exclusion from the definition of hazardous substance or hazardous material in any applicable Law, Hazardous Material as defined herein includes any hydrocarbons, petroleum, petroleum products or waste and any other chemical, substance or waste, that is regulated by, or may form the basis of liability under, any Environmental Laws.
HAZARDOUS
MATERIALS ACTIVITY:
generation, bringing, use, storage, emission, release, or disposal of any Hazardous Material, or products or materials which include any hazardous substance as a component by any Developer Party.
HOLIDAY: the City-observed holidays listed below (if any holiday listed falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If the holiday should fall on a Sunday, then the Sunday and the following Monday are both legal holidays):
Holiday Observed On
New Year’s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Independence Day July 4
Labor Day First Monday in September
Veteran’s Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
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HOTEL MANAGEMENT
AGREEMENT:
management agreement for the Resort Hotel the Convention Center and the Parking Improvements between Developer and the Hotel Operator.
HOTEL OPERATOR: Marriott or its successor in accordance with the Sublease and the Ground Lease.
ILLEGAL DISCHARGE: defined in Section 14.4.
IMPROVEMENTS: those buildings, structures and other improvements (including vaults, utilities and other underground improvements) now or hereafter located on, in, over or under the Site.
INDENTURE FUNDS: defined in Section 21.7.
INITIAL DEVELOPMENT
FEE PAYMENT:
an amount equal to ten percent (10%) of the Total Convention Center Development Fee based on all anticipated Convention Center Costs as set forth in the Convention Center Budget.
INITIAL FORCE
MAJEURE NOTICE:
defined in Section 5.5(e).
INITIAL PROJECT
IMPROVEMENTS:
the Improvements that are located on the Site and are initially developed by Developer and described by the Convention Center Plans referred to in Exhibit F to the Agreement.
INSURANCE AND
CONDEMNATION
PROCEEDS FUND:
defined in the Authority Indenture.
JEPA: defined in the preamble to the Agreement
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LAWS: all of the following to the extent (i) applicable to the Project Site, the Phase 1A Infrastructure Improvements, the Convention Center, or any activity under the Agreement, (ii) binding and enforceable and (iii) promulgated, adopted, approved or enacted by a Governmental Authority: present and future state of California, federal and local laws, orders, ordinances, regulations, statutes, requirements, codes and executive orders, including, wi thout limitation, the ADA, and any law of like import, and all rules, regulations and government orders with respect thereto, including without limitation any of the foregoing relating to Hazardous Materials, environmental matters (including, but not limited to, Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the Resource Conservation and Recovery Act (“RCRA”), the Clean Air Act, the Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act and comparable and supplemental California laws), the California Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not lim ited to, the Laws enacted by the San Diego Unified Port District Act, such as Article 10 of the San Diego Unified Port District Code; the PMP; the policies of the BPC; the Chula Vista Municipal Code and any applicable ordinances of the City, including the building code thereof, and any permits and approvals by any Governmental Authority and the Port District, including, without limitation, any California Coastal Development Permit, applicable to the Project Site and Sweetwater Park or the use or development thereof.
LEASE PAYMENTS: the lease payments paid by the City pursuant to the terms of the Facility Lease.
LEASE YEAR: defined in the Sublease.
LOAN: the loan made by the Authority to the Financing District pursuant to the terms of the Loan Agreement.
LOAN AGREEMENT: the Loan Agreement dated as of [dated date] made and entered into by the Financing District and the Authority, as amended from time to time.
MARRIOTT: Marriott International, Inc., a Delaware corporation , and any of its Affiliates.
MATERIAL
EXACERBATION:
any material increase in the cost or amount of investigation, removal or remediation action required.
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MAXIMUM
CONVENTION CENTER
AMOUNT:
the sum of the Project Public Investment Amount plus the amount of Advance Rent paid or deemed to be paid, plus all interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Agreement.
MEET & CONFER
PERIOD:
defined in Section 5.5(e).
MINIMUM ENERGY
EFFICIENCY DESIGN
STANDARD:
the requirement that each building operate at an energy consumption level equal to or better than the more stringent of the following two standards: (i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted to consume under 2010 Title 24; or (ii) the minimum ener gy efficiency performance standard adopted by the City at the time a building permit application is submitted for each building.
MMJV: Mortenson/McCarthy Chula Vista Resort, A Joint Venture comprised of M.A. Mortenson Company and McCarthy Building Companies, Inc.
NEGOTIATION
DEADLINE:
defined in Section 26.12.4.
NEW LEASE PERIOD: defined in Section 9.3(b)(iv) of the Sublease.
NET PROCEEDS: defined in the Authority Indenture.
NON-PROJECT COSTS: as to the Project Costs, the following costs that shall not be eligible for payment as part of the Project Costs under this Agreement: (i) salaries and other compensation of the Developer’s personnel; (ii) bonuses, profit sharing, incentive compensation, a nd any other discretionary payments, paid to General Contractor or any Subcontractor or vendor, unless the Authority has provided prior approval; (iii) overhead and general expenses; (iv) Developer’s capital expenses, including interest on the Developer’s capital employed for the Project (provided, that for the avoidance of doubt, this clause (iv) shall not restrict payment of interest to the Developer at the Specified Default Rate as and when required by the Agreement); (v) costs due to the gross negligenc e of, or willful misconduct by, the Developer, its General Contractor or Subcontractors, or any of their respective subcontractors, material suppliers, equipment providers, employees, or agents and (vi) any costs incurred by Developer, the General Contract or, Subcontractors or their respective agents to remedy Defective Work, unless the Contract Documents require the Developer to reimburse for such costs (except to the extent such costs have been recovered from an alternate source (e.g.
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insurance or bond)).
NOTICE OF
COMPLETION:
the standard document recorded by the City upon completion of a public works project in accordance with standard and customary practices of the City as adopted by the Authority.
OFAC: defined in Section 20.3.
ORIGINAL MEMBER: defined in Section 22.1.
ORIGINAL OUTSIDE
CONSTRUCTION
COMPLETION DATE:
the latest of (a) forty -eight (48) months after the Outside Construction Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer exercises the Sweetwater Park Option) or (y) a br each by JEPA, City, Financing District, or Port District under the Agreement (except for a breach of the Port District’s obligations that are set forth in Section 2.3, which is governed by Section 21.3), a breach by City under the Sublease, a breach by the City or the JEPA under the Facility Lease, a breach by Port District or the JEPA under the Site Lease, or a breach by Port District under the Ground Lease, in each case, delays Completion of the Project pursuant to the terms of the Agreement, (b) the Suff icient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise the Sweetwater Park Option) only if Developer has already Completed the Resort Hotel, the Convention Center, the Parking and Improvements and Developer’s Phase 1A Infrastructure Improvements, or (c) the Resort Hotel and Parking Improvements Outside Construction Completion Date (as such date is defined in the Ground Lease) as such date may be extended by one day for e ach day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements.
OTHER GROUND
LEASES:
defined in Section 5.1.2.
OUTSIDE
CONSTRUCTION
COMMENCEMENT DATE:
ten (10) days after the Commencement Date.
OUTSIDE the latest of (a) forty -eight (48) months after the Outside Construction
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CONSTRUCTION
COMPLETION DATE:
Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer exercises the Sweetwater Park Op tion) or (y) a breach by JEPA, City, Financing District, or Port District under the Agreement (except for a breach of the Port District’s obligations that are set forth in Section 2.3, which is governed by Section 21.3), a breach by City under the Sublease , a breach by the City or the JEPA under the Facility Lease, a breach by Port District or the JEPA under the Site Lease, or a breach by Port District under the Ground Lease, in each case, delays Completion of the Project pursuant to the terms of the Agreem ent, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise the Sweetwater Park Option) only if Developer has already Completed the Resort Hotel, the Convention Center, the Parking and Improvements and Developer’s Phase 1A Infrastructure Improvements, (c) if a Foreclosure Purchaser acquires the subleasehold interest under Section
9.6 of the Sublease the New Convention Center Outside Construction Completion Date, as such date is defined in the Sublease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Sublease) delays Completion (as defined in the Sublease) of the Project, (d) the Resort Hotel and Parking Improvements Outside Construction Completion Date (as such date is defined in the Ground Lease) as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements, or (e) if a Foreclosure Purchaser acquires the leasehold interest under Section 10.6.2 of the Ground Lease, the New Resort Hotel and Parking Improvements Outside Construction Completion Date (as defined in the Ground Lease), as such date may be extended by one day for each day that a Force Majeure Event (as defined in the Ground Lease) delays Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements.
PARKING
IMPROVEMENTS:
defined in Section 1.3 of the Ground Lease.
PARTY; PARTIES: defined in the preamble to the Agreement.
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PAYMENT AND
PERFORMANCE BOND
REIMBURSEMENT
AMOUNT:
the lesser of (a) the actual incurred by the Developer in procuring any payment bond(s) and any performance bond(s) with respect to the Convention Center pursuant to Section 13.1 of the Agreement and (b) One Million Dollars ($1,000,000).
PAYMENT DATE: ten (10) days following the date on which Developer submits a complete Developer’s Phase 1A Payment Request or a complete Construction Costs Payment Request (in each case, as reasonably determined by the Executive Director).
PERMITTED
ENCUMBRANCE:
defined in Section 9.2 of the Sublease.
PERMITTED FINANCING
ENCUMBRANCE:
defined in Section 10.2 of the Ground Lease.
PERMITTED MEZZANINE
LENDER:
(a) any Person that is approved by Port District (including pursuant to Section 10.1.3) and that is a party to a security agreement, pledge agreement or similar instrument or agreement that creates any security interest in the Mezzanine Interests securing Developer’s payment and performance in connection with any Financing Transaction and (b) from and after the date that is the later of (i) the date when the Resort Hotel is Complete and (ii) the date when the Parkin g Improvements are Complete, any Person that holds an interest in a loan that is secured by any security interest in the Mezzanine Interests in circumstances where a permitted syndication has occurred and such security interest is held by, and the administ ration of such loan is done by, an agent that is approved by Port District.
PERMITTED MORTGAGE
LENDER:
defined in Section 9.2 of the Sublease.
PERMITTED LENDER: defined in Section 9.2 of the Sublease.
PERMITTED USE: defined in Section 6.1(a) of the Sublease.
PERSON/PERSONS: any individual, partnership, firm, joint venture, association, corporation, limited liability company, government agency or any other form of business entity.
PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS:
(a) the Developer’s Phase 1A In frastructure Improvements and (b) the Remaining Phase 1A Infrastructure Improvements.
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PLAN SUBMISSION
DATE:
[ ]
PLANNED COMPLETION
DATE:
defined in Section 5.4.1.
PMPA: defined in Section 5.7.1.
PMP: the Port Master Plan.
PORT DISTRICT: the San Diego Unified Port District, a district formed pursuant to California Harbors and Navigation Code APPENDIX I, Section 1 et seq. and a public corporation. Unless specifically provided otherwise, whenever the Agreement requires an action or approval by the Port District, that action or approval shall be performed by the Port District representative designated by the Agreement.
PORT DISTRICT
GENERAL COUNSEL:
the General Counsel to the Port District or such person’s duly authorized deputy set forth in Schedule 1 of the Authority Bylaws.
PORT DISTRICT
PARTIES:
Port District and the officers, directors, members of the BPC, employees, partners, affiliates, agents, contractors, architects, successors and assigns of Port District, in each case, when acting only in the capacity of a Port District Party.
PORT DISTRICT
TRANSFER:
defined in Section 26.5.
PORT DISTRICT’S
MATERIALS:
defined in Section 25.4.2.
PRE-EXISTING
HAZARDOUS MATERIAL:
any Hazardous Material located on or under the Project Site prior to the Effective Date, whether known or unknown, or any Hazardous Material located outside the Project Site (including any premises owned by the City and/or the Port District) prior to the Effective Date that migrates to the Project Site thereafter.
PORT SUPPORT
AGREEMENT:
the Support Agreement between the Authority and the Port District dated as of _________, as amended from time to time.
PRIOR AGREEMENTS: the agreements listed on Exhibit I.
PROHIBITED PERSON /
PROHIBITED PERSONS:
defined in Section 20.3.
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PROJECT: the Developer’s Phase 1A Infrastructure Improvements and the Convention Center.
PROJECT COSTS: the Convention Center Costs and the Developer’s Phase 1A Infrastructure Improvements Costs.
PROJECT PUBLIC
INVESTMENT AMOUNT:
Two Hundred Sixty-Five Million Dollars ($265,000,000).
PROJECT SITE: the location of the Project for purposes of pre -construction services and construction.
PROPERTY TAX
CONTEST:
defined in the Sublease or Ground Lease, as the context may require.
PROPERTY TAX
EXPENSES:
property taxes with respect to the Site and the Initial Project Improvements (including, without limitation, real estate taxes, possessory interest taxes, general and special assessments, leasehold taxes or taxes based upon Developer’s receipt of rent, but excl uding all taxes imposed upon net income or gain).
PUBLIC AGENCY/PUBLIC
AGENCIES:
individually or collectively, for purposes of the Agreement, the Authority, the City and the Port District.
PUBLIC AGENCY
PARTIES:
collectively, the Authority Parties, the C ity Parties and the Port District Parties
PUBLIC AGENCY’S
ESTIMATED
DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS COST:
the total cost of development and construction of the Developer’s Phase 1A Infrastructure Improvements, as shown in Exhibit C-1-A attached to the Agreement.
PUBLIC DEBT SERVICE
OBLIGATION / PDSO:
defined in Section 5.1.2.
PWL: defined in Section 7.2.3.1.
REIMBURSEMENT
AGREEMENT:
defined in the Recital P.
REIMBURSEMENT
PROCEDURE:
defined in Section 3.9 of the Sublease or Section 5.8 of the Ground Lease.
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RELATED COSTS: any costs, damages (of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. For the avoidance of doubt, Related Costs shall not include any Tax Expenses or items expressly excluded from the definition of Tax Expenses.
RELOCATION
AGREEMENT:
that certain Relocation Agreement, dated as of July 13, 1999, by and among the City, Redevelopment Agency of the City of Chula Vista, Port District, and Rohr, as amended by the Amendment to Relocation Agreement, dated as of November 1, 1999, the Second Amendment to Relocation Agreement, dated as of February 2, 2010, and the Third Amendment to Relocation Agreement, dated as of September 10, 2013.
REMAINING
CONVENTION CENTER
DEVELOPMENT FEE:
two and seven -tenths percent (2.7%) of the Convention Center Costs.
The Remaining Convention Center Development Fee will accrue on the last day of each month beginning with the month in which the Commencement Date occur s in the amount of $[ ] per month until Total Convention Center Development Fee based on all anticipated Convention Center Costs as set forth in the Convention Center Budget has accrued.
REMAINING PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS:
Sweetwater Park.
REMAINING PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS COSTS:
the direct and indirect costs (excluding overhead costs) incurred with respect to the development, design, construction and permitting of the Remaining Phase 1A Infrastructure Improvements.
REMAINING PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS SITE:
the location of the Remaining Phase 1A Infrastructure Improvements for purposes of pre-construction services and construction.
RENT: defined in Section 3.5 of the Sublease.
REPAIR/RESTORATION
COSTS:
the direct a nd indirect costs incurred with respect to the repair, restoration, reconstruction or redevelopment of the Convention Center or any portion thereof in connection with a casualty or condemnation event pursuant to Article V of the Sublease.
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RESORT HOTEL: a single-branded resort hotel with at least 1,570 Rooms but not more than 1,600 Rooms on the Hotel Land generally as shown on Exhibit “B- 1” attached hereto, with an Acceptable Brand.
REVENUE SHARING
AGREEMENT:
that certain [Fourth] Amended and Restated Rev enue Sharing Agreement by and between the City and Port, dated ____________, 2022 as it may be amended, amended and restated, supplemented or otherwise modified from time to time
RIDA: RIDA Chula Vista, LLC, a Delaware limited liability company.
ROHR: defined in Section 24.2.
RPFP: defined in Section 5.1.2.
RV PARK LEASE: defined in Section 5.1.2.
RV PARK LESSEE: defined in Section 5.1.2.
RV PARK TUOP: defined in Section 5.1.2.
SDRWQCB: San Diego Regional Water Quality Control Board.
SECOND DEVELOPER
COMPLETION NOTICE:
defined in Section 2.3.3.1.
SECOND SWEETWATER
PARK END DATE:
the date that is twenty -two (22) months after the Outside Construction Commencement Date; provided, that the Sweetwater Park End Date shall not be extended due to an y Force Majeure Event except to the extent that such Force Majeure Event causes an extension of the Outside Construction Completion Date.
SECOND SWEETWATER
PARK OPTION:
defined in Section 2.3.3.
SETTLEMENT
AGREEMENT:
Chula Vista Bayfront Master Plan Settlement Agreement, dated May 4, 2010, among the Bayfront Coalition Member Organizations identified therein, Port, the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista (District Clerk No. 56523).
SEWER AGREEMENT: defined in the Recital O.
SITE: defined in Recital B.
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SITE LEASE: defined in Recital B.
SPE LENDER AFFILIATE: defined in Section 9.3(c)(iv) of the Sublease.
SPECIFIED DEFAULT
RATE:
(a) prior to Completion (defined in the Ground Lease) of the Resort Hotel and Parking Improvements and Completion of the Convention Center and Developer’s Phase 1A Infrastructure Improvements, an annual rate equal to ten percent (10%) per annum and (b) commencing upon Completion (defined in the Ground Lease) of the Resort Hotel and Parking Improvements and Completion of the Convention Center and Developer’s Phase 1A Infrastructure Improvements, an annual rate equal to fifteen percent (15%) per annum.
SPECIFIED DISPUTE: defined in Section 26.12.1.
STAFFING AND
PROCESSING
AGREEMENT:
RIDA Hotel and Convention Center Project Staffing and Processing Agreement between City and RIDA dated effective June 3, 2020.
STANDARD
SPECIFICATIONS:
the Greenbook and the local standard special provisions referenced in the Approved Drawings and Specifications, in each case, as in effect on the Plan Submission Date, and any amendments thereto that are approved by the Developer, the City, the District and the Authority.
STIPULATED
CONVENTION CENTER
OVERHEAD AMOUNT:
$[ ]. The Stipulated Convention Cent er Overhead Amount will accrue on the last day of each month beginning with the month in which the Commencement Date occurs in the amount of $[ ] per month until $[ ] has accrued.
STIPULATED
DEVELOPER’S PHASE 1A
INFRASTRUCTURE
IMPROVEMENTS
OVERHEAD AMOUNT:
$3,000,000. The Stipulated Developer’s Phase 1A Infrastructure Improvements Overhead Amount will accrue on the last day of each month beginning with the month in which the Commencement Date occurs in the amount of $[ ] per month until $3,000,000 has accrued.
SUBCONTRACTOR: a party or parties under any subcontract with the General Contractor to perform the work or provide supplies for the Developer’s Phase 1A Infrastructure Improvements and/or the Convention Center, as applicable.
SUBLEASE: defined in Recital D.
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SUBLEASE ADVANCE
RENT NOTICE:
defined in the Facility Lease.
SUBLEASE TERM: the Term (as defined in the Sublease).
SUBSTANTIALLY ALL: at least eighty percent (80%) of rentable square footage.
SUBTENANT: any subtenant (or sub-subtenant or other level of subtenant), occupant, franchisee, licensee, or concessionaire under any Sub -Sublease; provided, however, that “Subtenant” shall exclude the Hotel Operator.
SWEETWATER PARK: the improvements described in Exhibit D, attached to the Agreement.
SWEETWATER PARK
CONTRACTS:
collectively, the Sweetwater Park Design Contracts and the Sweetwater Park Construction Contracts.
SWEETWATER PARK
CONSTRUCTION
CONTRACT:
the construction agreement with respect to Sweetwater Park to which Port District is a party, as amended, restated, supplemented, modified or replaced from time to time.
SWEETWATER PARK
DESIGN CONTRACT:
the design services agreement, including services for administration of the design during construction, with respect to Sweetwater Park to which Port District is a party, as amended, restated, supplemented, modified or replaced from time to time; provided, however, “Sweetwater Park Design Contract” shall apply to each such design services agreement if more than one but shal l exclude the Sweetwater Park Construction Contract.
SWEETWATER PARK
MATERIALS:
from time -to-time, the Sweetwater Park Contracts and the permits, entitlements, approvals, plans, drawings, and specifications for the Remaining Phase 1A Infrastructure Improv ements that are reasonably necessary for the Developer to Sufficiently Complete Sweetwater Park.
SWEETWATER PARK
SUBACCOUNT:
the Sweetwater Park Subaccount established within the 2022B Construction Account and maintained by the Trustee pursuant to the Indenture.
SWPPP: defined in Section 8.1.3.
TAX CLAIM: defined in Section 19.2.
TAX EXPENSES: without limitation, all federal, state, county, or local governmental or municipal taxes, fees, assessments, charges or other impositions of every kind and nature, whether general, special, ordinary or extraordinary (including, without limitation, real est ate taxes,
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possessory interest taxes, use taxes, general and special assessments, leasehold taxes or taxes based upon Developer’s receipt of rent, including gross receipts or sales taxes applicable to Developer’s receipt of rent, personal property taxes im posed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by Developer in connection with the Project Site and the Improvements) and any taxes and assessments relating to the business or other activities of Developer upon or in connection with the Project Site and the Improvements. Tax Expenses also shall include, without limitation:
(i) Any tax on a Public Agency’s receipt of Rent (as defined herein or under the Ground Lease), right to Rent (as defined herein or under the Ground Lease) or other revenue from the Project Site and the Improvements other than any tax on the income of a Public Agency; (ii) Any assessment, tax, fee, levy or charge in addition to, or in substitution, partially or totally, of any assessment, tax, fee, levy or charge previously included within the definition of real property tax, possessory interest tax or use tax or other Tax Expenses, and any assessments, taxes, fees, levies and charges that may be imp osed by a Governmental Authority for services such as fire protection, street, sidewalk and road maintenance, refuse removal and for other governmental services formerly provided without charge to property owners or occupants. It is the intention of the Pa rties that all such new and increased assessments, taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses; and
(iii) Any assessment, tax, fee, levy, or charge, which i s levied or assessed based upon the area of the Project Site or the Improvements or the Rent payable hereunder, including, without limitation, any gross receipts tax upon or with respect to the possession, leasing, operating, management, maintenance, alter ation, repair, use or occupancy by Developer of the Project Site, the Improvements, or any portion thereof.
Notwithstanding anything to the contrary, Tax Expenses shall not include any income taxes imposed upon Developer, the Public Agencies, the direct or indirect owners of Developer, Hotel Operator or the Affiliates of Hotel Operator, whether based upon the taxable income generated by Developer, the Public Agencies, Hotel Operator or otherwise.
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TENANT HAZARDOUS
MATERIAL:
any Hazardous Material either (i) brought onto the Site or Improvements during the Term by any Person or (ii) brought onto the Site, Improvements or any other property by Developer, Developer Party, or Hotel Operator or generated by any of the same.
TERM: defined in Section 3.1.
TOT: defined in Section 5.1.2.
TOTAL CONVENTION
CENTER DEVELOPMENT
FEE:
three percent (3%) of the Convention Center Costs.
TRANSFER: defined in Section 10.7(a) of the Sublease.
TRANSFEREE: defined in Section 10.7(b) and 10.7(e) of the Sublease, as applicable.
USA PATRIOT ACT: defined in Section 20.3.
WARRANTY PERIOD: defined in Section 11.2.
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EXHIBIT F
PORT DOCUMENTS
[Insert list of documents that were provided by the Office of the District Clerk to Chicago Title Company that are part of the Approved Title Exceptions (as defined in the DDA).]
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EXHIBIT G
PORT DOCUMENTS TO BE ASSUMED ON LANDLORD TRANSFER
1. Ground Lease
2. Site Lease
3. Project Implementation Agreement
4. Support Agreement
5. CVBMP Documents [parties to determine which CVBMP documents will be transferred prior to execution of this Site Lease.]
[Insert any other documents that qualify as Landlord Transfer Documents.]
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EXHIBIT H
APPROVED AGREEMENTS
1. CVBMP Documents
2. Approved Title Exceptions
3. Plans
[Insert all other documents, including financings documents, that are approved prior to the Closing Date.]
(to be revised / completed prior to execution.)
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EXHIBIT I
PRIOR AGREEMENTS
1. Right of Entry for Pre-Closing Phase 1A Improvements
2. The Revenue Sharing Agreement.
[Insert any other documents that qualify as Prior Agreements prior to execution of this Site Lease.]
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EXHIBIT J
FORM OF MEMORANDUM OF LEASE
RECORDING REQUESTED BY:
___________________________
___________________________
___________________________
(Above Space for Recorder’s Use Only)
MEMORANDUM OF LEASE
This Memorandum of Lease, hereinafter “ Memorandum,” is dated ____________, 20__, between SAN DIEGO UNIFIED PORT DISTRICT, a public corporation (“Landlord”) and the CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY, a California joint exercise of powers a uthority (“Tenant”) concerning that certain real property described in Exhibit “A” and depicted in Exhibit “B”, attached hereto and by this reference made a part hereof (the “ Leased Premises”).
For good and adequate consideration, Landlord leases the Leased Premises to Tenant, and Tenant hires them from Landlord, for the term and on the provisions contained in that certain Site Lease of even date herewith by and between Landlord and Tenant (the “ Site Lease”), including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold without the express written consent of Landlord in each instance, all as more specifically set forth in said Site Lease, and, subject t o the terms of Section 10(b) of the Site Lease, Landlord conveys to Tenant and Tenant accepts from Landlord, all of Landlord’s right, title and interest in and to the Existing Improvements, which said Site Lease is incorporated in this Memorandum by this reference.
The term of the Site Lease is [up to] sixty-six (66) years, beginning __________, 20 __, and ending __________, 20__ as set forth in Section 3 of the Site Lease.
This Memorandum is not a complete summary of the Site Lease. Provisions in this Memorandum shall not be used in interpreting the Site Lease provisions. In the event of conflict between the terms of this Memorandum and terms of the Site Lease, the terms of the Site Lease shall control.
IN WITNESS WHEREOF, Lan dlord and Tenant have executed this Memorandum of Lease as of the date first set forth above.
APPROVED AS TO FORM AND LEGALITY: SAN DIEGO UNIFIED PORT DISTRICT, GENERAL COUNSEL a public corporation
By: ______________________________ By: _______________________________ Assistant/Deputy Tony Gordon
Director, Real Estate
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CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY, a California joint
exercise of powers authority
By:
Its:
APPROVED AS TO FORM AND LEGALITY:
Co-Counsel, Thomas A. Russell, General
Counsel of the San Diego Unified Port District
Co-Counsel, Glen Googins, City Attorney of
the City of Chula Vista
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EXHIBIT A TO MEMORANDUM OF LEASE
LEGAL DESCRIPTION OF PREMISES
(to be attached prior to execution.)
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EXHIBIT B TO MEMORANDUM OF LEASE
DEPICTION OF PREMISES
(to be attached prior to execution.)
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) ss.
COUNTY OF ____________ )
On _____________________________, before me, _______________________________ , Notary Public, (Print Name of Notary Public)
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT Individual
Corporate Officer
________________________________ ___________________________ Title(s)
________________________________ ___________________________ Title Or Type Of Document
Partner(s) Limited General
Attorney-In-Fact
Trustee(s)
Guardian/Conservator
Other: ________________________________ _____
Signer is representing:
Name Of Person(s) Or Entity(ies)
________________________________ ___________________________ ________________________________ ___________________________ ________________________________ ___________________________ Number Of Pages
________________________________ ___________________________ Date Of Documents
________________________________ ___________________________ Signer(s) Other Than Named Above