Attachment 2 - 2022 Project Implementation Agreement with Exhibits.pdf — Chula Vista City Council, June 2, 2026 (part 2 of 2)

CHANNEL OVERLOOK
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022

ELEMENT TOTAL COST
01 GENERAL REQUIREMENTS
02 EXISTING CONDITIONS
03 CONCRETE
04 MASONRY
05 METALS
06 WOOD, PLASTICS, AND COMPOSITES
07 THERMAL AND MOISTURE PROTECTION
08 OPENINGS
09 FINISHES
10 SPECIALTIES
11 EQUIPMENT
12 FURNISHINGS
13 SPECIAL CONSTRUCTION
14 CONVEYING EQUIPMENT
21 FIRE SUPPRESSION
22 PLUMBING
23 HEATING, VENTILATING, AND AIR CONDITIONING
26 ELECTRICAL
27 COMMUNICATIONS
28 ELECTRONIC SAFETY AND SECURITY
31 EARTHWORK
32 EXTERIOR IMPROVEMENTS ($ 48,162)
33 UTILITIES
NET DIRECT SITE COST ($ 48,162)
DESIGN CONTINGENCY 2.50%($ 1,204)
SUBTOTAL ($ 49,366)
ESCALATION TO START 09/ 2022 4.31%($ 2,128)
SUBTOTAL ($ 51,494)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 2,575)
SUBTOTAL ($ 54,068)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 8,110)
SUBTOTAL ($ 62,179)
INSURANCE 1.00%($ 622)
SUBTOTAL ($ 62,800)
BONDS: CONTRACTOR 1.00%($ 628)
TOTAL SITE COST ($ 63,428)

SITE SUMMARY
Prepared by: OCMI Sheet 75 of 76
CVB Sweetwater Park

CHANNEL OVERLOOK
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022

DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
32 EXTERIOR IMPROVEMENTS
Hardscape
Stabilized Decomposed Granite, 4"( 227) SF 4.52 ($ 1,026) Scarify & compact soil base top 12", ( 227) SF 0.73 ($ 166) moisture- conditioned 90%
Overlook Platform
Overlook Platform - Guardrail ( 46) LF 297. 65 ($ 13,692) CIP concrete seat wall ( 27) LF 225.00 ($ 6,075)
Continuous footings, Allowance ( 2.19) CY 759.84 ($ 1,664) CIP Concrete wall 8"( 305) SF 52.23 ($ 15,931)
Continuous footings, Allowance ( 7) CY 759.84 ($ 5,319) Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.42) CY 639.96 ($ 269)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 48,162)
Prepared by: OCMI Sheet 76 of 76
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Exhibit E
Construction Requirements

1. GENERALLY. DEVELOPER SHALL COMPLY WITH THE PROVISIONS OF THIS EXHIBIT E AS FOR THE CONVENTION CENTER AND DEVELOPER’S PHASE 1A

INFRASTRUCTURE IMPROVEMENTS ( AS APPLICABLE), THAT CERTAIN DISTRICT CONDITIONAL PROJECT APPROVAL DATED MAY 3, 2022 FILED IN THE OFFICE OF THE DISTRICT CLERK AS DOCUMENT NO. 74083 (“ DCPA”), AND THE PROVISIONS OF THE

PROJECT IMPLEMENTATION AGREEMENT IN CONNECTION WITH ALL

CONSTRUCTION OR DEMOLITION WORK FOR THE CONVENTION CENTER AND DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS ( AS APPLICABLE) CONSTRUCTION WORK”).

2. Contractors. Authority shall have the right to approve the general contractor for Construction Work, in its reasonable discretion. All contractors and subcontractors performing any Construction Work must be licensed in the State of California.

3. Architects and Engineers. All architects and engineers must have an active license to practice in the State of California.

4. Reserved.

5. Construction Barricades. Developer shall install a construction barricade around the area of Construction Work, and erect such other protective measures as may be reasonably required by Authority.

6. Dust and Trash Control. Developer shall take commercially reasonable steps to minimize dust resulting from any Construction Work, and shall promptly dispose of all trash generated from the Construction Work.

7. Performance Bond and Payment Bond. Article XIII of the Agreement shall govern requirements relating to Performance and Payment Bonds for the Convention Center and Developer’ s Phase 1A Infrastructure Improvements.

8. Financial Assurances. At least ten ( 10) days prior to commencing any Construction Work, Developer shall deliver to Authority evidence reasonably demonstrating to Authority that Developer has obtained or retains financial resources and capabilities in an amount sufficient to complete the Construction Work.

9. Construction Schedule. The Agreement governs provisions relating to the schedule for the Construction Work.

10. Contractor Insurance. Developer shall ensure that all contractors and subcontractors performing Construction Work shall obtain and thereafter maintain so long as such Construction Work is occurring, at least the minimum insurance coverages set forth below, which insurance coverages may be modified by Authority from time to time in its reasonable discretion:
i) Workers’ compensation and employer’ s liability insurance:

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a) Workers’ compensation insurance as required by any applicable law or regulation.
b) Employer’ s liability insurance in the amount of $ 1,000,000 each accident/employee/disease.
ii) General liability insurance: Commercial General Liability insurance covering all operations by or on behalf of the contractor, which shall include the following minimum limits of liability and coverages:
a) Required coverages:
1) Premises and Operation;
2) Products and Completed Operations;
3) Contractual Liability;
4) Broad Form Property Damage (including Completed Operations); 5) Explosion, Collapse and Underground Hazards; and
6) Personal Injury Liability.
b) Minimum limits of liability:
1) $ 2,000,000 each occurrence (for bodily injury and property damage); 2) $ 2,000,000 for Personal Injury Liability;
3) $ 2,000,000 aggregate for Products and Completed Operations ( which shall be maintained for a three ( 3) year period following final completion of the Work); and
4) $ 2,000,000 general aggregate applying separately to this Project. iii) Automobile Liability Insurance: Automobile liability insurance including coverage for owned, leased, rented, hired, and/or non-owned automobiles. The limits of liability shall not be less than $1,000,000 for each accident limit for bodily injury, death and property damage. iv) Umbrella/Excess Liability Insurance: The General Contractor shall also carry umbrella/excess liability insurance in the amount of $5,000,000. If there is no per project aggregate under the Commercial General Liability policy, the limit shall be $10,000,000. v) Contractor’ s Pollution Liability Coverage: If either the City or the Port District determines, in its sole and reasonable discretion, that Developer performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, Developer shall obtain or cause its contractor to obtain Contractor’ s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or E-3
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Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $ 10,000,000 aggregate per policy period of one year.

Any and all of the insurance described above may be obtained and maintained by Developer through an owner-controlled insurance program instead of by a contractor and/or a subcontractor. Public Entity Parties shall be named as an additional insured on the forgoing insurance, and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the requirements of this Agreement, nor shall it be allowed to expire, without at least thirty (30) days prior written notice to Authority. The foregoing insurance shall include a waiver of subrogation in favor of Public Entity Parties.

11. Notice of Completion. Within ten ( 10) days after Completion of any Construction Work, Developer shall record a Notice of Completion in the office of the San Diego County Recorder and furnish a copy thereof to Authority upon such recordation.

12. Copy of Record Set of Plans and Certificate of Completion. Following the conclusion of any Construction Work, deliver to Authority (i) with respect to the Convention Center, a set of “ as-built drawings” and ( ii) a copy of the certificate of completion issued by the applicable government agency, if any such certificate of completion must be issued.

13. Conflict. In the event of conflict between the terms of these Construction Requirements and terms of the Agreement, the terms of the Agreement shall control.

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Exhibit F
Convention Center Plans
Attachment C and Attachment F to the DCPA ( to the extent applicable to the Convention Center).

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Exhibit G-1
Approved Subcontractor Bid and Award Process
I. GENERAL CONTRACTOR
Developer has selected as the general contractor for the construction of the Developer’s Phase 1A Infrastructure Improvements a joint venture (“ MMJV”) comprising M.A Mortenson Company (“ Mortenson”) and McCarthy Building Companies, Inc. (“ McCarthy”). Mortenson, a leader in the industry with a wealth of experience in similar large scale projects, was a natural fit for the construction of Gaylord Rockies Resort and Convention Center (the “ Rockies Project”), a project developed by Developer’ s affiliate (“ RIDA Rockies”). Throughout the construction of the Gaylord Rockies Project, RIDA Rockies gained extensive experience with Mortenson. When possible, Developer’ s development process involves bringing forward the general contractor who constructed a prior similar project ( with the experience gained), and teaming them up with a general contractor that has a strong local presence. McCarthy’ s presence is strong locally, as well as within the subcontractor community. In addition to McCarthy’ s local presence and positive reputation, McCarthy’ s resume of large scale developments make MMJV an ideal partner for the Project.

II. SUBCONTRACTORS
A brief description of the process to be followed for the selection of subcontractors follows:

Initial Invitation to Propose
MMJV conducts research on potentially qualified subcontractors. This includes review of both Mortenson and McCarthy relationships and databases for local and regional subcontractors. For larger packages this may include major national subcontractors.

Consultants that are retained by Developer and/or MMJV to assist in the preparation of bids or contract documents ( including, without limitation, preliminary / concept designs), or to assist in the solicitation, may submit a bid for or be awarded a subcontract, subject to the satisfaction of the other criteria set forth in this Exhibit G-1.

Developer may designate specific persons or entities from whom MMJV will obtain bids or competitive proposals, subject to those persons or entities entering into written subcontracts acceptable to MMJV and Developer.

Direct contact is made with identified potential subcontractors to gauge their interest and brief them on the opportunity. In many cases this is a continuation of on-going discussions related to subcontractor input for budget estimates based on earlier design packages.

RFQ Stage
Identified potential subcontractors (typically minimum of five for each package) are invited to submit qualifications data. This includes information regarding past relevant / similar project experience, customer feedback from those projects, current backlog, available trades personnel resources, proposed supervisory / management personnel, financial capability, and design capabilities (for design-build subcontracts).

MMJV and Developer review RFQ responses to identify those subs to be invited to RFP stage.

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RFP Stage
Where practical, MMJV will obtain a minimum of three bids/competitive proposals from all subcontractors and from suppliers of materials or equipment directly to MMJV, for subcontracts or purchase orders in excess of $75,000, and a minimum of two bids from the subcontractors, and from suppliers of materials or equipment ( but only materials and equipment which will be incorporated into the work) for the work, for such subcontracts or purchase orders having a value less than $75,000.00, and will deliver such bids to Developer.

Subcontractors deemed qualified are invited to submit detailed proposals including – o Qualitative factors
Supervisory personnel commitments and organization chart Schedule management plan
Quality management plan
Plan for providing adequate qualified trades personnel
Pre-construction / design phase services approach and staffing ( for “ earlyengagement” subs) o Quantitative factors
Pricing for the detailed subcontract package scope of work description as provided by MMJV. This includes further breakdown as directed by MMJV to allow for detailed pricing evaluation.

Estimated trades work-hours
Schedule detail and projected trades crew size graphs
Proposed rates for labor, equipment, insurance etc. (for use in future change order negotiations, or for billing purposes in the case of cost-plus/GMP subcontracts)
o Contract terms – Subcontractors are required to identify any exceptions to the subcontract documents and project manual provided by MMJV, as well as any clarifications or exceptions to the scope of work definition provided.

Proposals are evaluated jointly by MMJV and Developer. In general, quantitative factors are given the most weight, but significant differences in evaluation of qualitative factors could overcome a difference in pricing. MMJV and Developer may also consider other factors such as the maintenance of labor peace.

The highest rated proposers (typically target three each) are invited for in-depth interviews.

Interview & BAFO Stage
In-depth interviews are conducted with the short-listed subcontractors. The interviews are focused on proposed supervisory personnel qualifications, the subcontractors’ project plan, and insuring there is a complete understanding of the required scope and schedule for the subject package as well as regulatory requirements ( i.e. prevailing wage, DDA and Coastal Development Permit constraints, etc.).

Following interviews, subcontractors are provided with a list of MMJV and Developer comments or questions to be addressed, feedback on any proposed exceptions to the contract documents, and are invited to provide a “ best and final offer” price proposal.

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Final Selection & Award Process
MMJV and Developer jointly review updated, final proposals and make tentative selection for award based on their determination of the overall value for the Project.

Selected subcontractor is informed of their status, and any additional conditions for award by MMJV, in consultation with Developer.

After confirmation of the selected subcontractor’ s acceptance of any additional conditions, unsuccessful subcontractors are notified and provided a debrief regarding evaluation of their proposal.

No subcontract will be awarded if either MMJV ( in its reasonable determination) or Developer objects thereto.

MMJV will provide to Developer, prior to commencement of the work and updated as changes may occur, a listing of all subcontractors and suppliers who MMJV has retained to complete the work.

From time to time after any subcontracts have been awarded, Developer will deliver a notice to the Authority with a list of such subcontracts and a confirmation that the subcontractors have been selected in accordance with the procedure set forth in this Exhibit G-1. If any subcontractor is not expected to be selected in accordance with the procedure set forth in this Exhibit G-1, then, prior to awarding the relevant subcontract, Developer will deliver a request to the Authority for the Authority to waive the relevant provisions of the Authority Procurement Policy with respect to the selection of such subcontractor in accordance with the waiver process set forth in the Authority Procurement Policy.

Clarifications and Exceptions to the Subcontractor Selection Process:

The portions of the work that will be identified on an exhibit to the construction contract and the contract amount for which will not, in the aggregate, exceed $ 12 million, will not be required to be bid to others.

MMJV will not be required to obtain bids for work that contractors customarily self-perform which is traditionally referred to as “ General Conditions”, “ General Requirements” or “ Site Support Service” work), such as management, quality assurance, scheduling, security, traffic control, safety, supervision and accounting, etc.

Except for subcontracts and work that are covered by another exception, if bids are received from Mortenson, McCarthy or any company affiliated with any of them, all bids for the portion of the work involved, including bids from Mortenson, McCarthy or such affiliated company, will be sealed bids which are to be opened in the presence of Developer.

Whenever with Developer’ s prior written consent MMJV plans to self-perform any aspect of the work without using the sealed bid procedure stated in the preceding sentence, including a sealed bid from Mortenson, McCarthy or an affiliated company, then MMJV, as a condition precedent, will provide Developer a detailed cost and fee estimate for such planned selfperformed work together with two bids from subcontractors, or an independent estimate from a third-party cost estimating firm as selected by Developer. In advance of any such selfperformed work, and within sufficient time so as not to create schedule delays, MMJV will review all such pricing with Developer and obtain Developer’ s informed written consent for such self-performed work.

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MMJV may self-perform minor or incidental portions of the work without bidding such work to other subcontractors so long as MMJV only charges MMJV’ s cost of such work and no additional fee, overhead or general conditions for such self-performed work.

Other work self-performed by MMJV will be treated as lump sum subcontracted work under the contract documents for the purposes of bidding, award and payment except as mutually agreed by MMJV and Developer. If the parties agree that such self-performed work is to be completed on a “ cost plus a fee” basis, the applicable fee percentage will be 15%.

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Exhibit G-2
Subcontractor Bids Awarded Prior To Effective Date

1. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and Sierra Pacific West, Inc.

2. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and Hazard Construction Engr LLC

3. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and QSB Construction, Inc.

4. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and Castle Contracting, LLC

5. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and Brightview Landscape Development, Inc.

6. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and Summit Enterprises, Inc.

7. Subcontract Agreement between Mortenson/McCarthy Chula Vista Resort and SB& O, Inc.

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Exhibit G-3
Approved Construction Contracts

1. AIA A133 – Standard Form of Agreement between Owner and MMJV as Construction Manager as Constructor – Cost of the Work Plus a Fee with Guaranteed Maximum Price Convention Center) and AIA A201 – General Conditions of the Contract for Construction.

2. AIA A133 – Standard Form of Agreement between Owner and MMJV as Construction Manager as Constructor – Cost of the Work Plus a Fee with Guaranteed Maximum Price Phase 1A Infrastructure) and AIA A201 – General Conditions of the Contract for Construction.

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Exhibit H
Form of Completion Guaranty
THIS COMPLETION GUARANTY (“ Guaranty”), is made as of _______________, by MFO Holding Company, LLC (“Guarantor”) to and for the benefit of the San Diego Unified Port District, a public corporation (“ Port District”), the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers authority (“ Authority”), the City of Chula Vista, a chartered municipal corporation (the “ City,” and, together with the Port District and the Authority, the “Public Entities”), and JPMorgan Chase Bank, National Association, a banking association organized and existing under the laws of the United States, as Administrative Agent under and as defined in the Bond Purchase Agreement (as defined below) (in such capacity, the “Administrative Agent”).

RECITALS
A. RIDA Chula Vista, LLC, a Delaware limited liability company ( together with any successors and assigns, “ RIDA”), is party to that certain ground lease, dated as of the date hereof, by and between Port District and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Hotel Ground Lease”).

B. The Hotel Ground Lease requires RIDA to develop and construct the “ Resort Hotel” as defined in the Hotel Ground Lease) and the “ Parking Improvements” ( as defined in the Hotel Ground Lease) in accordance with the Hotel Ground Lease.

C. RIDA is a party to that certain Sublease Agreement ( Chula Vista Bayfront Convention Center), dated as of the date hereof, by and between the City and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Convention Center Sublease”).

D. RIDA is a party to that certain Project Implementation Agreement, dated as of the date hereof, by and among Authority, City, Port District, the Bayfront Project Special Tax Financing District, and RIDA (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ PIA” and, collectively with the Hotel Ground Lease and the Convention Center Sublease, the “Project Documents” and each, a “ Project Document”).

E. The PIA requires RIDA to develop and construct ( i) the “ Convention Center” ( as defined in the PIA) in accordance with the PIA and ( ii) “Developer’ s Phase 1A Infrastructure Improvements” ( as defined in the PIA, and collectively with the Resort Hotel, the Parking Improvements and the Convention Center, the “ Project”) in accordance with the PIA, for the benefit of the Public Entities.

F. The Authority is a party to that certain Bond Purchase and Continuing Covenant Agreement, dated as of the date hereof, by and among the Authority, the Administrative Agent and the Purchasers ( as defined therein) from time to time party thereto ( as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Bond Purchase Agreement”), which is being entered into to induce the Purchasers to purchase the Bonds (as defined in the Bond Purchase Agreement), the proceeds of which shall be used for, among other things, the payment of the Developer’ s Phase 1A Contract Sum and the Convention Center Contract Sum ( each as defined H-2
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in the PIA) in accordance with the terms of the Indenture ( as defined in the Bond Purchase Agreement).

G. It is a condition precedent to the obligations of the Purchasers to purchase Bonds that Guarantor execute and deliver this Guaranty.

H. Guarantor is an affiliate of RIDA and thus will benefit from the development of the Project in accordance with the terms of the Project Documents and from the purchase of the Bonds.

I. Each Public Entity has relied on the statements and agreements contained herein in agreeing to enter into the Project Documents to which it is a party.

GUARANTY
NOW, THEREFORE, intending to be legally bound, Guarantor in consideration of the matters described in the foregoing Recitals, which Recitals are incorporated herein and made a part hereof, hereby covenants and agrees for the benefit of the Public Entities and the Administrative Agent, together with their respective successors and assigns as follows:

1.1 Guaranty. Guarantor hereby warrants and guarantees to the Public Entities and the Administrative Agent ( collectively, the “ Obligees” and, collectively with RIDA, the Parties” and each, a “ Party”) RIDA’ s obligation to:
a) Complete ( as defined in the Hotel Ground Lease) the Resort Hotel and the Parking Improvements, and procure and install furniture, fixtures and equipment and operating supplies and equipment that is generally necessary to open the Resort Hotel and the Parking Improvements for business ( i) within the corresponding time allowed by the Hotel Ground Lease, including any time extensions authorized thereunder; ( ii) in accordance with the terms and conditions of the Hotel Ground Lease that are applicable to the construction of the Resort Hotel and the Parking Improvements, including without limitation the procurement of a certificate of occupancy for the Resort Hotel and the Parking Improvements and delivery and acceptance by the Port District; (iii) substantially in accordance, in all material respects, with the Plans ( as defined in and revised in accordance with the Hotel Ground Lease) with respect to the Resort Hotel and the Parking Improvement Plans ( as defined in and revised in accordance with the Hotel Ground Lease); and (iv) free of any mechanics’ liens and materialmen’ s’ liens with respect to the Resort Hotel and the Parking Improvements;
b) Complete ( as defined in the PIA) the Convention Center and procure and install furniture, fixtures and equipment and operating supplies and equipment that is generally necessary to open the Convention Center for business ( i) within the corresponding time allowed by the PIA, including any time extensions authorized thereunder; ( ii) in accordance with the terms and conditions of the PIA that are applicable to the construction of the Convention Center, including without limitation the procurement of a certificate of occupancy for the Convention Center and delivery and acceptance by the applicable Public Entities; ( iii) substantially in accordance, in all material respects, with the Convention Center Plans (as defined in and revised in accordance with the PIA); and (iv) free of any mechanics’ liens and materialmen’ s’ liens with respect to the Convention Center;
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c) Complete ( as defined in the PIA) the Developer’ s Phase 1A Infrastructure Improvements and procure acceptance of the Developer’ s Phase 1A Infrastructure Improvements by the applicable Public Entity (i) within the corresponding time allowed by the PIA, including any time extensions authorized thereunder; (ii) in accordance with the terms and conditions of the PIA that are applicable to the construction of the Developer’ s Phase 1A Infrastructure Improvements, including without limitation delivery and acceptance by the applicable Public Entities; ( iii) substantially in accordance, in all material respects, with the Contract Documents ( as defined in and revised in accordance with the PIA); and ( iv) free of any mechanics’ liens and materialmen’ s’ liens with respect to Developer’ s Phase 1A Infrastructure Improvements; d) Pay any amounts owed by RIDA in connection with its “ Election to Terminate” pursuant to the terms set forth in Sections 5.1(d) and 5.2(b) of the Convention Center Sublease; and
e) Pay to the Trustee ( as defined in the Bond Purchase Agreement), as assignee of the Authority, any amounts due and payable by RIDA under Section 5.1.2 of the PIA collectively, the “ Guaranteed Obligations”).

RIDA’ s satisfaction of Section 1.1(a) – ( e) shall constitute “ Completion of the Project”.

1.2 Consideration. Guarantor acknowledges that it has made this Guaranty to induce (i) each Public Entity to enter into the Project Documents to which it is a party and contribute to the Project, either directly or indirectly through one of the other Public Entities, a portion of the development costs of the Convention Center and Developer’ s Phase 1A Infrastructure Improvements as set forth in the PIA (the “ Project Public Investment”) and ( ii) each Purchaser to commit to purchase the Bonds pursuant to the Bond Purchase Agreement, and each Public Entity is entering into such Project Documents and contributing directly or indirectly to the Project Public Investment and each Purchaser is committing to purchase the Bonds under the Bond Purchase Agreement in reliance upon this Guaranty, and the Public Entities would not have agreed to enter into such Project Documents and would not have agreed to contribute the Project Public Investment, and the Purchasers would not have committed to purchase the Bonds, in each case without the Guarantor’ s execution and delivery of this Guaranty.

1.3 Obligations of Guarantor Upon Default. In the event RIDA fails to perform any part of the Guaranteed Obligations when due, after any and all cure periods applicable to RIDA and any and all Permitted Lenders (as defined in the Hotel Ground Lease), as applicable, have expired, or the Foreclosure Purchaser that assumes the Project Documents fails or elects not to complete the Resort Hotel, Parking Improvements, Convention Center, or Phase 1A Infrastructure Improvements in accordance with the applicable Project Documents, Guarantor shall, upon demand of the Port District, as it relates to the Resort Hotel and the Parking Improvements, and the Authority, as it relates to the Convention Center and Developer’ s Phase 1A Infrastructure Improvements, and the City and Port District as it relates to the proposed ownership of each in Developer’ s Phase 1A Infrastructure Improvements: ( i) promptly cure such failure to perform the applicable part of the Guaranteed Obligations by performing or causing the performance of such obligation; and (ii) pay to the Public Entities all reasonable costs and expenses, including reasonable attorneys’ fees and expenses, they incur in enforcing the performance of the Guaranteed Obligations. In the event RIDA defaults in the performance of its obligations under any Project Document, provided Guarantor undertakes to cure such defaults, each Public Entity agrees to accept the performance by Guarantor H-4
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of such obligations under such Project Document, and accord Guarantor all of the rights and benefits due to RIDA under such Project Document to the extent necessary for the Guarantor to fully satisfy its obligations hereunder.

1.4 RIDA Acknowledgment. RIDA hereby acknowledges that any payment made by any Public Entity to Guarantor of any amount that such Public Entity owes to RIDA shall satisfy such Public Entity’ s obligation to pay such amount to RIDA.

2. CHARACTER OF GUARANTY.

2.1 Guarantee of Performance. This Guaranty is not a guarantee of collection, but rather of performance. Guarantor hereby covenants and agrees that Guarantor is liable for the Guaranteed Obligations as primary obligor. Any Guaranteed Obligation may be enforced by any Obligee that is entitled to enforce such Guaranteed Obligation separately without enforcing compliance with any other Guaranteed Obligation to which such Obligee is entitled to enforce and without waiving its right or the right of any other of the Obligees to subsequently enforce or concurrently enforce any other Guaranteed Obligation hereunder.

2.2 Other Guaranties; Joint and Several Obligations. For purposes of this Guaranty, “ Net Worth” shall mean, with respect to any Person, such Person’ s total assets less the amount of such Person’ s total liabilities, determined in accordance with the Guarantor’ s standard accounting principles, as presented in the form attached hereto as Exhibit A. For purposes of this Guaranty, “ Liquidity” shall mean, with respect to any Person, such Person’ s ( a) assets that are specified in clauses ( 1) through ( 10) of the definition of Permitted Investments set forth in the Indenture of Trust dated as the date hereof ( the “ Indenture”), between the Authority and Wilmington Trust, National Association, as trustee, without giving effect to the introductory clause of such definition and ( b) without duplication of (a), publicly traded securities. The Guarantor and each of the Public Entities acknowledge and agree that a guaranty of the Guaranteed Obligations (an Other Guaranty”) may be provided to the Public Entities by any other guarantor (“ Other Guarantors”) in accordance with the terms of this Guaranty. If at any time the Guarantor ( which may include an Other Guarantor) has a Net Worth (“ Guarantor Net Worth”), when taken together with the Net Worth of each Other Guarantor at such time ( collectively, “ Other Guarantor Net Worth”), of less than $ 200,000,000 or the Guarantor has a Liquidity (“ Guarantor Liquidity”), when taken together with the Liquidity of each Other Guarantor at such time ( collectively, “ Other Guarantor Liquidity”), of less than $ 40,000,000, then the Guarantor shall promptly notify the Public Entities thereof and shall do one or more of the following to achieve a Minimum Net Worth and Minimum Liquidity for the Guarantor, no later than 60 days, or 10 Business Days if there is an ongoing Event of Default (under and as defined in the Hotel Ground Lease or the PIA, as applicable), after the date that the Guarantor notifies the Public Entities thereof, (a) ( i) increase the Guarantor Net Worth so that the increased Guarantor Net Worth, when taken together with the Other Guarantor Net Worth at such time, shall be equal to or be greater than $200,000,000 (the “ Minimum Net Worth”) and/or (ii) increase the Guarantor Liquidity so that the increased Guarantor Liquidity, when taken together with the Other Guarantor Liquidity at such time, shall be equal to or be greater than 40,000,000 ( the “ Minimum Liquidity”), or (b) cause a Qualified Guarantor to execute an Other Guaranty substantially and materially in the form of this Guaranty; provided, however, that there shall be no more than three Other Guaranties outstanding at any time. Should any Other Guaranty be provided to the Public Entities by any Other Guarantor, Guarantor and the Other Guarantors agree that the liability of the Guarantor and Other Guarantors hereunder shall be joint and several and that each provision hereof shall apply to the Guarantor and each Other Guarantor individually and to H-5
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Guarantor and all Other Guarantors collectively, and the Public Entities may seek to enforce this Guaranty against Guarantor or the Other Guarantors ( and less than all of the Guarantor and Other Guarantors) without impairing the rights of the Public Entities against Guarantor or any of the Other Guarantors.

2.3 Continuing Guaranty. This is a continuing guaranty, and shall apply to all of the Guaranteed Obligations and all renewals and extensions thereof, and the fact that at any time, and from time to time, such Guaranteed Obligations may be performed in full or RIDA shall no longer be party to one or more of the Project Documents, shall not affect the obligations of the Guarantor hereunder which arise thereafter. In the event that RIDA is no longer a party to one or more of the Project Documents, either as a result of foreclosure by the Permitted Lender or a transfer-in-lieu thereof, or otherwise, the term “ RIDA” herein shall be automatically interpreted to mean the person or entity that has succeeded RIDA under such Project Document(s), or if RIDA is still a party to one or more of the Project Documents, the term “ RIDA” herein shall mean RIDA and the new entity that has succeeded RIDA under the Project Documents, without any further action of the Public Entities or Guarantor.

2.4 Independent Obligation. The obligations of Guarantor hereunder are independent of the obligations of RIDA, and Other Guarantor(s) or any other Person (as hereinafter defined), and each of the Obligees may enforce any of their rights hereunder independently of any other right or remedy that such Obligee may at any time hold with respect to the Guaranteed Obligations, independently or collectively with the other Obligees.

2.5 Unsecured Obligation. Except as otherwise provided in this Guaranty, this Guaranty is not secured.

3. RELATIONSHIP OF PARTIES. Guarantor hereby represents and warrants as of the date hereof that: ( a) this Guaranty is executed at the request of the Obligees; (b) Guarantor has reviewed all the terms and provisions of the Plans ( as defined in the Hotel Ground Lease) for the Resort Hotel, the Preliminary Parking Improvement Plans (as defined in the Hotel Ground Lease) for the Parking Improvements, the Convention Center Plans ( as defined in the PIA) for the Convention Center, and the Contract Documents ( as defined in the PIA) for Developer’ s Phase 1A Infrastructure Improvements, in each case as revised in accordance with the applicable Project Document collectively, the “ Project Plans”), and the Project Documents; ( c) the Public Entities have made no representations to Guarantor with regard to the Project Plans or the Project Documents; and d) Guarantor has established adequate means of obtaining from RIDA and from other sources, on a continuing basis, financial and other information pertaining to RIDA’s financial condition, the progress of construction of the Project and the status of RIDA’ s performance of its obligations under the Project Documents. Guarantor hereby covenants for the term of this Guaranty that: (i) Guarantor is and shall continue to be a Person which is not a Prohibited Person (as defined below), which, in the aggregate with the Other Guarantor Net Worth, has a Guarantor Net Worth of at least the Minimum Net Worth and which, in the aggregate with the Other Guarantor Liquidity, has a Guarantor Liquidity of at least the Minimum Liquidity (“Qualified Guarantor”); and (ii) Guarantor has not and will not, without the prior written consent of all of the Public Entities in each of their sole and absolute discretion, sell, lease, assign, encumber, hypothecate, transfer or otherwise dispose of any of Guarantor’ s assets, whether in one transaction or a series of transactions, which will result in Guarantor having a Guarantor Net Worth, together with the Other Guarantor Net Worth, of less than the Minimum Net Worth or Guarantor having a Guarantor Liquidity, together with the Other H-6
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Guarantor Liquidity, of less than the Minimum Liquidity. For purposes of this Guaranty, Prohibited Person” shall have the same meaning as the Hotel Ground Lease.

4. CERTAIN AGREEMENTS AND WAIVERS BY GUARANTOR.

4.1 Subject to Section 4.2 and Section 4.9, Guarantor agrees that neither the rights or remedies of the Obligees nor any of Guarantor’ s obligations under the terms of this Guaranty, including without limitation, the Guaranteed Obligations, shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances; Guarantor waives any rights, claims or defenses arising from any such events, actions, facts, or circumstances; and the liability of Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of:
a) any limitation on the liability of, or recourse against, any other person or entity (collectively, “ Person”) under the Project Documents or arising under any Laws (as defined in the Hotel Ground Lease), except that Guarantor will be entitled to the limitations on liability set forth in Section 5.1.2 of the PIA as it applies to delay damages only; provided, that the limitations in Section 5.1.2 shall not apply to any amounts payable under Section 1.1(e) above; b) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration or that the obligations of Guarantor hereunder exceed or are more burdensome than those of RIDA under the Project Documents; c) the release or taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Guaranteed Obligations; d) the operation of any statutes of limitations ( unless each of the Obligees had written notice of a claim and failed to pursue their remedies in the legally prescribed time periods) or other Laws regarding the limitation of actions, all of which are hereby waived as a defense to any action or proceeding brought by any of the Obligees against Guarantor, to the fullest extent permitted by Laws;
e) any homestead exemption or any other exemption under any Laws; f) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Guaranteed Obligations, or any impairment of Guarantor’ s recourse against any Person or collateral;
g) whether express or by operation of Laws, any partial release of the liability of Guarantor hereunder ( except to the extent expressly so released) or any complete or partial release of RIDA or any other Person liable, directly or indirectly, for the performance of any or all of the Guaranteed Obligations;
h) the death, insolvency, bankruptcy, disability, incapacity, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, H-7
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structure or ownership, sale of all assets, or lack of corporate, partnership or other power of RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations; i) either with or without notice to or consent of Guarantor, any renewal, extension, modification, supplement, subordination or rearrangement of the terms of any or all of the Guaranteed Obligations and/or the Project Documents, including material alterations of the terms of payment or performance ( including changes with respect to the construction of the Project) or any other terms thereof, or any waiver, termination, or release of, or consent to departure from any of the Project Documents or any other guaranty of any or all of the Guaranteed Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by any of the Obligees to RIDA or any other Person at any time liable for the performance of any or all of the Guaranteed Obligations;
j) any neglect, lack of diligence, delay, omission, failure, or refusal of any of the Obligees to take or prosecute ( or in taking or prosecuting) any action for the collection or enforcement of any of the Guaranteed Obligations, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute ( or in taking or prosecuting) any action in connection with the Project Documents, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Guaranteed Obligations; k) any failure of any of the Obligees to notify Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Guaranteed Obligations or any part thereof, or of any Project Document, or of any release of or change in any security, or of the occurrence or existence of any default or event of default under any Project Document ( each, an “ Event of Default”), or of any other action taken or refrained from being taken by any of the Obligees against RIDA or any security or other recourse, or of any new agreement between any of the Obligees and RIDA, it being understood that none of the Obligees shall be required to give Guarantor any notice of any kind under any circumstances with respect to or in connection with the Guaranteed Obligations, any and all rights to notice Guarantor may have otherwise had being hereby waived by Guarantor, and Guarantor shall be responsible for obtaining for itself information regarding RIDA and any collateral, including any changes in the business or financial condition of RIDA or any collateral, and Guarantor acknowledges and agrees that the Obligees shall have no duty to notify Guarantor of any information which the Obligees may have concerning RIDA, the Project, the Project Documents, or any collateral; l) the existence of any claim, counterclaim, setoff or other right that Guarantor may at any time have against RIDA, any of the Obligees, or any other Person, whether or not arising in connection with this Guaranty or any Project Document; m) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to RIDA or any other Person, including any extension, reduction, composition, or other alteration of the Guaranteed Obligations, whether or not consented to by any of the Obligees, or any action taken or omitted by any of the Obligees in any such proceedings, including any election to have any of the Obligees’ claim allowed as being secured, partially secured or unsecured, any extension of credit by any of the Obligees in any such proceedings or the taking and holding by any of the Obligees of any security for any such extension of credit;
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n) any other condition, event, omission, action or inaction that would in the absence of this Section 4.1(n) result in the release or discharge of Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Guaranty or any other agreement;
o) any exercise of remedies, including, but not limited to, foreclosure (or transfer-in-lieu thereof) or the appointment of receiver, by any Permitted Lender; or p) enforcement or forbearance by any of the Obligees from enforcement of the Guaranteed Obligations on a net or gross basis.

4.2 Notwithstanding anything to the contrary in this Guaranty, with respect to the Public Entities’ obligations to Guarantor under Section 1.3 hereof under the Project Documents:
a) To the extent any of the Public Entities fails to perform any of their respective obligations under any of the Project Documents and such failure to perform materially and adversely interferes with or prevents Guarantor’ s performance of any of the Guaranteed Obligations ( a Material Failure to Perform”), then Guarantor’ s time to perform with respect to the impacted Guaranteed Obligation(s) shall be extended by one day for each day that such Material Failure to Perform delays Guarantor’ s performance of such Guaranteed Obligation(s), if notice of such Material Failure to Perform is provided by RIDA or Guarantor to the Public Entities within sixty (60) days of such Material Failure to Perform. For purposes of this Section 4.2, a Material Failure to Perform shall include any failure by the Public Entities (x) under Section 1.3 to make payments to Guarantor of amounts owed under the Project Documents or (y) to make payments to RIDA of amounts owed under the Project Documents. The Parties agree upon the written request of any Party to submit any dispute regarding whether or not a Material Failure to Perform exists permitting a Guarantor delay under this Section 4.2(a) to mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure. Such mediation shall be held within San Diego County within thirty (30) days after delivery of written notice requesting same. Each Party shall bear its own costs in such mediation and shall split 50/50 the costs of the mediator. b) If a court of competent jurisdiction determines that a Material Failure to Perform occurred and that such Material Failure to Perform was not the result of the breach of a Tenant Party or the Guarantor under the Project Documents or any material and adverse interference by the Hotel Operator ( a “ Material Failure to Perform Determination”), and the underlying Material Failure to Perform continues for at least ninety ( 90) days from the date of the applicable Material Failure to Perform Determination (the “ Cure Period”), then, from and after the date that the applicable Cure Period expires unless ( i) any Public Entity files an action to appeal the Material Failure to Perform Determination no later than forty five (45) days from the date of the applicable Material Failure to Perform Determination and diligently prosecutes such action, in which case, from and after the date that is the later of (x) the date that the applicable Cure Period expires and (y) thirty 30) days after the date that the applicable appellate court of competent jurisdiction awards such Public Entity(ies) relief); or (ii) the Material Failure to Perform is reasonably capable of cure and the Public Entities have either (x) cured the Material Failure to Perform, or (y) if the Material Failure to Perform is not capable of cure within the Cure Period, have commenced taking appropriate steps to cure such failure and are diligently prosecuting same to completion, then the liability of the Guarantor in respect of the Guaranteed Obligation(s) with respect to which such Material Failure to Perform Determination was made shall automatically terminate, the Guarantor shall be automatically H-9
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released from its obligations under this Guaranty with respect to such Guaranteed Obligation(s), except for any obligations that have accrued and have not been discharged prior to such date, and this Guaranty shall automatically terminate.
c) If the Hotel Ground Lease terminates due to a Condemnation ( as defined in the Hotel Ground Lease) or any damage to or destruction of the Resort Hotel or any part thereof, as permitted in the Hotel Ground Lease and in accordance with the terms thereof (the “ Hotel Ground Lease Termination”), then, from and after the date that the Hotel Ground Lease Termination occurs the “ Hotel Ground Lease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Obligations with respect to the Resort Hotel shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Resort Hotel, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date. If the Convention Center Sublease terminates due to a Condemnation ( as defined in the Convention Center Sublease) or any damage to or destruction of the Convention Center or any part thereof, in each case, as permitted in the Convention Center Sublease and in accordance with the terms thereof (the “ Convention Center Sublease Termination”), then, from and after the date that the Convention Center Sublease Termination occurs ( the “ Convention Center Sublease Termination Date”), the liability of the Guarantor in respect of the Guaranteed Obligations with respect to the Convention Center shall automatically terminate and the Guarantor shall be automatically released from its obligations under this Guaranty with respect to the Convention Center, except for any obligations that have accrued and have not been discharged prior to the Convention Center Sublease Termination Date. If the Hotel Ground Lease Termination occurs, and the Convention Center Sublease Termination occurs, and Guarantor does not have any amounts owing to the Public Entities under this Guaranty (“ Outstanding Payments”), then, from and after the date that is the later of ( x) the Hotel Ground Lease Termination Date, ( y) the Convention Center Sublease Termination Date and ( z) the payment to the Public Entities of any Outstanding Payments, the liability of the Guarantor in respect of the Guaranteed Obligations shall automatically terminate, the Guarantor shall be automatically released from its obligations under this Guaranty, except for any obligations that have accrued and have not been discharged prior to the Hotel Ground Lease Termination Date or the Convention Center Sublease Termination Date, whichever is later, and this Guaranty shall automatically terminate.

4.3 In the event any payment by RIDA or any other Person to any of the Obligees that is made to satisfy any of the Guaranteed Obligations is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar Law, or if for any other reason any of the Obligees are required to refund such payment or pay the amount thereof to any other party, such payment by RIDA or any other party to the Obligees shall not constitute a release of Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated ( notwithstanding any prior release, surrender or discharge by the Obligees of this Guaranty or of Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts that were so paid by RIDA or any other Person to satisfy any of the Guaranteed Obligations and so refunded by the Obligees or paid by the Obligees to another Person ( which amounts shall constitute part of the Guaranteed Obligations), and any interest paid by the Obligees and any attorneys’ fees, costs and expenses paid or incurred by the Obligees in connection with any such event.

4.4 It is the intent of Guarantor and the Public Entities that the obligations and liabilities of Guarantor hereunder are absolute, irrevocable and unconditional under any and all circumstances and that until the Guaranteed Obligations are fully and finally paid and performed, and H-10
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not subject to refund or disgorgement, but except as set forth in Section 4.10, the obligations and liabilities of Guarantor hereunder shall not be discharged or released in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.

4.5 [ Reserved.]

4.6 Guarantor waives notice of acceptance of this Guaranty, any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the Laws of any other jurisdiction, and all other suretyship defenses Guarantor would otherwise have under the Laws of California or any other jurisdiction.

4.7 No provision or waiver in this Guaranty shall be construed as limiting the generality of any other provision or waiver contained in this Guaranty. All of the waivers contained herein are irrevocable and unconditional and are intentionally and freely made by Guarantor.

4.8 This Guaranty may be replaced by a guaranty that is substantially and materially in the same form as this Guaranty, covers all of the same terms and Guaranteed Obligations as this Guaranty whether arising prior to, on or after the date it becomes effective, does not affect the public financing of the Convention Center and Developer’ s Phase 1A Infrastructure Improvements, and is executed by a Person ( such Person, a “ Replacement Guarantor”) that a) holds, directly or indirectly, not less than ten percent (10%) of the membership interests in RIDA, b) when taken together with (i) each Other Guarantor under an Other Guaranty that is not being replaced and (ii) each new Other Guarantor under a new Other Guaranty, has a Guarantor Net Worth of at least the Minimum Net Worth, (c) when taken together with (i) each Other Guarantor under an Other Guaranty that is not being replaced and ( ii) each new Other Guarantor under a new Other Guaranty, has a Guarantor Liquidity of at least the Minimum Liquidity, ( d) is not a Prohibited Person, ( e) assumes any liabilities that exist or may exist under the Guaranty ( including without limitation those arising under Sections 1.3 and 6, unless such liabilities are discharged prior to the effectiveness of the Replacement Guaranty), and ( f) is acceptable to each of the Public Entities in their reasonable discretion ( collectively, the “ Replacement Guaranty”). If (x) all of the conditions and requirements set forth in this Section 4.8, including without limitation, clauses ( a) through ( f) above are satisfied to the reasonable satisfaction of each of the Public Entities, and (y) the proposed replacement Guarantor is reputable ( which shall mean the absence of reputations for dishonesty, criminal conduct or association with criminal elements – “ reputable” shall not mean “ prestigious”, nor shall the determination of whether one is reputable involve considerations of personal taste or preference), and has no reputation for, either discriminatory employment practices which violate any Laws or non-compliance with applicable Environmental Laws ( as defined in the Hotel Ground Lease), then each of the Public Entities shall administratively grant consent to any such proposed Replacement Guarantor. If Guarantor requests in writing that the Public Entities consent to a Replacement Guarantor, and after receipt of all information set forth in this Section 4.8, all of the Public Entities do not within forty-five (45) days after such request provide a response consenting to the request, then such consent will be deemed rejected and upon request, the Public Entities shall provide a reasonably detailed explanation of the reason for rejecting such request. Guarantor’ s request to the Public Entities to consent to a Replacement Guaranty shall include financial statements with respect to such prospective Replacement Guarantor and a certification by such prospective Replacement Guarantor ( with any supporting documentation reasonably requested by the Public Entities) that: ( 1) such proposed Replacement Guarantor holds, directly or indirectly, not less than ten percent ( 10%) of the membership interests in RIDA, (2) such proposed Replacement Guarantor, H-11
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when taken together with (i) each Other Guarantor under an Other Guaranty, if any, that is not being replaced and (ii) each new Other Guarantor, if any, under a new Other Guaranty, has a Guarantor Net Worth of at least the Minimum Net Worth, (3) such proposed Replacement Guarantor, when taken together with (i) each Other Guarantor under an Other Guaranty, if any, that is not being replaced and ii) each new Other Guarantor, if any, under a new Other Guaranty, has a Guarantor Liquidity of at least the Minimum Liquidity and ( 4) such proposed Replacement Guarantor is not a Prohibited Person.

4.9 ( a) Notwithstanding anything in this Guaranty to the contrary, if any Permitted Lender has completed any foreclosure with respect to any Permitted Financing Encumbrance ( as defined in the Hotel Ground Lease; for purposes of this Section 4.9, each capitalized term used in this Section 4.9 and not defined in this Section 4.9 shall have the meaning assigned thereto in the Hotel Ground Lease) as permitted under the Hotel Ground Lease, then, upon the earlier to occur of ( i) the date when any Project Document terminates for any reason in accordance with its terms or (ii) the date when any Obligee or any Foreclosure Purchaser delivers notice of its intent to terminate any Project Document in accordance with its terms ( such date, a Trigger Date”), the Obligees shall promptly and, in no event later than five (5) Business Days after the Trigger Date, notify ( such notice, a “ Project Document Termination Notice”) Guarantor of such termination or delivery of such notice, as the case may be. Guarantor shall have the right to, no later than thirty (30) days after receipt of a Project Document Termination Notice ( such period, the Response Period”), deliver notice to each Obligee of Guarantor’ s undertaking to continue to perform Guarantor’ s obligations under Section 1.1(d) and Section 1.1(e) and Guarantor’ s intention to meet and confer to renegotiate in good faith each Project Document in accordance with this Section

4.9 ( such notice, a “ Meet and Confer Notice”). If Guarantor does not deliver a Meet and Confer Notice prior to the end of the Response Period, then Guarantor’ s obligations hereunder shall continue unchanged.
b) If Guarantor ( i) delivers a Meet and Confer Notice prior to the end of the Response Period and (ii) promptly commences and continues to perform its obligations under Section

1.1(d) and Section 1.1(e), then the Parties shall promptly and, in no event later than fifteen (15) days after delivery of the Meet and Confer Notice, commence to meet and confer to renegotiate in good faith each Project Document in accordance with this Section 4.9 (the “ Meet and Confer Process”) such renegotiated Project Document, a “ Replacement Project Document”). Within five (5) days after Guarantor delivers the Meet and Confer Notice, Guarantor shall use commercially reasonable efforts to (x) in the case of the Hotel Ground Lease, secure the Premises and Improvements ( as both are defined in the Hotel Ground Lease) ( collectively, the “ Hotel Site”) and ( y) in the case of the Sublease and Project Implementation Agreement, secure the Facility and the Developer’ s Phase 1A Improvements ( as both are defined in the Project Implementation Agreement) ( collectively, the “ PIA Sublease Site”). In each case, to “ secure” either the Hotel Site or PIA & Sublease Site, shall mean such measures that a commercially reasonable developer would implement to protect a construction site from damage or destruction and entrance by other parties. If Guarantor fails to secure the Hotel Site or PIA & Sublease Site as provided in the aforementioned sentence, the Port District shall have the right to secure the Hotel Site and the Port District, the City, and the Authority shall have the right to secure the PIA & Sublease Site. The Meet and Confer Process shall continue for an initial period of ninety (90) days (the “ Initial Meet and Confer Period”). If the Parties do not agree on Replacement Project Documents prior to the end of the Initial Meet and Confer Period and each Party determines in its reasonable discretion that the Parties may reach an agreement on Replacement Project Documents during an additional ninety- (90-) day period, then the Initial Meet and Confer Period shall be extended for additional ninety ( 90) days ( the “ Extended Meet and H-12
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Confer Period”, and the Initial Meet and Confer Period, together with (if applicable) the Extended Meet and Confer Period, the “ Meet and Confer Period”). Commencing on the Trigger Date and ending on the earlier of (x) the end of the Meet and Confer Period or (y) if Guarantor does not timely deliver a Meet and Confer Notice, the end of the Response Period, Guarantor’ s obligations under Section 1.1 ( other than Section 1.1(d) and Section 1.1(e)) and Section 1.3 shall be suspended, no Obligee shall enter into, or permit entering into, any agreement in replacement of any Project Document other than any Replacement Project Document, the applicable Obligee(-s) shall not grant any real property interest in the Premises ( as defined in any Project Document), and the ownership of the Improvements ( as defined in any Project Document) shall not vest in any Obligee or any third party (other than pursuant to any Permitted Financing Encumbrance). c) During the Meet and Confer Period, the Parties shall use commercially reasonable efforts renegotiate the Project Documents in good faith so that, to the extent practicable, each Replacement Project Document is on substantially the same terms as the applicable Project Document being replaced except that the Replacement Project Documents will reflect modifications as agreed among the Parties to (i) reflect adjustments to the timetable for Completion of the Project as defined in the PIA) and Completion of Tenant’ s Initial Project Improvements and the Convention Center Improvements ( as defined in the Hotel Ground Lease), ( ii) reflect adjustments to the term of such Project Document and/or rent payments thereunder in order to compensate the applicable Obligee(-s) for (x) unreimbursed costs incurred by such Obligee(-s) as a result of RIDA’ s failure to perform its obligations under such Project Document and/or ( y) lost profits and opportunity costs incurred by such Obligee(-s) in connection with any delay in Completion of the Project (as defined in the PIA) or Completion of Tenant’ s Initial Project Improvements and the Convention Center Improvements ( as defined in the Hotel Ground Lease), ( iii) provide each Party with reasonably forecasted economic returns that are not worse than the economic returns forecasted for such Party as of the date hereof and (iv) include any other terms to which the Parties may agree. The terms of this Guaranty may also be renegotiated during the Meet and Confer Period in order to conform to, and provide adequate security for, the replacement developer’ s performance of its obligations under the Replacement Project Documents.
d) Each Party may terminate the Meet and Confer Process in its sole discretion if i) (A) the Parties do not agree on Replacement Project Documents prior to the end of the Initial Meet and Confer Period and such Party determines in its reasonable discretion that the Parties will not reach an agreement on Replacement Project Documents during the Extended Meet and Confer Period or (B) the Parties do not reach an agreement on Replacement Project Documents prior to the end of the Extended Meet and Confer Period and (ii) such Party has negotiated Replacement Project Documents in good faith. If the Meet and Confer Process is terminated pursuant to this clause ( d), then Guarantor’ s obligations hereunder shall be reinstated and this Guaranty shall continue in full force and effect. If the Parties reach agreement on Replacement Project Documents during the Meet and Confer Period, then the applicable Parties shall promptly enter into such Replacement Project Documents and, subject to the terms of the Replacement Project Documents, Guarantor’ s obligations hereunder, as may be modified during Meet and Confer period, shall be reinstated and this Guaranty, as modified, shall continue in full force and effect.
e) The Parties agree upon the written request of any Party to submit any dispute regarding the Meet and Confer Process to mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to litigation or some other dispute resolution procedure. Such mediation shall be held within San Diego County within thirty 30) days after delivery of written notice requesting same. Each Party shall bear its own costs in such H-13
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mediation. RIDA and the Obligees will each pay fifty percent (50%) of the costs of the mediator. No Party shall be entitled to any monetary damages in connection with any dispute with respect to its obligations to negotiate in good faith during the Meet and Confer Period, or its decision not to enter into Replacement Project Documents. During such mediation or another dispute resolution procedure, Guarantor shall continue to perform its obligations under Section 1.1(d) and Section

1.1(e).

4.10 Provided that there are no Outstanding Payments and without limiting Section

4.2(b), the liability of Guarantor in respect of the Guaranteed Obligations shall automatically terminate and Guarantor shall be automatically released from its obligations under this Guaranty and this Guaranty shall automatically terminate upon the earliest of the following dates: (i) the date that is six (6) months after the Completion of the Project (as defined in Section 1.1), (ii) the effective date of a Replacement Guaranty pursuant to and in accordance with Section 4.8 hereof where the Replacement Guarantor has replaced the Guarantor and assumed all of Guaranteed Obligations, and iii) the date on which all of the following has occurred: ( x) Hotel Ground Lease Termination Date and ( y) the Convention Center Sublease Termination Date. Provided that the necessary conditions under this Section 4.10 have been satisfied, each Public Entity shall execute an acknowledgement that this Guaranty has terminated promptly after the receipt by the Public Entities of a written request therefore from Guarantor.

5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to the Public Entities that:

5.1 Authority; Execution, Delivery and Performance of Guaranty. Guarantor has all requisite power and authority to execute, deliver and perform all of its obligations under this Guaranty. The execution, delivery and performance by Guarantor of all of the obligations under this Guaranty has been duly authorized by all necessary action and do not and will not:
a) result in or require the creation or imposition of any lien, right of others, or other encumbrance of any nature (other than under this Guaranty) upon or with respect to any property now owned or leased or hereafter acquired by the Guarantor; or b) violate any provision of any Laws; or
c) result in a breach of, constitute a default under, or cause or permit the acceleration of any obligation owed under any agreement or instrument to which Guarantor is a party or by which Guarantor or any of its property is bound or affected; or d) require any consent or approval not heretofore obtained; or e) violate any provision of, or require any consent under, any operating agreement, certificate of formation, partnership agreement, articles of incorporation, by-laws or any other governing document or charter applicable to Guarantor.

5.3 Enforceability. This Guaranty, when executed and delivered, shall constitute the valid and binding obligation of Guarantor, enforceable in accordance with its terms, subject to bankruptcy laws and other Laws and equitable principles affecting creditors rights generally if applicable to Guarantor.

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5.4 Financial Information. The statement of financial condition made available to the Public Entities for review with respect to the Guarantor in connection with the Project Documents and this Guaranty, and to demonstrate that Guarantor is a Qualified Guarantor to the Public Entities, is a true, complete, and correct copy of such statement, such statement has been prepared in accordance with the Guarantor’ s standard accounting principles, and fairly and accurately represents the financial condition of the Guarantor in accordance with such accounting principles, as of the date it was delivered to the Public Entities. As of the date hereof, there has been no material adverse change in the financial condition of Guarantor since the date of such statement of financial condition and Guarantor remains in compliance with the Guarantor Net Worth and Guarantor Liquidity requirements set forth in Section 2.2 hereof.

5.5 No Default. To the best of Guarantor’ s knowledge, there is no condition, event, act or omission that exists which, with the giving of notice or the passage of time, or both, would be an Event of Default under the Project Documents.

6. REMEDIES. If Guarantor shall fail to perform or satisfactorily commence performance of its obligations hereunder within fourteen (14) days of a demand by any of the Public Entities for performance thereof, the Public Entities shall have the following remedies, in addition to and cumulative of any other remedies it may have hereunder, under the Project Documents or at law or in equity:
a) [ reserved;]
b) at its option and without any obligation to do so, complete all or any portion of the Project either before or after the termination of the Project Documents or before or after exercising any other remedy against RIDA or Guarantor, with such changes or modifications in the Project Plans as are necessary for completion of the Project. The amount of any and all expenditures made by the Public Entities for the foregoing purposes shall be immediately due and payable to the Public Entities by Guarantor; and
c) from time to time and without first requiring performance on the part of RIDA and without being required to exhaust any or all security held by the Public Entities, to look to and require performance by Guarantor of any obligation on the part of Guarantor to be performed pursuant to the terms of this Guaranty by action at law or in equity, or both.

7. NOTICE OF CERTAIN EVENTS. Guarantor shall give written notice to each of the Public Entities promptly (and in any event within five (5) days) after Guarantor learns of any of the following:
a) the institution of any litigation or legal or administrative proceeding or investigation which has a reasonable probability of being adjudicated adversely to RIDA, Guarantor, the Project or any of RIDA’ s or Guarantor’ s properties and which would reasonably be expected, if so adjudicated, to materially and adversely affect RIDA, Guarantor or the Project, or cause Guarantor to no longer be a Qualified Guarantor; and
b) the occurrence of any Event of Default or event or condition which, with the giving of notice or the passage of time, or both, would be an Event of Default under the Project Documents.

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8. REASONABLENESS AND EFFECT OF WAIVERS. Guarantor warrants and agrees that each of the waivers set forth in this Guaranty is made with full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or Laws. If any of such waivers are determined to be contrary to any applicable Laws or public policy, such waivers shall be effective only to the maximum extent permitted by Laws.

9. MISCELLANEOUS PROVISIONS.

9.1 Costs of Enforcement. The prevailing party in any legal proceedings concerning the enforcement of this Guaranty shall be entitled to recovery of its costs and attorneys’ fees from the party that did not prevail.

9.2 Binding Effect. This Guaranty and all the terms, provisions and conditions hereof shall be binding upon the Guarantor and its heirs, legal representatives, successors and assigns, and this Guaranty shall inure to the benefit of the Public Entities and their successors and assigns and all subsequent holders of the Guaranteed Obligations.

9.3 Financial Information. Guarantor shall deliver to the Public Entities, as soon as available, but in no event later than one hundred twenty ( 120) days after the end of Guarantor’ s fiscal year-end, a copy of Guarantor’ s statement of financial condition, in the form attached hereto as Exhibit A, as of the end of such calendar year, together with a certification that such statement ( 1) is complete and correct to the best of Guarantor’ s knowledge, ( 2) presents the financial condition of the entity, (3) presents all liabilities that are required to be reflected, and those liabilities are presented at historical cost, and ( 4) is prepared in accordance with the Guarantor’ s standard accounting principles. Additionally, Guarantor shall make available for inspection ( but not copying) by any of the Public Entities such other information regarding Guarantor’ s assets, liabilities and financial condition generally as (a) the Public Entities may from time to time reasonably request so that the Public Entities can verify the veracity of the certifications set forth in the preceding sentence and (b) exists (unless generation of such financial information will not result in any material additional expense to the Guarantor, in which case the Guarantor will request that such financial information be generated and provided to the Public Entities), at the Project, RIDA’ s main business office, any of Hotel Operator’ s (as defined in the Hotel Ground Lease) business offices in San Diego County, California or at such other location in San Diego County, California as is reasonably acceptable to the Public Entities, upon such Public Entity’ s written notice, which shall specify in reasonable detail the financial information the Public Entities are requesting be made available for inspection and the date when such inspection will take place, which date shall not be less than ten business days after the date of such notice. Notwithstanding the foregoing, if any of the Public Entities are required to include any of the financial information shared by Guarantor in connection with its respective board or council meetings, Guarantor agrees to provide the Public Entities with a redacted version of such financial information at no cost to the Public Entities and a certification that, except for such redactions, such redacted version of financial information is a true, correct, and complete copy of the unredacted version of the financial information reviewed by the Public Entities.

9.4 Governing Law. This Guaranty shall be governed by, and construed in accordance with, the laws of the State of California.

9.5 Notices. All notices demands, approvals and other communications provided for herein shall be in writing and shall be delivered by overnight air courier, personal delivery or H-16
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registered or certified U.S. mail with return receipt requested, postage prepaid, to the appropriate Party at its address as follows:

If to Port District:

Executive Director
San Diego Unified Port District
Administration Building
3165 Pacific Highway
San Diego, California 92101-1128
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
With copy to:

Director, Real Estate
San Diego Unified Port District
Administration Building
3165 Pacific Highway
San Diego, California 92101-1128
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
With a copy to:

Port Attorney
San Diego Unified Port District
3165 Pacific Highway
San Diego, California 92101-1128
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
If to City:

City of Chula Vista
Attention: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to:

City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
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If to the Authority:

Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: Executive Director
With copy to:

City of Chula Vista
Attention: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to:

City Attorney
City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
With copy to:

Port Attorney
San Diego Unified Port District
3165 Pacific Highway
San Diego, California 92101-1128
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
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If to Guarantor:

RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner
With copy to:

RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Luke Charlton
and
Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
If to Administrative Agent:

JPMorgan Chase Bank, National Association
Attention: James G. Millard
383 Madison Avenue, 3rd Floor (NY1-M165)
New York, NY 10179
Telephone: 212-270-2198
E-mail: james.g.millard@jpmorgan. com
With copy to:

Shawn Laljit at [email protected]
Addresses for notice may be changed from time to time by written notice to all other Parties. Any communication given by mail will be effective upon the earlier of ( a) three ( 3) business days following deposit in a post office or other official depository under the care and custody of the United States Postal Service or ( b) actual receipt, as indicated by the return receipt; if given by telephonic facsimile, when sent; and if given by personal delivery or by overnight air courier, when delivered to the appropriate address set forth above.

9.6 No Waiver. Any failure by the Public Entities to insist, or any election by the Public Entities not to insist, upon strict performance by Guarantor of any of the terms, provisions or conditions of this Guaranty shall not be deemed to be a waiver of the same or of any other terms, provisions or conditions thereof.

9.7 Severability. If any provision of this Guaranty or the application thereof to any Person or circumstance shall be invalid or unenforceable, then, neither the remainder of this instrument nor the application of such provision to other persons or circumstances shall be affected thereby, but rather shall be enforced to the greatest extent permitted by Laws.

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9.8 Entire Agreement and Modification. This Guaranty contains the entire agreement between the Guarantor and the Public Entities relating to the subject matter hereof, except for the Project Plans and the Project Documents. This Guaranty may not be amended, revised, waived, discharged, released or terminated orally, but only by a written amendment, revision, waiver, discharge, release or termination. Any alleged amendment, revision, waiver, discharge, release or termination which is not so documented shall not be effective as to any Party to this Guaranty.

9.9 Further Assurances. Each Party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other Party may reasonably request in order to carry out the intent and accomplish the purposes of this Guaranty and the consummation of the transactions contemplated hereby.

9.9 Electronic Signature. The words “ execution”, “ execute”, “ signed”, signature”, and words of like import in this Guaranty or in or related to any document signed or to be signed in connection with this Guaranty and the transaction contemplated hereby shall be deemed to include electronic signatures, contract formations on electronic platforms approved by the parties hereto, or the keeping of such electronic signatures and electronic contracts in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

Signature Page Follows.]
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date first written above.

GUARANTOR
Print Name:

Print Title:

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Accepted and agreed by:

SAN DIEGO UNIFIED PORT DISTRICT APPROVED AS TO FORM AND LEGALITY:

Print Name: Thomas A. Russell, General Counsel
Print Title:

CHULA VISTA BAYFRONT FACILITIES APPROVED AS TO FORM AND LEGALITY:

FINANCING AUTHORITY
Print Name: Thomas A. Russell, Co-Counsel, General Counsel Print Title: San Diego Unified Port District
Glen R. Googins, Co-Counsel, City Attorney
City of Chula Vista

CITY OF CHULA VISTA
Print Name:

Print Title:

RIDA CHULA VISTA, LLC
Print Name:

Print Title:

California Contractor License Number: 1039979

JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
Print Name:

Print Title:

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EXHIBIT A

FORM OF STATEMENT OF FINANCIAL CONDITION
MFO Holding Company, LLC
As of __________ ___, 2022
Prepared: ___________ ___, 2022
Guarantor hereby certifies that the accompanying Statement of Financial Condition:

1. Is complete and correct to the best of my knowledge;

2. Presents the financial condition of the entity;

3. Presents all liabilities that are required to be reflected, and those liabilities are presented at historical cost;

4. Is prepared in accordance with the Guarantor’ s accounting principles, as reviewed and approved by the Public Entities.

MFO Holding Company, LLC, sole
member, Ira M. Mitzner
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STATEMENT OF FINANCIAL CONDITION
MFO Holding Company, LLC
As of ____________ ___, 2022
ASSETS ____________ ___, 2022

CASH, STOCKS AND TRADEABLE MARKET CASH EQUIVALENTS,
representing MFO Holding Company’ s ownership interest

OPERATING / MONEY MARKET / INVESTMENT ACCOUNTS
List of CASH ACCOUNTS
TOTAL CASH, TRADEABLE STOCKS AND CASH EQUIVALENTS $
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Statement of Financial Condition

Page 2 ends

REAL ESTATE, representing the estimated fair value of MFO Holding Company’ s equity interest _________ __, 2022 Real Estate Entity/Property
TOTAL REAL ESTATE $
TOTAL ASSETS $

LIABILITIES
Bank Loans Outstanding
TOTAL LIABILITIES $
NET ASSETS $
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Exhibit I
Listing of Real Estate Agreements

1. Amended, Restated and Combined Lease between the San Diego Unified Port District (the “ District”) and Marine Group Boat Works, LLC for property at the North Side of G Street at the terminus of both Quay Avenues and Sandpiper Way in Chula Vista, which lease is on file in the Office of the District Clerk as Document No. 54509, as amended, restated, and modified as of the Effective Date. Lease expires on January 31, 2030, with an eleven year option to extend to January 31, 2041.

2. Lease between the District and Chula Vista Marina, LP, dba Chula Vista Marina, for property located at 550 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 14244, as amended, restated, and modified as of the Effective Date.

Lease expires on November 30, 2030.

3. Lease between the District and SHM South Bay, LLC, for property located at 640 Marina Parkway in Chula Vista which lease is on file in the Office of the District Clerk as Document No. 73446, as amended, restated, and modified as of the Effective Date and expiring on June 30, 2032.

4. Lease between the District and Sun Chula Vista Bayfront RV LLC for property located at 825 E Street in Chula Vista (Costa Vista RV Park) which lease is on file in the Office of the District Clerk as Document No. 70407 (“ RV Park Lease”), as amended, restated, and modified as of the Effective Date and expiring on September 16, 2085.

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Exhibit J
Total Convention Center Development Fee
Effective Date: $2,520,000 (the “ Initial Development Fee Payment”) On the first day of each full calendar month after the Effective Date for a total of thirty-six (36) months: $175,000
Completion of the Convention Center: $1,260,000
Twelve months after Completion of the Convention Center: $2,520,000* 2,520,000 final payment to come from the General Contingency line item for the Hotel and Parking Improvements budget if remaining funds are available twelve months following the Completion of the Convention Center.

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Exhibit K-1
Form of Developer’ s Phase 1A Payment Request
202[_]
Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: [Executive Director]
Re: Developer’ s Phase 1A Payment Request No. [___] under Project Implementation Agreement the “ Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”).

Payment Request of $[_________]
Requested Payment Date: [_________], 20[__] 1
Ladies and Gentlemen:

The Developer submits this Developer’ s Phase 1A Payment Request No. [___] ( the Payment Request”) pursuant to Section 9.1.2 of the Agreement with respect to the Developer’ s Phase 1A Infrastructure Improvements. Capitalized terms used herein without definition shall have the meanings assigned in the Agreement.

The Developer hereby requests that the Authority, on the requested payment date set forth above ( the “ Requested Payment Date”), direct the Trustee to transfer $ [_____] ( the “ Requested Payment Amount”) from the [ Account] to the [ Account]. The Requested Payment Amount is calculated as set forth on Schedule 1.

In connection with the requested payment, the Developer hereby represents, warrants and certifies as of the date hereof as follows:
a) Schedule 1 accurately reflects for each line item in the Developer’ s Phase 1A Infrastructure Improvements Budget, ( i) the current budget amount, ( ii) amounts previously funded by the Authority, (iii) the Requested Payment Amount, (iv) hard costs incurred, including retainage and (v) retainage withheld.
1 To be not less than 10 business days after the date of the Developer’ s Phase 1A Payment Request.

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b) Schedule 2 accurately lists, for the Requested Payment Amount, each Person to whom any of the Developer’ s Phase 1A Infrastructure Improvements Costs have been or will be paid and, for each line item in such schedule and for each such Person, the following: (i) the name of the payee paid or to be paid, (ii) the invoice date, invoice number and amount that Developer has paid to such Person or intends to pay to such Person during the next 30 days, ( iii) a description of the purpose of such payment, specifying the line item relating to each such payment. c) Schedule 3 accurately lists, since inception of Developer’s Phase 1A Infrastructure Improvements work, each Person to whom any of the Developer’s Phase 1A Infrastructure Improvements Costs have been or will be paid and, for each line item in such schedule and for each such Person, the following: (i) the name of the payee paid or to be paid, (ii) the invoice date, invoice number and amount that Developer has paid to such Person or intends to pay to such Person during the next 30 days, (iii) a description of the purpose of such payment, specifying the line item relating to each such payment, ( iv) amounts eligible for reimbursement under the Sewer Agreement, v) amounts eligible for credit under the BFDIF Program, ( vi) amounts to be funded from other sources and ( vii) the amounts that have been expended and applied to pay Developer’ s Phase 1A Infrastructure Improvements Costs in accordance with Contract Documents and the Agreement ( or, with respect to the Early Work Costs, in accordance with the Early Work Agreement), except for and amounts paid in respect of the Stipulated Developer’ s Phase 1A Infrastructure Improvements Overhead Amount. The amounts listed in Schedule 3 do not include any Non-Project Costs or Excluded Costs. The information set forth in Schedule 3 as noted above is true, correct and complete in all material respects.
d) The Developer has delivered or caused to be delivered to the Authority:
i) copies of true and complete invoices that have been tendered for all Developer’ s Phase 1A Infrastructure Improvements Costs pursuant to any Payment Request, and ii) statutory lien/stop payment notice conditional waivers and releases associated with all work performed, or supplies provided, for the Developer’ s Phase 1A Infrastructure Improvements and for which payment is requested in the appropriate statutory form, other than Excluded Mechanics Lien Waivers, and
iii) copies of all change orders executed prior to the date of this Payment Request.
e) To Developer’ s actual knowledge, after inquiring with Developer’ s architect or engineer who has a representative at the Project Site, the construction performed for the Developer’ s Phase 1A Infrastructure Improvements as of the date hereof has been performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements, or to the extent any such construction has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications, the amount to be disbursed under this payment request has been reduced by pursuant to the Architect’ s Certificate (as defined below) to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements.

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f) To the actual knowledge of Developer ( after enquiring with Developer’ s General Contractor), except as described in (e) above, no work or component of work has been rejected or disapproved by an inspector or other authorized representative of the City’ s building or public works departments or a stormwater inspector representing the Port District. g) The amount of the Payment Request reflects a reduction of $[_____], being the amount for which the Developer does not intend to pay any General Contractor or any Subcontractor. h) The Developer’ s Phase 1A Infrastructure Improvements Budget presently in effect is dated [__________] [ and has not been amended] [ and includes all amendments through Developer’ s Phase 1A Infrastructure Improvements Budget Amendment No. [___]]. Said budget (i) is based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, ii) has been prepared in good faith and with due care, (iii) accurately sets forth, for each line item in the Developer’ s Phase 1A Infrastructure Improvements Budget, the total costs anticipated to be incurred to achieve Completion, and ( iv) fairly represents in all material respects the Developer’ s reasonable expectation as to the matters covered thereby as of its date. i) As of the date hereof, no Event of Default exists.
j) As of the date hereof, Developer has complied with all applicable provisions of Section 7.2.3.1 of the Agreement.
k) [__] months have passed since the Commencement Date, and as such the amount of the Developer’ s Phase 1A Project Administration Fee that has accrued as of the date hereof $[___].

Attached to this Payment Request as Exhibit 1 is a certificate from the Architect ( the Architect’ s Certificate”).

SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this Developer’ s Phase 1A Payment Request as of this [___] day of [_________], 202[_].

DEVELOPER
limited liability company
By: *
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Schedule 1 to Developer’ s Phase 1A Payment Request
Line Description Amount
1 The Developer’s Phase 1A Infrastructure Improvements
Costs incurred or to be incurred by Developer and for
which Developer has made or intends to make actual
payment prior to the next Developer’ s Phase 1A
Payment Request:
2 The Stipulated Developer’ s Phase 1A Infrastructure
Improvements Overhead Amount that has accrued as of
the date of the Developer’ s Phase 1A Payment Request:
3 Total of Lines 1 and 2: $
Certificate:
the Developer’s Phase 1A Contract Sum:

Contractor or any Subcontractor (except to the extent the applicable work has been performed by others the
7 Total of Lines 4, 5 and 6: $
K-1-6
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Schedule 2 to Developer’ s Phase 1A Payment Request
See attached]
RIDA Chula Vista, LLC - Phase 1A Infrastructure Schedule 2A

DRAW - SUMMARY
Item Description Original Budget Previous Adjustments Current Adjustments Note Revised Budget Previous Payments This Period Costs Total Paid To Date Hard Costs Including
Retainage
Total
Complete Balance to Finish Retainage
A-1 HARD CONSTRUCTION COSTS 28, 075, 263. 00$ -$ 28, 075, 263. 00$ -$ -$ -$ -$ 0.00% 28, 075, 263. 00$ -$ A-2 Welded Steel Pipe Option 1,214, 189. 00$ -$ 1,214, 189. 00$ -$ -$ -$ -$ 0.00% 1,214, 189. 00$ A-3 Construction Contingency 799, 822. 00$ -$ 799, 822. 00$ -$ -$ -$ -$ 0.00% 799, 822. 00$ -$ B ARCHITECTURE, ENGINEERING FEES 931, 562. 00$ -$ 931, 562. 00$ -$ -$ -$ 0.00% 931, 562. 00$ C STIPULATED DEVELOPER' S OVERHEAD AMOUNT/ G& A 3,000, 000. 00$ -$ 3,000, 000. 00$ -$ -$ -$ 0.00% 3,000, 000. 00$ D SDG& E DRY UTILITIES 399, 917. 00$ -$ 399, 917. 00$ -$ -$ -$ 0.00% 399, 917. 00$ E BUILDERS RISK, GL AND WC INSURANCE 435, 000. 00$ -$ 435, 000. 00$ -$ -$ -$ 0.00% 435, 000. 00$ F PERMIT FEES & PLAN CHECK FEES & INSPECTION FEES 1,207, 877. 00$ -$ 1,207, 877. 00$ -$ -$ -$ 0.00% 1,207, 877. 00$ G IMPACT FEES / CONNECTION FEES -$ -$ -$ -$ -$ -$ 0.00% -$ H CONTINGENCY 4,395, 088. 00$ -$ 4,395, 088. 00$ -$ -$ -$ 0.00% 4,395, 088. 00$ I PAYMENT BONDS 136, 384. 00$ -$ 136, 384. 00$ -$ -$ -$ 0.00% 136, 384. 00$ J LEGAL & OTHER PROFESSIONAL FEES -$ -$ -$ -$ -$ -$ 0.00% -$ K PROPOSED GATEWAY SIGN 110, 000. 00$ -$ 110, 000. 00$ -$ -$ -$ 0.00% 110, 000. 00$ L EARLY WORK 859, 344. 00$ -$ 859, 344. 00$ -$ -$ -$ 0.00% 859, 344. 00$ M PROJECT ADMINISTRATION FEE 737, 109. 00$ -$ 737, 109. 00$ -$ -$ -$ 0.00% 737, 109. 00$ TOTAL PHASE 1A PROJECT COST: 42,301, 555. 00$ -$ -$ 42, 301, 555. 00$ -$ -$ -$ -$ 0.00% 42,301, 555. 00$ BUDGET DRAFT s NOT FINAL) PAYMENTS SUMMARY

Page 1 of 1 ends

Schedule 2B
Code Kind of Work Invoice Date Invoice # Vendor Description Amount Total Dt Pd Ck# Amounts Unpaid A- 1 HARD CONSTRUCTION COSTS -$
A-1-1 -$
A-1-2 -$
A-1-3 -$
A- 2 Welded Steel Pipe Option -$
A-2-1 -$
A-2-2 -$
A-2-3 -$
A- 3 Construction Contingency -$
A-3-1 -$
A-3-2 -$
A-3-3 -$
B ARCHITECTURE, ENGINEERING FEES -$
B-46 -$
B-47 -$
B-48 -$
B-49 -$
B-50 -$
C
STIPULATED DEVELOPER' S OVERHEAD AMOUNT/ G& A -$
C- 1 -$
C- 2 -$
C- 3 -$
D SDG& E DRY UTILITIES -$
D-1 -$
D-2 -$
D-3 -$
E BUILDERS RISK, GL AND WC INSURANCE -$
E- 1 -$
E- 2 -$
E- 3 -$
F
PERMIT FEES & PLAN CHECK FEES & INSPECTION FEES -$
F-4 -$
F-5 -$
F-6 -$
G IMPACT FEES / CONNECTION FEES -$
G- 1 -$
G- 2 -$
G- 3 -$

H CONTINGENCY
H-1
I PAYMENT BONDS -$
I-1 -$
I-2 -$
I-3 -$
J LEGAL & OTHER PROFESSIONAL FEES -$
J-1 -$
J-2 -$
J-3 -$
K PROPOSED GATEWAY SIGN -$
K-1 -$
RIDA Chula Vista, LLC - Phase 1A Infrastructur
Detail Invoice Costs Incurred, Draw 8

Page 1 of 2 ends

Schedule 2B
Code Kind of Work Invoice Date Invoice # Vendor Description Amount Total Dt Pd Ck# Amounts Unpaid RIDA Chula Vista, LLC - Phase 1A Infrastructur
Detail Invoice Costs Incurred, Draw 8
K-2 -$
K-3 -$
L EARLY WORK -$
L-1 -$
L-2 -$
L-3 -$
M PROJECT ADMINISTRATION FEE -$
M- 1 -$
M- 2 -$
M- 3 -$
TOTAL PHASE 1A PROJECT COST: -$ -$

Page 2 of 2 ends

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Schedule 3 to Developer’ s Phase 1A Payment Request
See attached]
Schedule 3
ALL Invoice Costs Incurred
Draw Code Kind of Work Invoice Date Invoice # Vendor Description Amount BFDIF Sewer Other/ Bond Proceeds Total Dt Pd Ck# Amounts Un aid HARD CONSTRUCTION COSTS 0% 0% 0%
ARCHITECTURE, ENGINEERING FEES 0% 0% 0%
STIPULATED DEVELOPER' S OVERHEAD AMOUNT/ G&A 0% 0% 0%
SDG& E DRY UTILITIES 0% 0% 0%
BUILDERS RISK, GL AND WC INSURANCE 0% 0% 0%
PERMIT FEES & PLAN CHECK FEES & INSPECTION FEES 0% 0% 0% IMPACT FEES / CONNECTION FEES 0% 0% 0%
CONTINGENCY 0% 0% 0%
PAYMENT BONDS 0% 0% 0%
LEGAL & OTHER PROFESSIONAL FEES 0% 0% 0%
PROPOSED GATEWAY SIGN 0% 0% 0%
EARLY WORK 0% 0% 0%
PROJECT ADMINISTRATION FEE 0% 0% 0%
DRAW TOTAL -$ -$ -$ -$ -$
CUMULATIVE TOTAL -$ -$ -$ -$ -$
RIDA Chula Vista, LLC - Phase 1A Infrastructur

FUND SOURCES
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EXHIBIT 1
Certificate of Architect
20[__]
Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: [Executive Director]
RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner; Luke Charlton
Re: Developer’ s Phase 1A Payment Request No. [___] under Project Implementation Agreement the “ Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”).

Payment Request of $[_________]
Requested Payment Date: [_________], 20[__]
Ladies and Gentlemen:

Capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement.
the “Architect”) hereby certifies as follows:
a) The Architect has reviewed the above referenced Developer’ s Phase 1A Payment Request No. [___] ( the “ Payment Request”) and the Agreement, to the extent necessary to understand the defined terms contained herein and in the Payment Request that are incorporated by reference from the Agreement and to provide the certification contained herein. b) The Architect hereby certifies and confirms that, pursuant to the observation of the work as required by the [ describe Architect Agreement] and in accordance with applicable professional standards, the construction performed for the Developer’ s Phase 1A Infrastructure Improvements as of the date hereof has been performed substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements, or to the extent any such construction has not been performed K-1-9
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substantially in accordance in all material respects with the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements, the amount to be disbursed under this payment request has been reduced by $[_____] to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements. The foregoing certification is subject to an evaluation of the Developer’ s Phase 1A Infrastructure Improvements for conformance with the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements upon Completion, to results of subsequent tests and inspections, and to correction of minor deviations from the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements prior to Completion. This certificate is not a representation that the Architect has ( 1) made exhaustive or continuous on-site inspections to check the quality or quantity of the work, (2) reviewed construction means, methods, techniques, sequences or procedures, ( 3) reviewed copies of requisitions received from Subcontractors and material suppliers, or (4) made examination to ascertain how or for what purpose the Developer has used money previously paid on account of the Developer’ s Phase 1A Contract Sum.
c) Except as described in (b) above, no work or component of work has been rejected or disapproved by an inspector or other authorized representative of the City’ s building or public works departments or a stormwater inspector representing the Port District. d) Any representations or certifications by the Architect herein shall mean an expression of the Architect’ s professional opinion to the best of its information, knowledge and belief, and does not constitute a warranty or guarantee by the Architect.

The Authority is entitled to rely on the foregoing representations, warranties and certifications in authorizing and making the disbursement requested in the Payment Request.

SIGNATURE PAGE FOLLOWS]
K-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit K-2
Form of Convention Center Payment Request
202[_]
Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: [Executive Director]
Re: Convention Center Payment Request No. [___] under Project Implementation Agreement the “ Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”).

Payment Request of $[_________]
Requested Payment Date: [_________], 20[__] 2
Ladies and Gentlemen:

The Developer submits this Convention Center Payment Request ( the “ Payment Request”) pursuant to Section 9.2.2 of the Agreement with respect to the Convention Center. Capitalized terms used herein without definition shall have the meanings assigned in the Agreement.

In connection with the requested payment, the Developer hereby represents, warrants and certifies as of the date hereof as follows:
a) Schedule 1 accurately reflects for each line item in the Convention Center Budget, (i) the current budget amount, ( ii) amounts previously funded by the Authority, ( iii) the Requested Payment Amount, (iv) hard costs incurred, including retainage and (v) retainage withheld. 2 NTD: To be not less than 10 business days after the date of the Convention Center Payment Request.

K-2-2
4825- 3218- 1203/ 024036- 0079
b) Schedule 2 accurately lists, for the Requested Payment Amount, each Person to whom any of the Convention Center Costs have been or will be paid and, for each line item in such schedule and for each such Person, the following: (i) the name of the payee paid or to be paid, (ii) the invoice date, invoice number and amount that Developer has paid to such Person or intends to pay to such Person during the next 30 days, (iii) a description of the purpose of such payment, specifying the line item relating to each such payment.
c) Schedule 3 accurately lists, since inception of the Convention Center work, each Person to whom any of the Convention Center Costs have been or will be paid and, for each line item in such schedule and for each such Person, the following: (i) the name of the payee paid or to be paid, and, (ii) amount that Developer has paid to such Person, ( iii) the invoice date, invoice number and amount that Developer intends to pay to such Person during the next 30 days, ( iv) a description of the purpose of such payment, specifying the line item relating to each such payment, and ( v) the amounts that have been expended and have been applied to pay Convention Center Costs in accordance with Contract Documents and the Agreement, except for $[_____] and amounts paid in respect of the Development Fees and Stipulated Convention Center Overhead Amount. The amounts listed on Schedule 3 do not include any Non-Project Costs. The information set forth in Schedule 3 as noted above is true, correct and complete in all material respects. d) The Developer has delivered or caused to be delivered to the Authority:
i) copies of true and complete invoices that have been tendered for all Convention Center Costs pursuant to any Payment Request, and ii) statutory lien/stop payment notice conditional waivers and releases associated with all work performed, or supplies provided, for the Convention Center and for which payment is requested in the appropriate statutory form, other than Excluded Mechanics Lien Waivers, and iii) copies of all change orders executed prior to the date of the Payment Request. e) To Developer’ s actual knowledge, after inquiring with Developer’ s architect or engineer who has a representative at the Project Site, the construction performed for the Convention Center as of the date hereof has been performed substantially in accordance in all material respects with the Convention Center Plans, or to the extent any such construction has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications, the amount to be disbursed under this payment request has been reduced by $[_____] pursuant to the Architect’ s Certificate ( as defined below) to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with the Convention Center Plans.
f) [ Reserved].
g) The amount of the Payment Request reflects a reduction of $[_____], being the amount for which the Developer does not intend to pay General Contractor or any Subcontractor except to the extent the applicable work has been performed by others the Developer intends to pay). h) The Convention Center Budget presently in effect is dated [__________] [ and has not been amended] [ and includes all amendments through Convention Center Budget Amendment No.

Said budget (i) is based on reasonable assumptions as to all legal and factual matters material K-2-3
4825- 3218- 1203/ 024036- 0079
to the estimates set forth therein, ( ii) has been prepared in good faith and with due care, iii) accurately sets forth, for each line item in the Convention Center Budget, the total costs anticipated to be incurred to achieve Completion, and (iv) fairly represents in all material respects the Developer’ s reasonable expectation as to the matters covered thereby as of its date. i) As of the date hereof, no Event of Default exists.
j) As of the date hereof, Developer has complied with all applicable provisions of Section 7.2.3.1 of the Agreement.

Attached to this Payment Request as Exhibit 1 is a certificate from the Architect ( the Architect’ s Certificate”).

SIGNATURE PAGE FOLLOWS]
K-2-4
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IN WITNESS WHEREOF, the undersigned has executed this Convention Center Payment Request as of this [___] day of [_________], 202[_].

DEVELOPER
limited liability company
By: *
K-2-5
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Schedule 1 to Convention Center Payment Request
Line # Description Amount
1 The Convention Center Costs incurred or to be incurred by Developer and for which Developer has made or
intends to make actual payment prior to the next
Convention Center Payment Request:
has accrued as of the date of the Convention Center
Payment Request:
3 that has accrued as of the date of the Convention
Center Payment Request:
4 Total of Lines 1, 2 and 3: $
Certificate:

Center Contract Sum:

General Contractor or any Subcontractor (except to the
extent the applicable work has been performed by
others the Developer intends to pay):
8 Total of Lines 5, 6 and 7: $
K-2-6
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Schedule 2 to Convention Center Payment Request
See attached]
GAYLORD PACIFIC - RIDA Chula Vista LLC - Convention Center Schedule 2A

DRAW - SUMMARY
Item Description Original Budget
Previous
Adjustments
Current
Adjustments Note Revised Budget Previous Payments This Period Costs Total Paid to Date Total Combined Paid To
Date
Total
Complete Balance to Finish Retainage
A1 HARD CONSTRUCTION COSTS - GMP Convention Center 308, 364, 640$ 308, 364, 640$ -$ -$ -$ -$ 0.00% 308, 364, 640. 00$ -$ B ARCHITECTURE, ENGINEERING AND TESTING FEES 7,000, 000$ 7,000, 000$ -$ -$ -$ -$ 0.00% 7,000, 000. 00$ -$ C FF& E / OS& E / RELATED EXPENSES -$ -$ -$ -$ -$ -$ 0.00% -$ -$ D PRE- OPENING EXPENSES / SALES CENTER BUILD OUT / OPENING CASH 8,750, 000$ 8,750, 000$ -$ -$ -$ -$ 0.00% 8,750, 000. 00$ -$ E GENERAL ADMINISTRATION AND SUPERVISION ( including predevelopment) 3,500, 000$ 3,500, 000$ -$ -$ -$ -$ 0.00% 3,500, 000. 00$ F DEVELOPMENT FEE 10,080, 000$ 10,080, 000$ -$ -$ -$ -$ 0.00% 10, 080, 000. 00$ G LEGAL AND OTHER PROFESSIONAL FEES 5,250, 000$ 5,250, 000$ -$ -$ -$ -$ 0.00% 5,250, 000. 00$ H TITLE INSURANCE, RECORDING FEES AND OTHER COSTS 462, 000$ 462, 000$ -$ -$ -$ -$ 0.00% 462, 000. 00$ I INSURANCE 5,810, 000$ 5,810, 000$ -$ -$ -$ -$ 0.00% 5,810, 000. 00$ J 7,538, 276$ 7,538, 276$ -$ -$ -$ -$ 0.00% 7,538, 276. 00$ K PROPERTY TAXES 4,214, 023$ 4,214, 023$ -$ -$ -$ -$ 0.00% 4,214, 023. 00$ L UTILITIES / MISC. PERMITS / FEES / COSTS 1,750, 000$ 1,750, 000$ -$ -$ -$ -$ 0.00% 1,750, 000. 00$ TOTAL PROJECT COST: 362, 718, 939$ -$ -$ 362, 718, 939$ -$ -$ -$ -$ 0.00% 362, 718, 939. 00$

BUDGET PAYMENTS SUMMARY

IMPACT FEES / CONNECTION FEES / PLAN FEES / PERMIT FEES / PAYMENT

BOND FEE
Schedule 2B
Code Kind of Work Invoice Date Invoice # Vendor Description Amount Total Dt Pd Ck# Amounts Un a A HARD CONSTRUCTION COSTS - GMP Convention Center -$
A-1 -$
A- 2 -$
A- 3 -$
B ARCHITECTURE, ENGINEERING AND TESTING FEES -$
B- 1 -$
B- 2 -$
B- 3 -$
C FF& E / OS& E / RELATED EXPENSES -$
C- 1 -$
C- 2 -$
C- 3 -$
D OPENING CASH -$
D- 1 -$
D-2 -$
D-3 -$
E

GENERAL ADMINISTRATION AND SUPERVISION
including predevelopment)-$
E-1 -$
E-2 -$
E-3 -$
F DEVELOPMENT FEE -$
F-1 -$
F-2 -$
F-3 -$
G LEGAL AND OTHER PROFESSIONAL FEES -$
G-1 -$
G-2 -$
G-3 -$
H TITLE INSURANCE, RECORDING FEES AND OTHER COSTS -$
H-1 -$
H-2 -$
H-3 -$
I INSURANCE -$
I-1 -$
I-2 -$
I-3 -$
J -$
J-1 -$
J- 2 -$
J-3 -$
K PROPERTY TAXES -$
K-1 -$
K-2 -$
K-3 -$
L UTILITIES / MISC. PERMITS / FEES / COSTS -$
L- 1 -$
L-2 -$
L- 3 -$
TOTAL CONVENTION CENTER COST -$ -$
RIDA Chula Vista, LLC - Convention Cente
Detail Invoice Costs Incurred, Draw

IMPACT FEES / CONNECTION FEES / PLAN FEES /

PERMIT FEES / PAYMENT BOND FEE
K-2-7
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Schedule 3 to Convention Center Payment Request
See attached]
Schedule 3
Draw Code Invoice Date Invoice # Vendor Description Amount Total Dt Pd Ck# Amounts Unpaid Total Project -$
RIDA Chula Vista, LLC - Convention Cente
ALL Invoice Costs Incurred
K-2-8
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EXHIBIT 1
Certificate of Architect
20[__]
Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: [Executive Director]
RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner; Luke Charlton
Re: Convention Center Payment Request No. [___] under Project Implementation Agreement the “ Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”).

Payment Request of $[_________]
Requested Payment Date: [_________], 20[__]
Ladies and Gentlemen:

Capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement.
the “Architect”) hereby certifies as follows:
a) The Architect has reviewed the above referenced Convention Center Payment Request No. [___] ( the “ Payment Request”) and the Agreement, to the extent necessary to understand the defined terms contained herein and in the Payment Request that are incorporated by reference from the Agreement and to provide the certification contained herein. b) The Architect hereby certifies and confirms that, pursuant to the observation of the work as required by the [ describe Architect Agreement] and in accordance with applicable professional standards, the construction performed for the Convention Center as of the date hereof has been performed substantially in accordance in all material respects with the Convention Center Plans, or to the extent any such construction has not been performed substantially in accordance in all material respects with Convention Center Plans, the amount to be disbursed under this payment K-2-9
4825- 3218- 1203/ 024036- 0079
request has been reduced by $[_____] to reflect the reasonably estimated cost of causing such construction to be performed substantially in accordance in all material respects with Convention Center Plans. The foregoing certification is subject to an evaluation of the Convention Center for conformance with the Convention Center Plans upon Completion, to results of subsequent tests and inspections, and to correction of minor deviations from the Convention Center Plans prior to Completion. This certificate is not a representation that the Architect has ( 1) made exhaustive or continuous on-site inspections to check the quality or quantity of the work, (2) reviewed construction means, methods, techniques, sequences or procedures, ( 3) reviewed copies of requisitions received from Subcontractors and material suppliers, or (4) made examination to ascertain how or for what purpose the Developer has used money previously paid on account of the Convention Center Contract Sum.
c) [ Reserved]
d) Any representations or certifications by the Architect herein shall mean an expression of the Architect’ s professional opinion to the best of its information, knowledge and belief, and does not constitute a warranty or guarantee by the Architect.

The Authority is entitled to rely on the foregoing representations, warranties and certifications in authorizing and making the disbursement requested in the Payment Request.

SIGNATURE PAGE FOLLOWS]
K-2-10
4825- 3218- 1203/ 024036- 0079
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Architect as of this [___] day of [_________], 201[__].

By: _____________________________________
Name:

Title:

L-1
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Exhibit L
Sole Source Subcontract Award Approval
Developer’ s Phase 1A Infrastructure Improvements)
Request No.

Reference is made to that certain Project Implementation Agreement (the “Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance (the “ Financing District”), the San Diego Unified Port District, a public corporation (the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority, a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”). Capitalized terms used herein without definition shall have the meanings assigned in the Agreement.

The Developer hereby provides notice of intent to award a sole-source subcontract to [insert dba] for Developer’ s Phase 1A Infrastructure Improvements. A draft of such subcontract is attached as Exhibit 1 hereto. In connection with this Sole Source Subcontract Award Approval Request, the undersigned hereby certifies, represents and warrants to the Authority, in each case, solely in his or her capacity as [insert title] of Developer and not in his or her individual capacity, as follows:

A. He (she) is a duly authorized representative or signatory of Developer, qualified to execute this Sole Source Subcontract Award Approval Request on behalf of Developer and is knowledgeable as to the matters set forth herein.

B. The proposed subcontractor is as follows:
a. [ Corporate Name]
b. [ dba]
c. [ Mailing Address]
d. [ Contact Phone Number]
e. [ Contact Email]
f. [ California Contractor License Number]
g. [ City of Chula Vista Business License Number]
C. The proposed subcontract includes the following scope of work: [insert scope] D. The proposed sole source subcontract is in the amount of $ .

E. The Developer recommends a sole source contract.

F. The proposed sole source subcontract has been awarded in accordance with the Agreement, including Exhibit G-1, and the Authority Procurement Policy.

G. The subject commodity or service is reasonably available in a manner consistent with the timely completion of the Developer’ s Phase 1A Infrastructure Improvements in accordance with the L-2
4825- 3218- 1203/ 024036- 0079
Agreement from only one known source as the result of unique performance capabilities, manufacturing processes, compatibility requirements or market conditions.

By the Authority’ s execution of this Sole Source Subcontract Award Approval Request, the Authority hereby waives the provisions of the Authority Procurement Policy to the extent necessary to enable the sole source subcontract described in this Sole Source Subcontract Award Approval Request by Developer’ s General Contractor.

Signature Pages Follow]
L-3
4825- 3218- 1203/ 024036- 0079
I hereby declare, solely in my capacity set forth below and not in my individual capacity, that the above representations are true and correct.

DEVELOPER:

RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number:
1039979
By:

Name], [ Title]
Dated:

L-4
4825- 3218- 1203/ 024036- 0079
By the Authority’ s execution of this Sole Source Subcontract Award Approval Request, and in reliance upon the Developer’ s representations and certifications set forth in the above request for approval of Sole Source Subcontract Award, the Authority hereby approves such award.

APPROVED:

AUTHORITY:

CHULA VISTA BAYFRONT FACILITIES

FINANCING AUTHORITY,
a joint exercise of powers authority
By:

Name], [Title]
Dated:

L-5
4825- 3218- 1203/ 024036- 0079
Exhibit 1
Draft Subcontract
See attached]
M-1
4825- 3218- 1203/ 024036- 0079
Exhibit M
Best Qualified Contractor Subcontract Award Approval
Developer’ s Phase 1A Infrastructure Improvements)
Request No.

The Developer hereby provides notice of intent to award a subcontract to [insert dba] as a “ best qualified” contractor (as described in the Authority Procurement Policy). A draft of such subcontract is attached as Exhibit 1 hereto. In connection with this Best Qualified Contractor Subcontract Award Approval Request, the undersigned hereby certifies, represents and warrants to the Authority, in each case, solely in his or her capacity as [insert title] of Developer and not in his or her individual capacity, as follows:

A. He (she) is a duly authorized representative or signatory of Developer, qualified to execute this Subcontract Award Approval Request on behalf of Developer and is knowledgeable as to the matters set forth herein.

E. The Developer or its General Contractor conducted a qualification process that considered, among other things, any or all of the following: past relevant/similar project experience, construction experience and capability, labor relations, customer feedback from those projects, current backlog, available trades personnel resources, proposed supervisory/management personnel, financial capability, and design capabilities (for design-build subcontracts).

M-2
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F. ( select 1 option, delete the other options)
For work estimated to be equal to or in excess of $75,000, [the Developer or its General Contractor solicited three competitive proposals from the pre-qualified list of subcontractors] OR [the Developer determined that soliciting proposals for such work was not practical under the circumstances].

OR
For work estimated to be less than $75,000, [the Developer or its General Contractor solicited two competitive proposals from the pre-qualified list of subcontractors] OR [the Developer determined that soliciting proposals for such work was not practical under the circumstances].

G. The Developer or its General Contractor considered, among other things, any or all of the following: qualitative factors (i.e. personnel, schedule management, construction experience and capability, labor relations, experience, expertise and business practices and policies that increase the likelihood that the Project will be completed without disruption, and quality management) and quantitative factors (i.e. price, schedule details, and rate for labor, equipment, and insurance).

H. The Developer conducted a pre-selection in-depth interview with potential “ best qualified” subcontractors.

I. [ The Developer offered a pre-selection process for potential subcontractors to present a “ best and final offer”.] [ Insert if applicable]
J. The Developer determined that the proposed subcontractor provided the best value for the Project.

K. The proposed subcontract has been awarded in accordance with the Agreement, including Exhibit G-1, and the Authority Procurement Policy.

The Developer hereby requests a waiver pursuant to Section 2(d)(ii) of the Authority Procurement Policy with respect to the proposed subcontractor, and by the Authority’ s execution of this Best Qualified Contractor Subcontract Award Approval Request, the Authority hereby grants such waiver.] [ NTD: Include if the proposed subcontractor is not the lowest responsive and responsible bidder for a unit of work and the proposed subcontractor’ s bid exceeds the engineer’ s estimate or other approved estimate for the work by more than ten percent.] Signature Pages Follow]
M-3
4825- 3218- 1203/ 024036- 0079
I hereby declare, solely in my capacity set forth below and not in my individual capacity, that the above representations are true and correct.

DEVELOPER:

RIDA CHULA VISTA, LLC, a Delaware limited liability company California Contractor License Number:
1039979
By:

Name], [ Title]
Dated:

M-4
4825- 3218- 1203/ 024036- 0079
By the Authority’ s execution of this Best Qualified Contractor Subcontract Award Approval Request, and in reliance upon the Developer’ s representations and certifications set forth in the above request for approval of Best Qualified Contractor Subcontract Award, the Authority hereby approves such award.

APPROVED:

AUTHORITY:

CHULA VISTA BAYFRONT FACILITIES

FINANCING AUTHORITY,
a joint exercise of powers authority
By:

Name], [Title]
Dated:

M-5
4825- 3218- 1203/ 024036- 0079
Exhibit 1
Draft Subcontract
See attached]
N-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit N-1
List of Approved Arbitrators
Hon. Jeffrey Barton, Ret.

Hon. Frederick Aguirre, Ret.

Hon. Victor Bianchini, Ret.

Hon. Herbert Hoffman, Ret.

Hon. Thomas Nugent, Ret.

Hon. Robert Polis, Ret.

Hon. Clay Smith, Ret.

Hon. David Velasquez, Ret.

N-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit N-2
List of Approved Mediators
Hon. Jeffrey Barton, Ret.

Hon. Frederick Aguirre, Ret.

Hon. Victor Bianchini, Ret.

Hon. Herbert Hoffman, Ret.

Hon. Leo Papas, Ret.

Hon. Robert Polis, Ret.

Hon. Clay Smith, Ret.

Hon. David Velasquez, Ret.

O-1
4825- 3218- 1203/ 024036- 0079
Exhibit O
Energy Requirements
The Parties acknowledge that Section 15 of the Settlement Agreement requires that all Developments” within the Proposed Project (as defined in the Settlement Agreement) area achieve, in the aggregate, a fifty percent (50%) reduction in annual energy use (the “ 50% Energy Standard”) compared to that allowed under the Building Energy Efficiency Standards, Title 24, Part 6, of the California Code of Regulations in effect as of May 4, 2010 (“ 2010 Title 24”). To implement Section 15 of the Settlement Agreement with respect to the Project, the Parties agree as follows:
a) Developer represents and warrants that it has prepared the Plans ( as defined in the Ground Lease) and the Convention Center Plans ( collectively, the “ Energy Requirement Plans”) in such a manner that each building will operate at an energy consumption level equal to or better than the more stringent of the following two standards, which shall be referred to herein as, the Minimum Energy Efficiency Design Standard”: ( i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted to consume under 2010 Title 24; or (ii) the minimum energy efficiency performance standard adopted by the City at the time a building permit application is submitted for each building.
b) No later than thirty (30) days prior to the date when the first building in the Project is open for business, Developer shall deliver to Authority for Authority’ s approval, a measurement and verification plan for energy efficiency for the Project based on the Energy Requirement Plans (as approved by Authority in accordance with this Agreement or the Port District in accordance with the Ground Lease, as applicable) ( the “ M&V Plan”). Developer shall also provide a courtesy copy of the M&V Plan to the City and Port District concurrently with its delivery to Authority.
c) Developer shall implement and maintain the M&V Plan throughout the Term. d) Developer shall cause the performance of, and deliver to Port District and City, an energy consumption audit for each of the buildings in the Project no less frequently than every three ( 3) years after the Completion of the Resort Hotel and the Completion of the Parking Improvements, as applicable, as more particularly set forth in Section 15.2.2.4 of the Settlement Agreement (the “ Required Energy Audits”).
e) If the City and Port District ultimately determine that the Energy Requirement Plans do not achieve the 50% Energy Standard as applied to the Project ( as defined in the Ground Lease), Developer, the City and Port District shall work together to identify additional energy savings measures, programs or credits ( collectively, “ Additional Energy Savings Measures”) available to achieve the 50% Energy Standard. Such Additional Energy Savings Measures may include, without limitation, Developer’ s participation in renewable or “time of use” energy purchase programs, and/or other measures identified in Section 15.2 of the Settlement Agreement. Developer agrees to participate in and/or implement the Additional Energy Savings Measures so identified at Developer’ s cost, to the extent “ commercially reasonable” ( as defined below), in order to maximize energy use reduction at the Project (as defined in the Ground Lease), in the aggregate, up to the 50% Energy Standard. If, despite Developer’ s efforts, Developer cannot reduce the energy use standard at the Project (as defined in the Ground Lease) to achieve the 50% Energy Standard, either because it is O-2
4825- 3218- 1203/ 024036- 0079
not commercially reasonable to do so, or Developer’ s participation in and/or implementation of the Additional Energy Savings Measures identified by the City and Port District do not result in the 50% Energy Standard, the City and Port District agree to identify additional energy savings measures or credits that the City and Port District could implement (at a cost to be shared equally by the City and Port District) or cause third parties to implement ( without a public subsidy or rent reduction), throughout the Proposed Project ( as defined in the Settlement Agreement) area, to achieve the 50% Energy Standard for the Project ( as defined in the Ground Lease). For purposes of this Exhibit O, commercially reasonable” Additional Energy Savings Measures are the Additional Energy Savings Measures that Developer reasonably determines can be implemented practicably and costeffectively at the Project (as defined in the Ground Lease) and that the implementation of which will not interfere with the operation of any portion of the Project. Developer shall cooperate with the City and Port District in good faith to identify locations for the commercially reasonable Additional Energy Savings Measures on the Premises and shall enter into any agreements with Port District and/or the City, as reasonably required, to effectuate the construction of such commercially reasonable Additional Energy Savings Measures on the Premises. f) Developer shall indemnify and defend the Authority, the City, and the Port District, at Developer’ s sole cost and expense and with counsel reasonably selected by the Public Entities and reasonably approved by Developer, and hold harmless the Authority, the City, and the Port District for any and all claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of any breach by Developer of its obligations under this Exhibit O, except for claims or litigation arising through the sole gross negligence or willful misconduct of any Public Entity Party ( but subject to Section 15.4 of this Agreement); provided, that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this clause (f). If a Public Entity determines in its reasonable discretion that there is a conflict of interest with Developer’ s counsel representing such Public Entity and Developer, or that there is a conflict of interest with counsel representing such Public Entity and the other Public Entities, then such Public Entity, at its election, may conduct its own defense with its own counsel that is reasonably selected by the Public Entity, reasonably approved by Developer, and independent from Developer’ s counsel (and in that event Developer will select its own counsel) and the reasonable costs incurred by the applicable Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations and be subject to reimbursement pursuant to the Reimbursement Procedure. The terms of this clause f) shall survive the expiration or earlier termination of this Agreement. Nothing in this Exhibit O shall limit Developer’ s obligations to indemnify Port District and the City with regard to the Convention Center Plans, the Improvements, or other Developer’ s Phase 1A Infrastructure Improvements if and to the extent required under this Agreement. g) For purposes of the Settlement Agreement, Developer’ s obligations to comply with Section 15 of the Settlement Agreement are limited to the requirements set forth herein.

So long as Developer has complied with its obligations under this Exhibit O, Section 4.10 of the Ground Lease, and Section 5.8 of this Agreement, Developer will not be in default and will not be in breach under the Ground Lease, this Agreement or the Settlement Agreement based upon any alleged failure to comply with the terms of Section 15 of the Settlement Agreement in the design of the Project.

O-3
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h) For purposes of this Exhibit O, “Project” shall mean Project as defined in the Ground Lease.

P-1
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Exhibit P
Form of Developer’ s Convention Center Budget

CONVENTION CENTER (DRAFT)
A HARD CONSTRUCTION COSTS - GMP $ 308,364,640.00
B ARCHITECTURE, ENGINEERING AND TESTING FEES 7,000,000.00

C FF & E / OS & E / RELATED EXPENSES -

D PRE-OPENING EXPENSES / SALES CENTER BUILD OUT /

OPENING CASH
8,750,000.00

E GENERAL ADMINISTRATION AND SUPERVISION
including predevelopment)
3,500,000.00
F DEVELOPMENT FEE 10,080,000.00*
G LEGAL & OTHER PROFESSIONAL FEES 5,250,000.00

H TITLE INSURANCE, RECORDING FEES AND OTHER
COSTS
462,000.00
I INSURANCE 5,810,000.00

J IMPACT FEES / CONNECTION FEES / PLAN FEES /

PERMIT FEES / PAYMENT BOND FEE
11,516,342.00
K PROPERTY TAXES 4,214,023.00
L UTILITIES / MISC. PERMITS / FEES / COSTS 1,208,920.00 TOTAL PROJECT COST: 366,155,925.00
Up to an additional $2,520,000 may be reallocated from the General Contingency line item in the Hotel and Parking Improvements budget to the Convention Center Development Fee twelve months after Completion of the Convention Center, increasing the Development Fee with respect to the Convention Center from $10,080,000 to $12,600,000.

Q-1
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Exhibit Q
Port District Transfer Documents
Ground Lease
Site Lease
Project Implementation Agreement
Support Agreement
Chula Vista Bayfront Master Plan Settlement Agreement filed on May 20, 2010 with the Office of the District Clerk as Document No. 56523
District Conditional Project Approval dated May 3, 2022, filed on May 5, 2022 in the Office of the District Clerk as Document No. 74083
Coastal Development Permit ( CDP) issued by the Board of Port Commissioners on June 18, 2019; CDP No. 2019-03, Resolution No. 2019-080, issued on July 11, 2019, Document No. 70152, filed in the Office of the District Clerk on July 29, 2019
R-1
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Exhibit R
Form of Memorandum Agreement and Non-Disturbance Agreement

RECORDING REQUESTED BY AND
AND WHEN RECORDED RETURN TO:

RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner
Above Space for Recorder’ s Use Only)

MEMORANDUM OF AGREEMENT AND NON-DISTURBANCE AGREEMENT
This Memorandum of Agreement and Non-Disturbance Agreement, hereinafter Memorandum,” is dated May 26, 2022, among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the “ Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to the Joint Exercise of Powers Act (defined herein below), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”) ( collectively, together with their successors and assigns, the “ Parties” and, individually, a “ Party”), concerning that certain real property described in Exhibits “A-1”, “ A-2” and “ A-3” and depicted in Exhibits “B-1”, “ B-2” and B-3”, attached hereto and by this reference made a part hereof.

The Parties have entered into that certain Project Implementation Agreement of even date herewith (the “ Agreement”), which contains various covenants, obligations and rights of the Parties, all as more specifically set forth in said Agreement (including, without limitation, the provisions set forth in Annex I attached hereto and by this reference made a part hereof). The Agreement is incorporated in this Memorandum by this reference.

The term of the Agreement begins May 26, 2022 and ends May 26, 2088 or sooner, as set forth in Section 3.1 of the Agreement. In no event shall the Term extend beyond sixty-six (66) years from the Effective Date.

In amplification of the foregoing, Article XXIII (Nondisturbance) of the Agreement is hereby incorporated by reference as if fully set forth herein and each of the parties hereto acknowledges and reaffirms (i) its respective obligations and agreements under such Article XXIII (Nondisturbance) of the Agreement with respect to the Site Lease, the Facility Lease and the Sublease, each as applicable, and (ii) that each Permitted Lender is an express third party beneficiary hereof and thereof.

This Memorandum is not a complete summary of the Agreement. Provisions in this Memorandum shall not be used in interpreting the Agreement provisions. In the event of conflict R-2
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between the terms of this Memorandum and terms of the Agreement, the terms of the Agreement shall control.

Signature Pages Follow]
R-3
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IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement as of the date first set forth above.

CITY
city and municipal corporation
By:

Maria V. Kachadoorian, City Manager
APPROVED AS TO FORM:

By:

Glen R. Googins, City Attorney

DEVELOPER
limited liability company
By: *
R-4
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PORT DISTRICT AUTHORITY

SAN DIEGO UNIFIED PORT DISTRICT,
a public corporation

CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY, a joint exercise of
powers authority
By: By:

APPROVED AS TO FORM AND LEGALITY: APPROVED AS TO FORM AND LEGALITY:

By:

Thomas A. Russell, General Counsel
By:

Co-Counsel, Thomas A. Russell, General
Counsel of the San Diego Unified Port
District
By:

Co-Counsel, Glen R. Googins, City
Attorney of the City of Chula Vista

FINANCING DISTRICT

BAYFRONT PROJECT SPECIAL TAX

FINANCING DISTRICT
By:

Maria V. Kachadoorian, City Manager
Signatories to provide signature authority for signatory R-5
4825- 3218- 1203/ 024036- 0079
EXHIBIT A-1 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT

LEGAL DESCRIPTION OF SITE
to be attached prior to execution.)
R-6
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EXHIBIT A-2 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT

LEGAL DESCRIPTION OF GROUND LEASE PROPERTY
to be attached prior to execution.)
R-7
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EXHIBIT A-3 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT
LEGAL DESCRIPTION OF DEVELOPER’ S PHASE 1A

INFRASTRUCTURE IMPROVEMENTS SITE
to be attached prior to execution.)
R-8
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EXHIBIT B-1 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT

DEPICTION OF SITE
to be attached prior to execution.)
R-9
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EXHIBIT B-2 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT

DEPICTION OF GROUND LEASE PROPERTY
to be attached prior to execution.)
R-10
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EXHIBIT B-3 TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT
DEPICTION OF DEVELOPER’ S PHASE 1A

INFRASTRUCTURE IMPROVEMENTS SITE
to be attached prior to execution.)
R-11
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ANNEX I TO MEMORANDUM OF AGREEMENT

AND NON-DISTURBANCE AGREEMENT

NONDISTURBANCE PROVISIONS

1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Site Lease terminates, is rejected in any Bankruptcy Case or otherwise ceases to exist, in each such case, prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Facility Lease as, and the Facility Lease shall be deemed to be, a direct lease between the Port District, as lessor, and the City, as lessee, and the Port District shall not disturb the City’ s leasehold interest or possession of the Site (as defined in the Facility Lease) or the Convention Center under, and on the terms and conditions set forth in, the Facility Lease, and the Port District shall continue to recognize and treat the Sublease as a sublease between the City, as sublessor, and the Developer, as sublessee, and the City shall attorn to and recognize the Port District as the City’ s lessor under, and on the terms and conditions set forth in, the Facility Lease. In the event the Facility Lease terminates, is rejected in any Bankruptcy Case or otherwise ceases to exist, in each such case, prior to the expiration of the Sublease Term ( and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Port District shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Developer shall attorn to and recognize the Authority as the Developer’ s lessor under, and on the terms and conditions set forth in, the Sublease. In the event both the Site Lease and the Facility Lease terminate, are rejected in any Bankruptcy Case and/or otherwise cease to exist, in each such case, prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), ( i) the Port District shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Port District, as lessor, and the Developer, as lessee, and the Port District shall not disturb the Developer’ s leasehold interest or possession of the Site ( as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Port District as the Developer’ s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 1 and is entitled to enforce this Section 1.

2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Facility Lease terminates, is rejected in any Bankruptcy Case or otherwise ceases to exist, in each such case, prior to the expiration of the Sublease Term (and the Sublease has not terminated in accordance with its terms as a result of an Event of Default by the Developer thereunder), the Authority shall recognize the Sublease as, and the Sublease shall be deemed to be, a direct lease between the Authority, as lessor, and the Developer, as lessee, and the Authority shall not disturb the Developer’ s leasehold interest or possession of the Site (as defined in the Sublease) or the Convention Center under, and on the terms and conditions set forth in, the Sublease, and the Developer shall attorn to and recognize the Authority as the Developer’ s lessor under, and on the terms and conditions set forth in, the Sublease. Each Permitted Lender is an express third party beneficiary of this Section 2 and is entitled to enforce this Section 2.

3. Defined Terms. Capitalized terms used but not defined in this Annex I shall have the meanings set forth in the Agreement.

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who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or On ___________________ before me, ____________________________________, Notary Public, personally appeared
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
S-1
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Exhibit S
Approved Agreements
CVBMP Documents
The agreements, licenses, right of entry agreements, and other documents included as “ Exceptions from Coverage” in that certain Owner’ s Policy of Title Insurance issued by Chicago Title Insurance Company to RIDA Chula Vista, LLC on the date of this Lease for File No. 84417C-993-SD2-CFU Agreements set forth in Exhibit T (District Documents)
Contemporaneous Agreements
Prior Agreements
Convention Center Plans
Plans and Preliminary Parking Improvement Plans
Reimbursement Agreement
Sewer Agreement
T-1
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Exhibit T
District Documents
Chicago Title Company Third Amended Preliminary Report dated May 6, 2022 at 7:30 a.m. (Order No. 84417C-993-SD2-CFU) (Title Report)
Exception
No.*
Title Report Description Office of the District Clerk
Recording Info
Bayfront Financing Authority Document No. 61905 in the
Bayfront Master Financing Agreement Document No. 67068 in the Convention Center Project Port and Rida Document No. 67071 in the U-1
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Exhibit U
Prior Agreements
Disposition and Development Agreement (Sections 4.1(f), 4.7(c), 4.7(d), 4.17, 8.2, and 8.3) Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right of Entry License Agreement (District Clerk No. 73207)
Sewer Agreement
Reimbursement Agreement
V-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit V-1
Approved Drawings and Specifications for
Developer’ s Phase 1A Infrastructure Improvements
Attachment D to the DCPA.

V-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit V-2
Approved Drawings and Specifications for
Remaining Phase 1A Infrastructure Improvements
Attached on following page.)
05 L002

ILLUSTRATIVE PLAN

RECORD DRAWING

MS/ CL/SN
SN/JG

CHULA VISTA, CALIFORNIA

CV BAYFRONT PARKS - SWEETWATER PARK
03/25/2020
87 MS/CL
10 0
S
C
H
E
M
A
T
I
C
D
E
S
I
G
N
S
U
B
M
I
T
T
A
L

NOT FOR REGULATORY

APPROVAL, PERMITTING,

OR CONSTRUCTION
201950% SD SUBMITTAL 05/ 31/
2020100% SD SUBMITTAL ( DRAFT) 02/ 28/
N S
E
WSCALE:
1"=100'
0 50 100 200

SWEETWATER

PARK LOT

LIVING COAST

DISCOVERY

CENTER LOT

GROWING

GROUNDS

TIMELINE
PLAZA

RESTROOM
MEADOW

GRASSLAND

ON MOUNDS
NATURE

PLAYGROUND
PICNIC
AREA
PICNIC
AREA

OVERLOOK

INTERPRETIVE
GARDEN

MAP PLAZA

OVERLOOK

VEGETATED
BASIN

OVERLOOK
HILL

SHUTTLE
STOP

ADVENTURE
PLAY

INTERPRETIVE

OVERLOOK

SWEETWATER

PROMENADE
N.I.C.)
GROUP

EDUCATION
RING
DUNES

SWEETWATER

PROMENADE
N.I.C.)

SWEETWATER

PROMENADE
N.I.C.)

INTERPRETIVE
GARDEN

PROMENADE

EXTENSION TO

HARBOR PARK
N.I.C.)
RV
RESORT

SEASONAL

WETLAND
AREA
F & G
STREET
MARSH

WILDLIFE
BLIND

ENVIRONMENTAL

FENCING

ENVIRONMENTAL

FENCING

OUTER BUFFER

FUTURE PHASE
N.I.C.

FUTURE TIDAL

CHANNEL

OUTER BUFFER

FUTURE PHASE
N.I.C.

MARINE GROUP

BOATWORKS

SAN DIEGO
BAY

SAN DIEGO BAY

NATIONAL

WILDLIFE REFUGE
BASIN
BASIN
BASIN

TEMPORARY

DRIVE & PARKING

TEMPORARY

DRIVE & PARKING

PROMENADE

MITIGATION
AREA
HARBOR
PARK
1 2
3 8
4 5
7 6
9 13
10 12
11 H
E
F
G
X
X

RENDERING / PHOTOSIM LOCATION

DETAIL SECTION LOCATION

SWEETWATER PARK

LIMIT OF WORK LINE
SP-1
SP-2
SP-3
S-2
HP-1

PARCEL PROJECTTOTAL PARCEL ACRES PREVIOUSLY DEVELOPED ACRES PROPOSED ACRES OF DEVELOPMENT IN THIS

41.14 14.64

2.53 21.21

2.41 15.4 (SWEETWATER PROMENADE & RV RESORT)

5.47 (SWEETWATER PROMENADE & RV RESORT)

1.52 (RV RESORT)

5.23 (SWEETWATER PROMENADE)

1.32 (SWEETWATER PROMENADE)

10.77 0

1.01 15.98
77 REMAINING ACRES TO BE DEVELOPED

14.97 9.17
0 0
32 W-1
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Exhibit W
Form of Equal Opportunity Employment Certification

EQUAL EMPLOYMENT OPPORTUNITY CERTIFICATION
The bidder ____________________________________________________, proposed subcontractor ________________________________________, hereby certifies that he has ___, has not ___, participated in a previous contract or subcontract subject to the equal opportunity clauses, as required by Executive Orders 10925, 11114, or 11246, and that, where required, he has filed with the Joint Reporting Committee, the Director of the Office of Federal Contract Compliance, a Federal Government contracting or administering agency, or the former President’ s Committee on Equal Employment Opportunity, all reports due under the applicable filling requirements.

Note: The above certification is required by the Equal Employment Opportunity Regulations of the Secretary of Labor (41 CFR 60-1.7(b) (1)), and must be submitted by bidders and proposed subcontractors only in connection with contracts and subcontracts which are subject to the equal opportunity clause. Contracts and subcontracts which are exempt from the equal opportunity clause are set forth in 41 CFR 60-1.5. (Generally only contracts or subcontracts of $10,000 or under are exempt.)
Currently, Standard Form 100 (EEO-1) is the only report required by the Executive Orders or their implementing regulations.

Proposed prime contractors and subcontractors who have participated in a previous contract or subcontract subject to the Executive Orders and have not filed the required reports should note that 41 CFR 60-1.7(b) (1) prevents the award of contracts and subcontracts unless such contractor submits a report covering the delinquent period or such other period specified by the Federal Highway Administration or by the Director, Office of Federal Contract Compliance, U.S. Department of Labor.

By: [BIDDER / CONTRACTOR]
Its:

Printed Name:

X-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit X-1
Early Work Agreement
To be attached prior to execution.]

CHULA VISTA BAYFRONT PROJECT
PHASE 1A EARLY WORK IMPLEMENTATION AND RIGHT OF ENTRY LICENSE

AGREEMENT
This Phase 1A Early Work Implementation and Right of Entry License Agreement, hereinafter "Agreement", is entered into as of September 1, 2021 (the “Effective Date”), by and among the San Diego Unified Port District, a public corporation ("District"), the City of Chula Vista, a chartered municipal corporation (“City”), the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (“Authority”), and RIDA Chula Vista, LLC, a Delaware limited liability company (“Developer”). District, City, and Authority may be referred to collectively herein as the “Public Entities”. The Public Entities and Developer may each be individually referred to herein as a "Party", or collectively herein as the "Parties”.

RECITALS
a. On or about May 7, 2018, the District, City, and Developer entered into a Disposition and Development Agreement (“ DDA”) to construct, among other things, a convention center, resort hotel and public infrastructure improvements, which includes Developer’s Phase 1A Infrastructure Improvements (as defined in the DDA). Pursuant to the DDA, at the Close of Escrow (as defined in the DDA), the District and Developer will enter into a ground lease for the construction of the resort hotel. The Board of Port Commissioners approved the ground lease on June 15, 2021 (the “Ground Lease”).
b. At the Close of Escrow, the District, the City, the Authority, the Bayfront Project Special Tax Financing District and the Developer will enter into a project implementation agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the "Project Implementation Agreement"), pursuant to which, among other things, the Authority will pay the Developer's Phase 1A Contract Sum (as defined therein) to the Developer in connection with the development and construction of the Developer's Phase 1A Infrastructure Improvements ( as defined in the DDA). The Board of Port Commissioners approved the Project Implementation Agreement on June 15, 2021, the City Council of the City of Chula Vista approved the Project Implementation Agreement on June 15, 2021, and the governing board of the Authority approved the Project Implementation Agreement on June 28, 2021.
c. The District owns certain real property located in Chula Vista, California, more particularly described on Exhibit “A-1” and delineated on Exhibit "A-2", which is attached hereto and incorporated herein by this reference (the "Premises"). d. The Developer’s Phase 1A Infrastructure Improvements (as defined in the DDA) DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 38) 73207
10/07/21
2 include the work that is more particularly described on Exhibit “ B”, which is attached hereto and incorporated herein by this reference (the “Work”), and more particularly described in the work plan attached as Exhibit “B-1” (“Work Plan”). e. As described in the Work Plan, the Work generally consists of construction and backfill of a trench with installation of electrical facilities across the Premises, which will provide electrical power to adjoining tenants during Developer’s construction of the Developer’s Phase 1A Infrastructure Improvements, convention center, and resort hotel. As described in the Work Plan, some of the electrical facilities are intended to serve temporarily during construction of the Developer’s Phase 1A Infrastructure Improvements, convention center, and resort hotel, and to be removed by Developer upon completion of the construction of the Developer’s Phase 1A Infrastructure Improvements, resort hotel, and convention center. f. The DDA contemplates that the Developer will develop Developer’s Phase 1A Infrastructure Improvements, including the Work, after the Close of Escrow (as defined in the DDA).
g. Developer has now requested early access to the Premises – i.e., prior to the Close of Escrow – in order to perform the Work, which Developer contends will allow for greater efficiency in the construction of the Developer’s Phase 1A Infrastructure Improvements post-Close of Escrow and shorten Developer’s construction schedule.
h. The Public Entities are willing to permit Developer to perform the Work subject to the terms and conditions set forth herein.
i. Under the DDA, the Developer is to be reimbursed for the Phase 1A Infrastructure Costs (as defined in the DDA) if certain requirements are met, including but not limited to, the issuance of bonds by the Authority at the Close of Escrow. j. On January 8, 2020, the Board of Directors of the Authority (“Authority Board”) adopted Resolution 2020-001 initially establishing a Procurement Policy for developer-performed public works, which the Authority Board further ratified through Resolution 2020-007 (“Procurement Policy”).
k. Pursuant to Section 5 of the Procurement Policy, the Authority may require a developer to enter into an agreement to clarify the procurement procedures for a particular project.
l. The Parties therefore intend to enter into this Agreement in order to comprehensively address each Party’s respective obligations with respect to the Work, and in particular: (1) the terms and conditions upon which the District will grant Developer a license for the right to enter the Premises prior to Close of Escrow, (2) the terms and conditions upon which the Developer may perform the DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 2
3 Work, (3) the terms and conditions upon which the Developer will be paid for the Work, and (4) the process that the Developer will follow to procure the Work.

AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto mutually agree as follows:
1 REFERENCES

1.1. Effective Date. This Agreement shall become effective upon the completion of the following two conditions precedent: ( 1) each of the Parties duly approves this Agreement through its respective Board of Directors, Board of Port Commissioners, City Council, principals or members, as the case may be, and the authorized representative of each Party executes this Agreement, and ( 2) the Authority adopts a Resolution making findings on the procurement process set forth in this Agreement.

1.2. Right of Entry License. Article 7 of this Agreement contains the terms and conditions upon which the District grants a license to Developer and its authorized agents and contractors to enter the Premises to perform the Work. (Article 7 will be referred to as the “Right of Entry License.”)

1.3. DDA. The Parties acknowledge and agree that the District, City, and Developer are all parties to the DDA, and this Agreement is not intended to be a limitation of any rights or obligations contained in the DDA, unless expressly stated herein. In the event of a conflict between the DDA and this Agreement, the terms of this Agreement shall control.

1.4. Representatives. Each Party to this Agreement shall have a designated representative to serve as the primary contact person with regard to various aspects of the implementation of this Agreement (each, a ”Representative”).

The Representatives of the Parties shall be:

Developer: Luke Charlton, Chief Operating Officer
District: Adam Meyer, Assistant Director of Real Estate and Stephanie Shook, Department Manager, Real Estate
City: Tiffany Allen, Director of Development Services and Kimberly Elliott, Facilities Financing Manager
Authority: For the District, Adam Meyer, Assistant Director of Real Estate and DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 3
4 Stephanie Shook, Department Manager, Real Estate; for the City, Tiffany Allen, Director of Development Services and Kimberly Elliott, Facilities Financing Manager.

The Representatives for each Party may be changed from time to time upon written notice to the other Parties. The roles and obligations of the Representatives shall be limited to those set forth in this Agreement.
2 WORK TO BE PERFORMED AT DEVELOPER’S RISK

2.1. Limitations. Developer agrees to perform the Work at Developer’s own cost and expense subject to Developer’s right to reimbursement as set forth in Sections 2.2 and 2.3 of this Agreement. Except as set forth in this Agreement, Developer shall have no recourse against the Public Entities for any costs or expenses incurred by Developer related to this Agreement or the Work. Notwithstanding anything to the contrary herein, nothing in this Agreement shall amend, modify, limit or supersede Developer's right to reimbursement or payment for any work other than the Work from any of the Public Entities under any other agreement between Developer and such Public Entity.
a. No Consequential Damages. No Public Entity shall, in any event, be liable to Developer or any other person, either in contract, tort or otherwise, for any consequential, incidental, indirect, special or punitive damages, including loss of future revenue, income or profits, diminution of value or loss of business reputation or opportunity relating to the breach or alleged breach hereof, whether or not the possibility of such damages has been disclosed to the other Party in advance or could have been reasonably foreseen by such other Party. The foregoing shall not preclude the Developer from enforcing its right to receive reimbursement as set forth in Section 2.2 or 2.3 of this Agreement.

2.2. Reimbursement from Authority if the Close of Escrow Occurs. Provided that the Close of Escrow has occurred and the Project Implementation Agreement has been executed by the parties thereto in connection with the Close of Escrow, then the costs and expenses actually incurred by Developer in performing the Work hereunder, and not already paid or reimbursed by the Public Entities and in an amount not to exceed the Budget (defined below), shall be deemed to be part of Developer's Phase 1A Contract Sum (as defined in the Project Implementation Agreement), and the Developer shall be entitled to reimbursement of such part of Developer's Phase 1A Contract Sum under and in accordance with the Project Implementation Agreement and this Section 2.2.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 4
5 a. Budget. Attached hereto as Exhibit “E” is the line item budget for the Work, which has been approved by the Public Entities ( such budget and any amendments, supplements or other modifications thereto, in each case, as approved by the Public Entities from time to time in accordance with this Agreement, the “Budget”).
b. Budget Increases. The appropriate line item on the Budget will increase by the amount of incremental costs that Developer actually incurs in connection with the Work (including, without limitation, as a result of any Cost Increase Event ( as defined below) ( less the amount of insurance proceeds that Developer receives for such Cost Increase Event)), and such incremental costs shall be part of the Budget if and to the extent permitted by this Agreement. Developer shall use reasonable efforts to prosecute each and every insurance claim with respect to any Cost Increase Event that is covered by the insurance policies procured in accordance with this Agreement. During the Work, Developer shall promptly notify the Public Entities of any additional costs for the Work that are not included in the Budget, including, without limitation, as a result of any Cost Increase Event, and if applicable, request that such additional costs be included in the Budget. Developer shall not request the inclusion of additional costs in the Budget to the extent resulting from Developer’s or Developer Affiliates’ (as defined below) negligence or willful misconduct, and such additional costs shall not constitute a “Cost Increase Event”.

Cost Increase Event” shall include any of the following events individually or in any combination, to the extent that (x) such event is not caused by the negligence or willful misconduct of Developer or Developer Affiliates and (y) such event increases the cost of performing the Work:
i) a strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had Developer or Developer Affiliates complied with applicable laws or labor agreements with respect to the Work, if any; ii) hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods;
iii) days of precipitation or high winds in any month in excess of ten (10) year average for the area within the District’s jurisdiction; iv) an earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster;
v) fires (including wildfires);
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6 vi) inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or Developer’s or Developer Affiliates’ acts or failure to act);
vii) acts of war or armed conflict, insurrections, riots, and acts of terrorism (including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof;
viii) delays in the issuance of any approvals or authorizations from any governmental authority (excluding any of the Public Entities) that is necessary to proceed with the performance of the Work (provided that Developer or Developer Affiliates have timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that Developer or Developer Affiliates are not responsible for the delay in the issuance of such approvals or authorizations);
ix) an act of God;
x) embargoes or blockades;
xi) Pre-Existing Hazardous Material (as defined in the Ground Lease) that is not the result of Material Exacerbation ( as defined in the Ground Lease); or
xii) closures ordered by any Governmental Authority that do not arise from a breach of this Agreement or misconduct by Developer or Developer Affiliates;
xiii) any change in applicable law that is first effective after the Effective Date;
xiv) any breach or interference with performance of the Work by the governmental entities, including any Public Entity;
xv) any changes to the Work required by any public utility entity or any governmental entity, including any Public Entity; or
xvi) any other event or circumstance (including, without limitation, bids for the Work, and expenses described in Section 7.12, that exceed the Budget) resulting in an unforeseen cost or cost increase not otherwise contained in the Budget and that does not result from the negligence or willful misconduct of Developer or any Developer DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 6
7 Affiliate.

If any Cost Increase Event shall occur, Developer shall, promptly but in no event later than ten (10) days after Developer learns of the occurrence of such Cost Increase Event, notify the Public Entities thereof, which notice must be made in good faith and describe the Cost Increase Event, why such cost increase is occurring, the estimated expected amount of the cost increase, and the commercially reasonable efforts that the Developer is taking to minimize the cost increase. The Public Entities shall, promptly but in no event later than ten ( 10) days after receipt of such notice, notify Developer whether (x) Developer shall continue with performing the Work, in which case the appropriate line item on the Budget shall increase by the amount of incremental costs that Developer reasonably and actually incurs as a result of any Cost Increase Event in accordance with this Agreement, or (y) Developer shall stop performing the Work, in which case Developer shall immediately stop all Work except any Work required to secure the Work, Work area and the Premises to the satisfaction of the District, and the Parties shall proceed under Section 2.3.
c. Increase in Payment Bonds. Any adjustment to the Budget in accordance with Section 2.2(b) shall include a proportional increase in the penal sums of the Payments Bonds (as defined below). Authority’s reimbursement of such bond cost increases shall not exceed the actual cost of increasing the penal sum of such bonds.
d. Work Reimbursement Costs. During each month after the commencement of the Work, Developer shall submit to the Public Entities a record of costs that have been incurred with respect to the Work during the immediately preceding month (a “Record of Costs”). No later than thirty (30) Business Days after the Public Entities receive a Record of Costs, the Public Entities shall review such Record of Costs and shall, in their reasonable discretion, determine whether the costs set forth in such Record of Costs have been incurred by Developer in performance of the Work and do not cause the aggregate amount of such costs to exceed the Budget, and shall provide a notice of their determination to Developer. Any costs so determined by the Public Entities to have been incurred by Developer in performance of the Work up to the amount of the Budget shall hereinafter be referred to as Work Reimbursement Costs”. After the Close of Escrow, the Authority shall reimburse Developer for all Work Reimbursement Costs.

2.3. Reimbursement from Public Entities if the Close of Escrow Does Not Occur. In the event that the Close of Escrow does not occur due to a termination of the DDA by DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 7
8 any of the Parties, and such termination was not the result of a breach of Developer’s obligations under the DDA, this Agreement, or any other agreement setting forth Developer’s obligations to the Public Entities prior to the Close of Escrow, Developer shall be entitled to reimbursement for the Work Reimbursement Costs incurred as of the date of the termination, with each of the District and the City being responsible for payment to Developer of fifty percent 50%) of the Work Reimbursement Costs incurred by Developer as of the date of the termination. Provided that such termination occurs prior to the Contribution Date (as defined in the RSA (as defined below)), the Authority, the District, and the City acknowledge and agree that the Work Reimbursement Costs may be paid by the District and the City from Existing Funds (as defined in the RSA) pursuant to Section 3.2(D) of the RSA (defined below) and each of the City and the District agree to approve any accounting submitted to one another pursuant to Section

3.2(F) of the RSA that reasonably details the payment of such Work Reimbursement Costs to Developer that does not exceed such party’s share of the Work Reimbursement Costs.
a. This Agreement is not intended to amend, modify, limit or supersede any separate agreement or understanding of the Public Entities as to the allocation of costs between City, District, and Authority related to the Developer’s Phase 1A Infrastructure Improvements, including but not limited to the Project Implementation Agreement and that certain Third Amended and Restated Revenue Sharing Agreement, dated June 28, 2021, by and among the City, the District and the Authority ( as amended, amended and restated, supplemented or otherwise modified from time to time, the “RSA”).
3 DEVELOPER’S RESPONSIBILITIES

3.1. Conditions. Prior to and as a condition of performing any Work and entering onto the Premises pursuant to the Right of Entry License:
a. Insurance. Developer shall purchase and maintain insurance that will protect District, City, and Authority from claims which may result from the undertakings of the Developer and Developer’s Affiliates, under this Agreement, including without limitation the performance of the Work and use of the Premises, in the applicable limits set forth in Section 4.11 of the DDA and in the manner set forth in Sections 4.10 and 4.12-4.13 of the DDA, if and to the extent applicable to the Work, with the exception that ( x) Worker’s Compensation may be carried by the prime contractor (including Developer to the extent Developer is serving as prime contractor) or DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 8
9 applicable subcontractors for their own workers and ( y) General Liability limits are amended to read $1,000,000 per occurrence and $2,000,000 in the aggregate; provided, that at all times such insurance shall cover the Work, the Premises, and any person or entity performing Work or on the Premises pursuant to this Agreement or the Right of Entry License. The insurance certificates shall be in the form attached as Exhibit “D”. b. Bonds. Developer shall furnish to the District, City, and Authority a Payment Bond and Performance Bond (each as defined in the DDA), which shall be procured in the same manner and to the same extent as required for Developer’s Phase 1A Infrastructure Improvements as provided in Section

4.14 of the DDA. Each Bond shall be in an amount equal to 100% of the Budget.
c. Prevailing Wages. The Work is “Public Work” pursuant to the PWL ( as defined in Section 4.16 of the DDA) and Developer and Developer’s Affiliates shall comply with all requirements of section 4.16 of the DDA in their performance and completion of the Work.
d. Indemnity. Without limitation of the Developer’s other obligations under this Agreement, the Developer agrees, at its sole cost and expense, and with counsel selected by the applicable Public Entities, each in its reasonable discretion, and approved by Developer in its reasonable discretion, to indemnify, defend and hold harmless the District, the City and the Authority, and their respective officers, directors, commissioners, employees, partners, affiliates, agents, contractors, successors and assigns (“Public Entities Parties”) from any claims, demands, actions, causes of action, suits collectively, “ Claims”) and any costs, damages ( of all kinds including punitive damage, diminution in value and loss of use), claims, liabilities, expenses (including reasonable attorneys’, consultants’ and experts’ fees), losses, fines, penalties and court costs related to the subject matter of such costs (collectively, the “Related Costs”) and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs (as determined by the District, City and/or Authority, as applicable), arising out of:
a) the obligations undertaken by the Developer and its officers, directors, employees, partners, affiliates, agents, contractors, consultants, invitees, successors and assigns ( each a “ Developer Affiliate”, and collectively, the “ Developer Affiliates”) in connection with this Agreement, including the Right of Entry License;
b) the possession, use, occupancy, operation or development of the DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 9
10 Premises by the Developer or the Developer Affiliates; c) the approval of this Agreement or the approval of permits or approvals granted to the Developer or a Developer Affiliate related to the Work or the Premises, including, but not limited to, approvals or permits for the development of any structures, buildings, installations, and improvements on the Premises, or use of the Premises ( collectively, Related Approvals”);
d) any third party challenges to the approval of the Work and the Related Approvals;
e) the granting or failure to grant any approvals set forth in this Agreement collectively, “Discretionary Approvals”);
f) environmental documents, mitigation and/or monitoring plans, or determinations conducted and adopted pursuant to CEQA or the National Environmental Policy Act for this Agreement, Related Approvals or Discretionary Approvals; and
g) the Developer’s obligation to comply with the PWL with respect to the Work.

If any Public Entity determines in its reasonable discretion that there is a conflict of interest with the Developer's counsel representing an applicable Public Entity and the Developer, then such Public Entity, at the election of the relevant Public Entity, may conduct such defense with its own counsel independent from the Developer’s counsel that is selected by such Public Entity in its reasonable discretion and is approved by the Developer in its reasonable discretion (and in that event the Developer will select its own counsel) and the reasonable costs incurred by such Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations. If any Public Entity determines in its reasonable discretion that there is a conflict of interest with counsel representing such Public Entity and the other Public Entity Parties, then such Public Entity, at its election, may conduct its own defense with its own counsel independent from the other Public Entity Parties’ counsel which such Public Entity’s counsel is approved by the Developer in its reasonable discretion (and in that event such Public Entity will select its own counsel) and the reasonable costs incurred by such Public Entity in such defense shall be covered by the foregoing indemnification, hold harmless and defense obligations. e. Survival. This Article 3 shall survive the expiration or earlier termination of this Agreement.

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11 4

PROCUREMENT OF THE WORK

4.1. Procurement Rules. Developer acknowledges that, as a condition for Authority to reimburse the Work, the procurement of the Work must be done in accordance with Authority’s Procurement Policy. Except where provisions of the Procurement Policy are duly and expressly waived in this Agreement, by resolution of the Authority Board or by the Executive Director of the Authority, as applicable, Developer shall comply with, and cause its contractor(s) for the Work to comply with, the terms of the Procurement Policy.

4.2. Agreement as to Procurement Process. Pursuant to Section 5 of the Procurement Policy, the Authority may require developers to enter into an agreement to clarify the procurement procedures for developer-performed public work. This Agreement shall serve to clarify the procurement procedures for the Work.

4.3. Developer as Prime Contractor. Pursuant to Section 1.c of the Procurement Policy, a developer may serve as a prime contractor, provided that the Authority finds, in accordance with the Procurement Policy, that the developer is qualified and competent to complete the work. Developer has informed the Public Entities that it intends to serve as the prime contractor for the Work, and Developer agrees to: (1) competitively bid the subcontracts for the Work in the manner set forth in Section 4.6 of this Agreement, and (2) not seek reimbursement from Authority for any contractor fee Developer pays itself for serving as prime contractor.

4.4. Public Entities’ Approval. Prior to the commencement of the Work, the Public Entities shall approve the plans and specifications with respect to the Work; provided that in the case of the City only, such plans and specifications shall be deemed approved if and when the City issues a building permit with respect to the Work. For this particular Work, Developer shall not be required to contribute toward the District’s Art Program as set forth in the District’s Tenant Percent For Art Program (BPC Policy No. 608) as provided in Section 4.1(c) of the DDA, but by excluding the Work from the requirements of BPC Policy No. 608, the District does not waive any of its rights to require Developer’s participation as it relates to other work to be performed by Developer pursuant to the DDA.

4.5. Authority Approval of Bid and Contract Documents. Pursuant to Section 2.b of the Procurement Policy, Developer shall submit bid and contract documents to the Authority for approval prior to commencement of the Work. Developer’s submittal shall include any applicable governmental approvals, including any applicable City permits. Bid and contract documents for the Work shall comply with this Agreement. Developer shall not advertise for bids until Authority has approved the bid and contract documents. Approval by any of the Public Entities of Developer’s DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 11
12 bid and contract documents, including plans and specifications, shall not relieve Developer of liability for any improper design or construction of the Work.

4.6. Process for Subcontractor Bids. Developer will conduct the subcontractor bidding process and shall take responsibility for its implementation in accordance with the Procurement Policy and this Agreement. Nothing shall preclude Developer from proceeding with a bidding process that Developer performed prior to the Effective Date, provided that the bidding process satisfies the requirements of the Procurement Policy and this Agreement. The bidding process shall be as follows:
a. Budget. The line items within the Budget shall be the engineer’s estimate referenced in the Procurement Policy.
b. Advertisement. Developer will post a formal advertisement for bids ( the Advertisement for Bids”) at least twenty-one (21) business days prior to the deadline for receiving bids (the “Bid Receipt Deadline”). The Advertisement for Bids will be in the publications selected by Developer. The Advertisement for Bids will generally describe the scope of the work and process to be used.
c. Pre-Bid Meeting. No sooner than 5 business days, and no later than 10 business days, following the posting of the Advertisement for Bids, Developer or its authorized representative will hold an electronic pre-bid meeting in order to answer any questions that prospective bidders may have.
d. Bidder Qualifications. All bidders shall be licensed for such bidder’s respective scope of work in the State of California, shall be registered with the Department of Industrial Relations to perform public works prior to submitting their respective bids, and shall not be debarred from performing work by any federal or state agency or by the City or District. e. Sealed Bids. All bids shall be sealed and opened concurrently at a public bid opening.
f. Bid Awards. Developer shall consider all sealed responsive bids that are submitted on or before the Bid Receipt Deadline. Developer shall award subcontracts to the lowest responsive and responsible bidder, or the bidder that is determined by Developer to be the “best qualified contractor” (as defined in Section 2.d. of the Procurement Policy), subject to Authority’s reasonable approval. Developer may, at its option, waive any defect in any bid. Developer shall not award any bid that is more than 10% above the Budget for the Work, in the case where the bid is for the entire Work, or the line item in the Budget where the bid is only for a portion of the Work, unless DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 12
13 the Developer receives the Authority’s written consent (in the Authority’s sole discretion). This Section 4.6(f) shall not limit Developer's right to seek an adjustment to the Budget for any cost or expense actually incurred by Developer in performing the Work hereunder and that exceeds such 10% threshold, pursuant to Section 2.2(b) for a Cost Increase Event. Developer shall provide copies of the bids to the Public Entities prior to making an award or rejecting a bid. Developer may, in its sole and absolute discretion, reject any and all bids and repeat the bidding process. Developer may require the bidder receiving the award to furnish security in addition to that required of Developer under this Agreement.
g. Developer shall defend, indemnify and hold harmless the Public Entities Parties from any Claims related to Developer’s procurement of subcontractors in accordance with Section 3.1(d).
5 PERFORMANCE OF THE WORK

5.1. Project Updates. Developer shall provide the Public Entities with regular updates regarding the performance and progress of the Work.

5.2. Standard of Performance. Developer and its agents, contractors, and subcontractors, if any, shall perform all Work in a skillful and workmanlike manner, and, with respect to the provisions of engineering services only, consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. Developer represents and warrants that all of its employees, agents, contractors, and subcontractors shall have all licenses, permits, qualifications and approvals of whatever nature that are legally required for them to perform the Work or a portion thereof, as applicable, and that such licenses, permits, qualifications and approvals shall be maintained throughout the term of this Agreement.

5.3. Liens and Claims. Developer agrees to cause all liens and security interests filed in connection with the Work to be discharged in the same manner and to the same extent as provided in Section 4.18 of the DDA for Developer’s Improvements (as defined in the DDA).

5.4. Change Orders. Developer may request that the Public Entities approve a change in the scope of the Work and/or a change to the approved plans and specifications relating to the Work (a “Change Order”), in accordance with Section 3.b of the Procurement Policy. All Change Orders shall be subject to the prior written approval of the Public Entities (such approval not to be unreasonably withheld, conditioned or delayed), unless exempt from prior approval pursuant to Section DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 13
14 3.b of the Procurement Policy. Any Change Orders with respect to the approved plans and specifications shall also be subject to District’s BPC Policy No. 357, and Developer shall obtain District’s approval in accordance with such BPC Policy No. 357. A Change Order shall not result in an automatic increase to the Budget, but this Section 5.4 shall not limit Developer’s right to seek an adjustment to the Budget for any Change Order pursuant to the applicable provisions of Section 2.2(b) for a Cost Increase Event.

5.5. Completion. Upon completing the Work, Developer shall notify the Public Entities that the Work is complete (such notification, "Developer's Completion Notice"). The Public Entities shall have thirty (30) days after receipt of Developer’s Completion Notice to inspect the Work and determine in their reasonable discretion if there are any defects in the Work, any incomplete Work, any Work that does not conform to the approved plans or specifications for the Work, or any damage to the Work or the Premises (collectively, “Outstanding Work”), and either notify the Developer of such Outstanding Work ( such notification, " Public Entities' Outstanding Work Notice") or notify Developer that the Work is complete (such notification, "Public Entities' Completion Notice"), as applicable. Developer shall complete to the reasonable satisfaction of the Public Entities any Outstanding Work within thirty 30) days after Developer receives Public Entities' Outstanding Work Notice. If the Public Entities deliver Public Entities' Outstanding Work Notice to Developer, then the process set forth in this Section 5.5 shall be repeated until the Public Entities deliver to the Developer Public Entities' Completion Notice. Developer acknowledges and agrees that the inspection by the Public Entities shall not void, alter, or modify any warranties for the Work.
a. As-Builts. Within thirty ( 30) days of Public Entities' Completion Notice, Developer shall provide one (1) set of “as-built” or record drawings or plans to the District and City. The drawings shall be certified and shall reflect the condition of the Work as constructed, with all changes incorporated therein. b. Notice of Completion. Developer shall record a notice of completion within the statutory time for recording such notice and shall provide a conformed copy of same to the Public Entities. Upon recording of such notice of completion and, if applicable, acceptance of the improvement by any applicable public utility receiving the improvement ( provided that, in absence of receiving a written notice of such acceptance from a public utility, any use of the applicable improvement by such public entity shall constitute deemed approval of such improvement by such public utility for purposes of this Agreement), ( i) neither Developer nor any Developer Affiliate shall have care, custody, or control of any improvement that is subject to such notice of completion, and (ii) neither Developer, nor any DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 14
15 Developer Affiliate, nor any Public Entity shall have the risk of loss with respect to any improvement that is subject to such notice of completion where "risk of loss" means any risk of loss in connection with any casualty event with respect to such improvement that occurs after such time and that results in the loss of use of such improvement).
c. Removal of Liens and Security Interests. Pursuant to Section 5.3 above and Section 4.18 of the DDA, within thirty (30) days after Developer receives notice of filing of any lien or security interest with respect to the Work, it shall cause such lien or security interest, as applicable, to be discharged of record by payment, deposit, bond, order of court of competent jurisdiction or otherwise. Notwithstanding the foregoing, Developer shall not be required to discharge of record any such lien or security interest, as applicable, if Developer is in good faith, and consistent with applicable law, at its own expense, currently and diligently contesting the same; provided that Developer first records a surety bond sufficient to release such lien or such security interest, as applicable. Developer shall certify to the Public Entity accepting the improvement that it has complied with the requirements of this Section 5.5(c).
d. Utility Easement. Parties hereto acknowledge and agree that San Diego Gas & Electric (“SDG&E”) is scheduled to commence certain work on the Premises on or around November 1, 2021 and, as a prerequisite for SDG&E to commence such work, District shall grant a utility easement to SDG&E, on terms satisfactory to the District and SDG&E. For avoidance of doubt, neither the Public Entities nor Developer shall be responsible for any actions or omissions by SDG&E. Once the Developer has completed the necessary work to allow SDG&E to install the cabling work for the Sandpiper SDG&E Re-Feed Work ( as described in the Work Plan), Developer shall notify SDG&E and the Public Entities. If SDG&E is unable to install the cabling work due to defects in Developer’s work, Developer shall repair or correct the defects promptly.
e. Post-Completion/Restoration. The acceptance of any portion of the Work shall not create any obligation upon any Public Entity to Developer to repair or correct any defects in the Work.
i) If the Close of Escrow occurs, Developer shall, at its sole cost and expense, permanently remove the Sandpiper SDG&E Re-Feed Work constructed pursuant to the Work Plan, and restore to its preWork condition the portion of the Premises that is affected by such removal, prior to Completion (as defined in the Ground Lease) of the DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 15
16 resort hotel.
ii) If the Close of Escrow does not occur, Developer shall have no obligation to remove the Work or restore the Premises except as provided in this Agreement.
f. Survival. This Article 5 shall survive the earlier termination or expiration of this Agreement.
6 TERMINATION AND DEFAULT

6.1. Term and Termination. This Agreement shall remain in effect from the Effective Date until the earlier of: (1) Developer completes the Work and all Work is accepted by the appropriate Public Entity(ies), or ( 2) one ( 1) year, unless extended or terminated earlier as provided herein (the “Termination Date”). a. Extension. The Public Entities may, in each of their sole and absolute discretion, agree in writing to extend the Termination Date; provided, that, if Developer has performed substantial work on the Work (more than 60%), is diligently pursuing completion of the Work, the DDA has not expired or terminated, and Developer is not otherwise in breach of this Agreement, then the Public Entities shall not unreasonably refuse to grant an extension. b. Event of Default. If Developer neglects, refuses, or fails to fulfill or timely complete any obligation, term, or condition of this Agreement, or abandons the Work, or if the Public Entities determine there is a violation of any federal, state, or local law, ordinance, policy, regulation, code, standard, or other requirement, Developer shall be in default of this Agreement, upon which the Public Entities shall make written demand upon Developer to immediately remedy the default in accordance with this Agreement Notice”). Developer shall substantially commence the work required to remedy the default within fifteen (15) business days of receipt of the Notice.

If the default constitutes an immediate threat to the public health, safety, or welfare, District’s Representative may provide the Notice verbally, and Developer shall substantially commence to remedy the default within twenty-four (24) hours thereof. Immediately upon issuance of the Notice, Developer and its surety shall be liable to the Public Entities for all costs of the Work and all other administrative costs and expenses as provided for in this Section 6.1.
i) Nothing herein prevents the Public Entities from notifying Developer’s surety of any default or demand to remedy a default; provided, however, failure to give or receive notice to the surety shall DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 16
17 not exonerate the surety of any obligations under the Performance Bond.
c. Remedies for Event of Default. If Developer does not cure the default as provided in Section 6.1(b), the Public Entities may elect to terminate this Agreement. If the Public Entities elect to terminate this Agreement, the District may elect that the Developer and the surety either (i) restore the Premises to the same condition as the Premises existed prior to the commencement of the Work; or (ii) complete and convey any particular portion of the Work to the District in lieu of restoration of some or all of the Premises under (i), and Developer shall proceed with such restoration or completion of the Work at no cost to the District. If the Developer fails to comply with any of its obligations contained herein, Developer and its surety shall be jointly and severally liable to the Public Entities for all administrative expenses, fees, and costs, including reasonable attorneys' fees and costs, incurred by the Public Entities in obtaining Developer’s compliance with this Agreement or in processing any legal action or for any other remedies permitted by law or equity.
d. Survival. This Article 6 shall survive the expiration or earlier termination of this Agreement.
7 RIGHT OF ENTRY LICENSE

7.1. Right-of-Entry: District hereby grants Developer, and its authorized agent(s) and contractor(s), the right to enter upon the Premises to perform and complete the Work, subject to the terms and conditions in this Article 7 (“ Right-of-Entry License”).

7.2. Use of Premises. The use of the Premises by the Developer and Developer’s Affiliates for the Right of Entry License, shall be limited to the following activities:
a. Performance and completion of the Work;
b. Ingress and egress for purposes of Paragraph 7.2(a) above through roads owned by the District and located adjacent to the Premises as shown in Exhibit “A-2” (collectively, "Approved Routes"); and
c. Inspections, commissioning, and maintenance of the Work.

Developer’s “ authorized agents and contractors” shall include the employees, contractors, subcontractors, and agents of public utilities that Developer authorizes to enter the Premises to perform, complete, inspect, commission, maintain or otherwise participate in the Work.

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18 7.3. [ INTENTIONALLY OMITTED.]

7.4. Term. This Right-of-Entry License shall commence on the Effective Date and terminate on the Termination Date.

7.5. No Additional Rights or Interests. District's grant of the Right-of Entry License does not: (i) confer any right or interest on Developer other than those rights or interests expressly granted to Developer in this Right-of Entry License, as such rights or interests are limited and qualified herein; or (ii) create or impose any obligations on District other than those obligations expressly set forth in this Right-of Entry License.

7.6. Consideration for Access. Developer shall pay to the District the Cost Recovery Fees pursuant to Board of Port Commissioners Policy No. 106 in the total amount of Five Hundred and Fifty Dollars ($550.00) payable concurrently with Developer's execution of this Agreement.

7.7. Indemnification of District. Except for claims or litigation arising through the sole negligence or willful misconduct of any lndemnitee or lndemnitees, Developer shall defend, indemnify, and hold harmless District and its officers, directors, members of the Board of Port Commissioners, employees, contractors, agents, affiliates and successors and assigns (collectively with the District, the "lndemnitees") for any and all causes of action, liability, claims, judgments, or demands, plus expenses in connection therewith, arising out of or as the result of: (i) this Right-of Entry License; (ii) Developer’s and/or its authorized agents', employees', invitees’ or contractors' activities undertaken pursuant to this Right-of Entry License, including without limitation, the performance of the Work; (iii) any accident or occurrence in connection with the Work or the operation, use, condition, or possession of the Premises, Approved Routes, or any portion thereof during the term of this Right-of Entry License; (iv) PWL (defined above); or (v) the District's approval or issuance of this Right-of Entry License, including but not limited to the District's review and approval under the California Environmental Quality Act and the California Coastal Act ( collectively, an "Indemnified Claim"). Said expenses shall include without limitation costs of investigation and remediation of environmental conditions, counsel, consultant and/or expert fees and expenses, and penalties and interest as incurred, regardless of the cause thereof or the cause of action, liability, claim, judgment, or demand, no matter when made or filed. Developer’s obligation to indemnify Indemnitees pursuant to this Section 7.7 shall apply regardless of the extent, if any, to which such Indemnified Claim is based, in whole or in part, on preexisting conditions at the Premises, including without limitation Environmental Conditions, as defined in the Acknowledgment and Disclosure Regarding Environmental Conditions, attached hereto as Exhibit "C", and incorporated by DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 18
19 reference herein. Notwithstanding the foregoing, Developer shall have no obligation to indemnify, defend or hold harmless any lndemnitee for any Indemnified Claim that arises out of any preexisting hazardous material condition that is not known to Developer, unless such Indemnified Claim arises out of the negligence of, or breach of this Agreement by, Developer or one or more of the contractors, agents, employees or invitees. For purposes of this Section 7.7, a preexisting hazardous material condition shall be deemed to be known to Developer if ( 1) Developer has actual knowledge of the condition through its employees, consultants, agents or anyone hired by Developer to investigate the conditions of the Premises, or (2) should have reasonably been anticipated by Developer through review of the District files, Developer’s files, other public files, readily available information or information described in Exhibit “ C”, an ALTA survey, walk through, and any other reasonable pre-construction investigation or assessment of the Premises.

7.8. [ Intentionally Omitted.]

7.9. Modifications. District and Developer may only modify the Right-of-Entry License in writing, and a written modification shall not require the consent of the City or Authority to be effective. Developer shall give prompt notice to City of any modification to the Right-of-Entry License that materially impact Developer’s performance of, or ability to complete, the Work.

7.10. Work Product Related to Condition of Premises. At the request of District, Developer shall provide the District with complete copies of any information, data, studies, analyses, sampling results, and results, in each case, to the extent they are prepared for or result from the Work, including without limitation any investigation and/or remediation activities and any reports and/or work plans related thereto which Developer prepares or obtains, or contracts with third parties to prepare or obtain, regarding the condition of the Premises. Developer shall provide a copy to City and Authority of anything provided to District pursuant to this Section 7.10.

7.11. Additional Work and Documentation. Developer shall provide the District with any additional information and documentation, that is reasonably requested by the District and that developers performing work similar to the Work customarily provide to their respective right of entry licensors, relating to the Work, the activities of Developer and its authorized agents and contractors on or in connection with the Premises and the Work that is necessary to coordinate access to the Premises and the performance of the Work. Developer shall pay any costs and expenses related to the relocation of any construction equipment, debris, asphalt, soil, or improvements necessary to perform the Work and to access the Premises.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 19
20 Developer may seek reimbursement of such costs and expenses only if subject to reimbursement pursuant to Section 2.2 or Section 2.3, as applicable. Developer shall pay any costs and expenses related to the Work and access to the Premises by Developer and its authorized agent(s) and contractors. Developer may seek reimbursement of such costs and expenses only if subject to reimbursement pursuant to Section 2.2 or Section 2.3, as applicable.

7.12. Permits. Developer shall acquire all permits required by applicable law, including without limitation, the ordinances and policies of the Public Entities. Developer shall perform and complete the Work in strict accordance with this Agreement, all permits for the Work, and all applicable District construction and design standards.

Developer shall obtain all permits and authority from governmental entities and agencies that are necessary for the performance of the Work and access to the Premises. Except as set forth herein, the District shall not incur any cost or expense as a result of this Agreement. Developer agrees that any costs (including but not limited to plan checking, inspection, materials furnished and other incidental expenses) incurred by the District in connection with the inspection, approval or the installation of the Work, will be paid by Developer. Such costs and expenses in connection with permitting and the inspection, approval or the installation of the Work shall be included in the Budget and subject to reimbursement.

7.13. Conformance with Laws. Developer agrees that, in all activities on or in connection with the Premises, and in all uses thereof, including without limitation the Work and access to the Premises, it shall abide by and conform to all laws and regulations.

Said laws and regulations shall include, but are not limited to those prescribed by the San Diego Unified Port District Act; any applicable ordinances of the City, including the Building Code thereof; any ordinances and general rules of District, including tariffs and policies; and any applicable laws of the state of California and federal government, as any of the same now exist or may hereafter be adopted or amended. In particular and without limitation, Developer shall have the sole and exclusive responsibility to comply with the requirements of: (i) Article 10 of District Code entitled " Stormwater Management and Discharge Control", and ( ii) the Americans With Disabilities Act of 1990, including but not limited to regulations promulgated thereunder. At no time shall Developer or its authorized agents or contractors park vehicles on the Approved Routes, place or store any materials or equipment on the Approved Routes, or limit, block or impede the ability of any person to use any of the Approved Routes.

7.14. Utilities. Developer shall determine the location of all utilities in, on, under, and over the Premises and take necessary precautions to prevent interruption of any utility service. However, should any interruption of any utility service occur as a DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 20
21 result of the Work, Developer shall bear the sole expense and cost regarding said interruption.

7.15. Engineering and Inspection. Developer must at all times maintain proper facilities and safe access for inspection of the Work by District and City inspectors.

7.16. Outside Agency Inspections. Developer shall make available for District inspection all final outside agency inspection approvals ( including but not limited to City inspection approvals) when the Work is completed.

7.17. Hazardous Materials. Developer is alerted that Work in this Agreement involves working environments that may be hazardous, contaminated, or non-hazardous to activities associated with the excavation, handling, transportation, and disposal of all excavated materials and other wastes in the project area with emphasis to hazardous and contaminated materials. Such hazardous, contaminated, and nonhazardous environments include, and are not limited to hazardous and nonhazardous materials, soils, groundwater, heavy metals, petroleum hydrocarbons, polynuclear aromatic hydrocarbons, organic compounds, serpentine rock and ultramafic material (which may contain natural occurring asbestos - NOA), leadbased paint materials, sewage, sludge, debris, grit, sewer gases, bacterial/biological contamination, railroad ties, oxygen deficiency, and confined spaces. In the performance of the Work, Developer shall implement a Health and Safety Plan ( HSP), provide full-time environmental oversite during drilling, and utilize a Photoionization detector (PID) and visual observation to evaluate if spoils are impacted with chemicals of potential concern (COPCs).

Developer shall legally dispose of off tidelands all hazardous waste, hereinafter Waste", extracted or removed by Developer in connection with this Agreement and the Work on the Premises. Developer shall be responsible for managing and disposing of said Waste in accordance with all applicable laws and regulations. All Waste, including but not limited to hazardous and non-hazardous Waste, shall only be disposed at permitted California landfills (22 CCR 66262), equivalent out-ofstate landfills ( 40 CFR 262), and permitted recycling facilities. In addition, Developer or its contractor shall list itself as the generator of said Waste on the disposal facility's waste manifest and any waste disposal profile. In any event, Developer shall not store such Waste on the Premises for any period of time.

Notwithstanding the foregoing, Developer shall be permitted to store all spoils on the Premises for such period of time as is reasonably necessary to classify such spoils as hazardous or non-hazardous and to await transportation of the hazardous spoils in conformance with all applicable laws and regulations.

7.18. Assumption of Risk. Developer assumes all responsibility and risk for any damage and/or consequence resulting from Developer's activities, including without DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 21
22 limitation access to the Premises, the Work and all costs associated therewith.

Developer shall repair any damage to the Premises, including without limitation, any damage to the improvements of the District, arising out of or resulting from Developer's activities, including without limitation, the Work and access to the Premises, and at the election of the District, restore the Premises, to the reasonable satisfaction of the District. Developer shall repair any damage to the Premises including without limitation, any damage to the improvements of the District, prior to the expiration of this Agreement. Developer agrees to perform the Work in accordance with the plans and specifications approved by the District.

7.19. Securing Premises. Prior to commencement of construction of the Work, where applicable, Developer shall secure the Premises where Work is being performed with temporary fencing which shall remain until such time as that Work is complete.

7.20. RV Park Excluded. Notwithstanding anything in this Agreement to the contrary, the Right-of-Entry License shall not include the right to enter any portion of the Premises set forth on Exhibit “A-2” as “Encumbered,” which is currently occupied by Sun Chula Vista Existing Park RV LLC, a Michigan limited liability company operating as the Chula Vista RV Resort pursuant to Tideland Use and Occupancy Permit dated February 28, 2019 between the District and Sun Chula Vista filed in the Office of the District Clerk as Document No. 69412. 8 MISCELLANEOUS PROVISIONS

8.1. Drafting Party. The District, City, Authority, and Developer acknowledge and agree that this Agreement has been agreed to by the District, City, Authority, and Developer, that the District, City, Authority, and Developer have consulted with attorneys with respect to the terms of this Agreement and that no presumption shall be created against the drafting party. Any deletion of language from this Agreement prior to its execution by District, City, Authority, or Developer shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the District, City, Authority, or Developer intended thereby to state the converse of the deleted language. Unless otherwise specified in this Agreement, any approval or consent to be given by District, City, Authority, or Developer may be given or withheld in the sole and absolute discretion of District, City, Authority, or Developer, respectively.

8.2. Incorporation of Recitals. All recitals above are incorporated into this Agreement and are made a part hereof.

8.3. Venue. Venue for any legal proceeding shall be in San Diego County, California.

This Agreement shall be construed and enforced in accordance with the laws of DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 22
23 the State of California.

8.4. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one Agreement after each Party has signed such a counterpart.

8.5. Electronic Signatures. The words “execution”, “ execute”, “ signed”, “ signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures and contract formations on electronic platforms approved by the Parties, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

8.6. Dispute Resolution. The Parties shall, before the filing of any lawsuit or court action against any other Party relating to this Agreement or the Work, attempt in good faith to settle the dispute through non-binding third party mediation.

8.7. Administrative Claims Requirements and Procedures. No suit shall be brought arising out of this Agreement against City unless a claim has first been presented in writing and filed with City and acted upon by City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may be amended, the provisions of which, including such policies and procedures used by City in the implementation of same, are incorporated herein by this reference. No suit shall be brought arising out of this Agreement against District or Authority unless a claim has first been presented in writing and filed with District or Authority, respectively, and acted upon by District or Authority, respectively, in accordance with the procedures set forth in the Government Claims Act Government Code sections 900 et seq.)

8.8. CONTRACTOR’S LICENSE NOTICE. CONTRACTORS ARE REQUIRED BY

LAW TO BE LICENSED AND REGULATED BY THE CONTRACTORS STATE

LICENSE BOARD, WHICH HAS JURISDICTION TO INVESTIGATE

COMPLAINTS AGAINST CONTRACTORS IF A COMPLAINT REGARDING A PATENT ACT OR OMISSION IS FILED WITHIN 4 YEARS OF THE DATE OF THE ALLEGED VIOLATION. A COMPLAINT REGARDING A LATENT ACT OR

OMISSION PERTAINING TO STRUCTURAL DEFECTS MUST BE FILED WITHIN 10 YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY

QUESTIONS CONCERNING A CONTRACTOR MAY BE REFERRED TO
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 23
24 THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX 26000, SACRAMENTO, CA 95826.

Remainder of page intentionally left blank.]
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 24
ocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 25
26 By: _____________________
Glen R. Googins
City Attorney

CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY ,
a California joint exercise of powers authority
By: __________________________
Joe Stuyvesant, Executive Director
Approved as to form and legality:

COUNSEL
By:__________________________
Thomas A. Russell, General Counsel, San Diego Unified Port District Co-Counsel
By: _____________________
Glen Googins, City Attorney, City of Chula Vista
Co-Counsel
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 26
A-1 Exhibit A
EXHIBIT “A-1”

PROPERTY DESCRIPTION
Those areas generally shown as the “Premises” in the attached Exhibit “A-2” (Map Identifying the Premises) which include portions of Parcel H-3, Parcel H-8, Parcel HP-1(N), Parcel HP-1S, Parcel HP-3B, Parcel HP-11, and Parcel H-9 of the Chula Vista Bayfront Master Plan and surrounding areas, but specifically excluding that portion marked as “Encumbered”. Such Premises” shall not include any areas outside the premises boundary of the Coastal Development Permit filed in the Office of the District Clerk as Document No. 70152.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 27
A-2 Exhibit A
EXHIBIT “A-2”

MAP IDENTIFYING THE PREMISES
See attached)
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 28
B-1 Exhibit B
EXHIBIT “B”
DESCRIPTION OF EARLY PHASE 1A INFRASTRUCTURE WORK

1. Sandpiper SDG&E Re-feed
Trench, backfill, and install conduits and cabling on Marina Parkway from approximately 100’ southerly of Sandpiper, northerly along Marina Parkway, then westerly along Sandpiper to an existing SDGE service point at the corner of N-S and E-W Sandpiper. Includes the installation of SDGE Infrastructure. Upon completion of connections, remove all SDG&E cabling in N-S section of Sandpiper to G Street.

Sandpiper SDG&E Re-feed is temporary. The Phase 1A infrastructure includes services that will feed this service from H Street (when constructed).

Easements required: E-W Sandpiper is a Port Street, an easement for SDGE is required.

Expected duration of easement necessity is 2 years after which time the easement could be terminated and new permanent easement and service from H Street is provided.

Trenching, backfill, and conduit work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected. Cabling work will be performed by SDG&E.

2. Sandpiper AT&T Re-feed
Trench and install conduits and cabling on Marina Parkway from G Street southerly along Marina Parkway, then westerly along Sandpiper toan existing AT&T service point adjacent totheexisting RV Park. Includes the installation of AT&T Infrastructure. Upon completion of connections, remove all AT&T cabling in N-S section of Sandpiper to G Street.

That portion of the Sandpiper AT&T on Marina Parkway and Utility Corridor is Permanent. That portion of the Sandpiper AT&T Re-feed on E-W Sandpiper is temporary and will be replaced with a service from H Street (when constructed).

Easements required: AT&T has no existing easements in the H-3 project area. Marina Parkway is currently a City of CV Street. No temporary easements to AT&T are currently proposed. A permanent easement in the Utility Corridor will be provided prior to Hotel Occupancy.

Conduit work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected.

Cabling work will be performed by AT&T.

3. G Street and Sandpiper Gas removal/abandonment
Cap existing gas main at G Street/Marina Parkway. Excavate and remove existing gas main on G Street from Marina Parkway to Sandpiper. Abandon existing gas main in Sandpiper from G Street south.

Work is permanent. No easements are required.

All work will be performed by SDG&E.

4. Rohr Gas RFS
Cap existing Rohr Gas main in Marina Parkway at the Sandpiper Intersection. Excavate and remove existing Rohr Gas main in Marina Parkway from Sandpiper, northerly to existing service at Rohr. All work is performed by SDG&E.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 29
B-2 Exhibit B
Work is permanent. Marina Parkway is currently a City of CV street. No temporary easements arerequired. H Street (Marina Parkway to Bay) must bededicated as apublic street or permanent easement prior to Hotel Occupancy.

All work will be performed by SDG&E.

5. G Street Overhead Interim Relocation
Install interim overhead utility poles and SDG&E and AT&T cabling from Marina Parkway/G Street Intersection, westerly at the edge of the limits of work of the Gaylord Pacific Project (northerly of existing and proposed G Street) to the Sandpiper/G Street Intersection. Trench and install conductors to the existing underground SDGE and AT&T infrastructure in G Street. Remove existing overhead utility poles and cabling on G Street from Marina Parkway westerly.

G Street OH Interim relocation is temporary. The Phase 1A infrastructure includes services that will feed this service in G Street (when constructed).

Easements required: Aneasement for thealignment is requiredandcombined with thetemporary construction site power. Expected duration of easement necessity is 3 years.

Underground excavation, trenching, conduit, and pavement repair will be performed by RIDA. All overhead pole and wiring installations and removals will be performed by SDG&E and AT&T.

6. Sandpiper Water and Sewer Caps
Cap existing sewer at G Street/Sandpiper intersection. Cap existing water mains at G Street/Sandpiper, the Southwest Sandpiper turn, westerly end of Bayside Parkway, and north end of Quay Avenue all to remove water service from the North-South section of Sandpiper Way Work is permanent. No easements are required.

All work will be performed by RIDA Chula Vista, LLC, Subcontractor yet to be selected.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 30
C-1 Exhibit C
EXHIBIT “ C”

ACKNOWLEDGMENT AND DISCLOSURE

REGARDING ENVIRONMENTAL CONDITIONS
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 31
C-2 Exhibit C

ACKNOWLEDGMENT AND DISCLOSURE REGARDING ENVIRONMENTAL

CONDITIONS
IT IS HEREBY ACKNOWLEDGED BY RIDA Chula Vista, LLC, a Delaware limited liability company, a "Right of Entry Developer", hereinafter "Developer", and the San Diego Unified Port District, a public corporation, hereinafter "District", that:

1. Certain Environmental Conditions may: (a) exist at, under, on, or near: (i) the Premises, as defined in the Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right of Entry License Agreement by and among the District, Developer, City of Chula Vista, a chartered municipal corporation (“City”), and the Chula Vista Bayfront Facilities Financing Authority, a California joint exercise of powers authority (“Authority”) dated September 1, 2021, hereinafter "Agreement"; (ii) the Approved Routes, as defined in the Agreement; and (iii) property which is contiguous, upgradient, or otherwise in the vicinity of the Premises and Approved Routes, hereinafter "Surrounding Property''; and (b) be encountered during activity undertaken pursuant to the Agreement, including without limitation the Work, as defined therein.

For purposes of this Acknowledgment and Disclosure, the term " Environmental Conditions" means: (a) any environmental conditions, circumstances, or other matters of fact pertaining to, relating to, or otherwise affecting the environment, including without limitation: ( i) any natural resources ( including flora and fauna), soil, surface water, groundwater, any present or potential drinking water supply, subsurface strata, or the ambient air; and ( ii) the presence, use, handling, storage, treatment, recycling, generation, transportation, release, spilling, leaking, pumping, pouring, emptying, discharging, injecting, escaping, leaching, dumping, or disposal ( including without limitation the abandonment or discarding of barrels, containers, and other closed receptacles and fill materials containing any hazardous materials, hazardous wastes, or toxic substances); and (iii) the threatened release of hazardous materials, hazardous wastes, or toxic substances; and ( b) the exposure of any persons (including without limitation lessees, licensees, permittees, or other users of the Premises, Approved Routes and/or Surrounding Property) to hazardous materials, hazardous wastes, or toxic substances; and ( c) the exposure of other natural persons within or outside the boundaries of the Premises, Approved Routes, and/or the Surrounding Property to hazardous materials, hazardous wastes, or toxic substances related to or otherwise arising from operations, acts, omissions, or other conduct at the Premises, Approved Routes, and/or Surrounding Property (as the case may be).

2. Information relating to Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property developed as a result of sampling, DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 32
C-3 Exhibit C
testing, and analysis undertaken from time to time by District, District tenants, third-party contractors and/or others, may be contained in certain District files, hereinafter "District Files". Subject to reasonable confidentiality assurances from Developer, District will make District Files available to Developer for review. District has not undertaken to conduct, and District Files do not represent a comprehensive analysis of Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property.

3. Information relating to Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property may be contained in Developer's files, hereinafter "Developer's Files".

4. Information relating to Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property may be contained in the files of other governmental entities or agencies, including without limitation the San Diego Regional Water Quality Control Board, San Diego Department of Health Services, San Diego Air Pollution Control District, Chula Vista Fire Department, City of Chula Vista, California Department of Toxic Substances Control, California Environmental Protection Agency, and Region IX of the United States Environmental Protection Agency, hereinafter Agency Files". Said Agency Files are readily available to Developer.

District's knowledge and files regarding Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property are not complete. District has encouraged Developer to review all readily available information relating to such Environmental Conditions, including the: (a) EIR/RAP/RIFS, etc., if available; (b) District Files; ( c) Developer's Files: and ( d) Agency Files, hereinafter collectively " Readily Available Information", to ascertain to the fullest extent possible the nature and existence of Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property. Developer hereby assumes responsibility for ascertaining any information contained in the Readily Available Information.

5. Neither District nor Developer makes any representation or warranty, express or implied, in this Acknowledgment and Disclosure, the Agreement or otherwise, regarding the: (a) presence, extent, impact, or consequences, whether foreseeable or unforeseeable, of any Environmental Conditions at, under, on, or near the Premises, Approved Routes, and/or Surrounding Property, or (b) suitability of the Premises in any respect for any purpose intended by Developer under the Agreement.

DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 33
ocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 34
D-1 Exhibit D
EXHIBIT "D"

CERTIFICATE OF INSURANCE
See attached)
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 35
D-2 Exhibit D
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 36
D-3 Exhibit D
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 37
E-1 Exhibit E
EXHIBIT "E"
BUDGET
DocuSign Envelope ID: 4331686C- AB25-47B2-8343- 18D07558D784 73207 38
ertificate Of Completion
Envelope Id: 4331686CAB2547B2834318D07558D784 Status: Completed Subject: Please DocuSign: RIDA Early Work Implementation Agreement and ROE_Sep2021.pdf Source Envelope:

Document Pages: 38 Signatures: 9 Envelope Originator:

Certificate Pages: 5 Initials: 0 Gabby Livingston
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-08:00) Pacific Time (US & Canada)
3165 Pacific Highway
San Diego, CA 92101
[email protected]
IP Address: 207. 215. 153. 162
Record Tracking
Status: Original
9/15/2021 2:07:24 PM
Holder: Gabby Livingston
[email protected]
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: San Diego Unified Port District Location: DocuSign Signer Events Signature Timestamp
Thomas A. Russell
[email protected]
General Counsel
San Diego Unified Port District
Security Level: Email, Account Authentication
None)
Signature Adoption: Drawn on Device
Using IP Address: 68. 96. 65. 125
Signed using mobile
Sent: 9/15/2021 2:14:32 PM
Viewed: 9/16/2021 9:01:55 AM
Signed: 9/16/2021 9:02:48 AM
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
Anthony Gordon
[email protected]
Director
Port
Security Level: Email, Account Authentication
None)
Signature Adoption: Drawn on Device
Using IP Address: 207.215.153.162
Sent: 9/16/2021 9:02:50 AM
Resent: 9/22/2021 9:33:22 AM
Viewed: 9/29/2021 4:59:25 PM
Signed: 9/29/2021 5:05:32 PM
Electronic Record and Signature Disclosure:

Accepted: 5/3/2021 3:49:21 PM
ID: 823f8640-56d5-4576-9287-be2bab34fb9b
Company Name: San Diego Unified Port District
Glen Googins
[email protected]
City Attorney
City of Chula Vista
Security Level: Email, Account Authentication
None)
Signature Adoption: Uploaded Signature Image
Using IP Address: 209.242.148.130
Sent: 9/29/2021 5:05:34 PM
Viewed: 9/30/2021 8:06:40 AM
Signed: 9/30/2021 8:07:12 AM
Electronic Record and Signature Disclosure:

Accepted: 7/1/2021 4:10:53 PM
ID: 186a48a0-3d96-40ed-8040-6e72df254e14
Company Name: San Diego Unified Port District
Maria Kachadoorian
[email protected]
City Manager
City of Chula Vista
Security Level: Email, Account Authentication
None)
Signature Adoption: Pre-selected Style
Using IP Address: 209.242.148.130
Sent: 9/30/2021 8:07:15 AM
Viewed: 9/30/2021 10:17:23 AM
Signed: 9/30/2021 11:15:43 AM
Electronic Record and Signature Disclosure:

Reference Copy
73207( 5)
igner Events Signature Timestamp
Accepted: 9/9/2021 11:09:18 AM
ID: 8b777dba-cb89-4990-a8f3-fd1c2f6d9455
Company Name: San Diego Unified Port District
Joe Stuyvesant
[email protected]

PRESIDENT/CEO
Security Level: Email, Account Authentication
None) Signature Adoption: Pre-selected Style
Using IP Address: 207.215.153.162
Sent: 9/30/2021 11:15:46 AM
Viewed: 9/30/2021 12:51:20 PM
Signed: 9/30/2021 12:51:48 PM
Electronic Record and Signature Disclosure:

Accepted: 9/30/2021 12:51:20 PM
ID: 0b2083a9-6f2f-409c-8f22-bc9fa5d0f3cb
Company Name: San Diego Unified Port District
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Sally Raney
[email protected]
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None)
Sent: 9/30/2021 12:51:51 PM
Electronic Record and Signature Disclosure:

Not Offered via DocuSign
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Electronic Record and Signature Disclosure

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X-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit X-2
Reimbursement Agreement
To be attached prior to execution.]
1 City of Chula Vista Agreement No.: 2019-097

RIDA CHULA VISTA, LLC

CITY OF CHULA VISTA

REIMBURSEMENT AGREEMENT

WITH RIDA CHULA VISTA, LLC

TO DESIGN SPECIFIED BAYFRONT INFRASTRUCTURE IMPROVEMENTS This REIMBURSEMENT AGREEMENT (“ Agreement”) is entered into as of this 15th day of September, 2020 (the “Execution Date”) by and among the City of Chula Vista, a chartered municipal corporation (“City”) and RIDA Chula Vista, LLC, a Delaware limited liability company Developer”) ( collectively, the “ Parties” and, individually, a “ Party”). with reference to the following Recitals:

RECITALS
A. WHEREAS, City, Developer, and the San Diego Unified Port District (“ District”) entered into a Disposition and Development Agreement for the Resort Hotel Convention Center Project ( Chula Vista Bayfront Master Plan Parcel H-3), effective May 7, 2018 ( the “ DDA”); and B. WHEREAS, the scope of development attached to the DDA ( the “ Scope of Development”) provides that the Developer shall construct certain infrastructure improvements, consisting of: E Street ( from G Street to H Street), the G Street Connection, H Street ( Bay Boulevard to Street A), H Street (Marina Parkway to E Street), Harbor Park (Initial), H -3 Site Prep, and the H-3 Utility Corridor (the “ Developer’ s Phase 1A Infrastructure Improvements”) in connection with the development of the Developer’ s Private Improvements ( as defined in the DDA); and
C. WHEREAS, Section 4.7(c) of the DDA provides that the District and the City shall reimburse the Developer in cash for any and all funds expended prior to the DDA Close of Escrow by the Developer in connection with design, architectural work, and engineering work for the Developer’ s Phase 1A Infrastructure Improvements as set forth in the Scope of Development, other than the amounts that have been paid to Developer pursuant to Section 4.8(e) of the DDA, from the first disbursement of the Public Fund Contribution pursuant to the construction loan account instructions; and
D. WHEREAS, the Scope of Development attached to the DDA provides that the in - road sewer facilities included in the Developer’ s Phase 1A Infrastructure Improvements ( the Developer’ s Sewer Improvements”) shall be funded by the City’s Sewer Facility Contribution; and
E. WHEREAS, the Developer and the City have negotiated and anticipate executing the City of Chula Vista Reimbursement Agreement with RIDA Chula Vista, LLC to Construct Specified Bayfront Sewer Improvements ( the “ Sewer Reimbursement Agreement”) for this purpose; and
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RIDA CHULA VISTA, LLC
F. WHEREAS, the Sewer Reimbursement Agreement provides a mechanism for the City to reimburse the Developer in cash for any and all funds expended prior to the DDA Close of Escrow by the Developer in connection with design, architectural work, and engineering work for the Developer’ s Sewer Improvements; and
G. WHEREAS, the scope of this Agreement is therefore limited to the Developer’ s Phase 1A Infrastructure Improvements, excluding the Developer’ s Sewer Improvements ( the Project”); and
H. WHEREAS, the City has identified and set aside funds generated by the Bayfront project sufficient for this purpose; and
I. WHEREAS, Developer desires to enter into this Agreement with the City, so that it may obtain reimbursement for the eligible costs of designing Developer’ s Phase 1A Infrastructure Improvements incurred prior to DDA Close of Escrow.

AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, City and Developer agree as follows:

ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings:

1.1. Agreement. “Agreement” means this Reimbursement Agreement between the City and the Developer. The term “Agreement” shall include any amendment to the Agreement properly approved and executed pursuant to the terms of this Agreement.

1.2. City. “ City” means the City of Chula Vista. Unless specifically provided otherwise, whenever this Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement.

1.3. City Council. “ City Council” means the governing body of the City.

1.4. City Manager. “City Manager” means the City Manager of City or his or her designee.

1.5. Cutoff Date. “Cutoff Date” means ninety (90) days from the DDA Close of Escrow.

1.6. CVMC. “CVMC” has the meaning given to such term in the Recitals.

1.7. DDA. “DDA” has the meaning given to such term in the Recitals.

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1.8. DDA Close of Escrow. “ DDA Close of Escrow” means Close of Escrow as such term is defined in the DDA.

1.9. Design Professional(s). “ Design Professional(s)” means persons or entities providing design, architecture, landscape architecture, survey, or engineering work or services for the Developer’ s Phase 1A Infrastructure Improvements.

1.10. Developer. “ Developer” has the meaning given to such term in the preamble.

1.11. Developer’ s Phase 1A Infrastructure Improvements. “ Developer’ s Phase 1A Infrastructure Improvements” has the meaning given to such term in the Recitals.

1.12. Developer’ s Sewer Improvements. “ Developer’ s Sewer Improvements” has the meaning given to such term in the Recitals.

1.13. Director of Development Services. “ Director of Development Services” means the Director of Development Services of City or his or her designee.

1.14. District. “District” has the meaning given to such term in the Recitals.

1.15. Eligible Expenses. “ Eligible Expenses” means costs that the City shall reimburse Developer for the Project, not to exceed the Estimated Cost.

1.16. Estimated Cost. “ Estimated Cost” means the design cost of the Project to be incurred prior to DDA Close of Escrow, estimated to total $ 715,000, as shown in Exhibit A, attached hereto. As the Estimated Cost is not initially the result of contracts for the actual design, it is subject to change during the contract negotiation process as well as during the design phase, subject to approval of the Parties.

1.17. Execution Date. “Execution Date” has the meaning given to such term in the preamble.

1.18. Holiday. “Holiday” means the City-observed holidays listed below (if any holiday listed falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If the holiday should fall on a Sunday, then the Sunday and the following Monday are both legal holidays):

Holiday Observed On
New Year’ s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran’ s Day November 11
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RIDA CHULA VISTA, LLC
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25

1.19. Maximum Reimbursement Amount. “ Maximum Reimbursement Amount” means the lesser of the Estimated Cost, as may be amended from time to time, or the amount of Reimbursable Costs that is calculated during the Final Accounting ( as defined below).

1.20. Non- Reimbursable Costs. “ Non- Reimbursable Costs” means the following costs that shall not be eligible for reimbursement under this Agreement: Costs Incurred Due to Negligence or Unapproved Costs, each as further defined in Section 6.1.4.1.

1.21. Party. “Party” has the meaning given to such term in the preamble.

1.22. Payment Date. “ Payment Date” means twenty (20) days following the date on which Developer submits a complete Reimbursement Request (as reasonably determined by the Director of Development Services) or a Reimbursement Request that is complete with respect to a portion of the requested reimbursement ( as reasonably determined by the Director of Development Services).

1.23. Project. “ Project” has the meaning given to such term in the Recitals.

1.24. Project Improvements. “ Project Improvements” or “ Improvements” means the Developer’ s Phase 1A Infrastructure Improvements, excluding Developer’ s Sewer Improvements.

1.25. Public Fund Contribution. “Public Fund Contribution” has the meaning given to such term in the DDA.

1.26. Reimbursable Costs. “ Reimbursable Costs” means costs of the design of the Developer’ s Phase 1A Infrastructure Improvements that have been expended by Developer and approved by the City through approval procedures described in the Agreement.

1.27. Reimbursement Request. “ Reimbursement Request” means a reimbursement request package submitted to the City containing the items listed in Section 6.1.2.1.

1.28. Scope of Development. “ Scope of Development” has the meaning given to such term in the Recitals.

1.29. Sewer Facility Contribution. “Sewer Facility Contribution” means the contribution by the City to fund specific sewer facility improvements comprising part of the RHCC Public Improvements as may be more specifically described in the Plan of Finance (as defined in the DDA).

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RIDA CHULA VISTA, LLC

1.30. Sewer Reimbursement Agreement. “ Sewer Reimbursement Agreement” has the meaning given to such term in the Recitals.

1.31. Working Day(s). “ Working Day(s)” means Monday through Friday, excluding Holidays.

ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above- listed Recitals are true and correct and are hereby incorporated by this reference. All attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.

2.1. Developer’ s Design of Phase 1A Infrastructure Improvements. Except as expressly provided in this Agreement, Developer shall cause the design of the Phase 1A Infrastructure Improvements, in accordance with all the terms and conditions of this Agreement and for no more than Maximum Reimbursement Amount.

2.2. City Payment. City shall reimburse Developer, subject to the terms and conditions herein, for the Eligible Expenses of design and engineering of Developer’ s Phase 1A Infrastructure Improvements.

ARTICLE III. DURATION OF AGREEMENT

3.1. Term of Agreement. This Agreement shall become effective on the Execution Date following City Council’ s approval, and the term of this Agreement shall extend until the earlier of ( i) such time as all executory terms have been completed and ( ii) earlier termination of this Agreement.

ARTICLE IV. PROJECT COSTS

4.1. Estimated Cost. The Estimated Cost of the Project is seven hundred and fifteen thousand dollars ($ 715,000), as shown in Exhibit A, attached hereto.

4.2. Adjustment to Estimated Cost. The Estimated Cost is subject to change by the methods identified in this Agreement.

4.3. Notification of Increased Costs. If, at any time, Developer definitively establishes that the amount to be expended on the Project will exceed the Estimated Cost, Developer shall promptly, and in any case not more than ten ( 10) Working Days after the Developer definitively establishes the amount of the increase, notify the City thereof in writing. This written notification shall include an itemized cost estimate and a list of recommended revisions (e.g., deductive changes) which Developer believes will bring the design cost to within the Estimated Cost. The City may either: ( i) approve an increase in Estimated Cost which approval shall not be unreasonably withheld, conditioned, or delayed); or ( ii) reasonably delineate a project which may be designed for the Estimated Cost; provided DocuSign Envelope ID: 73AA68A0- 8A6C-46AE-97A8-DFA944D7CB78 6 City of Chula Vista Agreement No.: 2019-097

RIDA CHULA VISTA, LLC
that such delineation does not have a material and adverse effect on the design, development, or construction of the Developer’ s Private Improvements ( as defined in the DDA) or the Convention Center ( as defined in the DDA); or (iii) any combination of (i) and ( ii).

ARTICLE V. DESIGN STANDARDS

5.1. Standard of Care. Developer agrees that it will require that the services provided as part of this Agreement be performed in accordance with the standards customarily adhered to by experienced and competent professional architectural, engineering, and landscape architecture firms ( as applicable) using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California.

5.1.1. Compliance with all Laws. Developer shall comply, and require compliance by any and all of its Design Professionals, employees, and agents with all laws, including but not limited to all local, City, San Diego County, State of California, and federal laws, codes and regulations, ordinances and written publicly available policies, including, but not limited to, Development Services Department permits, state and local Building Codes, stormwater regulations, etc.

5.2. City Approval Not a Waiver of Obligations. Where approval by the City, the City Manager, or other representative of City is required, it is understood to be general approval only and does not relieve Developer of responsibility for complying with all applicable laws, codes, and good consulting, design, and construction practices and is not an assumption of liability by the City, except in the case of City’s express waiver of the requirement to comply with (a) any City requirement, to the extent such requirement is waivable, or (b) any good consulting, design, or construction practice. Nor shall City, through approval, become an insurer or surety of work associated with the approvals.

ARTICLE VI. REIMBURSEMENT/ PAYMENT OF COSTS AND EXPENSES

6.1. Payment of Costs Associated with Project

6.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for Project shall not exceed the Maximum Reimbursement Amount. Developer shall not be entitled to payment in excess of the Maximum Reimbursement Amount.

6.1.2. Prerequisites to Payment.

6.1.2.1. Reimbursement Request. Prior to reimbursement of any costs or expenses for the Project, Developer shall provide the City with a Reimbursement Request containing the following:

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RIDA CHULA VISTA, LLC
a. Invoices. Developer shall provide the Director of Development Services all invoices for Reimbursable Costs associated with Project, not previously paid by the City, within 30 days after receipt thereof.
b. Proof of Payment. Developer shall provide the Director of Development Services with proof of payment of all invoices for Reimbursable Costs submitted within 30 days after such payment. c. Certification of Payment. Developer shall provide the Director of Development Services with a written certification that all costs for which Developer is seeking reimbursement have been paid. d. Acknowledgement of Subcontractors. Developer shall provide the Director of Development Services with a letter from each firm (e.g. civil, survey, and geotechnical) acknowledging that eligible soft costs included in the relevant invoices have been paid. e. Other Documents. Developer shall provide the Director of Development Services with any other documents that reasonably may be needed to evaluate the eligibility of the cost/ expense as Reimbursable Costs as determined necessary by the Director of Development Services in his/her sole discretion.

City shall not have an obligation to make payment to Developer unless and until Developer provides the Director of Development Services with a Reimbursement Request containing all of the applicable items listed above and such Reimbursement Request is approved by the Director of Development Services as provided below.

6.1.2.2. City Approval. The Director of Development Services shall review each Reimbursement Request and the supporting documentation. If the Director of Development Services finds that any such Reimbursement Request is incomplete, improper, or otherwise not suitable for reimbursement, then the Director of Development Services shall so inform Developer in writing within fifteen ( 15) Working Days after receipt thereof of the reasons for his/her finding. If the Director of Development does not find that any such Reimbursement Request is incomplete, improper, or otherwise not suitable for reimbursement, then the Director of Development Services shall so inform Developer in writing within fifteen ( 15) Working Days after receipt thereof and within that time period approve the Reimbursement Request. Developer shall DocuSign Envelope ID: 73AA68A0- 8A6C-46AE-97A8-DFA944D7CB78 8 City of Chula Vista Agreement No.: 2019-097

RIDA CHULA VISTA, LLC
have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Director of Development Services shall review any further documentation received from Developer in support of the Reimbursement Request and inform Developer of his/her approval or denial of the Reimbursement Request, in whole or in part, within ten (10) Working Days after receipt of such further documentation. If the Director of Development Services determines that the Reimbursement Request is incomplete, but that sufficient and complete information exists with respect to a portion of the Reimbursement Request, then the Director of Development Services may but is not obligated to approve the Reimbursement Request with respect to such portion of the Reimbursement Request. The City shall cause the Director of Development Services to carry out its duties under this Section

6.1.2.2 in a reasonable and good faith manner.

6.1.3. Time of Payment. After Developer has obtained City’ s approval, in whole or in part, of a Reimbursement Request pursuant to 6.1.2, City shall reimburse Developer for the approved costs/ expenses associated with each Reimbursement Request by the Payment Date. If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Working Day.

6.1.3.1. Additional Costs. Any costs that may accrue, such as interest on late payments to Developer’ s Design Professionals as a result of the Developer’ s failure to provide a complete Reimbursement Request, shall not be the obligation of the City if the City has not received a complete Reimbursement Request. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement.

6.1.4. Reimbursement Amount per Reimbursement Request. The City shall pay Developer approved amounts in the Reimbursement Request, less any Non- Reimbursable Costs and Contested Charges (as defined below), in accordance with Section 6.1.3.

6.1.4.1. Non-Reimbursable Costs. The following costs/expenses shall not be eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled to payment for any incremental cost or expense incurred due to negligent acts, negligent omissions, or willful misconduct of Developer or Developer’ s Design Professionals, or any of their respective contractors, subcontractors, employees, or agents.

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RIDA CHULA VISTA, LLC
b. Unapproved Costs. Developer shall not be entitled to reimbursement for any cost or expense that has not been approved by the City to the extent provided in Section 6.1.2.2.
c. Additional Costs. Developer shall not be entitled to reimbursement for additional costs to the extent provided in Section 6.1.3.1. d. Requests After Cutoff Date. Developer shall not be entitled to reimbursement for costs included in Reimbursement Requests submitted after the Cutoff Date to the extent provided in Section

6.1.5. 6.1.4.2. Contested Charges. In the event that the City contests any cost/ expense on an invoice received (“ Contested Charge”), the City shall provide Developer a written statement of the Contested Charges, the reason why the costs/ expenses are contested, and a proposed resolution. a. Appeal to City Manager. Developer may appeal the City’s determination of any Contested Charges. The appeal must be received by the City within 30 days after the City notifies the Developer of such Contested Charge. During the appeal period, and as long as any Contested Charges remain disputed, Developer shall proceed with the Project, and the City shall compensate Developer for the undisputed amounts. If, following the appeal, the City Manager determines that any Contested Charges are eligible for reimbursement, such amounts shall be included in the next payment to Developer.

6.1.5. Cutoff for Submission of Invoices. Developer shall submit its final Reimbursement Request not later than the Cutoff Date. Any Reimbursement Requests submitted after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The final payment by the City for the Project will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of the Project.

6.1.6. Final Accounting. Following completion of the Project, Developer shall submit a final accounting (“ Final Accounting”) to the City in order to determine the cost of the Project. Developer shall also submit all supporting information reasonably necessary to document costs/ expenses for the Project, including specific details on the costs and work attributable to the Project, including as applicable, third- party invoices, billings, and receipts.

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City of Chula Vista Agreement No.: 2019-097

RIDA CHULA VISTA, LLC

6.1.6.1. True-up Payments. Within 30 Working Days following a Final Accounting, the City shall determine whether the actual payments made to the Developer equal the audited approved costs and expenses. In the event that the amount of the approved costs and expenses exceeds the amount of the actual payments, the City shall make a true-up payment to Developer for the difference; however, in no event, shall the true-up payment cause the total amount paid to exceed the Maximum Reimbursement Amount. If the Final Accounting shows that the amount of actual payments to Developer exceeds the amount of the approved costs and expenses, Developer shall remit or cause the remittance of the difference to the City within twenty ( 20) Working Days of a notice of deficiency.

ARTICLE VII. INDEMNITY AND DUTY TO DEFEND

7.1. Defense, Indemnity, and Hold Harmless.

7.1.1. General Requirement. Developer shall defend, indemnify, protect, and hold harmless ( collectively, “ Indemnify”) the City, its elected and appointed officers, agents and employees ( collectively, the “ Indemnified Parties”), from and against any and all claims, demands, causes of action, costs, expenses, liabilities, loss, damages, and injuries ( collectively, “ Loss”), in law or equity, to property, including takings claims, or persons, including wrongful death, to the extent and proportion directly or indirectly caused by any negligent acts or negligent omissions, or negligence or willful misconduct of Developer, its officials, officers, contractors, Design Professional(s), agents, or employees arising out of or in connection with the performance of the Project or this Agreement; provided, however, from and after the tenth ( 10th) anniversary of the date of the DDA Close of Escrow, Developer shall have no obligation to Indemnify the Indemnified Parties for any Loss that arises out of any design or other defect in connection with the Project.

This indemnity provision does not include any claims, damages, liability, costs and expenses ( including without limitations, attorneys’ fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officials, officers, agents, or employees. Also covered by this provision is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or negligent omissions of the City, its agents, officers, officials or employees which may be in combination with, and to the extent and proportion caused by, the active or passive negligent acts or negligent omissions of Developer, its officials, officers, contractors, Design Professional(s), agents, or employees.

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RIDA CHULA VISTA, LLC

7.1.2. Costs of Defense and Award. Developer shall immediately accept all tenders and defend, at Developer’ s own cost, expense and risk, any and all claims, demands, suits, actions, or other legal or administrative proceedings that may be brought or instituted against the City, its officials, officers, employees, and/or agents and that appear to be covered by the defense obligation defined in Section 7.1.1. Developer acknowledges and agrees that its obligation to accept tender and defend the City, its officials, officers, employees, and/or agents as provided in this Section 7.1.2 is absolute and not subject to any limitations in Section 7.1.1 of this Agreement, or elsewhere. Developer shall pay and satisfy any judgement, award, or decree that may be rendered against City or its officials, officers, employees, and/ or agents, for any and all related legal expense and costs incurred by each of them to the extent of Developer’ s actual determined negligence, subject to the limitations in Section

7.1.1. The City may, in its reasonable discretion, participate in the defense of any and all suits, actions, or other legal proceedings that may be brought or instituted against the City, its officials, officers, employees, and/or agents, and the Developer shall have the obligation to reimburse the City for any costs of defense incurred by the City, including, without limitation, reimbursement for attorneys’ fees, experts’ fees and other costs. Prior to incurring any defense costs, the City agrees to notify the Developer and offer to meet- and- confer with the Developer to discuss practicable measures to manage total defense costs. The City’s participation shall not relieve the Developer of any of its obligations under this Article VII.

7.1.3. Insurance Proceeds. Developer’ s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees, and/ or agents.

7.1.4. Declarations. Developer’ s obligations under Article VII shall not be limited by any prior or subsequent declaration by Developer.

7.1.5. Enforcement of Costs. Developer agrees to pay any and all costs, including attorneys’ fees that the City incurs enforcing the indemnity and defense provisions set forth in Article VII.

7.1.6. Survival. Developer’ s obligations under Article VII shall survive the expiration and/ or termination of this Agreement.

ARTICLE VIII. INSURANCE REQUIREMENTS

8.1. Insurance Requirements. Developer shall, and shall require its architects, engineers, contractors, subcontractors, and other persons and entities providing services for or performing work on the Project to purchase and maintain insurance in the same manner and to the same extent as required by Section 4.10 of the DDA.

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RIDA CHULA VISTA, LLC
ARTICLE IX. RECORDS AND AUDITS

9.1. Retention of Records. Developer shall maintain data and records related to this Agreement for a period of not less than three ( 3) years following receipt of final payment under this Agreement.

9.2. Audit of Records. At any time during normal business hours and as often as the City deems necessary, Developer and any or all of Developer’ s Design Professionals shall make available to the City for examination at reasonable locations within the City/County of San Diego all of the data and records with respect to all matters covered by this Agreement.

Developer and Developer’ s Design Professionals will permit the City to make audits of all invoices, materials, payrolls, records of personnel, and other data and media relating to all matters covered by this Agreement. If records are not made available within the City/County of San Diego, then Developer shall pay all the City's travel related costs to audit the records associated with this Agreement at the location where the records are maintained. Such costs will not be Reimbursable Costs.

9.2.1. Costs. Developer and Developer’ s agents shall allow City to audit and examine books, records, documents, and any and all evidence and accounting procedures and practices that City reasonably determines are necessary to discover and verify all costs of whatever nature, which are claimed to have been incurred, anticipated to be incurred, or for which a claim for additional compensation have been submitted under this Agreement.

ARTICLE X. MISCELLANEOUS PROVISIONS

10.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They shall be deemed served (i) immediately, upon personal delivery; (ii) the next Working Day, if sent prepaid by recognized overnight service such as FedEx for delivery the next Working Day; or ( iii) three ( 3) Working Days after deposit in the United States mail, certified or registered mail, return receipt requested, first- class postage prepaid. Until notice of a change of address is properly given, notice shall be given:

RIDA CHULA VISTA, LLC
If to Developer: RIDA Chula Vista, LLC
Attention: Legal Department
1777 Walker Street, Suite 501
Houston, Texas 77010
With a copy to: Latham & Watkins
Attn: Steven Levine
12670 High Bluff Drive
San Diego, CA 92130

10.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do not define, describe or limit any term of this Agreement.

10.3. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Parties regarding the subject matter hereof. No prior or contemporaneous oral or written representations, agreements, understandings and/or statements regarding its subject matter shall have any force or effect. This Agreement is not intended to supersede or amend any other agreement between the Parties unless expressly noted. However, all previous written agreements, remain in full force and effect except to the extent they conflict with this Agreement.

10.4. Severability. If any provision of this Agreement or its particular application is held invalid or unenforceable, the remaining provisions of this Agreement, and their application, shall remain in full force and effect, unless a Party' s consideration materially fails as a result.

10.5. Recordation. The City may record this Agreement in the Office of the County Recorder of San Diego County, California.

10.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a Party or its attorney drafted this Agreement. It shall be conclusively presumed that all Parties participated equally in drafting this Agreement.

10.7. Authority. Each Party warrants and represents that it has legal authority and capacity to enter into this Agreement, and that it has taken all necessary action to authorize its entry into this Agreement.

10.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the Parties hereto, their successors or assigns.

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10.9. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement shall be the City of San Diego.

10.10. Administrative Claims. No suit or arbitration shall be brought arising out of this Agreement against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the CVMC, as same may from time to time be amended ( the provisions of which are incorporated by this reference as if fully set forth herein), and such policies and procedures used by City in the implementation of same.

10.11. Non-liability of City Officials and Employees. No member, official, employee or consultant of the City shall be personally liable to Developer in the event of any default or breach by City, or for any amount which may become due to Developer, or on any obligations under the terms of this Agreement.

10.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be the original and all of which shall constitute one and the same document.

10.13. Electronic Signatures. The words “ execution”, “ execute”, “ signed”, “ signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Parties, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

End of page. Signature page follows this page.]
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IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and year first set forth above.

CITY
CITY OF CHULA VISTA, a California
charter city and municipal corporation
By:

Maria Kachadoorian, City Manager
ATTEST:

By:

Kerry Bigelow, City Clerk
APPROVED AS TO FORM:

By:

Glen R. Googins, City Attorney

DEVELOPER
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number:
1039979
By: *
Ira M. Mitzner, Manager
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City of Chula Vista Agreement No.: 2019-097

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EXHIBIT A

ESTIMATED COST
Improvement Description Design Cost Estimate1
E Street ( G Street to H Street) 315,000
G Street Connection 35,000
H Street ( Bay Blvd to Street A) 20,000
H Street ( Marina Pkwy to E Street) 270,000
H-3 Utility Corridor 75,000
Total $ 715,000
1 Cost Estimates are in 2019 dollars
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4825- 3218- 1203/ 024036- 0079
Exhibit X-3
Sewer Agreement
To be attached prior to execution.]
1 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC

CITY OF CHULA VISTA

REIMBURSEMENT AGREEMENT

WITH RIDA CHULA VISTA, LLC

TO CONSTRUCT SPECIFIED BAYFRONT SEWER IMPROVEMENTS
This REIMBURSEMENT AGREEMENT (“ Agreement”) is entered into as of this 15th day of September, 2020 (the “Execution Date”) by and among the City of Chula Vista, a chartered municipal corporation (“City”) and RIDA Chula Vista, LLC, a Delaware limited liability company Developer”) ( collectively, the “ Parties” and, individually, a “ Party”), with reference to the following Recitals:

13.14.030(B) (Connection to Public Sewer – Fee), any person desiring to connect, directly or indirectly, any parcel or any building thereon to any public sewer which has been constructed at no cost to the parcel to be connected shall pay the one-time required fee for sewer connection to the City, with all revenue derived from such fees to be deposited into the Sewer Income Fund; and D. WHEREAS, pursuant to CVMC Chapter 3.16 (Sewer Income Fund), all revenues collected under CVMC Section 13.14.030( B) shall be deposited into the “ Sewer Income Fund” and may be used, in the discretion of the City Council ( as defined below) and pursuant to a written contract, to reimburse any person who has constructed sewer facilities to the extent, as determined by the City Council, that such sewer facilities have benefited other properties; and E. WHEREAS, the Developer’ s Sewer Improvements are eligible for reimbursement from the Sewer Income Fund; and
F. WHEREAS, the City has sufficient funds in the Sewer Income Fund to reimburse Developer for the design, development and construction of the Developer’ s Sewer Improvements; and
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G. WHEREAS, Developer desires to enter into this Agreement with the City, so that it may obtain reimbursement for the eligible costs of designing, developing and constructing Developer’ s Sewer Improvements.

ARTICLE I. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following terms and phrases shall have the following meanings:

1.1. Acceptance. “ Acceptance” means Project acceptance pursuant to standard and customary City practices immediately following Substantial Completion of the Project.

1.2. Agreement. “Agreement” means this Reimbursement Agreement between the City and the Developer. The term “ Agreement” shall include any amendment to the Agreement properly approved and executed pursuant to the terms of this Agreement.

1.3. Approved Drawings and Specifications. “ Approved Drawings and Specifications” means the drawings and specifications for the Developer’ s Sewer Improvements as approved and permitted by the City.

1.4. BMP. “BMP” has the meaning given to such term in Section 8.1.3.

1.5. Chula Vista Standard Special Provisions. “ Chula Vista Special Standard Provisions” means Section 1-2 of Part 1, Part 2, Part 3, and Part 4 of the City of Chula Vista Standard Special Provisions.

1.6. City. “ City” means the City of Chula Vista. Unless specifically provided otherwise, whenever this Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement.

1.7. City Attorney. “ City Attorney” means that position established pursuant to and in accordance with CVMC Chapter 2.11.

1.8. City Council. “City Council” means the governing body of the City.

1.9. City Engineer. “ City Engineer” means that position established pursuant to and in accordance with CVMC Chapter 2.06.

1.10. City Manager. “City Manager” means the City Manager of City or his or her designee.

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1.11. Competitive Bid or Solicitation Process. “Competitive Bid or Solicitation Process” has the meaning given to such term in Section 6.1.

1.12. Contested Charge. “ Contested Charge” has the meaning given to such term in Section

9.1.5.3. 1.13. Contract Documents. “ Contract Documents” includes, but is not limited to: the prime construction contract(s), prime construction contract(s) exhibits and addenda, subcontract(s), subcontract(s) exhibits and addenda, and any of the following: notice inviting bids, instructions to bidders, bid (including documentation accompanying bid and any post- bid documentation submitted prior to notice of award), the bonds, the general conditions, permits from City or other agencies, the special provisions, the plans, standard plans, standard specifications, reference specifications, the Approved Drawings and Specifications, and all modifications issued after the execution of the subcontract(s), in each case, in connection with the Project.

1.14. Cutoff Date. “Cutoff Date” means one (1) year from the date of Acceptance of the Project.

1.15. CVMC. “ CVMC” has the meaning given to such term in the Recitals.

1.16. DDA. “ DDA” has the meaning given to such term in the Recitals.

1.17. DDA Close of Escrow. “ DDA Close of Escrow” means Close of Escrow as such term is defined in the DDA.

1.18. Defective Work. “ Defective Work” means all work, material, or equipment that is unsatisfactory, faulty, incomplete, or does not substantially conform to the Contract Documents.

1.19. Design and Construction Standards. “ Design and Construction Standards” means the edition of the City-adopted Design and Construction Standards for public works projects that is in effect when the Approved Drawings and Specifications are approved by the City for purposes of the bids and which is available in the City’ s Department of Engineering and Capital Projects and on the City’s website.

1.20. Developer. “ Developer” has the meaning given to such term in the preamble.

1.21. Developer’ s Sewer Improvements. “ Developer’ s Sewer Improvements” has the meaning given to such term in the Recitals.

1.22. Director of Development Services. “ Director of Development Services” means the Director of Development Services of City or his or her designee.

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1.23. District. “District” has the meaning given to such term in the Recitals.

1.24. Estimated Cost. “ Estimated Cost” means the total cost of the design, development and construction of the Developer’ s Sewer Improvements, as estimated by preliminary engineering studies to total $ 1,195,000, as shown in Exhibit A attached hereto. As Estimated Cost is not initially the result of competitive bids for the actual design, development and construction, it is subject to change during the competitive bid process as well as during the design and construction phases, subject to approval of the Parties.

1.25. Execution Date. “ Execution Date” has the meaning given to such term in the preamble.

1.26. Final Accounting. “ Final Accounting” has the meaning given to such term in Section 9.1.7.

1.27. General Contractor. “ General Contractor” means a party or parties under any contract with the Developer to perform the work or provide supplies for the Developer’ s Sewer Improvements.

1.28. Greenbook. “ Greenbook” means sections 1-1 through 1-5 of Part 1, section 2-11 of Part 1, Part 2, Part 3, Part 4, and Part 5 of the 2012 edition of the Standard Specifications for Public Works Construction.

1.29. Ground Lease. “ Ground Lease” means that certain San Diego Unified Port District Lease to RIDA Chula Vista, LLC of Property Located at Chula Vista, California to be executed by the Developer and the District pursuant to the DDA.

1.30. Hazardous Materials. “ Hazardous Materials” means hazardous waste or hazardous substances as defined in any federal, state, or local statue, ordinance, rule, or regulation applicable to the Property, including, without limitation the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (Title 42) United States Code sections 9601-9675), the Resource Conservation and Recovery Act (Title 42 united States Code sections 6901-6992k), the Carpenter Presley-Tanner Hazardous Substance Account Act (Health and Safety Code sections 25300- 25395. 15), and the Hazardous Waste Control Law ( Health and Safety Code sections 25100- 25250. 25). “ Hazardous Materials” shall also include asbestos or asbestos containing materials, radon gas, and petroleum or petroleum fractions, whether or not defined as hazardous waste or hazardous substance in any such statute, ordinance, rule, or regulation.

1.31. Holiday. “Holiday” means the City-observed holidays listed below (if any holiday listed falls on a Saturday, then the Saturday and the preceding Friday are both legal holidays. If the holiday should fall on a Sunday, then the Sunday and the following Monday are both legal holidays):

Holiday Observed On
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New Year’s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Memorial Day Last Monday in May
Independence Day July 4
Labor Day First Monday in September
Veteran’ s Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25

1.32. Illegal Discharge. “ Illegal Discharge” has the meaning given to such term in Section

14.1.3. 1.33. Maximum Reimbursement Amount. “ Maximum Reimbursement Amount” means the lesser of the Estimated Cost, as may be amended from time to time, or the amount of Reimbursable Costs that is calculated during the Final Accounting ( as defined below).

1.34. Non-Reimbursable Costs. “Non-Reimbursable Costs” means the following costs that shall not be eligible for reimbursement under this Agreement: Costs Incurred Due to Negligence, Unapproved Costs, Excess Costs, Non-Project Shared Costs, and Defective Work Costs each as further defined in Section 9.1.5.2.

1.35. Notice of Completion. “ Notice of Completion” means the standard document recorded by the City upon completion of a public works project in accordance with City’ s standard and customary practices.

1.36. Party. “Party” has the meaning given to such term in the preamble.

1.37. Payment Date. “ Payment Date” means twenty (20) days following the date on which Developer submits a complete Reimbursement Request (as reasonably determined by the Director of Development Services) or a Reimbursement Request that is complete with respect to a portion of the requested reimbursement ( as reasonably determined by the Director of Development Services).

1.38. Pre-Existing Hazardous Material: “ Pre-Existing Hazardous Material” means any Hazardous Material located on or under the Project Site prior to the Execution Date, whether known or unknown, or any Hazardous Material located outside the Project site including any premises owned by the City) prior to the Execution Date that migrates to the Project site thereafter.

1.39. Project. “ Project” has the meaning given to such term in the Recitals.

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1.40. Project Improvements. “ Project Improvements” or “ Improvements” means the Developer’ s Sewer Improvements.

1.41. Project Site. “ Project Site” means the location of the Project for purposes of preconstruction services and construction.

1.42. Reimbursable Costs. “ Reimbursable Costs” means costs of the design, development and construction (including (i) the premium cost of builder’ s risk insurance, (ii) the premium cost of liability insurance, ( iii) all other approved premium insurance costs, and ( iv) builder’ s risk insurance deductible, liability insurance deductible, and self- insured retention ( SIR) costs not-to-exceed $ 25,000 per occurrence and with an aggregate cap in an amount approved by the City) of the Developer’ s Sewer Improvements that have been expended by Developer and approved by the City through approval procedures described in the Agreement.

1.43. Reimbursement Request. “ Reimbursement Request” means a reimbursement request package submitted to the City containing the items listed in Section 9.1.3.1.

1.44. Sewer Facility Contribution. “ Sewer Facility Contribution” means the contribution by the City to fund specific sewer facility improvements comprising part of the RHCC Public Improvements described in Exhibit A attached hereto and as may be more specifically described in the Plan of Finance (as defined in the DDA).

1.45. Sewer Income Fund. “ Sewer Income Fund” means the fund designated as the “ sewer income fund” with respect to the Developer’ s Sewer Improvements pursuant to and in accordance with CVMC Section 3.16.010.

1.46. Sewer Income Fund Eligible Expenses. “ Sewer Income Fund Eligible Expenses” means costs for which the City shall reimburse Developer from the Sewer Income Fund (or an alternative source of funds identified by the City) for the design, development and construction ( including the cost of builder’ s risk insurance and all other insurance costs) of the Developer’ s Sewer Improvements, not to exceed the Estimated Costs.

1.47. Sole Source Process. “Sole Source Process” has the meaning given to such term in Section

6.1. 1.48. Standard Specifications. “ Standard Specifications” means the Greenbook, the local standard special provisions referenced in the Approved Drawings and Specifications, and any amendments thereto that are approved by the City.

1.49. Subcontractor. “ Subcontractor” means a party or parties under any subcontract with the General Contractor to perform the work or provide supplies for the Developer’ s Sewer Improvements.

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1.50. Substantial Completion. “Substantial Completion” means the stage in the progress of the Project when the Project is sufficiently complete, in accordance with this Agreement, so that the City can occupy or utilize the Project for its intended use.

1.51. SWPPP. “ SWPPP” has the meaning given to such term in Section 8.1.3.

1.52. Working Day(s). “ Working Day(s)” means Monday through Friday, excluding Holidays.

ARTICLE II. SUBJECT OF THE AGREEMENT - GENERALLY
The above-listed Recitals are true and correct and are incorporated by this reference. All attachments to this Agreement as Exhibits are incorporated into this Agreement by this reference.

2.1. Developer’ s Sewer Improvements. Except as expressly provided in this Agreement, Developer shall cause the design and development of the Project Improvements in accordance with the Schematic Plans ( as defined in the DDA) for the development of Phase 1A Infrastructure Improvements ( as defined in the DDA) that the District shall submit to Developer pursuant to Section 4.4(b) of the DDA, and Developer shall cause the Project Improvements to be constructed so that the Project Improvements are in accordance with the applicable Contract Documents within the timeframe described in Section 5.1, in each case, in accordance with all the terms and conditions of this Agreement and for the Maximum Reimbursement Amount; provided, however, that the Developer shall have no obligation to develop or construct any of the Project Improvements unless and until DDA Close of Escrow occurs in accordance with the DDA.

2.2. Complete and Functional Improvements. Developer shall provide complete and functional Developer’ s Sewer Improvements that meet the Contract Documents and all other applicable standards identified herein.

2.3. Maintain Until Acceptance. Following the completion of the Project Improvements, Developer shall maintain the Project Improvements until the Acceptance.

2.4. City Payment. City shall reimburse Developer, in an amount not to exceed the Maximum Reimbursement Amount and subject to the terms and conditions herein, for the Sewer Income Fund Eligible Expenses of design, development, and construction of Developer’ s Sewer Improvements. City acknowledges and agrees that all of the Estimated Costs identified in Exhibit A are Sewer Income Fund Eligible Expenses. The City represents and warrants to Developer that, as of the Execution Date, the aggregate amount of funds on deposit in the Sewer Income Fund is equal to or greater than the Maximum Reimbursement Amount and that the City will use its reasonable efforts to manage the Sewer Income Fund in a manner so that the aggregate amount of funds on deposit in the Sewer Income Fund during the term of this Agreement is sufficient to pay all Reimbursable Costs in accordance with this Agreement. To the extent that the amount of funds in the Sewer Income Fund are DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 8 City of Chula Vista Agreement No.: 2018-075

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insufficient to pay all Reimbursable Costs, City shall identify alternative funds from which to pay City’s Sewer Facility Contribution obligation pursuant to the DDA.

ARTICLE III. DURATION OF AGREEMENT

3.1. Term of Agreement. This Agreement shall become effective on the Execution Date, and the term of this Agreement shall extend until the earlier of (i) such time as all executory terms have been completed or (ii) earlier termination of this Agreement according to the termination provisions herein.

ARTICLE IV. PROJECT COSTS

4.1. Estimated Cost. The Estimated Cost is one million dollars ($ 1,195,000), as shown in Exhibit A attached hereto.

4.2. Adjustment to Estimated Cost. Estimated Cost is subject to change by the methods identified below and those established elsewhere in this Agreement.

4.2.1. Revisions to the Estimated Cost. The City Manager or his/her designee shall review complete sets of the drawings and specifications for the Developer’ s Sewer Improvements promptly after Developer provides them to the City. In the event that the City Manager or designee reviews the drawings and specifications for the Developer’ s Sewer Improvements and determines that the cost of design, development, and construction will exceed the then current Estimated Cost, the Estimated Cost shall be increased to reflect the revised estimate in accordance with subsection 4.2.2.

4.2.2. Adjustments Based on Other Cost Increases. The Estimated Cost may be increased due to: ( i) acts of God, acts of any governmental authority, the elements, war, litigation, shortages of material, labor strikes, inflation, later commonly accepted or adopted higher standards and specifications of construction, concealed or unknown conditions encountered in the completion of Developer’ s Sewer Improvements, or other cause beyond Developer’ s control; (ii) actual bids received being greater than estimated; ( iii) other factors not the result of unreasonable conduct by Developer; or ( iv) the presence of any Hazardous Material on the Project Site ( as defined in the DDA). Subject to the prior written approval by the City Manager or his/her designee, which approval shall not be unreasonably withheld, conditioned, or delayed, the Estimated Cost shall be increased by the amount of the increase in the cost of the design, development, and construction of the Developer’ s Sewer Improvements that are determined by the City Manager or his/her designee (in such person’ s reasonable, good faith discretion) to be caused by such events or circumstances.

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4.2.3. Failure to Obtain Approval of Increase. In any case where City Manager’ s approval is required for an increase in the Estimated Cost and such approval is not obtained, Developer shall have no obligation to incur costs in excess of the Estimated Cost. City Manager shall not unreasonably withhold, condition or delay its approval of any deductive change to the Project Improvements such that the Project Improvements, as revised, can be completed for the Estimated Cost.

4.3. Notification of Increased Costs. If, at any time, Developer definitively establishes that the amount expended on the Project Improvements will exceed the Estimated Cost, Developer shall promptly, and in any case not more than ten ( 10) Working Days after the Developer definitively establishes the amount of the increase, notify the City thereo fin writing. This written notification shall include an itemized cost estimate and a list of recommended revisions (e.g., deductive changes) which Developer believes will bring the cost to within the Estimated Costs. The City may either: (i) approve an increase in Estimated Cost (which approval shall not be unreasonably withheld, conditioned, or delayed) or (ii) reasonably delineate a project which may be constructed for the Estimated Cost; provided that such delineation does not have a material and adverse effect on the design, development, or construction of the Developer’ s Private Improvements ( as defined in the DDA) or the Convention Center (as defined in the DDA); or (iii) any combination of (i) and (ii).

ARTICLE V. PROJECT SCHEDULE

5.1. Project Schedule. Developer shall complete the Project Improvements by sixty ( 60) months and ten ( 10) days after the commencement date of the Ground Lease ( such deadline to be extended by one day for each day the applicable deadline is extended pursuant to and in accordance with the Ground Lease, including pursuant to any amendment to the Ground Lease). No delay in the completion of the Project Improvements shall excuse any failure by Developer to timely complete the Resort Hotel and the Convention Center ( as each such term is defined in the Ground Lease) in accordance with the Ground Lease, except as set forth in the Ground Lease.

5.2. Unavoidable Delay. Each Party shall be entitled to an extension of the date of the performance of any obligation required of such Party under this Agreement in the same manner and to the same extent as provided in the Ground Lease.

ARTICLE VI. COMPETITIVE BIDDING AND EQUAL OPPORTUNITY

6.1. Compliance. Developer shall bid and award contracts and subcontracts to complete Project in accordance with all applicable public contract laws, rules, and regulations, including but not limited to those set forth in the City of Chula Vista Charter and Municipal Code, including CVMC § 2.56.160( H) ( Developer- Performed Public Works). Notwithstanding anything to the contrary herein, the Parties agree that the Developer may ( a) subject to DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 10 City of Chula Vista Agreement No.: 2018-075

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CVMC § 2.56.160(H)(1)(b) ( Developer-Performed Public Works), award the prime contract for the Project to the General Contractor on a sole source basis pursuant to and in accordance with CVMC § 2.56.160( H)(1)(b) (“ Sole Source Process”) or, ( b) subject to CVMC §2.56.160(H) (Developer-Performed Public Works), award the prime contract for the Project to the General Contractor by competitive bid or solicitation in accordance with CVMC §2.56.160(H)(2)(d) ( Developer-Performed Public Works) (“ Competitive Bid or Solicitation Process”). The Parties further agree that, in the case of the Sole Source Process, the General Contractor for the Project shall award subcontracts for the Project to Subcontractors by competitive bid or solicitation in accordance with CVMC

2.56.160( H)(2)( d) ( Developer- Performed Public Works) (“ Competitive Bid or Solicitation Process”).

6.1.1. Proof of Advertising. In the case of any Competitive Bid or Solicitation Process, Developer shall provide the City with proof that the Developer or the General Contractor, as applicable, solicited competitive bids from the General Contractor and/or Subcontractors, as applicable, in accordance with CVMC

2.56.160(H)(2)(c) (Developer-Performed Public Works).

6.1.2. Prevailing Wage. Developer shall advertise the Project as requiring the payment of prevailing wage and include all provisions in the advertisement and Contract Documents as required by the California Department of Industrial Relations.

6.2. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process, Developer shall provide City with a copy of the tabulation of competitive bid results with respect to each contract and subcontract, as applicable. In the event that the best qualified General Contractor’ s bid or Subcontractor’ s bid, as applicable, combined with a reasonable amount for contingencies, exceeds the Estimated Cost, the increase in the costs may be approved by the City Manager pursuant to Section 4.2.2 prior to awarding the prime contract or the subcontract, as applicable. In the event the City Manager does not approve the increased cost, this Agreement, at the City’ s option but subject to the next sentence, may be terminated upon prior written notice thereof to Developer of not less than twenty 20) days and the Project may be rebid and/or redesigned. If the City notifies Developer that it intends to exercise the termination option, then Developer shall have the right to pay the amount in excess of the Estimated Cost (“ Excess Cost”), in which case the City shall no longer have the right to terminate this Agreement. Developer acknowledges and agrees that payment of any Excess Cost shall not be a Reimbursable Cost under this Agreement.

In the event that the Agreement is terminated pursuant to this Section 6.2, the Developer’ s design, development, and/ or construction costs will be reimbursed to Developer from the Sewer Income Fund for the actual Reimbursable Costs expended by Developer prior to termination of this Agreement. Developer shall provide City with copies of all executed contracts awarded in accordance with this Section 6.2.

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6.3. Equal Employment Opportunities and Equal Opportunity Contracting.

6.3.1. Equal Employment Opportunity Nondiscrimination. Developer shall not discriminate against any employee or applicant for employment on any basis prohibited by law. Developer shall provide equal opportunity in all employment practices. Developer shall instruct its consultants, subconsultants, General Contractor, and Subcontractors, to comply with this provision. Nothing in this subsection 6.3.1 shall be interpreted to hold Developer liable for any discriminatory practice of its General Contractor, Subcontractors or any other party.

6.3.2. Equal Employment Opportunity Certification. Developer shall require all bidders to submit signed equal employment opportunity certifications, on forms approved by the City, with their bid packages.

6.3.3. Equal Opportunity Contracting Nondiscrimination. Developer shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer shall provide equal opportunity for bidders, contractors, the General Contractor, and Subcontractors to participate in contracting and subcontracting opportunities.

Developer understands and agrees that violation of this subsection 6.3.3 shall be considered a material breach of this Agreement and may result in termination of this Agreement, debarment, or other sanctions. The language in this subsection

6.3.3 shall be inserted in contracts between Developer, the General Contractor, any Subcontractors, vendors, and suppliers awarded in accordance with Section 6.2.

ARTICLE VII. DESIGN AND CONSTRUCTION STANDARDS

7.1. Standard of Care. Developer agrees that it will require that the services provided as part of this Agreement be performed in accordance with the standards customarily adhered to by experienced and competent professional architectural, engineering, landscape architecture, and construction firms ( as applicable) using the degree of care and skill ordinarily exercised by reputable professionals practicing in the same field of service in the State of California.

7.1.1. Compliance with all Laws. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, with all laws, including but not limited to all local, City, San Diego County, State of California, and federal laws, codes and regulations, ordinances and written publicly available policies, including, but not limited to, Development Services Department permits, hazardous material permits, site safety, state and local building codes, stormwater regulations, etc.

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7.2. Compliance with Design and Construction Standards. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, with the Design and Construction Standards.

7.2.1. Standard Specifications. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, with the editions of the following reference specifications that are in effect as of the date of the approval of the Approved Drawings and Specifications for purposes of the bids when designing, developing, and constructing the Project: the Greenbook and the regional and any local supplement amendments and the Chula Vista Standard Special Provisions.

7.2.2. City Standards. Developer’ s professional services shall be provided in conformance with the professional standards of practice established by City. This includes amendments and revisions of these standards as adopted by City. The professional standards of practice established by City include the Standard Specifications and the Approved Drawings and Specifications.

7.2.3. City Engineer Inspection. Inspections and approvals by the City Engineer in accordance with the Standard Specifications shall not be unreasonably conditioned, withheld or delayed.

7.3. Changes to Standards. Developer shall not be required to comply, nor to cause any of its General Contractor, Subcontractors, employees, and agents to comply, with any design standard or any construction standard or any amendment, update, supplement or other modification to the Design and Construction Standards after the date of the approval of the Approved Drawings and Specifications for purposes of the bids.

7.4. City Approval Not a Waiver of Obligations. Where approval by the City, the City Manager, or other representatives of City is required, itis understood to be general approval only and does not relieve Developer of responsibility for complying with all applicable laws, codes, and good consulting, design, or construction practices and is not an assumption of liability by the City, except in the case of City’ s express waiver of the requirement to comply with (a) any City requirement, to the extent such requirement is waivable, or (b) any good consulting, design, or construction practice. Nor shall City, through approval, become an insurer or surety of work associated with the approvals.

ARTICLE VIII. CONSTRUCTION

8.1. Site Safety, Security, and Compliance. Developer shall be responsible for Project Site safety, security, and compliance with all related laws and regulations.

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8.1.1. Persons. As between the Developer and the City, and without expanding the Developer’ s contractual obligations or duties to any person other than the City, the Developer shall be fully responsible for the safety and security of its officers, agents, and employees authorized by Developer to access the Project Site.

8.1.2. Other. Developer is responsible for Project Site, materials, equipment, and all other incidentals on the Project Site until the completed Project has been accepted by the City pursuant to Article X.

8.1.3. Environment. Developer shall comply with all environmental laws and regulations, including the Clean Air Act of 1970, the Clean Water Act, Executive Order number 11738, and the Stormwater Management and Discharge Control Ordinance No. 0- 17988 and any and all Best Management Practice (“ BMP”) guidelines and pollution elimination requirements as may be established by an enforcement official.

Furthermore, Developer shall prepare and incorporate into the drawings and specifications a Stormwater Pollution Prevention Plan (“ SWPPP”) to be implemented by Developer during Project construction and, until Acceptance, maintenance. Where applicable, the SWPPP shall comply with both the California Regional Water Quality Control Board Statewide General Construction Storm Water permit and National Pollution Discharge Elimination System permit requirements and shall be in conformance with the City of Chula Vista BMP Design Manual and CVMC Chapter 14.20 ( Storm Water Management and Discharge Control).

8.1.4. Access to Project Site. City officers, agents, and employees that have Projectrelated business shall have the right to enter the Project Site at any time for Project related purposes; provided that such person complies with all written applicable security and safety procedures provided by Developer to City, written instructions given by Developer to City and oral instructions given by Developer or the General Contractor to such person on the Project Site, and uses commercially reasonable efforts to minimize any interference with Developer’ s operation and use of the Project Site while on the Project Site.

8.2. Public Right-of-Way. All work, including materials testing, special testing, and surveying to be conducted in the public right- of-way shall be coordinated with the City.

8.2.1. Follow all Laws, Rules, and Regulations. Developer agrees to follow all Federal and State laws and regulations, and all written and publicly available City standards and regulations while working in the public right- of-way, including, but not limited to, utilizing proper traffic control and obtaining necessary permits.

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8.3. Traffic Control. Developer shall comply with all written traffic control requirements for Project, including, if applicable, all traffic control plans and/or notes.

8.4. Maintenance. Developer shall maintain and be responsible for the Project and the Project Site until Acceptance, including ongoing erosion prevention measures. Upon Acceptance, City shall be responsible for maintenance of the Project.

ARTICLE IX. REIMBURSEMENT/ PAYMENT OF COSTS AND EXPENSES

9.1. Payment of Costs Associated with Project

9.1.1. Maximum Reimbursement Amount. The maximum amount of reimbursement for Project shall not exceed the Maximum Reimbursement Amount. Neither Developer nor the General Contractor nor any Subcontractor, nor any combination thereof, shall be entitled to payment in excess of the Maximum Reimbursement Amount.

9.1.2. Funds for Payment of Costs/Expenses. The source of funds for the payment of costs/expenses associated with Project shall be limited to that listed below. No other City funds, or monies held by, owed to, or in trust for, the City, shall be used by the City or sought to be collected by Developer, its employees, agents, the General Contractor, or Subcontractors other than those identified in Section 9.1.2.1.

9.1.2.1. Funds for Project. Funds for payment of costs/ expenses for Project shall be limited to the City’s Sewer Facility Contribution.

9.1.3. Prerequisites to Payment.

9.1.3.1. Reimbursement Request. Prior to reimbursement of any costs or expenses for the Project, Developer shall provide the City with a Reimbursement Request containing the following:
a. Invoices. Developer shall provide the Director of Development Services all invoices for Reimbursable Costs associated with Project, not previously paid by the City, within 30 days after receipt thereof.
b. Proof of Payment. Developer shall provide the Director of Development Services with proof of payment of all invoices for Reimbursable Costs submitted within 30 days after such payment. c. Lien Releases/Stop Payment Notices. Developer shall provide the Director of Development Services with statutory lien/stop payment DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 15 City of Chula Vista Agreement No.: 2018-075

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notice releases associated with all work performed or supplies provided in a form satisfactory to the City Attorney.
d. Certification of Payment. Developer shall provide the Director of Development Services with a written certification that all trade and soft costs for which Developer is seeking reimbursement have been paid.
e. Certification of Prevailing Wage Compliance. Developer shall provide the Director of Development Services with a written certification of compliance with all applicable Prevailing Wage laws and regulations.
f. Acknowledgement of General Contractor and Subcontractors.

Developer shall provide the Director of Development Services with a letter from each firm ( e.g. civil, survey, and geotechnical) acknowledging that eligible soft costs included in the relevant invoices have been paid.
g. Time sheets. Developer shall provide the Director of Development Services with time sheets from Developer’ s construction manager to justify the Project management costs.
h. Graphics. Developer shall provide the Director of Development Services with a graphic depicting the areas within the Project for which the Reimbursement Request is being submitted.
i. Other Documents. Developer shall provide the Director of Development Services with any other documents that reasonably may be needed to evaluate the eligibility of the cost/expense as Reimbursable Costs as determined necessary by the Director of Development Services in his/her sole discretion.

9.1.3.2. Inspection. The Project shall be subject to City inspection as provided in section 2-11 of the Greenbook. Developer shall ensure that all persons DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 16 City of Chula Vista Agreement No.: 2018-075

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and entities providing work or services for the Project comply with the inspection requirements provided in section 2-11 of the Greenbook.

9.1.3.3. Prevailing Wage Compliance. Developer shall ensure that all persons and entities providing work or services for the Project comply with Prevailing Wage requirements, as established by the California Department of Industrial Relations, as applicable, in accordance with applicable law.

9.1.3.4. City Approval. The Director of Development Services shall review each Reimbursement Request and the supporting documentation. If the Director of Development Services finds that any such Reimbursement Request is incomplete, improper, or otherwise not suitable for reimbursement, then the Director of Development Services shall so inform Developer in writing within fifteen ( 15) Working Days after receipt thereof, of the reasons for his/her finding. If the Director of Development does not find that any such Reimbursement Request is incomplete, improper, or otherwise not suitable for reimbursement, then the Director of Development Services shall so inform Developer in writing within fifteen ( 15) Working Days after receipt thereof and within that time period approve the Reimbursement Request. Developer shall have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Director of Development Services shall review any further documentation received from Developer in support of the Reimbursement Request and inform Developer of his/her approval or denial of the Reimbursement Request within ten ( 10) Working Days after receipt of such further documentation. If the Director of Development Services determines that the Reimbursement Request is incomplete, but that sufficient and complete information exists with respect to a portion of the Reimbursement Request, then the Director of Development Services may but is not obligated to approve the Reimbursement Request with respect to such portion of the Reimbursement Request. The City shall cause the Director of Development Services to carry out its duties under this Section

9.1.3.3 in a reasonable and good faith manner.

9.1.4. Time of Payment. After Developer has obtained City’ s approval pursuant to 9.1.3, City shall reimburse Developer for the approved costs/ expenses associated with each Reimbursement Request by the Payment Date. If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Working Day.

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9.1.4.1. Additional Costs. Any costs that may accrue, such as interest on late payments to Developer’ s General Contractors, Subcontractors, or suppliers as a result of the Developer’ s failure to provide a complete Reimbursement Request, shall not be the obligation of the City if the City has not received a complete Reimbursement Request. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement.

9.1.5. Reimbursement Amount per Reimbursement Request. The City shall pay Developer approved amounts in the Reimbursement Request, less any Non- Reimbursable Costs and Contested Charges ( as defined below) on or before the Payment Date. If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Working Day. Additional costs that result from the City’s failure to make payments when required by this Agreement will be the obligation of the City.

9.1.5.1. Withholding. The prime contract and subcontracts for the Project may provide for withholding from each payment to the General Contractor or the Subcontractor, as applicable, until Acceptance. Except as otherwise provided in this Agreement or at law, the City shall not withhold any additional amounts from the Reimbursement Requests submitted by Developer, beyond the actual General Contractor or Subcontractor withholding amount.
a. Payment and Invoicing for Withholding. Developer shall not pay the General Contractor and the Subcontractors the amounts withheld until (1) forty-five (45) calendar days from recordation of the Notice of Completion and ( 2) confirmation has been submitted to the Director of Development Services by Developer that no stop payment notices or mechanic’ s liens have been filed and not released with respect to the Project and the following work has been completed:
i. All Project improvements have been installed.
ii. As-builts have been submitted to the City.
iii. Form PWE106 is completed.
iv. The final punch list is complete.

Where a stop payment notice or mechanic’ s lien has been filed following the recordation of the Notice of Completion, Developer shall continue to withhold the amount in controversy until a fully executed release of stop payment notice or mechanic’ s lien or a bond releasing the stop payment DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 18 City of Chula Vista Agreement No.: 2018-075

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notice or mechanic’ s lien has been filed and a conformed copy delivered to the City. Notwithstanding anything in this Agreement to the contrary, Developer shall not be required to withhold any funds from the General Contractor or any Subcontractor to the extent doing so would violate any applicable law.

9.1.5.2. Non- Reimbursable Costs. The following costs/ expenses shall not be eligible for reimbursement under this Agreement.
a. Costs Incurred Due to Negligence. Developer shall not be entitled to payment for any incremental cost or expense incurred due to negligent acts, negligent omissions, or willful misconduct of Developer, the General Contractor, or Subcontractors, or any of their respective subcontractors, material suppliers, equipment providers, employees, or agents.
b. Unapproved Costs. Developer shall not be entitled to reimbursement for any cost or expense that has not been approved by the City pursuant to Section 9.1.3.3.
c. Excess Costs. Developer acknowledges and agrees that any Excess Cost ( as defined in section 6.2 of this Agreement) shall not be a Reimbursable Cost.
d. Non-Project Shared Costs. The parties acknowledge that Developer may share certain costs ( e.g. mobilization, traffic control) for the Project with other projects contemplated under the DDA. Developer acknowledges and agrees that any shared project costs that are not directly attributable to or reasonably apportioned to the Project, as reasonably determined by the City, shall not be a Reimbursable Cost.
e. Defective Work Costs. Developer acknowledges and agrees that defective work costs as provided in Section 12.3 of this Agreement shall not be a Reimbursable Cost.

9.1.5.3. Contested Charges. In the event that the City contests any costs/expenses on an invoice received (“ Contested Charge”), the City shall provide Developer a written statement of the Contested Charges, the reason why the costs/expenses are contested, and a proposed resolution.

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a. Appeal to City Manager. Developer may appeal the City’s determination of any Contested Charges. The appeal must be received within 30 days after the City notifies the Developer of such Contested Charge. During the appeal period, and as long as any Contested Charge remains disputed, Developer shall proceed with the Project, and the City shall compensate Developer for the undisputed amounts. If, following the appeal, the City Manager determines that any Contested Charges are eligible for
reimbursement, such amounts shall be included in the next payment to Developer.

9.1.6. Cutoff for Submission of Invoices. Developer shall submit its final Reimbursement Request not later than the Cutoff Date. Any Reimbursement Requests submitted after the Cutoff Date shall not be reviewed or included in Reimbursable Cost. The final payment by the City for the Project will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing the Improvements associated with that phase, mechanic’ s lien free, stop payment notice free, in accordance with the Contract Documents. Final inspection and sign- off by the City’ s inspectors with associated mechanic’ s lien and stop payment notice releases ( or bonds releasing contested mechanic’ s liens or stop payment notices) shall be sufficient evidence of the mechanic’ s lien or stop payment notice free completion of the Improvements.

9.1.7. Final Accounting. Following completion of the Project, Developer shall submit a final accounting (“ Final Accounting”) to the City in order to determine the cost of design, development, construction, and related work thereto to complete the Improvements. Developer shall also submit all supporting information reasonably necessary to document costs/ expenses for the Improvements, including specific details on the costs and work attributable to the Improvements, including, as applicable, third- party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs, and similar expenses.

9.1.7.1. True-up Payments. Within 30 Working Days following a Final Accounting, the City shall determine whether the actual payments made to Developer equal the audited approved costs and expenses. In the event that the amount of the approved costs and expenses exceeds the amount of the actual payments, the City shall make a true- up payment to Developer for the difference; however, in no event, shall the true- up payment cause the total amount paid to exceed the Maximum Reimbursement Amount. If the Final Accounting shows that the amount of actual payments to Developer exceeds the amount of the approved costs DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 20 City of Chula Vista Agreement No.: 2018-075

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and expenses, Developer shall remit or cause the remittance of the difference to the City within twenty ( 20) Working Days of a notice of deficiency.

ARTICLE X. PROJECT ACCEPTANCE AND FINAL COMPLETION

10.1. No Waiver. Developer shall cause the work to be performed and completed in accordance with the Contract Documents, as reasonably determined by the City Engineer and the Director of Development Services. Neither recommendation of any progress payment or acceptance of work, nor any payment by City to Developer under this Agreement, nor any use or occupancy of the Improvements or any part thereof by the City, nor any act of acceptance by the City, nor any failure to act, nor any review of a shop drawing or sample submittal, will constitute an acceptance of work, which is not substantially in accordance with the Contract Documents.

ARTICLE XI. WARRANTIES

11.1. Enforcement of Warranties. Developer shall enforce for the City's benefit all warranties provided in the Contract Documents and any other implicit or explicit warranties or guarantees required or implied by law.

11.1.1. Materials and Workmanship. Developer shall require the General Contractor and Subcontractor( s) to guarantee all work on the Project against Defective Work for a period of one (1) year from the date of Acceptance.

11.1.2. New Materials and Equipment. Developer shall require the General Contractor and Subcontractor(s) to warrant and guarantee to City that all materials and equipment incorporated into the Project are new unless otherwise specified.

11.1.3. Design, Construction, and Other Defects. Developer shall require the General Contractor and Subcontractor(s) to warrant and guarantee to City that all work is in accordance with the Contract Documents and is not Defective Work in any way in design, construction, or otherwise.

11.2. Term of Warranties. Unless otherwise specified or provided by law, warranties shall extend for a term of one (1) year from the date of Acceptance.

ARTICLE XII. DEFECTIVE WORK

12.1. Correction, Removal, or Replacement. The Developer shall require that if, within the designated warranty period, or such additional period as may be required by law or regulation, the City determines the Project contains Defective Work, the General Contractor or applicable Subcontractor, as applicable, shall promptly and in accordance DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 21 City of Chula Vista Agreement No.: 2018-075

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with the City’s written instructions and within the reasonable time limits stated therein, either correct, repair, or both remove and replace the Defective Work.

12.2. City’s Right to Correct. If circumstances warrant, including but not limited to an emergency or the Developer’ s failure, the General Contractor’ s failure, or such Subcontractor’ s failure, as applicable, to adhere to Section 12.1, City may correct, remove, or replace the Defective Work. In such circumstances, the Developer, the General Contractor, and such Subcontractor(s), as applicable, shall not recover costs associated with the Defective Work.

12.3. Non- Reimbursable Costs. Any costs incurred by Developer, the General Contractor, Subcontractors or its agents to remedy defects are Non- Reimbursable Costs, unless the Contract Documents require the Developer to reimburse for such costs. Notwithstanding the foregoing, for the avoidance of doubt, the parties acknowledge and agree that the following shall constitute Non-Reimbursable Costs: (i) costs to remedy defects due to the negligence of the General Contractor, Subcontractors, or their agents; (ii) costs to remedy defects due to the failure of General Contractor, Subcontractors, or their agents to comply with the Contract Documents to the extent such costs exceed the guaranteed maximum price contained in the Contract Documents, or ( iii) costs to remedy defects where such costs have been recovered from an alternate source ( e.g. insurance or bond). If the City has already reimbursed Developer, the General Contractor, Subcontractors or its agents, as applicable, for the Defective Work, City is entitled to an appropriate decrease in Reimbursable Costs, to withhold a setoff against the amount, or to make a claim against Developer’ s bond, if Developer, the General Contractor, Subcontractors or agents, as applicable, have been paid in full, until the Defective Work is remedied unless the Contract Documents require the Developer to reimburse for such costs.

12.4. Extension of Warranty. When Defective Work, or damage therefrom, has been corrected, repaired, replaced or removed, as applicable, during the warranty period, the one ( 1) year or another relevant warranty period, as applicable, will be extended for an additional time period equal to that of the initial warranty period, from the date of the satisfactory completion of the correction, repair, replacement or removal, as applicable, but, in no event, beyond one ( 1) year from the date of the expiration of the initial warranty period.

12.5. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant to this Article XII shall not limit the remedies City may pursue under this Agreement or at law.

12.6. Disputes. If Developer and City are unable to reach agreement on disputed work, City may direct Developer to proceed with the work and compensate Developer for undisputed amounts. Payment of disputed amounts shall be as later determined in accordance with DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 22 City of Chula Vista Agreement No.: 2018-075

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9.1.5.3. Developer shall maintain and keep all records relating to disputed work for a period of three (3) years in accordance with Article XIV.

ARTICLE XIII. SECURITY FOR CONSTRUCTION

13.1. Bond. The Contract Documents shall require the General Contractor or Subcontractors to provide a payment bond and a performance bond, on forms acceptable to the City, for the construction of the Project in an amount of no less than the Estimated Cost. Developer shall cause the City to be named as a co -obligee of the payment bond and performance bond. Developer shall deliver copies of the payment bond and performance bond to City prior to commencement of construction for the Project. Developer shall ensure the payment bond and performance bond are maintained until such time as the Project is complete and Accepted by the City.

13.2. Insolvency or Bankruptcy. If the surety on any of the above-mentioned bonds is declared bankrupt or becomes insolvent or its right to do business is terminated in any state where any part of the Project is located, Developer shall within five (5) Working Days after the City notifies the Developer thereof substitute or require the substitution of another bond and surety, reasonably acceptable to the City.

13.3. Calling the Bond. Developer acknowledges and agrees that if Developer’ s construction of the Improvements has not been completed in accordance with Section 5.1, has not been performed in accordance with the Contract Documents, or if the Developer has failed to cure any Defective Work within the commercially reasonable time specified in a written notice of defect, the City may use the security referenced in Section 13.1 above to complete the Improvements. This remedy is not a limitation on remedies of the City and is in addition to any other remedy that the City may have at law or in equity.

ARTICLE XIV. INDEMNITY AND DUTY TO DEFEND

14.1. Defense, Indemnity, and Hold Harmless.

14.1.1. General Requirement. ( a) Developer shall defend, indemnify, protect, and hold harmless ( collectively, “ Indemnify”) the City, its elected and appointed officers, agents and employees ( collectively, the “ Indemnified Parties”), from and against any and all claims, demands, causes of action, costs, expenses, liabilities, loss, damages, and injuries (collectively, “ Loss”), in law or equity, to property, including takings claims, or persons, including wrongful death, to the extent and proportion directly or indirectly caused by any negligent acts or negligent omissions, or negligence or willful misconduct of Developer, its officials, officers, the General Contractor, Subcontractor( s), agents, or employees arising out of or in connection with the performance of the Project or this Agreement; provided, however, from and after the DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 23 City of Chula Vista Agreement No.: 2018-075

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tenth (10th) anniversary of the date of Acceptance, Developer shall have no obligation to Indemnify the Indemnified Parties for any Loss that arises out of any design or other defect in connection with the Project.
b) This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys’ fees) arising from the sole negligence, active negligence or willful misconduct of the City, its officials, officers, agents or employees.
c) Also covered by this provision is liability arising from, connected with, caused by, or claimed to be caused by the active or passive negligent acts or negligent omissions of the City, its agents, officers, officials or employees which may be in combination with, and to the extent and proportion caused by, the active or passive negligent acts or negligent omissions of Developer or its officials, officers, the General Contractor, Subcontractor( s), agents, or employees.

14.1.1.1. Damage to Downstream or Adjacent Properties. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of and to the extent of and proportion caused by the negligence by Developer, its officials, officers, the General Contractor, Subcontractor( s), agents, or employees in the construction of the Improvements in accordance with the Contract Documents as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of and to the extent of and proportion caused by the negligence by Developer, its officials, officers, the General Contractor, Subcontractor( s), agents, or employees in the construction of the Improvements in accordance with the Contract Documents.

14.1.2. Hazardous Materials. ( a) Developer agrees to defend, indemnify, and hold harmless, the City, its agents, officers and employees from and against any and all costs, damages, claims, and liabilities, including reasonable attorney fees, foreseeable or unforeseeable, directly or indirectly, arising from or related to the release of Hazardous Materials by Developer, its officials, officers, the General Contractor, Subcontractor( s), contractors, agents, or employees in association with the construction, maintenance, or repair of the Project, or any act taken or omission under the Agreement.
b) Notwithstanding the foregoing, Developer shall have no obligation to Indemnify any Indemnified Party for any Loss related to any Pre-Existing DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 24 City of Chula Vista Agreement No.: 2018-075

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Hazardous Material except to the extent Developer, any of its officials, officers, the General Contractor, Subcontractor( s), contractors, agents, or employees, or any combination thereof, is negligent in releasing, allowing a release, or causing a release of such Pre-Existing Hazardous Material. Developer expressly preserves its rights against other parties and does not release or waive its rights to contribution against any other party.

14.1.3. Illegal Discharge to Storm Drains. Developer shall defend, indemnify, protect, and hold harmless City, its agents, officers, and employees, from and against all claims asserted, or liability established for damages or injuries to any person or property resulting from a discharge to public storm drains in violation of applicable laws to the extent arising out of the construction of the Improvements ( an “ Illegal Discharge”) caused by any action or failure of Developer, its officials, officers, the General Contractor, Subcontractor(s), agents, or employees to take reasonable measures to prevent an Illegal Discharge or any Illegal Discharge by any such persons or entities. Developer shall also be responsible for payment of any fines or penalties assessed against City for an Illegal Discharge. Developer’ s duty to indemnify and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of City, its officials, officers, agents or employees.

14.1.4. Costs of Defense and Award. Developer shall immediately accept all tenders and defend, at Developer’ s own cost, expense and risk, any and all claims, demands, suits, actions, or other legal or administrative proceedings that may be brought or instituted against the City, its officials, officers, employees and/or agents and that appear to be covered by the defense obligation defined in Section 14.1.1(a),

14.1.1(c), 14.1.1.1, 14.1.2(a), or 14.1.3. Developer acknowledges and agrees that its obligation to accept tender and defend the City, its officials, officers, employees, and/ or agents as provided in this Section 14.1.4 is absolute and not subject to any limitations in Sections 14.1.1(b) and 14.1.2(b) of this Agreement, or elsewhere.

Developer shall pay and satisfy any judgement, award, or decree that may be rendered against City or its officials, officers, employees and/or agents, for any and all related legal expense and costs incurred by each of them to the extent of Developer’ s actual determined negligence, subject to the limitations in Sections

14.1.1 and 14.1.2 and only to the extent Section 14.1.1 or 14.1.2 requires Developer to do so. The City may, in its reasonable discretion, participate in the defense of any and all suits, actions, or other legal proceedings that may be brought or instituted against the City, its officials, officers, employees and/ or agents, and the Developer shall have the obligation to reimburse the City for any costs of defense incurred by the City, including, without limitation, reimbursement for attorneys’ fees, experts’ fees and other costs. Prior to incurring any defense costs, City agrees DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 25 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC
to notify Developer and offer to meet-and-confer with Developer to discuss practicable measures to manage total defense costs. The City’ s participation shall not relieve the Developer of any of its obligations under this Article XIV.

14.1.5. Insurance Proceeds. Developer’ s obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its officials, officers, employees and/ or agents.

14.1.6. No Use of Security. The security identified in Article XIII shall not be used to satisfy the obligations of Developer under this Article XIV.

14.1.7. Declarations. Developer’ s obligations under Article XIV shall not be limited by any prior or subsequent declaration by Developer.

14.1.8. Enforcement of Costs. Developer agrees to pay any and all costs, including attorneys’ fees, that the City incurs enforcing the indemnity and defense provisions set forth in Article XIV.

14.1.9. Survival. Developer’ s obligations under Article XIV shall survive the expiration and/ or termination of this Agreement.

ARTICLE XV. INSURANCE REQUIREMENTS

15.1. Insurance Requirements. Developer shall, and shall require its architects, engineers, contractors, subcontractors, and other persons and entities providing services for or performing work on the Project to purchase and maintain insurance in the same manner and to the same extent as required by Section 4.10 of the DDA. The parties agree to meetand-confer to try to identify insurance coverage to cover losses to Project supplies, materials, and equipment prior to Acceptance.

ARTICLE XVI. RECORDS AND AUDITS

16.1. Retention of Records. Developer shall maintain data and records related to this Agreement for a period of not less than three ( 3) years following receipt of final payment under this Agreement.

16.2. Audit of Records. At any time during normal business hours and as often as the City deems necessary, Developer, the General Contractor and any or all of Subcontractors shall make available to the City for examination at reasonable locations within the City/County of San Diego all of the data and records with respect to all matters covered by this Agreement.

Developer, the General Contractor and Subcontractors will permit the City to make audits of all invoices, materials, payrolls, records of personnel, and other data and media relating to all matters covered by this Agreement. If records are not made available within the DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 26 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC
City/County of San Diego, then Developer shall pay all the City's travel related costs to audit the records associated with this Agreement at the location where the records are maintained. Such costs will not be Reimbursable Costs.

16.1.1. Costs. Developer and Developer’ s agents shall allow City to audit and examine books, records, documents, and any and all evidence and accounting procedures and practices that City reasonably determines are necessary to discover and verify all costs of whatever nature, which are claimed to have been incurred, anticipated to be incurred, or for which a claim for additional compensation or for extra work have been submitted under this Agreement.

ARTICLE XVII. MISCELLANEOUS PROVISIONS

17.1. Notices. All notices and demands given pursuant to this Agreement shall be written. They shall be deemed served (i) immediately, upon personal delivery; (ii) the next Working Day, if sent prepaid by recognized overnight service such as FedEx for delivery the next Working Day; or (iii) three ( 3) Working Days after deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid. Until notice of a change of address is properly given, notice shall be given:

If to City: City of Chula Vista
Attn: City Manager
276 Fourth Avenue
Chula Vista, California 91910
With a copy to: Office of the City Attorney
Attn: City Attorney
276 Fourth Avenue
Chula Vista, California 91910
If to Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Legal Department
With a copy to: Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 27 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC

17.2. Captions. Captions in this Agreement are inserted for convenience of reference. They do not define, describe or limit any term of this Agreement.

17.3. Entire Agreement. This Agreement embodies the entire agreement and understanding between the Parties regarding the subject matter hereof. No prior or contemporaneous oral or written representations, agreements, understandings and/or statements regarding its subject matter shall have any force or effect. This Agreement is not intended to supersede or amend any other agreement between the Parties unless expressly noted. However, all previous written agreements, remain in full force and effect except to the extent they conflict with this Agreement.

17.4. Severability. If any provision of this Agreement or its particular application is held invalid or unenforceable, the remaining provisions of this Agreement, and their application, shall remain in full force and effect, unless a Party' s consideration materially fails as a result.

17.5. Recordation. The City may record this Agreement in the Office of the County Recorder of San Diego County, California.

17.6. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a Party or its attorney drafted this Agreement. It shall be conclusively presumed that all Parties participated equally in drafting this Agreement.

17.7. Authority. Each Party warrants and represents that it has legal authority and capacity to enter into this Agreement, and that it has taken all necessary action to authorize its entry into this Agreement.

17.8. Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the Parties hereto, their successors or assigns.

17.9. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement shall be the City of San Diego.

17.10. Administrative Claims. No suit or arbitration shall be brought arising out of this Agreement against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter

1.34 of the CVMC, as same may from time to time be amended (the provisions of which are incorporated by this reference as if fully set forth herein), and such policies and procedures used by City in the implementation of same.

DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 28 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC

17.11. Non-liability of City Officials and Employees. No member, official, employee or consultant of the City shall be personally liable to Developer in the event of any default or breach by City, or for any amount which may become due to Developer, or on any obligations under the terms of this Agreement.

17.12. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be the original and all of which shall constitute one and the same document.

17.13. Electronic Signatures. The words “ execution”, “ execute”, “ signed”, “ signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Parties, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

End of page. Signature page follows this page.]
DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 29 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC
IN WITNESS WHEREOF, this Reimbursement Agreement is executed as of the day and year first set forth above.

CITY
CITY OF CHULA VISTA, a California
charter city and municipal corporation
By:

Maria Kachadoorian, City Manager
ATTEST:

By:

Kerry Bigelow, City Clerk
APPROVED AS TO FORM:

By:

Glen R. Googins, City Attorney

DEVELOPER
RIDA CHULA VISTA, LLC, a Delaware
limited liability company
California Contractor License Number:
1039979
By:

Ira M. Mitzner, Manager
DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 For
30 City of Chula Vista Agreement No.: 2018-075

RIDA CHULA VISTA, LLC
Exhibit A
Estimated Cost
Improvement Description
Sewer
Improvement Cost
Estimate
E Street (G Street to H Street) 730,000
G Street Connection 85,000
H-3 Utility Corridor 380,000
Total 1,195,000
DocuSign Envelope ID: 63A2F5F6- 1483-4190-960F-D42128A6C289 Y-1
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Exhibit Y
Hotel Operator Non-Disturbance Agreement
WHEN RECORDED PLEASE MAIL TO:

Attn: Phil Brandt
Marriott International, Inc.
10400 Fernwood Road
Dept. 52/923
Bethesda, MD 20817
SPACE ABOVE THIS LINE FOR RECORDER’ S USE

CONVENTION CENTER AGREEMENT
THIS CONVENTION CENTER AGREEMENT ( this “ Agreement”) is executed as of May ___, 2022 by: (i) SAN DIEGO UNIFIED PORT DISTRICT (together with its successors and permitted assignees, the “ Port “), a public corporation; (ii) THE CITY OF CHULA VISTA (the City”), ( iii) CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY ( the Authority”), a joint exercise of powers authority whose members are the City and the Port, iv) MARRIOTT INTERNATIONAL, INC. (“Manager”), a Delaware corporation, and relates to certain land subleased, and improvements sub-subleased by, RIDA CHULA VISTA, LLC Developer”), a Delaware limited liability company.

R E C I T A L S
A. The Port is the trustee of certain state tidelands owned by the State of California (the Site”) as more particularly described on Exhibit A, upon which a 275,000 net usable square foot convention center shall be constructed ( the “ Convention Center”, together with the Site, the Facility”). The Convention Center will be constructed on the Site.

B. The Port leased the Site to the Authority pursuant to the Site Lease. The Authority will own the Convention Center, which is to be constructed by Developer pursuant to, among other agreements, the Project Implementation Agreement and operated by Developer pursuant to the Sublease.

C. The Authority subleased the Site, and leased the Convention Center, collectively, the Facility, to the City pursuant to the Facility Lease.

D. The City sub-subleased the Site, and subleased the Convention Center, to Developer pursuant to the Sublease.

E. Manager and Developer entered into the Management Agreement under which Manager will operate the Convention Center.

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NOW, THEREFORE, in consideration of the promises in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Port, the City, the Authority, and Manager agree as follows:

1. Definitions. Capitalized terms used but not defined in this Agreement have the meanings in the Management Agreement. The following terms used in this Agreement have the meanings given below:

Convention Center” is defined in Recital A.

Ground Lease” means, collectively, (i) that certain Lease to Developer of Property located in Chula Vista, California dated as of the date hereof, a memorandum of which was recorded on 2022, in the Official Records of the San Diego County Recorder’ s Office as document #____________________ ( as the same may be amended or modified) and ( ii) any New Lease ( as defined in the Ground Lease) entered into within the timeframes prescribed in the Ground Lease.

Facility” is defined in Recital A.

Facility Lease” means that certain Facility Lease (Chula Vista Bayfront Convention Center) dated as of the date hereof by and between the Authority, as lessor, and the City, as lessee, a memorandum of which was recorded on ____________, 2022, in the Official Records of the San Diego County Recorder’ s Office as document #____________________ ( as the same may be amended or modified), and pursuant to which the Authority will sublease the Site and lease the Convention Center to the City.

Management Agreement” means that certain management agreement, dated December 17, 2018, between Developer, as “ Owner” and Manager under which Manager will operate the Hotel, as may be amended.

Marriott Guarantor” shall mean Marriott International, Inc., and its successors and/ or assigns under the Marriott Guaranty Documents.

Marriott Guaranty” shall mean the guaranty evidenced by that certain Guaranty Agreement entered into on the date of this Amendment by Marriott Guarantor in favor of Wells Fargo Bank, National Association.

Marriott Guaranty Documents” shall mean the Marriott Guaranty and the documents identified in the Marriott Guaranty Reimbursement Agreement from time to time as the Reimbursement Loan Documents,” as assigned, amended, restated or supplemented from time to time.

Marriott Guaranty Reimbursement Agreement” shall mean that certain Reimbursement Agreement entered into on the date of this Agreement between Marriott Guarantor, and its successors and/or assigns, and GPR Member, LLC, a Delaware limited liability company, as assigned, amended, restated or supplemented from time to time.

Marriott Mezzanine Loan Documents” shall refer to those certain mezzanine loan documents entered into on or about the date hereof, with GPR Mezz, LLC, a Delaware limited Y-3
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liability company, as mezzanine borrower, and MARRIOTT INTERNATIONAL CAPITAL CORPORATION, a Delaware corporation, as the mezzanine lender.

Project Implementation Agreement” means that certain Project Implementation Agreement by and among the City, The Bayfront Project Special Tax Financing District, the Port, the Authority, and Developer, dated as of the date hereof, a memorandum of which was recorded on 2022, in the Official Records of the San Diego County Recorder’ s Office as document #____________________ ( as the same may be amended or modified).

Site” is defined in Recital A.

Site Lease” means that certain Site Lease ( Chula Vista Bayfront Convention Center) dated as of the date hereof by and between the Port, as lessor, and the Authority, as lessee, a memorandum of which was recorded on ____________, 2022, in the Official Records of the San Diego County Recorder’ s Office as document #____________________ ( as the same may be amended or modified), pursuant to which the Port will lease the Site to the Authority.

Sublease” means ( i) that certain Sublease Agreement ( Chula Vista Bayfront Convention Center) dated May__, 2022 by and between the City, as lessor, and Developer, as lessee, which was recorded on ____________, 2022, in the Official Records of the San Diego County Recorder’ s Office as document #____________________ ( as the same may be amended or modified, the Sublease”), pursuant to which the City will sub-sublease the Site and sublease the Convention Center to Developer, and (ii) any New Sublease ( as defined in the Sublease) entered into within the timeframes prescribed in the Sublease.

2. Notices of Default. If Developer defaults under the Sublease, and the City notifies Developer of the default, then the City, will also give Manager a copy of such notice concurrently with the delivery of such notice to Developer. In addition, if Developer defaults under the Management Agreement and Manager notifies Developer of the default, then Manager will also give the Authority, the City, and the Port a copy of such notice concurrently with Manager’ s delivery of such notice to Developer.

3. Effect of Termination of the Site Lease, Facility Lease, and/or the Sublease.

A. The Designated Owner’ s Rights under Management Agreement. If the Management Agreement is in effect, then, for purposes of the Convention Center only, upon any termination of (i) the Site Lease, Manager will recognize the Port as “ Owner” under the Management Agreement, ( ii) the Facility Lease ( but the Site Lease remains in effect), Manager will recognize the Authority as Owner” under the Management Agreement, (iii) the Sublease ( but the Site Lease and Facility Lease remain in effect), Manager will recognize the City as “ Owner” under the Management Agreement, and, in each case, Manager will remain bound by all of the terms of the Management Agreement; except that Manager will have no such obligation to recognize the Port, Authority or City (whichever is required to be recognized as “ Owner”, hereinafter referred to as the “ Designated Owner”; provided that should Manager no longer be required to recognize Developer or a Designated Owner as an Owner” under the Management Agreement due to the termination of the Sublease, Facility Lease, or Site Lease, then Developer or such Designated Owner may be referred to herein as a “ Predecessor Owner”) if such Designated Owner does not qualify as a permitted transferee under Section 10.02.A of the Management Agreement, or, if, within 20 days after the termination date of the Site Lease, Facility Lease or Sublease ( as the case may be), the Designated Owner fails to cure all outstanding Y-4
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Defaults on behalf of “Owner” under the Management Agreement that: (i) are of a continuing nature; ii) exist as of the termination date of the Site Lease, Facility Lease or Sublease ( as the case may be); iii) are not personal to a Predecessor Owner; and ( iv) are reasonably susceptible to cure by the Designated Owner; provided, however, the foregoing shall not apply when: ( 1) pursuant to Section

23.1 of the Project Implementation Agreement, the Port is required, notwithstanding any such termination, to recognize ( or to continue to recognize) the Sublease as a direct lease between ( a) Developer and ( b) the Port, the Authority or the City or ( 2) the Premises ( as defined under the Ground Lease) includes the Site and the Improvements ( as each such term is defined under the Sublease). By way of example and without limitation, the following financial obligations accruing before the date of termination of the Site Lease, Facility Lease or Sublease ( as applicable) are personal” to a Predecessor Owner and will not be obligations of the Designated Owner: unpaid management fees, funds advanced by Manager in order to fund a pre-termination deficiency under the Management Agreement, any transfer fee due in connection with a Permitted Transfer by a Predecessor Owner, damages ( including attorney’ s fees) awarded to Manager by a court or arbitral body for claims against a Predecessor Owner, costs of any pre-termination environmental remediation, and any obligations under the Marriott Mezzanine Loan Documents, the Marriott Guaranty Documents, and/or with respect to a Mortgage. The obligations of Manager to recognize a Designated Owner may occur more than once; e.g., if the Sublease is terminated ( but the Site Lease and Facility Lease are not), then Manager will be compelled to recognize the City as “ Owner” subject to the terms and conditions above). If subsequent to that, the Site Lease is terminated, then Manager will be compelled to recognize the Port as “ Owner” ( subject to the terms and conditions above). Notwithstanding the foregoing, the Manager will no longer be obligated to recognize a Designated Owner in circumstances where the Sublease, Site Lease or Facility Lease is terminated but a “ New Lease” is given in replacement of such lease to a financing lender and within 75 days of termination of the Sublease, Site Lease or Facility Lease, as the case may be. In that circumstance, Manager may recognize the financing lender or its nominee, and this Agreement will remain in full force and effect treating the “ New Lease” as the Sublease, Site Lease or Facility Lease, as the case may be.

B. Limitations on Designated Owner Obligations. Notwithstanding anything to the contrary stated in this Agreement, the Designated Owner will not be:

1. liable for any act, omission, default, misrepresentation or breach of warranty of a Predecessor Owner or any obligations accruing prior to the termination of the Site Lease, Facility Lease, or Sublease, as applicable ( except for defaults under the Management Agreement cured by the Designated Owner under Section 3.A);

2. subject to any offset, defense, claim or counterclaim which Manager might be entitled to assert against a Predecessor Owner;

3. unless paid over to the Designated Owner, bound by any payment made by Manager to a Predecessor Owner;

4. unless disclosed to the Designated Owner in a notice delivered to the Designated Owner by a Predecessor Owner or Manager, bound by any waiver or forbearance by a Predecessor Owner or any amendment or modification of the Management Agreement, or waiver of the terms thereof, hereafter made, or consent or acquiescence by a Predecessor Owner; further provided that the Designated Owner will not be bound by any waiver, forbearance, amendment or other modification to the Management Agreement that has the effect of materially increasing a Y-5
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Predecessor Owner’ s obligations or materially reducing a Predecessor Owner’ s rights, or materially increasing Manager’ s rights or materially reducing Manager’ s obligations, unless the Designated Owner expressly consents to the same in writing ( such consent not to be unreasonably withheld, conditioned or delayed);

5. bound by any warranties or indemnities given or required to be given by a Predecessor Owner under the terms of the Management Agreement;

6. liable for constructing or causing the construction of any improvements on the Site or for funding any obligation of a Predecessor Owner to Manager for payment or reimbursement of any expense incurred by Manager in connection the construction of such improvements;

7. liable for any deposit, reserve fund, capital, advance or other monies that Manager may have given to a Predecessor Owner, or paid on behalf of a Predecessor Owner, unless such deposit, reserve fund, capital, advance or other monies are paid over to the Designated Owner;

8. liable under the Management Agreement if Manager is not obligated to recognize such Designated Owner because of a “ New Lease” granted to a financing lender or its nominee; or

9. liable for any obligations under the Marriott Mezzanine Loan Documents and/or the Marriott Guaranty Documents.

Without affecting the provisions of Section 3.A, nothing contained in this Section 3.B will prevent the Designated Owner from being required to cure any prior state of events which continues after the termination date of the Site Lease, Facility Lease or Sublease, as the case may be, to the extent that such state of events would have imposed liability on the Designated Owner, as “ Owner” under the Management Agreement, had it occurred on or after the termination date of the Site Lease, Facility Lease or Sublease ( as applicable).

By way of example, Working Capital, Inventories, Fixed Asset Supplies and the FF&E Reserve must be maintained at the levels required under the Management Agreement even if any shortfall in such amounts began prior to the termination date of the Site Lease, Facility Lease or Sublease ( as applicable). Additionally, the Designated Owner would be obligated to repair physical damage to the Convention Center in accordance with the provisions of the Management Agreement notwithstanding that such damage may have occurred prior to the termination date of the Site Lease, Facility Lease or Sublease ( as applicable).

C. Manager’s Rights under Management Agreement. If the Management Agreement is in effect and Manager is not in default thereunder beyond any applicable notice and cure periods, then (i) a default under the Facility Lease, Site Lease or Sublease will not result in a termination of the Management Agreement; ( ii) the termination of the Facility Lease, Site Lease or Sublease will not result in the termination of the Management Agreement, and except as may be required by law, the Designated Owner will not name Manager in any action or proceeding to terminate the Facility Lease, Site Lease or Sublease; and (iii) upon any early termination of the Facility Lease, Site Lease or Sublease, the Designated Owner will recognize the Management Agreement and Manager’ s rights thereunder and will assume all obligations of “ Owner” under the Management Agreement that continue or arise after the termination date of the Sublease subject to the terms and conditions of Section 3.B.

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D. Additional Assurances. The provisions of this Section 3 will be self-operative and effective without the necessity of execution of any new management agreement or other document on the part of any party hereto or the respective heirs, legal representatives, successors or assigns of any such party. Each Designated Owner and Manager agrees, however, to execute and deliver upon the request of the other, any instrument or certificate which in the reasonable judgment of the requesting party, as applicable, may be necessary or appropriate to evidence such attornment, including a new management agreement on the same terms and conditions as the Management Agreement for the unexpired term of the Management Agreement.

4. Performance by Manager and Payment Defaults.

A. Performance by Manager. The City will accept performance by Manager of Developer’ s obligations under the Sublease as if the same were performed by Developer in accordance with the terms of the Sublease.

B. Payment Defaults. If there is a payment default by Developer under the Sublease after all notices have been given and cure periods have expired as provided for in the Sublease, with respect to which the City gives notice to Manager under Section 2, and if Manager elects to cure the payment default under the terms of the Sublease, then unless Developer is contesting the payment default alleged by the City, Developer authorizes Manager to make such payment directly to the City from funds otherwise to be distributed to Developer under the Management Agreement.

5. Termination. If a casualty or condemnation occurs that affords Developer the right, in its discretion, to terminate the Sublease pursuant to Sections 5.1(d) or 5.2(b) of the Sublease, then Developer agrees, in addition to the conditions to such termination specified in Sections 5.1(d) and

5.2(b) of the Sublease, the following condition must also be satisfied in order for any termination to be effective: ( a) the Management Agreement shall have terminated or ( b) Manager shall have consented to the termination of the Management Agreement and the Sublease, or an amendment of the Management Agreement to remove the Facility from the scope of the Management Agreement, together with the termination of the Sublease, which amendment would become effective concurrently with the termination of the Sublease.

6. Performance by Designated Owner and Payment Defaults.

A. Performance by Designated Owner. Manager will accept performance by the Designated Owner of its Predecessor Owner’ s obligations under the Management Agreement as if the same were performed by the applicable Predecessor Owner in accordance with the terms of the Management Agreement.

B. Payment Defaults. If there is a payment default by Developer or a Designated Owner under the Management Agreement after all notices have been given and cure periods have expired as provided for in the Management Agreement, with respect to which Manager gives notice to the City in the event the Sublease is still in effect, the Authority in the event the Facility Lease, but not the Sublease, is still in effect, or the Port in the event the Site Lease, but not the Facility Lease or the Sublease, is still in effect, under Section 2, and if the City, the Authority, or the Port District, as applicable, elects to cure the payment default under the terms of the Management Agreement, then unless Developer or the applicable Designated Owner is contesting the payment default alleged by Manager, Developer and each Designated Owner authorizes the City, the Authority, or Port District, as applicable, to make such payment directly to Manager and such payments will immediately Y-7
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become due and payable by Developer or the relevant Designated Owner as a rental obligation under the Sublease, Facility Lease, or Site Lease, as applicable.

7. Bankruptcy. In the event of Developer’ s bankruptcy, and notwithstanding a rejection by or on behalf of Developer of the Sublease or the Management Agreement, each of the Port, the Authority, and the City agrees that the terms of this Agreement will remain in full force and effect between the Port, the Authority, the City, and Manager. This provision constitutes an independent agreement between the Port, the Authority, the City and Manager and is intended by the parties to survive any rejection of the Sublease or the Management Agreement in bankruptcy.

8. Initial Construction. Manager acknowledges that Port, the Authority, and the City have no obligation with respect to initial construction of the Convention Center ( other than the obligation to request Facility Lease Advance Rent or Sublease Advance Rent, the obligation to keep and record a Sublease Advance Rent Register, and the obligation to pay over to any Subleases Advance Rent paid to the City to the Authority) and, for so long as each of the Site Lease, Facility Lease, and Sublease remain in effect, the maintenance and repair of the Convention Center. Manager hereby agrees to fully and forever release the Port, the Authority, and the City from any liability arising from the initial construction, maintenance and repair of the Convention Center and expressly waives the provisions of Section 1542 of the California Civil Code which provides:

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.”
Initials of Manager Signatory

9. Limitation on the Designated Owner’ s Liability. Without impacting the effect of the liability limitations set forth in the Management Agreement, the Designated Owner shall have no obligation, nor shall it incur any liability, beyond the Designated Owner’ s interest in the Facility whether fee interest, leasehold interest, or otherwise), and Manager shall look exclusively to such interest of the Designated Owner as a limit for the payment and discharge of any obligations imposed upon the Designated Owner hereunder or under the Management Agreement or for recovery of any judgment from the Designated Owner, and in no event shall the Designated Owner or any of their respective officers, directors, shareholders, agents, administrators, representatives, servants, employees or partners ever be personally liable for such judgment. For sake of clarity, if the Sublease, Facility Lease or Site Lease is terminated, the Management Agreement remains in effect, and the applicable Designated Owner is recognized as “ Owner” pursuant to this Agreement, then such Designated Owner’ s assets ( other than its interest in the Facility) will not be subject to, or, unless the Designated Owner so chooses (in its sole discretion), a source of payment of, any liability or obligation that may be owed by the Designated Owner to Manager pursuant to the Management Agreement (as modified by this Agreement). It is the intent of this provision to create the same result as would apply if Designated Owner were a single purpose limited liability company whose sole assets were the Facility and the proceeds thereof. Under no circumstances would the general fund of the Port, the Authority, or the City be subject to a claim or liability under the Management Agreement ( as modified by this Agreement) except to the extent ( and solely to the extent) that any proceeds from the sale or assignment of the Port, Authority, or City’s interest in the Site Lease, Facility Lease, or the Sublease, respectively, in the Facility are received by the Port, the Authority, or Y-8
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the City, as applicable, after the relevant party is recognized as the “ Designated Owner” and added to the such party’ s general fund.

10. Notices. Notices and other communications under this Agreement must be ( i) in writing; (ii) delivered by hand against receipt, by certified or registered mail, postage prepaid, return receipt requested or by a nationally recognized overnight delivery service; and ( iii) sent to the address below or another address designated by the party. Any notice will be deemed received when delivery is received or refused at the address below or the other address designated by the party.

To the Port: San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Attn: Executive Director
Phone: ( 619) 686-6200
with copy to: San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Attn: Port Attorney
Phone: ( 619) 686-6200
To the Authority: To the City:

City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Manager
With a copy to:

City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attn: City Attorney
To the Port District:

San Diego Unified Port District
3165 Pacific Highway
San Diego, California 92101-1128
Attn: Executive Director
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
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With a copy to:

San Diego Unified Port District
3165 Pacific Highway
San Diego, California 92101-1128
Attn: Port Attorney
Mailing Address: P.O. Box 120488
San Diego, California 92112-0488)
To the City: City of Chula Vista
276 Fourth Avenue
Attn: City Manager
with copy to: City of Chula Vista
276 Fourth Avenue
Attn: City Attorney
To Manager: Marriott International Capital Corporation
c/o Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Treasurer, Dept. No. 52/924.11
With a copy to:
c/o Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Associate General Counsel – Corporate
Transactions, Dept. No. 52/923.23
Effective as of September 1, 2022:
c/o Marriott International, Inc.
7750 Wisconsin Ave
Bethesda, MD 20814
Attention: Treasurer, Dept. No. 52/924.11
With a copy to:
c/o Marriott International, Inc.
7750 Wisconsin Ave
Bethesda, MD 20814
Attention: Associate General Counsel – Corporate
Transactions, Dept. No. 52/923.23

11. Miscellaneous.

A. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which constitute one and the same instrument.

The submission of an unsigned copy of this Agreement to either party is not an offer or acceptance.

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B. Recordation of Agreement. The terms of this Agreement run with the Site and will benefit and bind the respective successors, heirs, legal representatives and assigns of the parties that are recognized and qualify as a Designated Owner. Any party to this Agreement may at any time require or cause this Agreement to be recorded in the jurisdiction where the Convention Center is located, provided that upon request following termination of the Management Agreement, each party agrees to execute and consents to the recording of an instrument sufficient to remove this Agreement from title to the Site.

C. Interpretation of Agreement. The Port, the Authority, the City, and Manager intend that this Agreement excludes all implied terms to the maximum extent permitted by law. Headings of, Sections and subsections are only for convenience and are in no way to be used to interpret the Sections or subsections to which they refer. Any Recitals, Sections, Exhibits and Schedules to this Agreement are incorporated by reference and are part of this Agreement. Words indicating the singular include the plural and vice versa as the context may require. References to days, months and years are to calendar days, calendar months and calendar years, unless otherwise specifically provided. References that a person “ will” do something mean that the person has an obligation to do that thing. References that a person “ may” do something mean that the person has the right, but not the obligation, to do that thing. References that a person “ will not” or “ may not” do something mean that the person is prohibited from doing that thing. Examples used in this Agreement and references to “includes” and “ including” are illustrative and not exhaustive.

D. Amendment of Site Lease, Facility Lease, Sublease, or Management Agreement. If any of the Site Lease, Facility Lease, or Sublease ( as the case may be), or Management Agreement is amended, modified or supplemented, the Site Lease, Facility Lease, or Sublease ( as the case may be), or Management Agreement, as so amended, modified or supplemented will continue to be subject to the provisions of this Agreement without the necessity of any further act by (i) with respect to the Site Lease, the Port, ( ii) with respect to the Facility Lease, the Authority, (iii) with respect to the Sublease, the City, and Manager. Nothing in this Section 11.D will in any way expand any of the Port’ s, the Authority’ s, or the City’ s obligations hereunder with specific reference to Section 3.A(iv) hereof.

E. Entire Agreement; Amendment of this Agreement; Severability. This Agreement may only be changed by a document manually executed with a non-electronic signature of the authorized representative of the Port, the Authority, the City, and Manager and, so long as the Sublease remains in effect, consented to by Developer. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, then ( i) the remainder of this Agreement, or the application of such term, covenant or condition to persons or circumstances other than those to which it is held invalid or enforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law; and ( ii) the Port, the Authority, the City, and Manager will negotiate in good faith to modify this Agreement to implement their original intent as closely as possible in a mutually acceptable manner.

F. Applicable Law. This Agreement will be construed under and governed by the laws of the State of California.

G. Waiver. The failure or delay of either party to insist on strict performance of any of the terms of this Agreement, or to exercise any right or remedy, will not be a waiver for the future.

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Any waiver must be manually executed with a non-electronic signature by the party giving the waiver.

H. Non-Exclusive Remedies & Rights. Each remedy and right in this Agreement is in addition to and not in substitution for any other remedy or right in this Agreement or under applicable law or in equity.

I. Attorney’ s Fees. In the event of any legal action or proceeding between the parties hereto being initiated as a result of this Agreement, then the prevailing party in such action or proceeding will be entitled to recover its reasonable attorneys’ fees and expenses arising from any such action or proceeding from the non-prevailing party.

J. Permitted Transferee. Manager agrees that as of the date of this Agreement, each of the Port, the Authority, and the City qualifies as a permitted transferee under Section 10.02.A of the Management Agreement. Each of the Port, the Authority, and the City will continue to qualify as a permitted transferee so long as no change occurs in the Port’ s, the Authority’ s, or the City’ s ownership or status, respectively, that would cause any of the Port, the Authority, or the City, respectively, to be, be controlled by, or be an Affiliate of (i) a Competitor; (ii) a Specially Designated National or Blocked Person; or (iii) a convicted felon or Person otherwise known in the community as being of bad moral character.

K. Priority. The parties acknowledge that the memorandum of the Site Lease, the memorandum of the Facility Lease, and the Sublease were recorded prior to the Memorandum of Management Agreement and each of the Port, the Authority, and the City reserves all rights afforded to it under the laws of the State of California due to such priority under its respective agreement to which it is a party. Nothing in this Agreement will alter the relative priority of the Site Lease, Facility Lease, or Sublease ( as the case may be), and the Management Agreement. Furthermore, Manager agrees that Manager’ s rights under the Management Agreement will be subordinate to the terms of any amendment or other modification to the Site Lease, Facility Lease, or Sublease ( as the case may be) approved in writing by Manager ( such approval not to be unreasonably withheld, conditioned or delayed).

SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the Port, the Authority, the City, and Manager have caused this Agreement to be executed under seal as of the day and year first written above.

THE PORT:

SAN DIEGO UNIFIED PORT DISTRICT,
a public corporation
By:

Joseph Stuyvesant, Executive Director
By:

Thomas A. Russell, General Counsel

STATE OF CALIFORNIA )
ss:

COUNTY OF SAN DIEGO )
I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the San Diego Unified Port District, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as of the San Diego Unified Port District.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________
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CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY:

CHULA VISTA BAYFRONT FACILITIES
FINANCING AUTHORITY, a joint exercise of
powers authority
By:

Joseph Stuyvesant, Executive Director
By:

Co-Counsel, Thomas A. Russell, General
Counsel of the San Diego Unified Port
District
By:

Co-Counsel, Glen R. Googins, City
Attorney of the City of Chula Vista

STATE OF CALIFORNIA )
ss:

COUNTY OF SAN DIEGO )
I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the Chula Vista Bayfront Facilities, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as of the Chula Vista Bayfront Financing Authority.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________
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CITY OF CHULA VISTA
CITY OF CHULA VISTA, a California charter
city and municipal corporation
By:

Maria V. Kachadoorian, City Manager
APPROVED AS TO FORM:

By:

Glen R. Googins, City Attorney
NOTARY ACKNOWLEDGMENTS FOLLOW ON NEXT PAGE]
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STATE OF CALIFORNIA )
ss:

COUNTY OF SAN DIEGO )
I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the City of Chula Vista, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the City of Chula Vista.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________

STATE OF CALIFORNIA )
ss:

COUNTY OF SAN DIEGO )
I hereby certify that on this ____ day of ___________, 202__, before me, the undersigned officer, personally appeared __________________________________________, who acknowledged herself/himself to be the ___________________ of the City of Chula Vista, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of the City of Chula Vista.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________
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MANAGER:

MARRIOTT INTERNATIONAL, INC.,
a Delaware corporation
By:

Name: Richard Jacobs
Title: Authorized Signatory

STATE OF MARYLAND )
ss:

COUNTY OF MONTGOMERY )
I hereby certify that on this ___ day of _____________, 202___, before me, the undersigned officer, personally appeared ____________, who acknowledged herself/himself to be the of Marriott International, Inc., and that he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of the corporation by him or herself as ________________ of Marriott International, Inc.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________
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EXHIBIT A
SITE
See Attached]
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DEVELOPER’ S AGREEMENT
In exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in connection with the execution and delivery of that certain Convention Center Agreement dated as of ___________ __, 2022 (the “ Convention Center Agreement”) by and between the San Diego Unified Port District, as the “ Port”, the City of Chula Vista, as the “ City”, and the Chula Vista Bayfront Facilities Financing Authority ( the “ Authority”), a joint exercise of powers authority whose members are the City and the Port, and Marriott International, Inc., as Manager”, from which the undersigned (“ Developer”) is receiving material benefit, Developer i) agrees that the performance by the City under the Convention Center Agreement in accordance with the terms thereof will not be deemed a breach of any of its obligations to Developer under the Sublease; ( ii) agrees that the performance by Manager under the Convention Center Agreement in accordance with the terms thereof will not be deemed a breach of any of its obligations to Developer under the Management Agreement; ( iii) agrees that any payments by Manager to the City referenced in Section 4.B of the Convention Center Agreement which are made in accordance with the terms thereof satisfies Manager’ s obligations under the Management Agreement to distribute such funds to Developer; ( iv) releases Manager from any and all obligations relating to such payments referenced in Section 4.B of the Convention Center Agreement which are made in accordance with the terms thereof; and (v) releases the City from any and all obligations relating to such payments referenced in Section 6.B of the Convention Center Agreement which are made in accordance with the terms thereof, and such payments will be added to Developer’ s payment obligations under the Sublease that are then due and owing. Subject to the terms of the previous sentence, this agreement by Developer is irrevocable until the Sublease or Management Agreement terminate. Developer, as Owner” under the Management Agreement and sub-sublessee of the Site, and sublessee of the Convention Center, under the Sublease, and the City and Manager by accepting this Developer’ s Agreement, acknowledge and agree for themselves and their respective heirs, representatives, successors and assigns, that: ( a) the Convention Center Agreement does not constitute a waiver by the City or Developer of any of their respective rights under the Sublease, nor does the Convention Center Agreement in any way release the City or Developer from their respective obligations to comply with the terms, provisions, conditions, covenants, agreements and clauses of the Sublease; and (b) the provisions of the Sublease remain in full force and effect and must be complied with by Developer and the City.

Date: __________________, 2022
DEVELOPER:

RIDA CHULA VISTA, LLC,
a Delaware limited liability company
By:

Name: Ira Mitzner
Title: President
NOTARY ACKNOWLEDGMENT FOLLOWS ON NEXT PAGE]
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STATE OF _______________________ )
ss:

CITY/COUNTY OF _______________ )
I hereby certify that on this __________ day of 202__, before me, the undersigned officer, personally appeared _________________________________________, who acknowledged herself/himself to be the ___________________ of RIDA Chula Vista, LLC, and that she/he, in such capacity, being authorized to do so, executed the foregoing instrument for the purposes therein contained, by signing the name of ____________________, as ____________________ of RIDA Chula Vista, LLC.

IN WITNESS WHEREOF, I hereunto set my hand and Notarial Seal.

Notary Public
My Commission expires: ________________________
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Exhibit Z
Construction Standards
RIDA Chula Vista, LLC and its contractors, subcontractors, employees and agents are required to comply with the following City of Chula Vista design and construction standards:

For work related to the Developer’ s Phase 1A Infrastructure Improvements, the Design and Construction Standards
adopted by the City of Chula Vista for public works projects at the time the City approved the drawings and specifications for the project.

For work related to the Convention Center, the Resort Hotel and the Parking Improvements, the Chula Vista Building
Code.

RIDA is NOT required to comply with any other City of Chula Vista design and construction standards or exceed such City of Chula Vista design and construction standards.

Other public agency standards and regulations may apply.

If any requirement set forth in the applicable City of Chula Vista design and construction standards may be satisfied in more than one manner, RIDA may elect to satisfy such requirement in any such manner.

Please contact [_________________] with any questions.

Approved By:

Maria Kachadoorian, City Manager
City of Chula Vista
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Exhibit AA
In-Balance Certificate
20[__]
Chula Vista Bayfront Facilities Financing Authority
PO Box 5296
Chula Vista, CA 91912
Attention: Executive Director
RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner; Luke Charlton
Re: Convention Center Payment Request No. [___] under Project Implementation Agreement the “ Agreement”), dated as of May 26, 2022, by and among the City of Chula Vista, a chartered municipal corporation (“ City”), the Bayfront Project Special Tax Financing District, a financing district established and existing pursuant to Chula Vista Municipal Code Chapter 3.61 Bayfront Project Special Tax Financing District Procedural Ordinance ( the Financing District”), the San Diego Unified Port District, a public corporation ( the “ Port District”), the Chula Vista Bayfront Facilities Financing Authority (the “ Authority”), a joint exercise of powers entity created by the City and the Port District pursuant to Joint Exercise of Powers Act (defined in the Agreement), and RIDA Chula Vista, LLC, a Delaware limited liability company (“ Developer”).

Payment Request of $[_________]
Requested Payment Date: [_________], 20[__]
Ladies and Gentlemen:

Capitalized terms used herein without definition shall have the meanings assigned to them in the Agreement.

JPMorgan Chase Bank, N.A., (the “ Administrative Agent”) acting as Administrative Agent under that certain Bond Purchase and Continuing Covenant Agreement dated as of May 26, 2022, by and among the Authority, the Port District, the City and the Administrative Agent ( the “ Bond Purchase Agreement”) hereby certifies to the Authority and Developer that the Project is InBalance within the meaning of Section 8.08 of the Bond Purchase Agreement.

The Authority is entitled to rely on the foregoing certification in authorizing and making the disbursement requested in the Payment Request.

SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has executed this In-Balance Certificate as of this [___] day of [_________], 20[__].

Administrative Agent:

JPMorgan Chase Bank, N.A.

By: _____________________________________
Name:

Title:

Chula Vista City CouncilJune 2, 2026

Chula Vista City Council
June 2, 2026