4825- 3218- 1203/ 024036- 0079
PROJECT IMPLEMENTATION AGREEMENT
by and among
THE CITY OF CHULA VISTA,
a California charter city and municipal corporation,
THE BAYFRONT PROJECT SPECIAL TAX FINANCING DISTRICT,
a financing district,
THE SAN DIEGO UNIFIED PORT DISTRICT,
a public corporation,
THE CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY a joint exercise of powers entity,
and
RIDA CHULA VISTA, LLC
a Delaware limited liability company
Dated as of May 26, 2022
Relating to
372,562,201
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
CHULA VISTA BAYFRONT CONVENTION CENTER)
SERIES 2022A (FEDERALLY TAXABLE)
10,000,000
CHULA VISTA BAYFRONT FACILITIES FINANCING AUTHORITY
REVENUE BONDS
CHULA VISTA BAYFRONT PHASE 1A INFRASTRUCTURE IMPROVEMENTS) SERIES 2022B (TAX-EXEMPT)
LIST OF EXHIBITS
Page
i
4825- 3218- 1203/ 024036- 0079
ARTICLE I
DEFINITIONS
1.1. Definitions Addendum .............................................................................................................. 5
ARTICLE II
SUBJECT OF THE AGREEMENT GENERALLY
2.1. Developer’ s Phase 1A Infrastructure Improvements................................................................. 5
2.2. Convention Center ..................................................................................................................... 9
2.3. Sweetwater Park ........................................................................................................................ 9
ARTICLE III
DURATION OF AGREEMENT
3.1. Term of Agreement ................................................................................................................. 14
ARTICLE IV
PROJECT COSTS
4.1. Phase 1A Infrastructure Improvements ................................................................................... 14
4.2. Convention Center ................................................................................................................... 15
4.3. Cost Reporting ......................................................................................................................... 15
ARTICLE V
CONSTRUCTION OF THE PROJECT AND THE REMAINING
PHASE 1A INFRASTRUCTURE IMPROVEMENTS
5.1. Construction of the Project ...................................................................................................... 16
5.2. Reserved .................................................................................................................................. 22
5.3. Reserved .................................................................................................................................. 22
5.4. Project Schedule and Schedule Updates .................................................................................. 22
5.5. Unavoidable Delay .................................................................................................................. 22
5.6. Completion Guaranty .............................................................................................................. 25
5.7. Entitlements ............................................................................................................................. 25
5.8. Energy Requirements .............................................................................................................. 27
ARTICLE VI
PROCUREMENT REQUIREMENTS AND EQUAL OPPORTUNITY
6.1. Award of Sole Source Prime Contract .................................................................................... 27
6.2. Subcontractor Bid and Award Process for the Developer’ s Phase 1A Infrastructure Improvements .......................................................................................................................... 27
6.3. Bid and Award Process for the Remaining Phase 1A Infrastructure Improvements .............. 28
6.4. The Convention Center as a Special Purpose Project.............................................................. 28
6.5. Procurement of Alterations ...................................................................................................... 28
6.6. Bid Opening and Award .......................................................................................................... 29
6.7. Authority Procurement Policy Acknowledgement .................................................................. 29
TABLE OF CONTENTS
continued)
Page
ii
4825- 3218- 1203/ 024036- 0079
ARTICLE VII
DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care ...................................................................................................................... 29
7.2. Compliance with Laws ............................................................................................................ 30
7.3. Compliance with Design and Construction Standards; Chula Vista Building Code ............... 32
7.4. Construction Period ................................................................................................................. 34
7.5. Authority Approval Not a Waiver of Obligations ................................................................... 34
ARTICLE VIII
CONSTRUCTION
8.1. Site Safety, Security ................................................................................................................ 34
8.2. Public Right-of-Way ............................................................................................................... 35
8.3. Traffic Control ......................................................................................................................... 35
8.4. Maintenance ............................................................................................................................ 35
8.5. Construction Cooperation ........................................................................................................ 36
ARTICLE IX
PAYMENT OF PROJECT COSTS
9.1. Developer’ s Phase 1A Infrastructure Improvements Costs ..................................................... 36
9.2. Convention Center Costs ......................................................................................................... 44
9.3. Investment of Amounts in the Construction Fund .................................................................. 53
9.4. Calculation of Specified Default Rate ..................................................................................... 53
9.5. Redemption of Authority Bonds and Certain Amendments Prior to Full Payment ................ 53
9.6. Survival ................................................................................................................................... 55
ARTICLE X
ACCEPTANCE OF IMPROVEMENTS
10.1. Developer’ s Phase 1A Infrastructure Improvements............................................................... 55
10.2. Convention Center ................................................................................................................... 56
10.3. Sweetwater Park ...................................................................................................................... 56
ARTICLE XI
WARRANTIES
11.1. Enforcement of Warranties ...................................................................................................... 57
11.2. Term of Warranties.................................................................................................................. 57
11.3. Additional Warranties ............................................................................................................. 58
ARTICLE XII
DEFECTIVE WORK
12.1. Correction, Removal, or Replacement .................................................................................... 58
12.2. Extension of Warranty ............................................................................................................. 58
12.3. Right of Authority to Correct .................................................................................................. 58
12.4. No Limitation on Other Remedies .......................................................................................... 58
12.5. Disputes ................................................................................................................................... 59
12.6. Applicability ............................................................................................................................ 59
TABLE OF CONTENTS
continued)
Page
iii
4825- 3218- 1203/ 024036- 0079
ARTICLE XIII
SECURITY FOR CONSTRUCTION
13.1. Bonds ....................................................................................................................................... 59
13.2. Insolvency or Bankruptcy ........................................................................................................ 60
13.3. Calling a Bond ......................................................................................................................... 60
ARTICLE XIV
INDEMNITY AND DUTY TO DEFEND
14.1. General Indemnity ................................................................................................................... 61
14.2. Damage to Other Properties .................................................................................................... 62
14.3. Hazardous Materials Indemnity .............................................................................................. 62
14.4. Illegal Discharge to Storm Drains ........................................................................................... 64
14.5. Implementation of Authority Resolution 2020-002 ................................................................ 64
14.6. Costs of Defense and Award ................................................................................................... 64
14.7. Insurance Proceeds .................................................................................................................. 65
14.8. Declarations ............................................................................................................................. 65
14.9. Survival ................................................................................................................................... 65
ARTICLE XV
INSURANCE REQUIREMENTS
15.1. Insurance Requirements .......................................................................................................... 65
15.2. Forms and Amounts of Coverage ............................................................................................ 66
15.3. General Requirements ............................................................................................................. 68
15.4. Waiver of Subrogation ............................................................................................................ 69
15.5. Authority Obligation to Maintain Insurance ........................................................................... 69
ARTICLE XVI
RECORDS AND AUDITS
16.1. Retention of Project Records ................................................................................................... 70
16.2. Audit of Records...................................................................................................................... 70
ARTICLE XVII
TITLE TO ALTERATIONS AND IMPROVEMENTS
17.1. Title to Project ......................................................................................................................... 71
17.2. Survival ................................................................................................................................... 71
ARTICLE XVIII
LIENS
18.1. No Right to Bind Port District ................................................................................................. 71
18.2. Notice of Non-Responsibility .................................................................................................. 71
18.3. Mechanics’ Liens..................................................................................................................... 72
18.4. Contest of Lien ........................................................................................................................ 72
18.5. Port District’ s Right to Pay...................................................................................................... 72
18.6. Notice of Liens ........................................................................................................................ 72
18.7. Right of Entry .......................................................................................................................... 73
TABLE OF CONTENTS
continued)
Page
iv
4825- 3218- 1203/ 024036- 0079
ARTICLE XIX
TAXES
19.1. Reporting ................................................................................................................................. 73
19.2. Tax Claims .............................................................................................................................. 74
19.3. Property Expenses ................................................................................................................... 75
19.4. Property Tax Contest Cooperation .......................................................................................... 76
ARTICLE XX
EQUAL EMPLOYMENT OPPORTUNITY/ NONDISCRIMINATION AND OFAC
20.1. Nondiscrimination ................................................................................................................... 77
20.2. Compliance with Employment and Labor Requirements........................................................ 77
20.3. OFAC Compliance .................................................................................................................. 77
ARTICLE XXI
EVENTS OF DEFAULT AND REMEDIES
21.1. Events of Default ..................................................................................................................... 78
21.2. Remedies for Events of Default .............................................................................................. 79
21.3. Sweetwater Park ...................................................................................................................... 81
21.4. Reserved .................................................................................................................................. 81
21.5. Authority Events of Default .................................................................................................... 81
21.6. Remedies for Authority Events of Default (Rent Offset) ........................................................ 82
21.7. Payment Sources for Convention Center ................................................................................ 82
ARTICLE XXII
ASSIGNMENT PARTICIPATION FEE
22.1. Assignment Participation Fee .................................................................................................. 83
22.2. Assignment and Collateral Assignment .................................................................................. 84
22.3. Non-Disturbance Agreement ................................................................................................... 85
ARTICLE XXIII
NONDISTURBANCE
23.1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases........................................................................................................................... 86
23.2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases ...................................................................................................................................... 86
ARTICLE XXIV
Operation of the Site and the Convention Center
24.1. Approved Agreements ............................................................................................................. 87
24.2. Reservations ............................................................................................................................ 87
24.3. Cooperation in connection with Condemnation ...................................................................... 89
ARTICLE XXV
AS-IS” LEASE AND WAIVERS
25.1. Developer’ s Acknowledgment ................................................................................................ 89
TABLE OF CONTENTS
continued)
Page
v
4825- 3218- 1203/ 024036- 0079
25.2. Only Express Written Agreements Binding ............................................................................ 90
25.3. As-Is ........................................................................................................................................ 90
25.4. Waivers, Disclaimers and Indemnity ...................................................................................... 90
25.5. Survival ................................................................................................................................... 92
ARTICLE XXVI
MISCELLANEOUS PROVISIONS
26.1. Notices ..................................................................................................................................... 92
26.2. Captions ................................................................................................................................... 94
26.3. No Merger ............................................................................................................................... 94
26.4. Recording ................................................................................................................................ 94
26.5. Port District Transfer ............................................................................................................... 94
26.6. Time of Essence ...................................................................................................................... 95
26.7. Partial Invalidity ...................................................................................................................... 95
26.8. Entire Agreement..................................................................................................................... 95
26.9. Joint and Several...................................................................................................................... 95
26.10. Developer’ s Authority ............................................................................................................. 95
26.11. Interaction with Sewer Agreement .......................................................................................... 95
26.12. Resolution of Specified Disputes ............................................................................................ 96
26.13. Attorneys’ Fees ........................................................................................................................ 99
26.14. Transaction Costs .................................................................................................................... 99
26.15. Provisions Regarding Authority Operations ......................................................................... 100
26.16. Replacement Trustees ............................................................................................................ 100
26.17. Effect of Section 365(h)(1) Election ..................................................................................... 100
26.18. Financial Information Regarding Continuous Operations..................................................... 100
26.19. Governing Law ...................................................................................................................... 101
26.20. Modification .......................................................................................................................... 101
26.21. Counterparts; Electronic Signatures ...................................................................................... 102
26.22. Drafting Presumption; Review Standard ............................................................................... 102
26.23. Administrative Claims ........................................................................................................... 102
26.24. Non-liability of Public Entity Officials and Employees ........................................................ 102
26.25. Authority Executive Director; Authority Approvals and Actions ......................................... 103
26.26. Further Assurances ................................................................................................................ 103
LIST OF EXHIBITS
Page
vi
4825- 3218- 1203/ 024036- 0079
EXHIBIT A-1 LEGAL DESCRIPTION OF THE SITE ........................................................ A-1-1 EXHIBIT A-2 LEGAL DESCRIPTION OF THE GROUND LEASE PROPERTY ............ A-2-1 EXHIBIT A-3 LEGAL DESCRIPTION OF THE DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS SITE ........................................... A-3-1 EXHIBIT B-1 DEPICTION OF THE SITE ............................................................................ B-1-1 EXHIBIT B-2 DEPICTION OF THE GROUND LEASE PROPERTY ................................ B-2-1 EXHIBIT B-3 DEPICTION OF THE DEVELOPER’ S PHASE 1A
INFRASTRUCTURE IMPROVEMENTS SITE ............................................ B-3-1 EXHIBIT C-1 DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS ......... C-1 EXHIBIT C-2 SOURCES FOR DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS COST.................................................................................. C-2 EXHIBIT C-3 DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS BUDGET ............................................................................................................ C-3 EXHIBIT D-1-A REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS SWEETWATER PARK) .............................................................................. D-1-A EXHIBIT D-1-B SOURCES FOR REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS (SWEETWATER PARK) .............................................. D-1-B EXHIBIT D-1-C ENGINEERING BUDGET FOR SWEETWATER PARK ........................... D-1-C EXHIBIT E CONSTRUCTION REQUIREMENTS .............................................................. E-1 EXHIBIT F CONVENTION CENTER PLANS .................................................................... F-1 EXHIBIT G-1 APPROVED SUBCONTRACTOR BID AND AWARD PROCESS ........... G-1-1 EXHIBIT G-2 SUBCONTRACTOR BIDS AWARDED PRIOR TO EFFECTIVE DATE .............................................................................................................. G-2-1 EXHIBIT G-3 APPROVED CONSTRUCTION CONTRACTS ............................................... G-3 EXHIBIT H FORM OF COMPLETION GUARANTY ......................................................... H-1 EXHIBIT I REAL ESTATE AGREEMENTS ....................................................................... I-1 EXHIBIT J TOTAL CONVENTION CENTER DEVELOPMENT FEE .............................. J-1 EXHIBIT K-1 DEVELOPER’ S PHASE 1A PAYMENT REQUEST ................................... K-1-1
LIST OF EXHIBITS
continued)
Page
vii
4825- 3218- 1203/ 024036- 0079
EXHIBIT K-2 FORM OF CONVENTION CENTER PAYMENT REQUEST .................... K-2-1
EXHIBIT L SOLE SOURCE SUBCONTRACT AWARD APPROVAL
DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS) ...... L-1
EXHIBIT M BEST QUALIFIED CONTRACTOR SUBCONTRACT AWARD
APPROVAL (DEVELOPER’ S PHASE 1A INFRASTRUCTURE
IMPROVEMENTS) .......................................................................................... M-1 EXHIBIT N-1 LIST OF APPROVED ARBITRATORS ....................................................... N-1-1 EXHIBIT N-2 LIST OF APPROVED MEDIATORS ........................................................... N-2-1 EXHIBIT O ENERGY REQUIREMENTS ............................................................................ O-1 EXHIBIT P FORM OF DEVELOPER’ S CONVENTION CENTER BUDGET .................. P-1 EXHIBIT Q PORT DISTRICT TRANSFER DOCUMENTS ................................................ Q-1 EXHIBIT R FORM OF MEMORANDUM OF AGREEMENT ............................................ R-1 EXHIBIT S APPROVED AGREEMENTS ........................................................................... S-1 EXHIBIT T DISTRICT DOCUMENTS ................................................................................ T-1 EXHIBIT U PRIOR AGREEMENTS ..................................................................................... U-1 EXHIBIT V-1 APPROVED DRAWINGS AND SPECIFICATIONS FOR
DEVELOPER’ S PHASE 1A INFRASTRUCTURE IMPROVEMENTS ..... V-1-1 EXHIBIT V-2 APPROVED DRAWINGS AND SPECIFICATIONS FOR REMAINING PHASE 1A INFRASTRUCTURE IMPROVEMENTS ................................. V-2-1
EXHIBIT W FORM OF EQUAL EMPLOYMENT OPPORTUNITY
CERTIFICATION ............................................................................................. W-1 EXHIBIT X-1 FORM OF EARLY WORK AGREEMENT ................................................. X-1-1 EXHIBIT X-2 REIMBURSEMENT AGREEMENT ............................................................ X-2-1 EXHIBIT X-3 SEWER AGREEMENT ................................................................................ X-3-1 EXHIBIT Y HOTEL OPERATOR NON-DISTURBANCE AGREEMENT ......................... Y-1 EXHIBIT Z CONSTRUCTION STANDARDS FLYER ....................................................... Z-1 EXHIBIT AA IN-BALANCE CERTIFICATE ...................................................................... AA-1 4825- 3218- 1203/ 024036- 0079
PROJECT IMPLEMENTATION AGREEMENT
BY AND AMONG
THE CITY OF CHULA VISTA, THE BAYFRONT PROJECT SPECIAL TAX FINANCING
DISTRICT, THE SAN DIEGO UNIFIED PORT DISTRICT, THE CHULA VISTA
BAYFRONT FACILITIES FINANCING AUTHORITY, AND RIDA CHULA VISTA, LLC This PROJECT IMPLEMENTATION AGREEMENT (“ Agreement”) is entered into as of May 26, 2022 ( the “ Date of Agreement”) 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”; and, collectively with the City, the Financing District, and the Port District, the “ Public Entities” or each separately, a “ Public Entity”), 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 ( together with its permitted successors and assigns, including without limitation any Foreclosure Purchaser, the “ Developer”) ( collectively, the “ Parties” and, individually, a “ Party”), with reference to the following Recitals:
RECITALS
A. The City and the Port District are parties to that certain Amended and Restated Joint Exercise of Powers Agreement, dated and effective July 25, 2019 (the “ JEPA Agreement”), which amended and restated that certain Joint Exercise of Powers Agreement, dated as of May 1, 2014, by and between the City and the Port District. The JEPA Agreement forms the Authority for the purpose of assisting in the financing and refinancing of capital improvement projects of the City and the Port District as permitted under the Articles 1, 2, 3 and 4 of Chapter 5 of Division 7 of Title 1 of the California Government Code ( the “ Joint Exercise of Powers Act”) relating to the Chula Vista Bayfront.
B. Pursuant to a “ Site Lease” dated as of the Date of Agreement ( as amended, amended and restated, supplemented, or otherwise modified from time to time, the “ Site Lease”), the Port District has leased to the Authority and the Authority has leased from Port District certain real property described in Exhibit A-1 and depicted in Exhibit B-1 attached hereto ( the “ Site”), upon which an approximately 275,000 net usable square foot convention center (the “ Convention Center” and, together with the Site, the “ Facility”) will be constructed by Developer pursuant to this Agreement and operated by Developer pursuant to the Sublease, as described in more detail below.
C. Pursuant to a “ Facility Lease” dated as of the Date of Agreement ( as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Facility Lease”), the Authority has in turn subleased the Site and leased the Convention Center to the City.
D. Pursuant to a “ Sublease Agreement” dated as of the Date of Agreement ( as amended, amended and restated, supplemented or otherwise modified from time to time, together with any New Sublease ( as defined in the Sublease), the “ Sublease”), the City has in turn subleased the Facility to Developer. The Site Lease, Facility Lease, and Sublease are referred to collectively herein as the “ Convention Center Leases.”
2 4825- 3218- 1203/ 024036- 0079
E. Port District and Developer have entered into a ground lease dated as of the Date of Agreement ( as amended, amended and restated, supplemented or otherwise modified from time to time, the “ Ground Lease”), pursuant to which the Port District has leased to Developer approximately 19.281 acres of land located in the City of Chula Vista, California, described in Exhibit A-2 and depicted in Exhibit B-2 attached hereto ( the “ Ground Lease Property”), together with all improvements currently located on the Ground Lease Property. Pursuant to the Ground Lease, the Developer is obligated to construct, operate and maintain ( or cause to be constructed, operated and maintained) the Resort Hotel ( defined herein) and Parking Improvements ( defined herein) on the Ground Lease Property.
F. The City, the Port District, the Authority and the County of San Diego ( the County”) entered into that certain Chula Vista Bayfront Project Funding Agreement dated as of December 13, 2019, (the “ County Funding Agreement”) pursuant to which the County will assist the City, the Port District and the Authority in financing the construction of the Phase 1A Infrastructure Improvements by contributing the County Funds ( defined in the Definitions Addendum) as provided for in the County Funding Agreement.
G. To create a vehicle to generate special tax revenues initially equal to 5.5% of the transient occupancy revenues collected within the CVBMP (defined below), to pay or reimburse the cost of the Phase 1A Infrastructure Improvements ( defined below) and/or to support payments with respect to the Revenue Bonds ( defined below), the City Council of the City (the “ City Council”), took certain actions under and pursuant to the powers reserved to the City under Sections 3, 5, and 7 of the Constitution and the Charter of the City, and enacted Chapter 3.61 of the Chula Vista Municipal Code (“ Chapter 3.61”) for the purpose of establishing a procedure for financing certain public and private improvements and maintenance and services to serve development within the boundaries of the Financing District through the establishment of the Financing District, the levy and collection of special taxes ( the “ Special Tax Revenues”) therein by the Financing District and the issuance of bonds or other indebtedness of such Financing District secured by such special taxes for the purpose of financing the Convention Center and certain other public improvements, including the Phase 1A Infrastructure Improvements, as described below.
H. On September 10, 2019, the City Council initiated proceedings pursuant to Chapter 3.61 to establish the Financing District, to authorize the Financing District to finance the purchase, construction, expansion, improvement, and rehabilitation of the Convention Center and certain other public improvements and certain maintenance and services, to authorize the levy of a special tax pursuant to the amended and restated rate and method of apportionment thereof to pay for such improvements and services and to declare the necessity of the Financing District to incur an indebtedness to contribute to the financing of such improvements.
I. On February 16, 2021, the City Council adopted a resolution declaring its intention and initiating proceedings to make changes to the rate and method of apportionment of the Financing District to increase the special tax rates to be levied initially on taxable property in the Financing District, to extend the term of the special tax to June 30, 2086 and to give the City Council the ability to lower the special tax rates in future fiscal years.
J. The City and the Port District entered into an Amended and Restated Joint Community Facilities Agreement ( Chula Vista Bayfront Project Special Tax Financing District) effective as of February 24, 2020 (as amended, the “ JCFA”) to set forth some of the essential terms for the development, operation, maintenance, and servicing of various improvements within the 3 4825- 3218- 1203/ 024036- 0079
Chula Vista Bayfront Master Plan Area (the “ CVBMP”) or outside the CVBMP as further described in the JCFA. Such essential terms included the priorities for the allocation of the Special Tax Revenues, as such term is defined in the JCFA, and to provide that the Special Tax Revenues dedicated to the Convention Center and the Developer’ s Phase 1A Infrastructure Improvements shall be disbursed pursuant to an agreement between the Port District, the City and/or the Authority, on the one hand, and the Developer, the Project lenders and/or the Developer’ s contractors, on the other hand.
K. On May 20, 2020, the Authority Board adopted its Resolution 2020-007 ratifying the final form of a procurement policy for developer-performed public improvements for the Authority attached as Exhibit A to such resolution ( the “ Authority Procurement Policy”) and ratifying the final form of Authority Resolution 2020-002 in the form presented and attached as Exhibit B to Resolution 2020-007 ( the “ Authority Resolution 2020-002”) applying the Authority Procurement Policy to the construction of developer-performed public works for the Project.
L. Pursuant to Authority Resolution 2020-002 and in accordance with Procurement Policy Section 2.a., the Authority Board authorized the Developer to proceed with the development and construction of the Developer’ s Phase 1A Infrastructure Improvements and the Convention Center subject to the terms, conditions, and obligations of the Authority Procurement Policy, Authority Resolution 2020-002, all applicable Project agreements, including this Agreement, and all applicable federal, state, and local laws and regulations.
M. The Authority, the Port District and the City have determined it to be beneficial to have the Financing District finance certain of the Phase 1A Infrastructure Improvements in connection with the construction of the Resort Hotel, Parking Improvements and the Convention Center. To assist in the financing of the Convention Center and the Phase 1A Infrastructure Improvements, the Authority has determined to issue its “ Authority Taxable Bonds” and its Authority Tax-Exempt Bonds” ( together with bond or other indebtedness incurred to refinance the Authority Taxable Bonds and/or the Authority Tax-Exempt Bonds, collectively referred to herein as the “ Authority Bonds”) pursuant to the terms of the “ Authority Indenture,” as defined herein. The Authority Bonds will be secured in part and be repaid from loan payments made by the Financing District on the “ Loan,” as defined herein, and any loan payable on a parity with the Loan, made under the “ Loan Agreement,” as defined herein, “ Lease Payments,” as defined herein, payable by the City pursuant to the Facility Lease and payments to be made by the Port District pursuant to the Port Support Agreement. JPMorgan Chase Bank, National Association, a banking association organized and existing under the laws of the United States, will serve as administrative agent ( in such capacity referred to herein as the “ Administrative Agent”) for the purchasers of the first series of Authority Bonds, which will be issued on the Effective Date under the Bond Purchase Agreement defined herein).
N. Pursuant to the Sublease and this Agreement, the Developer is required to cause the development and construction of the “ Project” which consists of the Developer’ s Phase 1A Infrastructure Improvements and the Convention Center (as such terms are defined herein).
O. Certain Laws may require that certain of the Phase 1A Infrastructure Improvements as defined herein) be constructed in connection with the construction of the Convention Center, the Resort Hotel, and the Parking Improvements.
4 4825- 3218- 1203/ 024036- 0079
P. Developer and the Public Entities desire that Developer construct the Convention Center, and in connection with the construction of the Convention Center, the Resort Hotel, and the Parking Improvements, construct the Developer’ s Phase 1A Infrastructure Improvements on certain real property described in Exhibit A-3 and depicted in Exhibit B-3 attached hereto (the “ Developer’ s Phase 1A Infrastructure Improvements Site”, together with the Site, the “ Project Site”), as set forth in this Agreement.
Q. City, Authority and Developer have entered into that certain Chula Vista Bayfront Project Phase 1A Early Work Implementation and Right of Entry License Agreement, dated as of September 1, 2021 and filed in the Office of the District Clerk as Document No. 73207 (the “ Early Work Agreement”), a copy of which is attached hereto as Exhibit X-1. The Early Work Agreement provides for the reimbursement of certain costs described therein by the Authority to the Developer.
However, City, Authority and Developer intend that such costs be reimbursed as part of the Developer’ s Phase 1A Infrastructure Improvements Costs payable hereunder to the extent such amounts are not reimbursed under the Early Work Agreement.
R. City and Developer have entered into ( i) that certain City of Chula Vista Reimbursement Agreement to Design Specified Bayfront Infrastructure Improvements, dated as of September 15, 2020 ( the “ Reimbursement Agreement”), a copy of which is attached hereto as Exhibit X-2, and ( ii) that certain City of Chula Vista Reimbursement Agreement to Construct Specified Bayfront Sewer Improvements, dated as of September 15, 2020 (the “ Sewer Agreement”), a copy of which is attached hereto as Exhibit X-3. Each of the Reimbursement Agreement and the Sewer Agreement provide for the reimbursement of certain costs described therein by City to Developer, and therefore such costs are excluded from the Developer’ s Phase 1A Infrastructure Improvements Costs payable hereunder to avoid double counting.
S. The Parties desire to enter into, and Authority has required that Developer enter into, this Agreement to establish the terms and conditions in compliance with the applicable provisions of the Authority Procurement Policy and Authority Resolution 2020-002 pursuant to which the Developer may develop and construct the Project and obtain payment for all of the eligible costs of developing and constructing the Developer’ s Phase 1A Infrastructure Improvements from proceeds of the Authority Tax-Exempt Bonds and the County Funds, reimbursements pursuant to the Sewer Agreement, and credits to the Developer pursuant to the BFDIF Program, which is on file in the office of the City Clerk, and a portion of the overall costs of developing and constructing the Convention Center from the proceeds of the Authority Taxable Bonds and certain amounts to be provided by the City and Port District, all as further described herein.
T. The Parties desire to provide for the development and construction of the Remaining Phase 1A Infrastructure Improvements” ( as defined herein) by the Port District, pursuant to the procurement rules of the Port District.
U. The Parties further desire to set forth certain provisions relating to nondisturbance, indemnification, and other continuing covenants of the Parties relating to the Resort Hotel, Parking Improvements, and Convention Center Project and the Phase IA Infrastructure Improvements which shall remain in effect for the Term hereof.
5 4825- 3218- 1203/ 024036- 0079
AGREEMENT
NOW THEREFORE, in consideration of the above Recitals, the covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Authority, the Port District, the City, the Financing District and the Developer agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions Addendum. Defined terms used in this Agreement and not specifically defined herein shall have the meanings set forth in the Definitions Addendum attached hereto, which is incorporated herein by this reference. Any reference in this Agreement to this Agreement or any other agreement is a reference to such agreement as the same may be amended or amended and restated from time to time.
ARTICLE II
SUBJECT OF THE AGREEMENT GENERALLY
All Exhibits attached to this Agreement are incorporated into this Agreement by this reference.
2.1. Developer’s Phase 1A Infrastructure Improvements.
2.1.1. Access to the Developer’s Phase 1A Infrastructure Improvements Site. The Developer Parties shall have the non-exclusive right to enter upon the Developer’ s Phase 1A Infrastructure Improvements Site in connection with the construction and development of the Developer’ s Phase 1A Infrastructure Improvements commencing on the Commencement Date and ending on the earlier of the following dates: ( x) as to each portion of the Developer’ s Phase 1A Infrastructure Improvements Site, the date on which the Developer’ s Phase 1A Infrastructure Improvements corresponding to such portion of the Developer’ s Phase 1A Infrastructure Improvements Site is Accepted, ( y) the date on which this Agreement is terminated, and (z) the date on which this Agreement expires.
2.1.2. Construction of Developer’s Phase 1A Infrastructure Improvements.
Except as expressly provided in this Agreement, Developer shall cause the development of the Developer’ s Phase 1A Infrastructure Improvements on the Developer’ s Phase 1A Infrastructure Improvements Site substantially in accordance in all material respects with the Approved Drawings and Specifications for the development of the Developer’ s Phase 1A Infrastructure Improvements within the timeframe described in Section 5.1, in each case, in accordance with all the terms and conditions of this Agreement. For the avoidance of doubt, Harbor Park is not included as part of the Developer’ s Phase 1A Infrastructure Improvements.
2.1.3. Complete and Functional Improvements. Developer shall provide complete and functional Developer’s Phase 1A Infrastructure Improvements substantially in accordance in all material respects with the Approved Drawings and Specifications. Neither recommendation of any progress payment, nor any payment by the Authority to Developer under this Agreement, nor any use or occupancy of the Project or any part thereof by the Authority, the City, or the Port District, nor any failure to act, nor any review of a shop drawing or sample submittal, will constitute an approval 6 4825- 3218- 1203/ 024036- 0079
by any of the Public Entities of work which is not completed by Developer substantially in accordance with the Approved Drawings and Specifications. The foregoing shall not limit claims pursuant to Articles XI or XII.
2.1.4. Payment of Developer’s Phase 1A Contract Sum, Reimbursements under Sewer Agreement, Credits under BFDIF Program, and Developer’s Phase 1A Project Administration Fee. In consideration for the Developer’s development and delivery of the Developer’s Phase 1A Infrastructure Improvements as required by this Agreement, ( a) the Authority shall pay the Developer’ s Phase 1A Contract Sum to Developer, ( b) the City shall provide to Developer a credit towards the amount payable by Developer pursuant to the BFDIF Program, as a condition of developing the Resort Hotel, Parking Improvements, and Convention Center ( as applicable), ( c) the City shall pay to Developer amounts required to be reimbursed to Developer pursuant to the Sewer Agreement, and ( d) the City shall provide payment to or credit for Developer, as applicable, in the amount of the Developer’ s Phase 1A Project Administration Fee. The Authority acknowledges and agrees that, without limitation, all of the Public Entity’ s Estimated Developer’ s Phase 1A Infrastructure Improvements Costs identified in Exhibit C-3 are Developer’ s Phase 1A Infrastructure Improvements Costs, except as noted in Exhibit C-3. The Parties acknowledge that concurrent with requesting payment of Developer’ s Phase 1A Contract Sum, Developer will identify amounts to be paid pursuant to the Sewer Agreement and City will issue payment for same consistent with the terms of the Sewer Reimbursement Agreement. Further, Developer will identify BFDIF credit amounts requested with each payment request. City shall incrementally accrue BFDIF credits toward Developer’ s ultimate BFDIF obligation, subject to true-up and final calculation of credits earned and BFDIF amounts to be paid to City. City shall pay ( pursuant to the Sewer Agreement) or credit pursuant to the BFDIF Program), as applicable, to Developer a fee ( the “ Developer’ s Phase 1A Project Administration Fee”) in the amount of $ 737,109, which shall accrue in three equal installments of $ 245,703 as of the sixth, eighteenth and thirtieth months following the Commencement Date, and shall be reflected on the Developer’ s Phase 1A Payment Requests submitted during or after the month in which such amounts have accrued; provided, that if all Developer’ s Phase 1A Infrastructure Improvements Costs have been paid to Developer prior to the thirtieth month, then the final installment of the Developer’ s Phase 1A Project Administration Fee shall accrue on the date on which Developer submits to the Authority the final Developer’ s Phase 1A Payment Request. Each installment of the Developer’ s Phase 1A Project Administration Fee shall be paid to Developer as follows: 78% of each installment of the Developer’ s Phase 1A Project Administration Fee shall be applied as an additional credit to the Developer under the BFDIF program and 22% of each installment of the Developer’ s Phase 1A Project Administration Fee shall be paid as an additional reimbursement to Developer under the Sewer Reimbursement Agreement.
2.1.5. Sources of Funding for Developer’s Phase 1A Infrastructure Improvements Cost. The Parties anticipate that the sources of funding for the payment of the Developer’s Phase 1A Infrastructure Improvements Cost are as set forth on Exhibit C-2.
2.1.6. Changes to Developer’ s Phase 1A Infrastructure Improvements.
2.1.6.1. Changes Requested by Developer.
a. In accordance with the Authority Procurement Policy, any change to the Contract Documents or the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements shall be subject to Authority’ s prior written approval, except for changes or change orders that result in none of the following (as determined in 7 4825- 3218- 1203/ 024036- 0079
Authority’ s reasonable discretion): ( i) any additional payment by Authority in excess of the contingency set forth in the Developer’ s Phase 1A Infrastructure Improvements Budget; ( ii) any additional maintenance or overhead costs to the Authority; ( iii) any material delay to the date on which Completion of the Developer’ s Phase 1A Infrastructure Improvements occurs; ( iv) any material modifications to the design or construction of the Developer’ s Phase 1A Infrastructure Improvements nor ( v) any adverse effect with respect to the Developer’ s Phase 1A Infrastructure Improvements’ compliance with Law. Authority shall provide written approval or a reasonable basis for denial of such changes ( a “ Change Order Response”) within ten ( 10) Business Days after Authority receives written notice thereof from Developer. If Authority does not provide a Change Order Response within such ten ( 10) Business Day period, then Developer may provide written notice thereof to Authority. If Authority does not provide a Change Order Response within two (2) additional Business Days after receipt of such notice from Developer, then Developer shall be entitled to an Expedited Review Process as described below. Without limitation of the foregoing, Authority shall consider reasonably and in good faith any change to the Contract Documents or the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements that is proposed by Developer to address conditions affecting the Project Site that are unknown to Developer as of the Effective Date.
b. Developer shall also be entitled to an Expedited Review Process for any change to the Contract Documents or the Approved Drawings and Specifications whether such change results in a change order that is subject to approval by the Authority or not) if Developer determines in good faith that such changes or change orders may be required to Complete the Resort Hotel, Parking Improvements, and Convention Center on or before the completion date set forth in the then-current CPM schedule for the Resort Hotel, Parking Improvements, and Project, a copy of which shall be provided by the Developer to the Authority. c. Each “ Expedited Review Process” shall proceed as
follows: Developer shall initiate each Expedited Review Process by sending notice to the Authority by electronic mail to the Authority Email Addresses. Such email shall have the subject line “ RHCC Project Expedited Review Process Request” notice shall include all information necessary to enable the Authority to make a determination of whether to approve or deny the change, change order, or other request that is the subject of the Expedited Review Process. Within 24 Business Hours of receipt of such emailed notice, the applicable Expedited Review Individual shall provide either an approval, a denial, or a request for clarification and/or documentation. The response from the Expedited Review Individual shall be provided to the Developer via email. Should the Expedited Review Individual fail to respond within 24 Business Hours from the time the email initiating the Expedited Review Process is sent by the Developer, the change shall be deemed disapproved. d. In the event of a deemed disapproval under Section
2.1.6.1c, Developer may proceed in accordance with the Contract Documents and Approved Drawings and Specifications then in existence, without the requested change, or may request approval of an alternative change through an Expedited Review Process as described in this Section. e. If Authority disapproves a requested change or change order and Authority’ s Change Order Response indicates that the sole reason for such disapproval is the increased cost of the proposed change pursuant to Section 2.1.6.1(a)(i), then Developer may elect to require Authority to approve the change; provided that the increased cost of such change will not constitute a Developer’ s Phase 1A Infrastructure Improvements Cost and Authority shall have no obligation to pay or reimburse Developer for the cost of such change; provided, however, that if upon 8 4825- 3218- 1203/ 024036- 0079
Acceptance of the Developer’ s Phase 1A Infrastructure Improvements and payment of all Developer’ s Phase 1A Infrastructure Improvements Cost, the total Developer’ s Phase 1A Infrastructure Improvements Cost was less than the total original Developer’ s Phase 1A Infrastructure Improvements Budget ( as revised from time to time to reflect any change order requested by a Public Entity), the Authority shall reimburse Developer for the increased costs associated with such change orders actually paid by Developer pursuant to this Section, without interest, up to the amount by which the original Developer’ s Phase 1A Infrastructure Improvements Budget ( as revised from time to time to reflect any change order requested by a Public Entity) exceeds the actual final amount of the Developer’ s Phase 1A Infrastructure Improvements Cost paid to Developer. Developer shall provide written notice to Authority of its election to proceed with a change without Authority approval pursuant to this Section 2.1.6.1e. f. All changes and change orders requested pursuant to this Section 2.1.6.1 shall be requested by Developer by email delivered to the Authority Email Addresses with a subject line indicating a “ Developer’ s Phase 1A Infrastructure Improvements Change” is being requested.
2.1.6.2. Changes Requested by Authority. Developer shall meet and confer in good faith with Authority regarding, and will reasonably consider in good faith, any changes that Authority desires to make to the Approved Drawings and Specifications with respect to the Developer’ s Phase 1A Infrastructure Improvements, and Developer shall use commercially reasonable efforts to implement any such changes, to the extent Developer reasonably determines that such changes result in none of the following: (i) any delay to the date on which Completion of the Developer’ s Phase 1A Infrastructure Improvements occurs; (ii) any adverse effect with respect to the Developer’ s Phase 1A Infrastructure Improvements’ compliance with Law nor (iii) any adverse effect on the development, maintenance or operation of ( including any adverse effect on the compliance with Law by) the Convention Center or the Private Improvements ( as defined in the Ground Lease). Subject only to the following sentence, if and to the extent changes requested by the Authority and approved by the Developer under this Section result in a net increase in the Developer’ s Phase 1A Infrastructure Improvements Costs, then the net increase in Developer’ s Phase 1A Infrastructure Improvements Costs resulting from such change shall be paid as follows: (A) by the City, if the City requested the change; ( B) by the Port District, if the Port District requested the change; and (C) by the City and Port District, equally, or in such other proportion as may be agreed to by the City and Port District; provided that the Developer shall not be required to implement the requested change until the Authority has confirmed to the Developer in writing which Public Entity will be responsible for payment of such increased cost and such amounts are deposited into the appropriate subaccounts under the Indenture pursuant to Section 2.1.6.3 below. Changes required to comply with this Agreement, Contemporaneous Agreements, permits, the CDP, or Laws shall not be considered requested by the Authority, the Port District, or the City under this Section 2.1.6.2.
2.1.6.3. If the City is required to contribute money to pay all or a portion of the increased Developer’ s Phase 1A Infrastructure Improvements Costs relating to a change approved pursuant to Section 2.1.6.2, then the City shall deposit the required amount into the Phase 1A Infrastructure Improvements Subaccount of the 2022B Construction Account. If the Port District is required to contribute money to pay all or a portion of the increased Developer’ s Phase 1A Infrastructure Improvements Costs relating to a change pursuant to Section 2.1.6.2, then the Port District shall deposit the required amount into the Phase 1A Infrastructure Improvements Subaccount of the 2022B Construction Account.
9 4825- 3218- 1203/ 024036- 0079
2.1.6.4. Nothing in this Agreement amends or waives the regulatory process for amending permits or plans approved by the City or the Port District, which shall be governed by the City’ s and Port District’ s established entitlement and permitting processes and applicable Laws.
2.2. Convention Center. Developer shall cause the development of the Convention Center substantially in accordance in all material respects with the Convention Center Plans, within the timeframe described in Section 5.1 and in accordance with all the terms and conditions of this Agreement.
2.2.1. Complete and Functional Improvements. Developer shall provide a complete and functional Convention Center substantially in accordance in all material respects with the Convention Center Plans and the Convention Center Costs incurred shall not be less than the Project Public Investment Amount.
2.2.2. Payment of Convention Center Costs. In consideration for the work performed or caused to be performed by Developer pursuant to this Section 2.2, the Authority shall pay the Convention Center Contract Sum to Developer pursuant to the procedures set forth in Section 9.2.
2.3. Sweetwater Park. Port District shall Sufficiently Complete development of Sweetwater Park. “Sufficient Completion” or “Sufficiently Complete” means that the Port District, in its sole and good faith discretion, determines that Sweetwater Park, as developed, satisfies the following criteria: ( 1) the Sweetwater Park on parcel S2 shall be open to the public and include improvements such as landscaping, public parking lots and restrooms, which may be temporary in nature and ( 2) the development within the Transition Buffer Areas and Limited Use zones of parcel SP-1 and the fencing of the No Touch Buffer Area of parcel SP-1 shall be completed. The Transition Buffer Areas and Limited Use zones of parcel SP-1 and the No Touch Buffer Area of parcel SP-1 are described in the certified PMP. Port District may, in its sole and absolute discretion, further develop Sweetwater Park following achievement of Sufficient Completion, including but not limited to the development of additional features, elements and/or landscaping, without any obligation to the Developer and without requiring Developer’ s approval or consent.
2.3.1. Sweetwater Park Updates. Until such time as Developer exercises a Sweetwater Park Option, Port District shall provide, not less frequently than monthly, written updates to the Developer of the progress of the development of Sweetwater Park and shall provide written notice to Developer when Port District determines that Sweetwater Park is Sufficiently Complete.
2.3.2. First Sweetwater Park Option. Port District shall provide written notice to Developer at least thirty (30) days before Port District advertises for bids for the construction of Sweetwater Park and shall provide Developer with all Sweetwater Park Materials to the extent available at such time. On or before 5:00 p.m. (Pacific Time) on the last day of such thirty (30) day period ( such date, the “ First Sweetwater Park End Date”), Developer may, but shall not be obligated to, exercise the option to Sufficiently Complete Sweetwater Park (the “ First Sweetwater Park Option”). If Developer exercises the First Sweetwater Park Option, then: (a) Sweetwater Park shall thereafter be considered part of Developer’ s Phase 1A Infrastructure Improvements for purposes of this Agreement ( except as otherwise set forth herein), and Developer shall expeditiously Sufficiently Complete Sweetwater Park, and ( b) subject to section 2.3.2.1, Developer’ s costs to 10 4825- 3218- 1203/ 024036- 0079
Sufficiently Complete Sweetwater Park shall be considered Developer’ s Phase 1A Infrastructure Improvements Costs and shall thereafter be payable in the same manner as other Developer’ s Phase 1A Infrastructure Improvements Costs.
2.3.2.1. Developer may exercise the First Sweetwater Park Option only by giving written notice to the Port District and the Authority (which notice must be acknowledged by the Permitted Lenders), with a copy to the Administrative Agent (“ First Developer Completion Notice”) prior to the First Sweetwater Park End Date. If Developer does not deliver the First Developer Completion Notice prior to the First Sweetwater Park End Date, then ( a) the First Sweetwater Park Option shall terminate, and ( b) the Port District shall expeditiously continue development of the Sweetwater Park until Sufficiently Complete. Notwithstanding delivery of the First Developer Completion Notice, Developer shall not commence any development work for Sweetwater Park at the Remaining Phase 1A Infrastructure Improvements Site until the Developer has the right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in accordance with Section 2.3.2.4 below. Notwithstanding the foregoing, Developer may commence any other work for the performance of the Sweetwater Park that does not require access to the Remaining Phase 1A Infrastructure Improvements commencing on the first calendar day after Developer exercises the First Sweetwater Park Option. The Authority will not issue payment to Developer for work performed on Sweetwater Park if Developer does not exercise any of the First Sweetwater Park Option or the Second Sweetwater Park Option (as defined below). If Developer exercises the First Sweetwater Park Option, then with respect to Sweetwater Park, Developer shall be entitled to reimbursement only of costs incurred by Developer from and after the date the First Developer Completion Notice is delivered to Port District.
2.3.2.2. If Developer timely delivers the First Developer Completion Notice, then ( a) Developer shall Sufficiently Complete Sweetwater Park in accordance with Sweetwater Park Materials on or before the Outside Construction Completion Date, and ( b)within five (5) Business Days after Port District’ s timely receipt of the First Developer Completion Notice, Port District shall deliver to Developer the Sweetwater Park Materials that have not previously been delivered to Developer. After Developer has delivered the First Developer Completion Notice, the Port District shall reasonably cooperate with Developer, at no cost or expense to Developer, in seeking any consent to Developer’ s use of such Sweetwater Park Materials reasonably requested by Developer from the preparer or issuer of any Sweetwater Park Materials.
2.3.2.3. [ Reserved].
2.3.2.4. If Developer exercises the First Sweetwater Park Option, the Developer Parties shall have the non-exclusive right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in connection with the construction and development of Sweetwater Park commencing on the First Sweetwater Park End Date and ending on the earlier of the following dates: ( x) the date on which Sweetwater Park is Accepted; and ( y) the date on which this Agreement is terminated.
2.3.2.5. If Developer exercises the First Sweetwater Park Option, Developer’ s failure to Sufficiently Complete Sweetwater Park by the Original Outside Construction Completion Date shall in no event relieve Developer of the obligation to pay Construction Late Charges.
11 4825- 3218- 1203/ 024036- 0079
2.3.3. Second Sweetwater Park Option. If Developer does not exercise the First Sweetwater Park Option and the development of Sweetwater Park is not Sufficiently Complete on or before the Second Sweetwater Park End Date, then Developer may, but shall not be obligated to, exercise the option to Sufficiently Complete Sweetwater Park ( the “ Second Sweetwater Park Option”; and, together with the First Sweetwater Park Option, the “ Sweetwater Park Option”). If Developer exercises the Second Sweetwater Park Option, then: ( a) Sweetwater Park shall thereafter be considered part of Developer’ s Phase 1A Infrastructure Improvements for purposes of this Agreement ( except as otherwise set forth herein), and Developer shall expeditiously Sufficiently Complete Sweetwater Park and ( b) subject to Section 2.3.3.1, Developer’ s costs to Sufficiently Complete Sweetwater Park shall be considered Developer’ s Phase 1A Infrastructure Improvements Costs and shall thereafter be payable in the same manner as other Developer’ s Phase 1A Infrastructure Improvements Costs. The Second Sweetwater Park Option shall terminate upon Port District irrevocably notifying Developer that Sweetwater Park is Sufficiently Complete.
2.3.3.1. Developer may exercise the Second Sweetwater Park Option only by giving written notice to the Port District and the Authority (which notice must be acknowledged by the Permitted Lenders), with a copy to the Administrative Agent (“ Second Developer Completion Notice”) within ten (10) Business Days after the Second Sweetwater Park End Date, but not sooner than ten (10) days prior to the Second Sweetwater Park End Date. If Developer does not deliver the Second Developer Completion Notice within the time stated in this Section 2.3.3.1, then a) the Second Sweetwater Park Option shall terminate at 5:00 p.m. (Pacific Time) on the date that is ten ( 10) Business Days after the Second Sweetwater Park End Date and Developer shall have no further remedy against Port District with respect to the development of Sweetwater Park, and (b) the Port District shall expeditiously continue development of Sweetwater Park until Sufficiently Complete. Notwithstanding delivery of the Second Developer Completion Notice, Developer shall not commence any development work for Sweetwater Park at the Remaining Phase 1A Infrastructure Improvements Site until the Developer has the right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in accordance with Section 2.3.3.4 below. Notwithstanding the foregoing, Developer may commence any work for the performance of the Sweetwater Park that does not require access to the Remaining Phase 1A Infrastructure Improvements commencing on the first calendar day after the Second Sweetwater Park End Date. The Authority will not issue payment to Developer for work performed on Sweetwater Park if the Port District Sufficiently Completes Sweetwater Park by the Second Sweetwater Park End Date or if Developer does not exercise any of the Second Sweetwater Park Option or the First Sweetwater Park Option. If Developer exercises the Second Sweetwater Park Option, then with respect to Sweetwater Park, Developer shall be entitled to reimbursement only of costs incurred by Developer from and after Developer’ s exercise of the Second Sweetwater Park Option. Developer shall not request reimbursement for such costs until after the Second Sweetwater Park End Date.
2.3.3.2. If Developer timely delivers the Second Developer Completion Notice, then ( a) Developer shall Sufficiently Complete Sweetwater Park in accordance with the Sweetwater Park Materials on or before the Outside Construction Completion Date, and ( b) within five ( 5) Business Days after Port District’ s timely receipt of the Second Developer Completion Notice, Port District shall (i) issue a notice of termination under any outstanding Sweetwater Park Construction Contracts and ( ii) deliver to Developer the Sweetwater Park Materials that have not previously been delivered to Developer. After the Developer has delivered the Second Developer Completion Notice, the Port District shall reasonably cooperate with Developer, at no cost or expense to the Developer, in seeking any consent from the preparer or issuer of any Sweetwater Park Materials. If Port District fails to issue a notice of termination under any outstanding Sweetwater 12 4825- 3218- 1203/ 024036- 0079
Park Construction Contract within five (5) Business Days after Port District’ s timely receipt of the Second Developer Completion Notice as set forth above, then Developer shall have the right to issue such notice of termination on behalf of Port District and on Developer’ s own behalf pursuant to Section 2.3.4.2.
2.3.3.3. Prior to delivery of the Second Developer Completion Notice, but not sooner than six ( 6) months prior to the Second Sweetwater Park End Date, Developer may request, and Port District shall from time-to-time provide, within ten ( 10) Business Days after Developer’ s request therefor, ( i) copies of the Sweetwater Park Materials, all outstanding construction, development and design documents related to Sweetwater Park ( including, without limitation, construction contracts, pay applications and architect certifications), at Developer’ s sole cost and expense, and ( ii)a written description of the work that remains uncompleted in order to cause Sweetwater Park to be Sufficiently Complete.
2.3.3.4. If Developer exercises the Second Sweetwater Park Option, the Developer Parties shall have the non-exclusive right to enter upon the Remaining Phase 1A Infrastructure Improvements Site in connection with the construction and development of Sweetwater Park commencing on the date that is the later of ( a) ten ( 10) days after Developer exercises the Second Sweetwater Park Option or (b) the day after the Second Sweetwater Park End Date and ending on the earlier of the following dates: ( x) the date on which Sweetwater Park is Accepted; and (y) the date on which this Agreement is terminated.
2.3.3.5. If Developer exercises the Sweetwater Park Option, Developer’ s failure to Sufficiently Complete Sweetwater Park by the Original Outside Construction Completion Date shall in no event relieve Developer of the obligation to pay Construction Late Charges.
2.3.3.6. Each Sweetwater Park Design Contract is hereby assigned by Port District to Developer; provided, that such assignment shall be effective only upon Developer’ s exercise of the Second Sweetwater Park Option and only for those Sweetwater Park Contracts that Developer accepts by notifying Port District and the counterparty to such Sweetwater Park Contract in writing. When the Developer accepts the assignment of a Sweetwater Park Design Contract, Developer assumes Port District’ s rights and obligations under such Sweetwater Park Design Contract, but in the case of obligations, only to the extent such obligations are to be performed after the date Developer accepts the assignment. Port District shall not assign any Sweetwater Park Design Contract to, or grant a security interest in any Sweetwater Park Design Contract in favor of, any person or entity other than Developer. Port District hereby grants to Developer a security interest in the Sweetwater Park Design Contracts to secure Port District’ s obligations under the preceding sentence of this Section 2.3.3.6, and Port District shall take such steps as may be reasonably requested by Developer to evidence and perfect such security interest (including, without limitation, by authorizing Developer to file a UCC-1 financing statement with respect to the Sweetwater Park Design Contracts). Developer shall not assign its security interest in any Sweetwater Park Design Contract, except that it may assign or collaterally assign such security interest to a permitted assignee, or permitted collateral assignee, of this Agreement.
2.3.4. Sweetwater Park Contracts.
2.3.4.1. Port District shall include in each Sweetwater Park Design Contract (or, to the extent that any Sweetwater Park Design Contract exists as of the Effective Date, amend such Sweetwater Park Design Contract to include): ( a) a provision that permits Port District 13 4825- 3218- 1203/ 024036- 0079
or its successors or assignees) or Developer to terminate such Sweetwater Park Design Contract for convenience upon not more than ten ( 10) days’ prior written notice, ( b) to the extent applicable, a provision that Developer is entitled to use any drawings, plans or specifications prepared under such Sweetwater Park Design Contract in connection the construction or development of Sweetwater Park, and ( c) the following provision with appropriate conforming modifications: “[ Contractor] consents to the assignment of [ Port District’ s] rights and obligations in this [ Sweetwater Park Design Contract] by [ Port District] to RIDA Chula Vista, LLC, its assigns and/or its lenders and their respective assigns (“ Developer Parties”), and agrees that the warranties and obligations hereunder shall inure to the benefit of Developer Parties, all as if Developer Parties were a party of this Sweetwater Park Design Contract]. Such assignment will be effective when a Developer Party delivers to [ Contractor] and [ Port District] a notice accepting such assignment and assuming Port District’ s obligations under this [Sweetwater Park Design Contract] from and after the date of such notice. From and after Contractor’ s receipt of such notice, [ Contractor] will treat such Developer Party as the [ Port District] under this [ Sweetwater Park Design Contract].” To the extent that Developer assumes Port District’ s obligations under any Sweetwater Park Design Contract, Developer may pay any amounts that are owing to the counterparty under such Sweetwater Park Design Contract which result from a breach by Port District under such Sweetwater Park Design Contract, and such payments shall constitute Developer’ s Phase 1A Infrastructure Improvements Costs. Unless Developer does not exercise the First Sweetwater Park Option prior to the First Sweetwater Park End Date and does not exercise the Second Sweetwater Park Option prior to the Second Sweetwater Park End Date, Port District shall neither assign nor terminate any Sweetwater Park Design Contract without Developer’ s prior written consent, which shall not be unreasonably withheld or delayed.
2.3.4.2. Port District shall include in each Sweetwater Park Construction Contract (or, to the extent that any Sweetwater Park Construction Contract exists as of the Effective Date, amend such Sweetwater Park Construction Contract to include): ( a) a provision that permits Port District ( or its successors or assignees) or Developer to terminate such Sweetwater Park Construction Contract for convenience upon not more than ten ( 10) days’ prior written notice, and b) the following provision with appropriate conforming modifications: “[ Contractor] agrees that RIDA Chula Vista, LLC, its assigns and/or its lenders and their respective assigns (“ Developer Parties”) shall have the right to terminate this [Sweetwater Park Construction Contract] pursuant to cross-reference termination for convenience provision] of this Sweetwater Park Construction Contract as if Developer Parties were a party of this [Sweetwater Park Construction Contract]. Such termination will be effective when a Developer Party delivers to [ Contractor] and [ Port District] a notice of termination pursuant to such Section. Notwithstanding anything to the contrary in this Sweetwater Park Construction Contract], no Developer Party shall have any obligations under this Sweetwater Park Construction Contract].”
2.3.4.3. Developer shall have no right to accept assignment of a Sweetwater Park Design Contract or to terminate for convenience a Sweetwater Park Design Contract or Sweetwater Park Construction Contract, unless and until Developer exercises the First Sweetwater Park Option or the Second Sweetwater Park Option, as applicable. Developer shall provide any notice of its acceptance of assignment or notice of termination for convenience excluding any notice of termination for convenience after Developer’ s acceptance of assignment of the applicable contract) to the Port District and the counterparty of the respective contract within thirty ( 30) days following delivery of the First Developer Completion Notice or the Second Developer Completion Notice, as applicable.
14 4825- 3218- 1203/ 024036- 0079
2.3.5. Sweetwater Park Materials. Port District shall use commercially reasonable efforts to deliver the Sweetwater Park Materials to Developer pursuant to Section 2.3.3.3 or as soon as practicable after Developer exercises the First Sweetwater Park Option or the Second Sweetwater Park Option. After Developer exercise the First Sweetwater Park Option or the Second Sweetwater Park Option, Developer shall have the right to use any and all plans, drawings and specifications that constitute Sweetwater Park Materials for construction and development of Sweetwater Park. The Sweetwater Park Materials ( other than the Sweetwater Park Design Contracts that are assumed by Developer) shall remain the property of the Port District, and Developer shall return or deliver all such Sweetwater Park Materials to the Port District upon Acceptance of Sweetwater Park.
2.3.6. The Port and the Authority represent that based on a 60% Cost Estimate prepared by KTU+A dated January 25, 2022 for the Remaining Phase 1A Improvements, which includes a scope of work adequate for Sufficient Completion, attached hereto as Exhibit D-1-C Engineering Budget”), as of the Date of Agreement, the Authority has identified funds as shown on Exhibit D-1-B that cover the cost of the Engineering Budget provided as Exhibit D-1-C.
ARTICLE III
DURATION OF AGREEMENT
3.1. Term of Agreement. This Agreement shall become effective on the Effective Date, and the term of this Agreement (the “ Term”) shall extend until the earlier of (a) the termination of this Agreement by the Public Entities according to the termination provisions herein, ( b) the termination of the Sublease according to Sections 5.1 or 5.2 of the Sublease ( unless Authority provides written notice to Developer within ten ( 10) Business Days after the termination of this Agreement directing Developer to complete the Developer’ s Phase 1A Infrastructure Improvements, in which case ( i) except with respect to obligations that expressly survive the termination of this Agreement, Developer shall have no further obligations hereunder with respect to the Convention Center and ( ii) the Term shall end upon Acceptance of all Developer’ s Phase 1A Infrastructure Improvements and ( if Developer has exercised a Sweetwater Park Option) the Acceptance of Sweetwater Park, or ( c) the later of (i) the termination or expiration of the Sublease and ( ii) the occurrence of the Expansion Date under and as defined in the Ground Lease. Notwithstanding the foregoing, but subject to the next sentence of this Section 3.1, if the Sublease terminates according to Sections 5.1 or 5.2 of the Sublease, but the Ground Lease remains in effect, then (x) Developer shall have no further obligations hereunder with respect to the Convention Center, but this Agreement shall otherwise remain in effect ( including with respect to Developer’ s Phase 1A Infrastructure Improvements and Sweetwater Park ( including with respect to the payment for each of the foregoing)) and ( y) the Term shall end upon Acceptance of all Developer’ s Phase 1A Infrastructure Improvements and ( if Developer has exercised a Sweetwater Park Option) the Acceptance of Sweetwater Park. Notwithstanding anything to the contrary herein, the Term shall not extend beyond sixty-six (66) years from the Effective Date.
ARTICLE IV
PROJECT COSTS
4.1. Phase 1A Infrastructure Improvements. The provisions of Section 4.1.1 and each subsection thereof shall apply only to the Developer’ s Phase 1A Infrastructure Improvements. 15 4825- 3218- 1203/ 024036- 0079
4.1.1. Public Entity’ s Estimated Developer’ s Phase 1A Infrastructure Improvements Cost.
4.1.1.1. The aggregate Public Entity’ s Estimated Developer’ s Phase 1A Infrastructure Improvements Cost is $ 42,301,555.00 ( including contingency), as shown in Exhibit C-3 attached hereto. Developer’s Phase 1A Infrastructure Improvements Budget as of the Effective Date is attached as Exhibit C-3 hereto. Developer may modify from time to time the Developer’ s Phase 1A Infrastructure Improvements Budget reasonably and in good faith and shall provide written notice of any such modification to the Public Entities. The Developer’ s Phase 1A Infrastructure Improvements Budget shall indicate the Guaranteed Maximum Price for the General Contractor’ s services, which shall not be increased unless (a) the General Contractor is entitled to an increase under the General Contract or (b) as otherwise expressly agreed by the Authority in writing, in the Authority’ s sole and absolute discretion.
4.1.1.2. If, at any time, Developer definitively establishes that the amount expended on the Developer’ s Phase 1A Infrastructure Improvements will exceed the amount set forth in the Developer’ s Phase 1A Infrastructure Improvements Budget (including contingency amounts), Developer shall promptly, and in any case not more than ten (10) Business Days after the Developer definitively establishes the amount of the increase, notify the Executive Director thereof in writing.
This written notification shall include an itemized cost estimate and, to the extent feasible, a list of recommended revisions ( e.g., deductive changes) which Developer believes will bring the cost to within the amount set forth in the Developer’ s Phase 1A Infrastructure Improvements Budget. The Authority may either: ( i) approve an increase in the Developer’ s Phase 1A Infrastructure Improvements Budget ( which approval shall not be unreasonably withheld, conditioned, or delayed) or ( ii) reasonably value engineer, delete or replace subcomponents of a component of the Developer’ s Phase 1A Infrastructure Improvements so that the Developer’ s Phase 1A Infrastructure Improvements can be constructed for the amount set forth in the Developer’ s Phase 1A Infrastructure Improvements Budget, but only if such modification neither has a material and adverse effect on the design, development, or construction of the Resort Hotel, the Parking Improvements, or the Project nor delays the Completion of the Resort Hotel, the Parking Improvements or the Project.
4.1.2. Approved Drawings and Specifications for the Developer’ s Phase 1A Infrastructure Improvements. As of the Effective Date, each of the Port District and the City has reviewed and approved the Approved Drawings and Specifications for the Developer’ s Phase 1A Infrastructure Improvements.
4.2. Convention Center. The provisions of Section 4.2 and each subsection thereof shall apply only to the Convention Center.
4.2.1. Estimated Convention Center Cost. The aggregate Estimated Convention Center Cost is $366,155,925.00. The Convention Center Budget as of the Effective Date is attached as Exhibit P hereto. Developer may modify from time to time the Convention Center Budget reasonably and in good faith and shall provide written notice of any such modification to the Public Entities.
4.3. Cost Reporting. Developer shall, during the Term and, with respect to each record, for a period of seven ( 7) years after the date such record is created ( or such longer period as Developer may decide in its sole discretion), use commercially reasonable efforts to maintain customary records of construction costs incurred by Developer in connection with the Project. Such 16 4825- 3218- 1203/ 024036- 0079
records shall include, but are not limited to, a general ledger, vendor invoices, cancelled checks, agreements with third-party contractors and contractor progress payment billings. Such records may be in electronic format. Developer shall furnish to Authority an itemized statement of the construction costs incurred and paid by Developer in connection with the Improvements, as applicable, within thirty ( 30) days after Developer receives Authority’ s request therefor ( which request shall not be provided to Developer until the respective Improvements have been Completed).
The statement shall be sworn to and signed, under penalty of perjury, by Developer as fairly representing, to the best of Developer’ s knowledge, the construction costs incurred and paid by Developer. Should Developer perform any construction with its own personnel, Developer shall during the Term and, with respect to each record, for a period of seven (7) years after the date of such record (or such longer period as Developer may decide in its sole discretion), maintain the following records with respect to the actual work performed by its own personnel: a payroll journal, copies of cancelled payroll checks, and timecards or other payroll documents which show dates worked, hours worked, and pay rates. Books and records herein required shall be maintained and made available either at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to Authority. Authority shall have the right with 48 hours’ advanced notice and at reasonable times to examine and audit said books and records without restriction for the purpose of determining the accuracy thereof, and the accuracy of the aforesaid statement. In the event Developer does not make available the original books and records at the Project Site, the Convention Center, or at such other location in San Diego County, California, then Developer agrees to pay all expenses incurred by the Authority Parties, as applicable, in conducting an audit at the location where said books and records are maintained. After the seven (7) year period has expired for any record subject to this Section 4.3, Developer shall deliver the original or an electronic copy of such record to Authority at the address set forth in Section 26.1 or such other location designated by Authority in writing, which may include the main offices of the City; provided, however, that Developer may elect to deliver all of the records subject to this Section 4.3 that expire in a given year at one time, in one delivery, within twelve (12) months after the end of the applicable year.
ARTICLE V
CONSTRUCTION OF THE PROJECT AND THE REMAINING
PHASE 1A INFRASTRUCTURE IMPROVEMENTS
5.1. Construction of the Project.
5.1.1. Commencement and Completion of the Project.
5.1.1.1. Following the Commencement Date, but not later than the Outside Construction Commencement Date, Developer shall commence the construction of the Project. Developer shall be deemed to have commenced the construction of the Project when Developer delivers a notice to proceed with respect to the construction of the Project to Developer’ s contractor. Thereafter, Developer shall, subject to the terms of Section 5.5, diligently proceed with the construction of the Project to Completion, and Complete the Project by the Outside Construction Completion Date. Without limiting the generality of the foregoing, Developer acknowledges and agrees that the cessation of construction of the Project for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event, be deemed a failure by Developer to diligently proceed with the construction of the Project to Completion and shall constitute an Event of Default under this Agreement without further notice or cure right by Developer if Developer does not resume construction of the Project within ten ( 10) days after Developer receives notice thereof from 17 4825- 3218- 1203/ 024036- 0079
Authority which notice shall include the following language: “ FAILURE BY DEVELOPER TO
RESUME CONSTRUCTION OF THE PROJECT ( AS SUCH TERM IS DEFINED IN THE PROJECT IMPLEMENTATION AGREEMENT) WITHIN TEN ( 10) DAYS AFTER THE
DATE DEVELOPER RECEIVES, OR IS DEEMED TO HAVE RECEIVED, THIS NOTICE
SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE PROJECT
IMPLEMENTATION AGREEMENT”.
5.1.1.2. The Convention Center Plans have been previously approved in writing by Port District, Authority and City. Changes to the Convention Center Plans must be approved by the Authority in writing, in Authority’ s sole and absolute discretion, and, once approved, shall be considered a part of the “ Convention Center Plans”; provided, however, Authority’ s approval of any change in the Convention Center Plans shall not be required if: (a) such change does not result in a use that is not a Permitted Use, ( b) such change does not require modifications to the Convention Center Plans for the structural portions of the Convention Center, c) such change does not change the design principles of the exterior appearance of the Convention Center ( if any), as set forth in the CDP, ( d) such change is in compliance with the Chula Vista Building Code, ( e) such change is in compliance with, and does not violate the provisions of, the PMP, CDP, the EIR, CVBMP Documents and any other Laws, (f) such change does not trigger any storm water construction BMP permit or permanent structural BMP permit or alterations to existing permanent structural BMPs, and (g) such change does not pave any area greater than twenty-five (25) square feet unless Developer has previously secured the approval to perform such work from all applicable Governmental Authorities, including the Authority. Within thirty ( 30) days of the Authority’ s notice to Developer, Developer shall provide to Authority a reasonably detailed explanation of all changes that Developer has made to the Convention Center Plans without the Authority’ s approval pursuant to this Section 5.1.1, including, without limitation, an explanation of why such change did not require approval from the Authority, and copies of the revised Convention Center Plans showing the changes, and Authority shall have thirty (30) days from the receipt of such information to object to the changes to the Convention Center Plans as requiring the Authority’ s approval as provided in this Section 5.1.1.2. The Convention Center Plans are by this reference made a part hereof. In the event of any inconsistency between the Convention Center Plans and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall prevail.
5.1.1.3. In constructing the Project, Developer shall comply with all Construction Requirements set forth in Exhibit E attached hereto and all Laws, including, without limitation, the PMP requirements, mitigation measures or conditions of approval under the terms of any of the approvals by any Governmental Authority for the Project, including any CDPs applicable to the Project Site or the use or development thereof and any conditions of approval or mitigation measures or Project changes pursuant to any environmental review under CEQA.
5.1.2. Initial Public Financing Payments; Construction Late Charge. Developer hereby acknowledges that if the Resort Hotel, Parking Improvements, and Convention Center are not Complete by the Original Outside Construction Completion Date, Authority Parties, Port District Parties, Financing District Parties, and City Parties will incur costs not contemplated by this Agreement, the Ground Lease and the Convention Center Leases. Accordingly, in the event Developer does not Complete the Resort Hotel, Parking Improvements, and Convention Center by the Original Outside Construction Completion Date, then, beginning with the first month following the Original Outside Construction Completion Date, and monthly thereafter until the Resort Hotel, Parking Improvements, and Convention Center are Complete, the Developer shall, on or before the first day of each such month, pay to the Trustee, as assignee of Authority under the Authority 18 4825- 3218- 1203/ 024036- 0079
Indenture, the payments ( collectively referred to as the “ DPFP”) based on the formula set forth below (collectively, “ Construction Late Charges”). The Parties further agree that the Construction Late Charges apply whether or not Developer receives notice of its failure to Complete the Convention Center, Resort Hotel, or Parking Improvements, and that said Construction Late Charges are appropriate to compensate the City, Port District, Financing District, and Authority, and are the sole compensation and remedy of the Public Entities, for the Developer’ s failure to construct the Resort Hotel, Convention Center, Developer’ s Phase 1A Infrastructure Improvements, or the Parking Improvements by the Original Outside Construction Completion Date, including any loss resulting from the loss of revenues that the Authority Parties, the Port District Parties, the Financing District Parties and the City Parties would have received if the Resort Hotel, Convention Center, Parking Improvements, and Developer’ s Phase 1A Infrastructure Improvements had been Completed by the Original Outside Construction Completion Date. Notwithstanding the preceding sentence, Developer acknowledges and agrees that, as and to the extent provided in the next sentence, there will be an Event of Default for the failure to Complete the Convention Center if (a) Developer fails to Complete the Convention Center by the date that is three hundred sixty-five ( 365) days after the Outside Construction Completion Date ( the “ Extended Construction Period Deadline”) ( as extended as a result of a Force Majeure Event or Municipal Breach) (“ Late Completion”) and (b) either (i) without limiting Section 21.1.1, Developer does not pay the Construction Late Charges each month until Completion of the Convention Center (a “ Construction Late Charge Failure”) or (ii) if Developer can reasonably Complete the Convention Center within thirty (30) days of the Extended Construction Period Deadline, Developer does not Complete the Convention Center within such thirty (30) days, and if the nature of the Completion of the Convention Center is such that Developer cannot reasonably Complete the Convention Center within such thirty ( 30) days, Developer does not diligently commence such cure within such thirty (30) days or thereafter fails to diligently proceed to rectify and cure such failure ( a “ Completion Cure Failure”, and any Completion Cure Failure or any Construction Late Charge Failure, a “ Post-Late Completion Failure”). Developer acknowledges and agrees that if Late Completion occurs and any Post-Late Completion Failure occurs, then the Public Entities may declare an Event of Default for failure to Complete the Convention Center, and such Event of Default shall constitute a cross-default under the Ground Lease and the Sublease, if Developer does not cure its Post-Late Completion Failure within thirty 30) days of receipt of notice from the Authority, and Developer shall not be entitled to any additional cure periods under Article XXI herein. Developer acknowledges and agrees that the payment of Construction Late Charges does not constitute an exclusive remedy for any Event of Default under this Agreement for failure to construct the Convention Center or the Developer’ s Phase 1A Infrastructure Improvements, Event of Default under the Sublease for failure to Complete the Convention Center, or Event of Default under the Ground Lease for failure to Complete the Resort Hotel and Parking Improvements. Each of the Public Entities acknowledges and agrees that if Developer fails to Complete the Convention Center, the Resort Hotel and Parking Improvements, Developer shall only be required to pay one set of Construction Late Charges monthly and such Construction Late Charges shall not be doubled. Without limiting the generality of the foregoing, Developer acknowledges and agrees that the cessation of construction of the Convention Center for more than thirty (30) consecutive days shall, unless caused by a Force Majeure Event or Municipal Breach, be deemed a failure by Developer to diligently proceed with the construction of the Convention Center to Completion and shall constitute an Event of Default under this Agreement without further notice or cure right by Developer if Developer does not resume construction of the Convention Center within ten ( 10) days after Developer receives notice thereof from the Public Entities which notice shall include the following language: “ FAILURE BY DEVELOPER TO
RESUME CONSTRUCTION OF THE CONVENTION CENTER ( AS SUCH TERM IS DEFINED IN THE PROJECT IMPLEMENTATION AGREEMENT) WITHIN TEN ( 10) 19 4825- 3218- 1203/ 024036- 0079
DAYS AFTER THE DATE DEVELOPER RECEIVES, OR IS DEEMED TO HAVE
RECEIVED, THIS NOTICE SHALL CONSTITUTE AN EVENT OF DEFAULT UNDER THE PROJECT IMPLEMENTATION AGREEMENT”.
Calculation of DPFP Formula:
DPFP =
Example of Calculation of DPFP:
Assuming the following annual amounts:
Annual PDSO: $18,000,000
Annual EF: $4,000,000
Annual DSP: $4,000,000
DPFP =
DPFP =
DPFP = $ 833,333.33
For purposes of this Section 5.1.2:
District Support Payment” or “ DSP” means, with respect to any Fiscal Year, the Annual Support Payments under and as defined in the Port Support Agreement as of the Effective Date that are due and payable during such Fiscal Year.
Existing Funds” or “EF” means, collectively, with respect to any Fiscal Year, moneys in an amount equivalent to each of the following sources of funds described in (i), (ii), and (iii), actually received by the Port District or the City, during such Fiscal Year:
i) the Real Estate Revenues ( defined below) received by the Port District during the preceding Fiscal Year, which Real Estate Revenues shall be subject to adjustment pursuant to Section
5.1.3 below;
ii) the TOT attributable to the RV Park Lease; and
iii) an amount equal to $986,625.00, increasing 3% on July 1 of each year, commencing July 1, 2017, which amount is based on the payment made by the Port District to the City in Fiscal Year 2016 pursuant to that certain Municipal Services Agreement No. 88-2012 between the Port District and the City for the provision of Police, Fire and Emergency Medical Services. 20 4825- 3218- 1203/ 024036- 0079
Real Estate Revenues” means all funds actually received by the Port District from the following items on a yearly basis:
a) the funds actually received by the Port District from the premises that are the subject of the real estate agreements as of the date hereof ( each, the “ Original Premises”) set forth in Exhibit I (each, a “ Real Estate Agreement” and collectively, the “ Real Estate Agreements”); provided, however, if any of the Real Estate Agreements are renewed, replaced, assigned, or amended after the Effective Date but before the date on which the Support Agreement terminates in accordance with its terms, then on and after such renewal, replacement, assignment, or amendment, as applicable, the following shall apply:
1) if the Original Premises for such Real Estate Agreement remains the same, then the contribution of the Port District shall be the funds actually received by the Port District from such Real Estate Agreement regardless of whether such amounts are the same as, less, or more than previously contributed by the Port District under such Real Estate Agreement; 2) if the Original Premises for such Real Estate Agreement are decreased either in size or configuration, then the contribution of the Port District shall be the funds actually received by the Port District from such Real Estate Agreement regardless of whether such amounts are the same as, less, or more than previously contributed by the Port District under such Real Estate Agreement; provided, that if the portion of the Original Premises excluded from the aforementioned agreement (“ Remainder Parcel”) becomes the subject of a future Real Estate Agreement, then the contribution of the Port District shall be the funds actually received by the Port District and allocable to such Remainder Parcel pursuant to the Support Agreement; 3) if the Original Premises for such Real Estate Agreement are increased either in size or configuration to include additional premises outside of the Original Premises boundaries of such Real Estate Agreement and such additional premises are immediately adjoining the original premises or are located in the City of Chula Vista ( each a “ Modified Boundary Agreement”), then the contribution of the Port District shall be the funds actually received by the Port District and allocable to the Original Premises for such Real Estate Agreement based on a formula calculated by multiplying the total amount of the funds actually received from the Port District for such Real Estate Agreement in the immediately prior year by a fraction, the numerator of which shall be an amount equal to the Modified Boundary Agreement premises still within the original premises boundary, and the denominator of which shall be the total premises area of the Modified Boundary Agreement as modified. For example, if the Original Premises of a Real Estate Agreement encompasses 5.0 acres, and the Modified Boundary Agreement includes 4.0 acres of the Original Premises, and adds 6.0 acres of premises outside the original premises, then forty percent 40%) of the funds actually received by the Port District under the Modified Boundary Agreement shall be contributed by the Port District for purposes of this Section; the City and the Port District acknowledge and agree that any modification of the RV Park Lease ( listed on and as defined in Exhibit I) to include some or all of parcel S-3 shall not constitute a “ Modified Boundary Agreement” for purposes of this Section; and for any of the scenarios ( 1)-(3) above, if the new Real Estate Agreement is a revenue generating agreement then the Port District may deduct from its contribution under scenarios ( 1)-(3) any related out-pocket operating costs paid by the Port District to the third parties to operate the premises.
4) Subject to paragraph ( a)(3), above, and paragraph ( b), below, of this definition of “Real Estate Revenues,” for the avoidance of doubt, it is the intent of the Port District to 21 4825- 3218- 1203/ 024036- 0079
contribute funds from the Original Premises derived from a Real Estate Agreement that the Port District actually receives under such Real Estate Agreement from such Original Premises during the term of the Support Agreement.
b) less $3,283,970, which is the actual amount of the buyout payment paid solely by the Port District to Chula Vista Marina, LP, dba Chula Vista Marina (“ RV Park Lessee”) to terminate the lease between the RV Park Lessee and the Port District (“ Net RV Park Buyout Credit”), such amount to be amortized over a period of eight years commencing on July 1, 2018 pursuant to the Net RV Park Buyout Credit Schedule ( defined below), as such Net RV Park Buyout Credit Schedule and its contents may be administratively modified from time to time with the mutual consent of the City Manager of the City and the Executive Director of the Port District, without further approval of the BPC or City Council.
Net RV Park Buyout Credit Schedule” means the following schedule:
Fiscal Year (FY) RV Park Buyout Credit Cumulative Credit Public Debt Service Obligation” or “ PDSO” means, for any year, the actual amount payable by the Authority during such year for principal and interest ( including default interest, if applicable) on the Authority Bonds; provided that the principal component of the PDSO for any one year shall not include more than one thirty-fifth (1/35) of the total original principal amount of the Authority Bonds issued on the Effective Date.
TOT” means the transient occupancy taxes levied pursuant to Chula Vista Municipal Code Chapter 3.40, attributable to the RV Park Lease.
The amount of the DPFP will be reduced to the extent the DPFP would otherwise be increased solely because Port District or the City fails to use commercially reasonable efforts to ensure the receipt of amounts that, if received by the City or the Port District, would be Existing Revenues and are due and payable to the City or the Port District.
5.1.3. True-Up Payments. Because the actual amounts of the DPFP may not be known when Developer is required to pay Construction Late Charges ( since some of the amounts used in the calculation of DPFP will not be known), the Authority shall promptly, after any request by Developer, notify Developer of the reasonably expected amount of the applicable DPFP and Developer shall initially pay Construction Late Charges based on such estimated amounts. Within sixty (60) days after the end of each Fiscal Year with respect to which Developer was required to pay Construction Late Charges pursuant to this Section 5.1, the Port District shall reasonably determine the actual Real Estate Revenues it received during such Fiscal Year and present such amount, together with reasonable supporting documentation, to Developer for Developer’ s review and approval. If the amount of such actual Real Estate Revenues received by the Port District exceeds 22 4825- 3218- 1203/ 024036- 0079
the Real Estate Revenues as calculated based on the preceding Fiscal Year, then the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days from the Revenue Fund maintained under the Authority Indenture. If the amount of such Real Estate Revenues calculated by the Port District based on the preceding Fiscal Year exceeds the amount of such actual Real Estate Revenues received by the Port District, then Developer shall make a true-up payment to the Trustee as assignee of the Authority for deposit into the Revenue Fund under the Authority Indenture for the difference within twenty (20) Business Days of a notice of deficiency.
5.2. Reserved.
5.3. Reserved.
5.4. Project Schedule and Schedule Updates.
5.4.1. Planned Completion Date. For the Developer’ s Phase 1A Infrastructure Improvements, the Project schedule shall indicate a planned completion date following the Commencement Date that is not later than the Outside Construction Completion Date (the “ Planned Completion Date”). The Planned Completion Date may be extended in the event of a delay, provided that Developer duly requests a time extension in accordance with this Section 5.4 and such extension is authorized under this Article V. Any such schedule is for information purposes only.
5.4.2. Critical Path Method Schedules. Developer shall require that MMJV maintain a detailed, computer-generated, logic-driven, precedence style critical path method CPM”) schedule that is prepared with Primavera or other software used by MMJV and that includes all of MMJV’ s work related to the Project. Developer shall submit to the Authority a courtesy copy of all schedules and schedule updates that Developer receives from MMJV. If requested by the Authority, Developer shall deliver digital copies of any schedules in native computer file format.
5.4.3. Schedule Updates. Developer shall provide to Authority regular schedule updates not less than monthly, which shall include: actual start dates; actual completion dates; and remaining duration of activities in progress. Developer shall promptly notify the Authority of any changes to the schedule.
5.5. Unavoidable Delay. Each of the Developer and the Port District shall be entitled to an extension of the date of the performance of any obligation required of such Party under this Agreement upon the occurrence of a Force Majeure Event as and to the extent set forth in this Section 5.5. For the avoidance of doubt, the Hotel Ground Lease shall control as to a Force Majeure Event with respect to the Resort Hotel and Parking Improvements. a) Definition. The term “ Force Majeure Event” means the occurrence of any of the following events ( and the actual collateral effects of such event), individually or in any combination, to the extent that (x) such event is beyond the reasonable control of the Developer, the Port District, the City, the Financing District, or the Authority, as applicable, that is asserting that a Force Majeure Event has occurred ( the “ Force Majeure Party”) and ( y) such event and/or such actual collateral effect prevents such Force Majeure Party from the performance of its obligations under this Agreement and is approved by the Authority pursuant to Section 5.5(e) below:
23 4825- 3218- 1203/ 024036- 0079
i) A strike, or similar labor disturbances causing a work stoppage, excluding any such strike or work stoppage that could have been avoided had the Force Majeure Party ( or Hotel Operator or a Developer Party, in the case of the Project), complied with Laws or labor agreements with respect to the Project, if any.
ii) Hurricanes, typhoons, tornadoes, cyclones, other severe storms, lightning or floods.
iii) Days of precipitation or high winds in any month in excess of ten (10) year average for the area within City’ s jurisdiction.
iv) An earthquake, volcanic eruptions, explosions, disease, epidemics or other natural disaster.
v) Fires (including wildfires).
vi) Inability to procure labor, utilities, equipment, materials, or supplies in the open market due to lack of availability (but, in each case, not attributable to a mere increase in price or the Force Majeure Party’ s (or Hotel Operator or a Developer Party, in the case of the Project) acts or failure to act).
vii) Acts of war or armed conflict, insurrections, riots, and acts of terrorism ( including hijacking, chemical or biological events, nuclear events, disease related events, arson or bombing) or, with respect to any of the foregoing, any threat thereof. viii) Extraordinary delays in the issuance of any approvals or authorizations from any Governmental Authority (excluding any non-regulatory approvals provided under the terms of this Agreement by the Port District, the Authority or the City) that is necessary to proceed with development or operation of the Convention Center, Developer’ s Phase 1A Infrastructure Improvements or the Remaining Phase 1A Infrastructure Improvements, as applicable provided that Developer has timely and properly filed all applications, submitted all required documents and fees and taken all other reasonable actions that are necessary to obtain such approvals or authorizations and that the Force Majeure Party ( or Hotel Operator or a Developer Party) is not responsible for the delay in the issuance of such approvals or authorizations by such party’ s own actions or inactions). For purposes of this paragraph, (A) “extraordinary delays” with respect to City regulatory approvals or authorizations that are subject to the Staffing and Processing Agreement shall mean delays in City processing actions or approvals that exceed 150% of the time periods for City actions under the terms of the Staffing and Processing Agreement, excluding any such delays caused by Developer’ s own actions or inactions thereunder, and (B) “ extraordinary delays” with respect to any other approval or authorization from any Governmental Authority shall mean delays beyond the reasonably expected time period for such approval or authorization which reasonably expected time period shall include customary or reasonably foreseeable delays in obtaining such approvals. ix) An act of God.
x) Embargoes or blockades.
xi) Pre-Existing Hazardous Material ( that is not the result of Material Exacerbation).
24 4825- 3218- 1203/ 024036- 0079
xii) Closures or work stoppages ordered by any Governmental Authority that do not arise from a breach of this Agreement or the Sublease or misconduct by Force Majeure Party (or Hotel Operator or a Developer Party, in the case of the Project). b) Calculation of Delay. Actual delays resulting from the occurrence of one or more Force Majeure Events occurring concurrently shall be calculated concurrently and not consecutively.
c) Exclusions. For purposes of this Section 5.5, a Force Majeure Event shall not include adverse general economic or market conditions not caused by any of the events described in
5.5(a)(i) through (xii) above.
d) Payment Obligations. In no event will a Force Majeure Event excuse the payment of Project Costs due under this Agreement.
e) Notice and Acceptance Requirement. After the Force Majeure Party learns of any Force Majeure Event, such Force Majeure Party shall endeavor to provide prompt ( under the circumstances) informal written notice to the Executive Director and Authority staff working in the field that a Force Majeure Event has commenced, with a formal written notice to follow as described below. The Force Majeure Party shall notify the Authority, the Administrative Agent, and the other Parties in writing within ten ( 10) Business Days after the Force Majeure Party learns of, and in no event later than thirty (30) days after commencement of a Force Majeure Event. Such notice ( the Initial Force Majeure Notice”) must be made in good faith and describe the Force Majeure Event creating delay, why such delay is occurring, the estimated expected duration of such delay, and the commercially reasonable efforts that the Force Majeure Party is taking to minimize the period of delay. Commencing on the date that is thirty (30) days after the date of the Initial Force Majeure Notice and for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exist (whichever is later), the Force Majeure Party shall provide to the Authority, the Administrative Agent, and the other Parties monthly written updates on the estimated expected duration of such delay and the commercially reasonable efforts that the Force Majeure Party is taking to minimize the period of delay. Within thirty (30) days after the Force Majeure Event or the actual collateral effects of such Force Majeure Event cease to exist (whichever is later), the Force Majeure Party shall notify the Authority, the Administrative Agent, and the other Parties in writing that the Force Majeure Event and the actual collateral effects of such Force Majeure Event, as applicable, have ceased to exist and of the number of days by which Force Majeure Event (including the actual collateral effects of such Force Majeure Event) has delayed the Force Majeure Party’ s construction of the Project ( or, with respect to the Port District, the Remaining Phase 1A Infrastructure Improvements) or Completion ( the “ Force Majeure Notice”). Within thirty ( 30) days after Authority’ s receipt of the Force Majeure Notice, the Authority shall provide notice to the Force Majeure Party and the other Parties (“ Force Majeure Response”) that either the Authority a) requires additional information to make a determination regarding the Force Majeure Party’ s assertion of the existence of a Force Majeure Event or the duration of the delay caused by the Force Majeure Event or the actual collateral effects of such Force Majeure Event, ( b) approves the Force Majeure Notice, or (c) denies some or all of the Force Majeure Notice. The Authority’ s approval or denial of the Force Majeure Notice shall be in the Authority’ s reasonable discretion. If the Authority denies some or all of the Force Majeure Notice, the Authority and the Force Majeure Party will meet and confer in good faith within ten ( 10) days after the Authority’ s delivery of the Force Majeure Response to attempt to reach a mutually acceptable modification to the Force Majeure Notice that will result in the Authority approving the Force Majeure Notice as modified (“ Meet & Confer 25 4825- 3218- 1203/ 024036- 0079
Period”). If the Authority and the Force Majeure Party do not agree on a modification to the Force Majeure Notice during the Meet & Confer Period, the Force Majeure Party may elect to withdraw the Force Majeure Notice and if the Force Majeure Party does not withdraw the Force Majeure Notice, the Authority shall present the Force Majeure Notice to the Authority Board for its consideration to either approve or deny the Force Majeure Notice at a regularly scheduled meeting that shall take place within sixty (60) days after the expiration of the Meet & Confer Period. If the Authority Board denies the Force Majeure Notice, then the dispute shall be resolved by a court of competent jurisdiction. If a court of competent jurisdiction determines in a final and non-appealable decision that the putative Force Majeure Event that was described in such Force Majeure Notice did not constitute a Force Majeure Event, the duration of such delay in the construction of the Project ( or, with respect to the Port District, the Remaining Phase 1A Infrastructure Improvements) or Completion specified therein was not reasonable, or the efforts that the Force Majeure Party took to minimize the period of delay were not commercially reasonable, then, at the Authority’ s sole and exclusive remedy for the Force Majeure Party’ s failure to perform any obligation under this Agreement from which the Force Majeure Party claimed to be excused as a result of such Force Majeure Event, but was not excused, the Force Majeure Party shall make the Authority whole for any loss that the Authority suffered as a result of such failure.
5.6. Completion Guaranty. On or before the Effective Date, Developer shall cause each Completion Guarantor (as defined in each Completion Guaranty) to execute and deliver to Authority, and maintain in effect in accordance with its terms, a Completion Guaranty substantially in the form attached hereto as Exhibit H and incorporated herein by reference (“ Completion Guaranty”), with any deviations from such form being reasonably acceptable to Authority, City, Port District, the Administrative Agent, and Developer.
5.7. Entitlements.
5.7.1. Entitlement Costs. If any discretionary approval, permit or entitlement, including, without limitation, environmental analysis under CEQA or the National Environmental Policy Act, the PMP, a Port Master Plan Amendment (“ PMPA”), stormwater permits, a CDP and/or a Coastal Act exclusion (collectively, “ Discretionary Entitlement”), are necessary, in Port District’ s sole and absolute determination, in connection with any Improvements or Alterations, demolition work, remediation work or other projects undertaken by Developer on or at the Project Site or the Improvements ( each of the foregoing for which a Discretionary Entitlement is required, the Discretionary Project”), then Developer shall enter into agreements, consistent with the Port District’ s applicable standard practices at that time (if any), with third-party experts, professionals and consultants to prepare reports and other materials (“ Consultant Services”) that are required to process the Discretionary Project and for the Port District or any other relevant Governmental Authority to consider the Discretionary Entitlement or Discretionary Project. Developer shall be directly responsible for the costs of the Consultant Services. Developer shall reimburse Port District pursuant to the Reimbursement Procedure for all reasonable costs and expenses incurred by Port District in connection with preparing, processing, considering and approving any Discretionary Project, any Discretionary Entitlement or any appeal of any CDP or Coastal Act exclusion to the CCC. If Developer fails to reimburse Port District for such costs or expenses pursuant to the Reimbursement Procedure, then, in addition to any other remedies that Port District may have, following three ( 3) Business Days’ prior written notice to Developer, Port District may, at its reasonable discretion, discontinue the preparing, processing, considering or approving of such Discretionary Project, Discretionary Entitlement or such appeal of a CDP or Coastal Act exclusion to the CCC, as applicable, until Developer reimburses Port District, and Developer shall be responsible 26 4825- 3218- 1203/ 024036- 0079
for any costs and expenses incurred by Port District related to such discontinuance and if such failure continues for seven (7) additional Business Days after written notice from Port District to Developer, then such failure shall be an Event of Default. Nothing herein shall obligate Port District to seek, process or obtain any Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project for the benefit of Developer, and Port District makes no warranty or representation to Developer that Developer will obtain any Discretionary Entitlement or ministerial approval. Port District shall not be required to pay any Governmental Authority fees or costs and expenses for any Consultant Services associated with any Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project. If Developer requests Port District’ s assistance in obtaining from any third-party Governmental Authority any licenses, approvals, notifications, registrations or permits in connection with development, use and operation of the Project Site and the Improvements, including the construction of the Initial Project Improvements, Port District will consider Developer’ s request and inform Developer within thirty 30) days whether it will agree to reasonably assist Developer.
5.7.2. Entitlements Indemnity. Without limitation of Developer’s other obligations under this Agreement, Developer agrees, at its sole cost and expense, and with counsel reasonably selected by the Public Entities and reasonably acceptable to Developer, to indemnify, defend and hold harmless the Port District Parties, Authority Parties, Financing District Parties, and the City Parties from any third-party claims, demands, actions, causes of action, suits and Related Costs, arising out of Port District’ s approval of any Discretionary Project, Discretionary Entitlement or appeal of a CDP or Coastal Act exclusion to the CCC. Port District may, in its sole and absolute discretion, participate in the defense of any claims, demands, actions and causes of action and suits, and Developer shall reimburse Port District for all reasonable costs that are incurred by Port District in connection therewith, including, without limitation, reimbursement for attorneys’ fees, experts’ fees and other costs. Port District’ s participation in such defense shall not relieve Developer of any of its obligations under this Section 5.7.2. The foregoing indemnity obligations of Developer are in addition to, and not in limitation of, any other indemnity obligations of Developer contained in this Agreement, the Ground Lease, and the Sublease, and this Section 5.7.2 shall survive the expiration or earlier termination of this Agreement and the Sublease.
5.7.3. Reservation of Discretion. Developer acknowledges and agrees that, notwithstanding the terms and conditions of this Agreement, and the Sublease, Port District reserves its discretion to condition, approve or disapprove any Discretionary Entitlements or Discretionary Project, including, without limitation, adoption of any and all feasible mitigation measures, alternatives to a Discretionary Project, including a no project alternative, and a statement of overriding consideration, if applicable, and that nothing in this Agreement or the Sublease will be construed as circumventing or limiting Port District’ s discretion with respect to any Discretionary Entitlement, or any Discretionary Project, including, without limitation, the exercise of eminent domain, code enforcement and the making of findings and determinations required by Laws.
Developer acknowledges and agrees that any and all Discretionary Entitlements may be conditioned, approved or denied by Port District, in its sole and absolute determination, and Developer accepts the risk that Port District may deny any and all Discretionary Entitlements, and hereby waives any claims, demands, actions, causes of action, suits against Port District for such conditions or denial.
5.7.4. Ministerial Action by Authority. At Developer’ s request, the Authority will take any reasonable and lawful ministerial action that is reasonably necessary in connection with Discretionary Entitlement or any other third-party Governmental Authority approval for a Discretionary Project ( including, without limitation, signing any application for a Discretionary 27 4825- 3218- 1203/ 024036- 0079
Entitlement in its capacity as the owner of the Convention Center, tenant under the Site Lease or sublandlord under the Facility Lease).
5.8. Energy Requirements. Notwithstanding any other provision of this Agreement to the contrary, the only obligations of Developer with respect to Section 15 and Exhibit 3 of the Settlement Agreement and any indemnification obligations with respect thereto are set forth in Exhibit O attached hereto and incorporated herein by reference and in the Ground Lease.
ARTICLE VI
PROCUREMENT REQUIREMENTS AND EQUAL OPPORTUNITY
6.1. Award of Sole Source Prime Contract. Pursuant to the findings of the Authority Board found in Authority Resolution 2020-002, the Developer may award one or more single sole source prime contracts to MMJV for the partial design and construction of the Project subject to the terms and conditions of Authority Resolution 2020-002 and this Article VI of this Agreement. The Authority has approved the final, executable construction contracts for the Convention Center and the Developer’ s Phase 1A Infrastructure Improvements listed on Exhibit G-3.
6.2. Subcontractor Bid and Award Process for the Developer’s Phase 1A Infrastructure Improvements. The provisions of this Section 6.2 shall apply only to the Phase 1A Infrastructure Improvements that Developer performs. Developer shall award subcontracts in compliance with the Authority Procurement Policy and Authority Resolution 2020-002 and as implemented ( with modifications) and further delineated in the bid and award process that is attached as Exhibit G-1 hereto and as further set out in this Section 6.2. Developer represents and warrants that the subcontracts listed in Exhibit G-2 hereto were awarded in accordance with the bid and award process set forth in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority under the Authority Procurement Policy and Authority Resolution 2020-002. Developer may utilize subcontracts awarded prior to the Effective Date of this Agreement, provided such subcontracts were procured in accordance with this Section 6.2. Nothing herein is intended to limit the Executive Director’ s authority to implement the Authority Procurement Policy and Authority Resolution 2020- 002 and approve waivers as set forth therein.
6.2.1. Sole Source Subcontract Award. If so intended by Developer, Developer shall provide notice of its intention to award a sole source contract to Authority and Authority shall evidence its approval of the Developer’ s proposed sole source subcontract award ( which approval shall not be unreasonably withheld) by delivering a signed Sole Source Subcontract Award Approval in the form set forth in Exhibit L ( with respect to Developer’ s Phase 1A Infrastructure Improvements) and Authority shall evidence its approval of such sole source subcontract award by counter-signing such Sole Source Subcontract Award Approval. Authority shall counter-sign a Sole Source Subcontract Award Approval or provide written notice of Authority’ s reasons for withholding approval within five ( 5) Business Days after receiving written notice from the Developer. If Authority fails to respond to a written request for Sole Source Subcontract Award Approval within five (5) Business Days, Developer shall notify Authority that such deadline has passed and Authority shall respond in writing within two ( 2) Business Days after receiving written notice from the Developer. If Authority fails to respond within such additional two (2) Business Day period, then Authority shall be deemed to have approved such Sole Source Subcontract Award Approval.
6.2.2. Best Qualified Contractor Subcontract Award. If so intended by Developer, Developer shall provide notice of its intention to award a subcontract on the best qualified contractor 28 4825- 3218- 1203/ 024036- 0079
who is not the lowest bidder) to Authority and Authority shall evidence its approval of the Developer’ s proposed best qualified subcontract award ( which approval shall not be unreasonably withheld) by delivering a signed Best Qualified Contractor Subcontract Award Approval in the form set forth in Exhibit M ( with respect to Developer’ s Phase 1A Infrastructure Improvements) and Authority shall evidence its approval of such best qualified contractor award by counter-signing such Best Qualified Contractor Subcontract Award Approval. Authority shall counter-sign a Best Qualified Contractor Subcontract Award Approval or provide written notice of Authority’ s reasons for withholding approval within five ( 5) Business Days after receiving written notice from the Developer. If Authority fails to respond to a written request for Best Qualified Contractor Subcontract Award Approval within five (5) Business Days, Developer shall notify Authority that such deadline has passed and Authority shall respond in writing within two (2) Business Days after receiving written notice from the Developer. If Authority fails to respond within such additional two 2) Business Day period, then Authority shall be deemed to have approved such Best Qualified Contractor Subcontract Award Approval.
6.2.3. Applicability of Authority Procurement Policy. Notwithstanding anything to the contrary set forth in the Authority Procurement Policy or Authority Resolution 2020-002, to the extent that Developer procures work to construct all or a portion of the Remaining Phase 1A Infrastructure Improvements pursuant to Section 2.3 and to the extent Developer procures work with respect to Remaining Phase 1A Infrastructure Improvements ( or, with the reasonable approval of the Executive Director, Developer’ s Phase 1A Infrastructure Improvements) as a result of a casualty or condemnation event, Developer may procure such work without regard to the bidding requirements set forth in Sections 1 and 2 of the Authority Procurement Policy. Except with respect to Sections 1 and 2 of the Authority Procurement Policy, the requirements of the Authority Procurement Policy and Authority Resolution 2020-002, as modified by this Agreement, shall remain in effect and apply to the Remaining Phase 1A Infrastructure Improvements constructed by Developer and any work with respect to Remaining Phase 1A Infrastructure Improvements ( or, with the reasonable approval of the Executive Director, Developer’ s Phase 1A Infrastructure Improvements) procured by Developer as a result of a casualty or condemnation event. The modifications described above are intended to be modifications by agreement approved by the Authority Board, as expressly authorized in the Authority Procurement Policy.
6.3. Bid and Award Process for the Remaining Phase 1A Infrastructure Improvements. If the Port District constructs or causes the construction of the Remaining Phase 1A Infrastructure Improvements, the Port District shall use its procurement policies, then in effect.
6.4. The Convention Center as a Special Purpose Project. Pursuant to Authority Resolution 2020-002, the Convention Center constitutes a “ special purpose project” as defined in Section 6 of the Authority Procurement Policy, and the requirements of Sections 1.b.ii, 1.b.iii, 2 and 3(b) of the Authority Procurement Policy shall not apply to the provisions of this Agreement pertaining to development and construction of the Convention Center or work for the Convention Center procured by Developer as a result of a casualty or condemnation event pursuant to Article V of the Sublease.
6.5. Procurement of Alterations. Procurement of work for Alterations is governed by the Sublease and not this Agreement, and the requirements of the Authority Procurement Policy shall not apply to Alterations. The modifications described above are intended to be modifications by agreement approved by the Authority Board, as expressly authorized in the Authority Procurement Policy.
29 4825- 3218- 1203/ 024036- 0079
6.6. Bid Opening and Award. In the case of any Competitive Bid or Solicitation Process for the Developer’ s Phase 1A Infrastructure Improvements, Developer shall provide the Authority with a copy of the tabulation of competitive bid results with respect to each contract and subcontract, as applicable. Developer shall provide the Authority with copies of all executed contracts awarded in accordance with this Section 6.6 and Developer shall certify in writing to the Authority that such contracts were awarded in accordance with the process described in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority in accordance with the Authority Procurement Policy and Authority Resolution 2020-002. A list of the subcontracts awarded for the Developer’ s Phase 1A Infrastructure Improvements prior to the Effective Date is set forth in Exhibit G-2.
Developer hereby certifies to the Public Entities that the subcontracts listed in Exhibit G-2 were bid and awarded in accordance with the process described in Exhibit G-1 hereto, subject to such waivers as have been approved by the Authority under the Authority Procurement Policy and Authority Resolution 2020-002.
6.7. Authority Procurement Policy Acknowledgement. In the event Developer exercises the Second Sweetwater Park Option and only for purposes of Developer’ s procurement of General Contracts for Sweetwater Park, Authority waives the bidding requirement of the Authority Procurement Policy ( including, without limitation, set forth in Sections 1 and 2 of the Authority Procurement Policy). All other requirements of the Authority Procurement Policy and Authority Resolution 2020-002, as modified by this Agreement, shall apply to Developer’ s procurement of contracts for Sweetwater Park. Authority acknowledges that in compliance with the applicable provisions of the Authority Procurement Policy and Authority Resolution 2020-002, Authority has required Developer to enter into this Agreement to establish the terms and conditions pursuant to which the Developer may develop and construct the Project and obtain payment for a portion of the eligible costs of developing and constructing the Developer’ s Phase 1A Infrastructure Improvements and the Convention Center from the proceeds of the Authority Bonds and the County Funds, and that to the extent requirements set forth in this Agreement differ from the requirements set forth in Authority Procurement Policy and Authority Resolution 2020-002, the requirements set forth in this Agreement will govern the procurement, development and funding of the Project, including the Remaining Phase 1A Infrastructure Improvements if Developer has exercised the Second Sweetwater Park Option ( to the extent permitted by Authority Procurement Policy and Authority Resolution 2020-002). Notwithstanding anything to the contrary in this Agreement, Sections 6.2 through 6.2.2 shall not apply to the Remaining Phase 1A Infrastructure Improvements.
ARTICLE VII
DESIGN AND CONSTRUCTION STANDARDS
7.1. Standard of Care. Developer will use commercially reasonable efforts to furnish efficient business administration and supervision and manage the performance of the work with respect to the Project in an expeditious and economical manner consistent with Authority’ s interests.
Developer shall endeavor to cause the General Contractor and all Subcontractors to construct the Project in a workmanlike manner. Developer’ s professional consultants shall be skilled in the profession necessary to perform their respective services and Developer shall cause them to perform their services related to the Project in a skillful and competent manner, consistent with the standards generally recognized as being employed by professionals qualified to perform the services in the same discipline in the State of California.
30 4825- 3218- 1203/ 024036- 0079
7.2. Compliance with Laws.
7.2.1. Port District Compliance with Laws. Port District shall in its construction of the Remaining Phase 1A Infrastructure Improvements abide by and comply with, and cause any of its General Contractor, Subcontractors, employees, and agents, to abide by and comply with all Laws.
7.2.2. Developer’ s Compliance with Laws. Developer shall in all activities on or in connection with the Project Site and the Project, and in all uses thereof, including without limitation the Permitted Use and any construction of the Project, abide by and comply with, and cause the Developer Parties (other than Developer) and Hotel Operator to abide by and comply with, all Laws at Developer’ s sole cost and expense, and Authority shall not have any obligations or responsibilities to comply with any Laws as to the Project Site and the Improvements or any use thereby by Developer Parties or Hotel Operator. In particular and without limitation, Developer shall have the sole and exclusive obligation and responsibility, at Developer’ s sole cost and expense, to comply with the requirements of the following, to the extent applicable: ( i) the San Diego Unified Port District Code, including without limitation, Article 10 (Stormwater Management and Discharge Control), ( ii) the ADA, including but not limited to regulations promulgated thereunder, iii) applicable federal, state and local laws and regulations regarding employment and labor practices, including, without limitation, the provisions of Section 7.2.3 and Article XX of this Agreement, (iv) any Coastal Development Permit (“ CDP”) ( including any conditions of approval or mitigation measures or project changes pursuant to the environmental review under the California Environmental Quality Act (“ CEQA”)) or any other California Coastal Commission (“ CCC”) regulations or local, state or federal requirements now or hereafter affecting the Project Site or the Improvements, including the use or development thereof, (v) the Port Master Plan (“ PMP”), ( vi) the Chula Vista Municipal Code, ( vii) any other development permits or approvals accepted by Developer, and ( viii) the policies adopted by the BPC. Until the earlier of such time as all components of the Developer’ s Phase 1A Infrastructure Improvements are Accepted or the Term of this Agreement terminates or expires, neither the BPC nor the City Council shall adopt any Law that only applies to the Developer’ s Phase 1A Infrastructure Improvements, unless the Law is determined by the BPC, in its sole and absolute discretion, or the City Council, in its sole and absolute discretion as applicable), but in either case, in a manner that is neither arbitrary nor capricious, to be necessary for health and safety reasons, to protect the welfare of the people, or to exercise the Port District’ s police powers under the Port Act or the City Council’ s police powers under applicable Laws, including the CVMC. The foregoing limitation shall not apply to the adoption of any ordinance or resolution that authorizes an amendment to this Agreement or any Contemporaneous Agreement, or is adopted to authorize the enforcement of Port District’ s or City’ s rights or the performance of Port District’ s or City’ s obligations under this Agreement or any Contemporaneous Agreement, including without limitation, any ordinances or resolutions adopted by the BPC or City Council as part of any discretionary approval. In the event of any conflict between the terms of a policy adopted by the BPC or City Council and this Agreement, Developer shall deliver notice to Port District or City, as applicable, of such a conflict and the Parties shall meet and confer within ten ( 10) days of Port District’ s or City’ s, as applicable, receipt of the notice to discuss the conflict and attempt to resolve the conflict in good faith prior to commencing mediation pursuant to Section 26.12.10. If the conflict is not resolved pursuant to Section 26.12.10, then the terms of this Agreement shall control and Developer shall be excused from complying with the terms of such policy adopted by the BPC or City Council, to the extent of such conflict only.
31 4825- 3218- 1203/ 024036- 0079
7.2.3. Prevailing Wage.
7.2.3.1. This Section 7.2.3.1 applies only to the Project and does not apply to the Remaining Phase 1A Infrastructure Improvements unless and until Developer exercises a Sweetwater Park Option. Developer acknowledges and agrees that:
a. Any construction, alteration, demolition, installation, or repair work, in each case for the Project, required or performed under this Agreement constitutes public work” under California Prevailing Wage Law, including Labor Code §§ 1720 through 1861, et seq. (“ PWL”), and obligates Developer to cause such work to be performed as “ public work,” including, but not limited to, the payment of applicable prevailing wages to all Persons subject to the PWL.
b. Developer shall cause all Persons performing “ public work” for the Project under this Agreement to comply with all applicable provisions of the PWL and other applicable wage Laws.
c. Developer’ s violations of the PWL shall constitute a breach (subject to cure pursuant to Section 21.1.2) under this Agreement. d. Authority hereby notifies Developer, and Developer
hereby acknowledges, that the PWL includes, without limitation, Labor Code § 1771.1(b) that provides that the following requirements described in Labor Code § 1771.1(a) shall be included in all bid invitations and “ public work” contracts: “ A contractor or subcontractor shall not be qualified to bid on, be listed in a bid proposal, subject to the requirements of § 4104 of the Public Contract Code, or engage in the performance of any contract for “public work,” as defined in this chapter, unless it is currently registered and qualified to perform “ public work” pursuant to Section 1725.5. It is not a violation of this Section for an unregistered contractor to submit a bid that is authorized by Section 7029.1 of the Business and Professions Code or by Sections 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform “ public work” pursuant to Section 1725.5 at the time the contract is awarded.”
e. Developer acknowledges that its obligations under the PWL with respect to the Project include, without limitation, ensuring that:
i. pursuant to Labor Code § 1771.1(b), a bid shall not
be accepted nor any contract or subcontract entered into without proof of the contractor or subcontractor’ s current registration to perform “ public work” pursuant to § 1725.5; ii. pursuant to Labor Code § 1771.4(a)(1), the call for bids and contract documents shall specify that the project is subject to compliance monitoring and enforcement by the California Department of Industrial Relations (“ DIR”); iii. pursuant to Labor Code § 1771.4(a)(2), it posts or requires the prime contractor to post job site notices, as prescribed by regulation; and iv. pursuant to Labor Code § 1773.3(a)(1), it provides
notice to the DIR of any “ public works” contract subject to the requirements of the PWL, within thirty (30) days of the award, but in no event later than the first day in which a contractor has workers 32 4825- 3218- 1203/ 024036- 0079
employed upon the public work. Pursuant to Labor Code § 1773.3(a)(2), the notice shall be transmitted electronically in a format specified by the DIR and shall include the name and registration number issued by the DIR pursuant to § 1725.5 of the contractor, the name and registration number issued by the DIR pursuant to § 1725.5 of any subcontractor listed on the successful bid, the bid and contract award dates, the contract amount, the estimated start and completion dates, job site location, and any additional information that the DIR specifies that aids in the administration and enforcement of the PWL. PWC-100 is the name of the form currently used by the DIR for providing the notice, but Developer shall determine and use whatever form the DIR requires.
f. None of the Authority, Port District, City, or Financing District shall be responsible for Developer’ s failure to comply with any applicable provisions of the PWL.
g. Notwithstanding anything in this Agreement to the
contrary, Developer shall not be responsible for any Person’ s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Public Entity Party (other than by a Developer Party or Hotel Operator, or on behalf of a Developer Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Developer Party or Hotel Operator).
7.3. Compliance with Design and Construction Standards; Chula Vista Building Code.
7.3.1. Design and Construction Standards.
7.3.1.1. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, or other Developer Parties, with the applicable Design and Construction Standards in connection with the design and construction of Developer’ s Phase 1A Infrastructure Improvements. Developer shall not be required to exceed the Design and Construction Standards or to comply with any other City of Chula Vista design and construction standards in connection with the design and construction of Developer’ s Phase 1A Infrastructure Improvements except to the extent set forth in the approved Contract Documents or the Approved Drawings and Specifications.
7.3.1.2. Developer shall be entitled to an Expedited Review Process in the event that a Public Entity Development Party requests, requires, instructs or demands ( for purposes of this Section 7.3.1, a “ Phase 1A Requirement”) that any Developer Party satisfy or implement any design or construction standard in connection with Developer’ s Phase 1A Infrastructure Improvements that Developer reasonably and in good faith determines to be in excess of the requirements of the Design and Construction Standards; provided that prior to initiating the Expedited Review Process, Developer shall have submitted a written request ( which shall be by email to the Authority Email Addresses) to the applicable Public Entity Development Party that the Phase 1A Requirement be rescinded, including the reasons for Developer’ s objection to the Phase 1A Requirement. Should the Expedited Review Individual fail to respond within 24 Business Hours from the time the email initiating the Expedited Review Process is sent by the Developer, the Developer’ s request to rescind the Phase 1A Requirement shall be deemed disapproved.
7.3.1.3. In the event that any requirement set forth in the Design and Construction Standards may be satisfied in more than one manner consistent with the Design and 33 4825- 3218- 1203/ 024036- 0079
Construction Standards, Developer may elect to satisfy such requirement in the manner consistent with such requirements selected by Developer.
7.3.2. Chula Vista Building Code.
7.3.2.1. Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, or other Developer Parties, with the applicable provisions of the Chula Vista Building Code, in connection with the design and construction of Convention Center, Resort Hotel, and Parking Improvements. Developer shall not be required to exceed the requirements of the Chula Vista Building Code or to comply with any other City of Chula Vista design and construction standards in connection with the design and construction of the Convention Center, Resort Hotel, and Parking Improvements except to the extent set forth in the approved Convention Center Plans, Resort Hotel Plans ( defined in the Ground Lease), Preliminary Parking Improvement Plans ( defined in the Ground Lease), and Parking Improvement Plans (defined in the Ground Lease).
7.3.2.2. Developer shall be entitled to an Expedited Review Process in the event that any Public Entity Development Party requests, requires, instructs or demands (for purposes of this Section 7.3.2, a “ Requirement”) that any Developer Party satisfy or implement any design or construction standard in connection with the Convention Center that Developer reasonably and in good faith determines to exceed the requirements of the Chula Vista Building Code; provided that prior to initiating the Expedited Review Process, Developer shall have submitted a written request to the applicable Public Entity Development Party that the Requirement be rescinded, including the reasons for Developer’ s objection to the Requirement. Should the Expedited Review Individual fail to respond within 24 Business Hours from the time the email initiating the Expedited Review Process is sent by the Developer, the Developer’ s request to rescind the Requirement shall be deemed disapproved.
7.3.2.3. In the event that any standard or requirement set forth in the Chula Vista Building Code may be satisfied in more than one manner consistent with the Chula Vista Building Code, Developer may elect to satisfy such standard or requirement in the manner consistent with the Chula Vista Building Code selected by Developer.
7.3.3. Standard Specifications. In connection with any modification of the Approved Drawings and Specifications for the Developer’ s Phase 1A Infrastructure Improvements, Developer shall comply, and require compliance by any of its General Contractor, Subcontractors, employees, and agents, with the editions of the following reference specifications that were in effect on the Plan Submission Date: the Standard Specifications and the Chula Vista Standard Special Provisions.
7.3.4. Summary of Construction Standards. In order to clarify the design and construction standards applicable Developer’s Phase 1A Infrastructure Improvements and the Convention Center, Developer may, in Developer’ s discretion, provide a flier substantially in the form attached hereto as Exhibit Z to any Person entering the Project Site.
7.3.5. Expedited Review Process Inapplicable to Other Public Agencies. The provisions of Sections 7.3.1 and 7.3.2 permitting an Expedited Review Process with respect to Design and Construction Standards and the Chula Vista Building Code apply only to Requirements imposed by the City or Port District and are inapplicable to any requirements that may be imposed by 34 4825- 3218- 1203/ 024036- 0079
other public agencies. At the request of the Developer, the City and Port District will use reasonable efforts to meet with other public agencies and the Developer to address requests, requirements, instructions, or demands imposed by such other public agencies that the Developer reasonably and in good faith determines to exceed applicable legal requirements.
7.4. Construction Period. With respect to Convention Center and any portion of the Developer’s Phase 1A Infrastructure Improvements, the provisions of Sections 7.1, 7.2 and 7.3 shall apply until Acceptance of the Convention Center or such portion of Developer’ s Phase 1A Infrastructure Improvement, as applicable.
7.5. Authority Approval Not a Waiver of Obligations. Where approval by the Authority, the Executive Director, or other representatives of the Authority is required, it is understood to be general approval only and does not relieve Developer of responsibility for complying with all applicable Laws or other requirements of this Agreement, except in the case of the Authority’ s express waiver of the requirement to comply with (a) any Authority requirement, to the extent such requirement is waivable, or (b) any other requirement of this Agreement waivable by the Authority.
For purposes of this Agreement, in the event of Authority’ s express waiver provided pursuant to clauses ( a) or (b) above, Developer shall be deemed in compliance with such Authority requirements or other requirement of this Agreement as a result of such waiver, in each case, only to the extent of such waiver. No such waiver shall constitute an assumption of liability by the Authority, nor shall the Authority, through approval, become an insurer or surety of work associated with the approvals.
ARTICLE VIII
CONSTRUCTION
8.1. Site Safety, Security. Developer shall be responsible for Project Site safety and security, with respect to Developer’ s construction of the Project.
8.1.1. Persons. As between the Developer, on one hand, and the City, Port District, and the Authority, on the other hand, and without expanding the Developer’ s contractual obligations or duties to any Person other than the City, Port District, and Authority, the Developer shall be solely responsible for the safety and security of its officers, agents, and employees authorized by Developer to access the Project Site.
8.1.2. Other. Developer is responsible for each portion of the Developer’ s Phase 1A Infrastructure Improvements Site and all other materials, equipment, and other incidentals on such portion of the Developer’ s Phase 1A Infrastructure Improvements Site until such portion of the completed Developer’ s Phase 1A Infrastructure Improvements have been Accepted by the City or Port District, as applicable. Developer is responsible for the Site, materials, equipment, and all other incidentals on the Site until the completed Convention Center has been Accepted by the Authority.
From and after Acceptance, any responsibility of the Developer for the Convention Center shall be pursuant to the Sublease.
8.1.3. Environment. In the construction and development of the Project, Developer shall comply with all environmental laws and regulations, including the Clean Air Act of 1970, the Clean Water Act, Executive Order number 11738, and the Stormwater Management and Discharge Control Ordinance No. 0-17988 and any and all Best Management Practice (“ BMP”) guidelines and pollution elimination requirements as may be established by an enforcement official.
Furthermore, Developer shall prepare and incorporate into the drawings and specifications a 35 4825- 3218- 1203/ 024036- 0079
Stormwater Pollution Prevention Plan (“ SWPPP”) to be implemented by Developer during Project construction and, until Acceptance of the Convention Center or the applicable Developer’ s Phase 1A Infrastructure Improvements. Where applicable, the SWPPP shall comply with both the California Regional Water Quality Control Board Statewide General Construction Storm Water permit and National Pollution Discharge Elimination System permit requirements and shall be in conformance with the City of Chula Vista BMP Design Manual and CVMC Chapter 14.20 ( Storm Water Management and Discharge Control).
8.1.4. Access to Project Site. During the Construction Period, the Public Entity Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Project Site where the construction of the Project is ongoing, during normal business hours and upon a two ( 2) Business Days’ prior notice to Developer ( except for or in connection with inspections undertaken by any Public Entity in its regulatory capacity and except in the case of an emergency in which case no prior notice shall be required but each of such Public Entity Parties that enter the Project Site shall notify Developer and Developer’ s Risk Construction Manager thereof by phone prior to entering the Project Site), and each Public Entity that enters the Project Site shall, and shall cause each of its respective Public Entity Parties that enter the Project Site, as applicable, to:
a) comply with all applicable security and safety procedures of Developer of which Developer informs such Public Entity in writing and with which such Public Entity Party can reasonably comply, and ( b) not interfere with Developer’ s construction of the Project. Notwithstanding the foregoing, nothing herein shall limit the Port District’ s or City’ s right to enter the Project Site at any time to exercise their respective police powers.
8.2. Public Right-of-Way. All work, including materials testing, special testing, and surveying to be conducted in the public right-of-way shall be coordinated with the Authority.
Developer agrees to follow all Laws and regulations, and all written and publicly available standards and regulations of the Authority, as applicable, while working in the public right-of-way, including, but not limited to, utilizing proper traffic control and obtaining necessary permits.
8.3. Traffic Control. In connection with the Project, Developer shall be responsible for traffic management, including traffic control implementation, maintenance, and preparing detailed traffic control plans to be submitted to the jurisdiction for approval.
8.4. Maintenance. Developer shall maintain and be responsible for each portion of the Developer’ s Phase 1A Infrastructure Improvements until Acceptance of such portion, including ongoing erosion prevention measures. Upon Acceptance, the City, the Port District and/or the Authority, as applicable, shall be responsible for maintenance of such portion of the Developer’ s Phase 1A Infrastructure Improvements, as determined through one or more separate agreements among two or more of the City, the Port District, and the Authority. All costs incurred by Developer in maintaining the Developer’ s Phase 1A Infrastructure Improvements shall be Developer’ s Phase 1A Infrastructure Improvements Costs. To the extent such costs are incurred after Completion but before Acceptance of the Developer’ s Phase 1A Infrastructure Improvements and are not paid to Developer pursuant to Section 9.1 (including pursuant to the Final Accounting under Section 9.1.6), Authority shall reimburse Developer for such costs within thirty (30) days after Developer provides Authority with a request for reimbursement, together with supporting documentation evidencing such costs. For the avoidance of doubt, Developer shall have no further obligations pursuant to this Section 8.4 with respect to any portion of the Developer’ s Phase 1A Infrastructure Improvements after Acceptance of such portion of the Developer’ s Phase 1A Infrastructure Improvements. 36 4825- 3218- 1203/ 024036- 0079
8.5. Construction Cooperation.
8.5.1. Within thirty (30) calendar days after the Effective Date, the Parties shall schedule a meeting at the Site regarding the construction and development of the Project, the Resort Hotel and the Parking Improvements and other matters related thereto. Developer and the Public Entities, as applicable, shall cause executive and project level personnel of Developer and the Public Entities ( including such Public Entity Development Parties whose presence may be reasonably requested by Developer) to attend such meeting.
8.5.2. On the last Wednesday of each month, at the Site, or such other time and place as the Parties may reasonably agree, Developer and the Public Entities, as applicable, shall cause appropriate personnel of Developer and the Public Entities ( including such Public Entity Development Parties whose presence may be reasonably requested by Developer) to attend a meeting regarding the construction and development of the Project, the Resort Hotel and the Parking Improvements and other matters related thereto. Other meetings relating to the Project or the Work shall be held (in person, by telephone, or by virtual meeting room, as agreed by the Parties) at times and at such frequency as reasonably requested by the Developer or any Public Entity. Such additional meetings shall occur within seventy-two Business Hours of a written request submitted by email to the other Parties. Such meetings shall be attended by appropriate representatives of Developer and the Public Entities, including such Public Entity Development Parties whose presence may be reasonably requested by Developer and such representatives of the Developer whose presence may be reasonably requested by a Public Entity. Any request for attendance of specified individuals or representatives of Developer or any Public Entity Development Parties shall be made by written notice to the applicable Party by email not fewer than 24 Business Hours prior to the applicable meeting and upon receipt of such written request, the applicable Party shall take all reasonably available actions to ensure the attendance of the requested individual or representative or another individual authorized to make determinations on the requested Person’ s behalf. All notices and requests to the Public Entities under this Section shall be submitted to the Authority Email Addresses.
ARTICLE IX
PAYMENT OF PROJECT COSTS
9.1. Developer’ s Phase 1A Infrastructure Improvements Costs. The provisions of this Section 9.1 and each subsection of this Section 9.1 shall apply solely to the Developer’ s Phase 1A Infrastructure Improvements.
9.1.1. Payment of Costs Associated with the Developer’ s Phase 1A Infrastructure Improvements. Based upon Developer’s Phase 1A Payment Requests submitted to the Authority by the Developer, the Authority shall make progress payments on account of the Developer’s Phase 1A Contract Sum to the Developer in accordance with the provisions of this Section 9.1. The amount of each progress payment shall be computed as follows:
9.1.1.1. The amount of each progress payment shall first include:
a. The Developer’ s Phase 1A Infrastructure Improvements Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Developer’ s Phase 1A Payment Request; and 37 4825- 3218- 1203/ 024036- 0079
b. The Stipulated Developer’ s Phase 1A Infrastructure
Improvements Overhead Amount that has accrued as of the date of such Developer’ s Phase 1A Payment Request.
9.1.1.2. The amount of each progress payment shall then be reduced by, without duplication:
a. The aggregate of any amounts previously paid by the
Authority in respect of the Developer’ s Phase 1A Contract Sum; b. The amount by which the Architect, pursuant to the
Architect’ s Certificate that is attached to such Developer’ s Phase 1A Payment Request, reduces the amount to be paid with respect to such Developer’ s Phase 1A Payment Request. The Architect may reduce such amount to the extent the work performed by Developer for which payment is requested has not been performed substantially in accordance in all material respects with the Approved Drawings and Specifications for the Developer’ s Phase 1A Infrastructure Improvements, in which case the amount to be disbursed under the applicable Developer’ s Phase 1A Payment Request shall be reduced to reflect the cost of causing such construction to be performed substantially in accordance in all material respects with such Approved Drawings and Specifications ( without duplication of any similar reduction that is made by Developer). In the event of any such reduction, Developer may seek payment for the amounts so reduced in any subsequent Developer’ s Phase 1A Payment Request; and
c. Any amount for which the Developer does not intend to pay General Contractor or any Subcontractor, unless the work has been performed by others the Developer intends to pay.
9.1.1.3. Funds for Payment of Costs/Expenses.
a. On the Effective Date, Authority shall cause the Trustee to deposit, from the proceeds of the Authority Tax-Exempt Bonds, ( i) an amount equal to 6,700,292.00 into the 2022B Bond Proceeds Subaccount and (ii) an amount equal to $3,299,708.00 into the 2022B Bayfront Infrastructure Improvements Account of the Construction Fund. The Parties acknowledge that the County Funding Agreement provides for the County to pay County Funds to the Authority in multiple payments, from time to time as described in the County Funding Agreement, and that such payments are expected to occur after the Effective Date. Within five (5) Business Days of the Authority’ s receipt of any County Funds, the Authority shall transfer such County Funds as follows: ( x) the Authority shall transfer the first $6,900,292.00 of the County Funds that the Authority receives (the “ County Sweetwater Park Funds”) to the Port District; (y) the Authority shall transfer the next $14,800,000.00 of the County Funds that the Authority receives to the Trustee for deposit into the County Funded Developer’ s Phase 1A Subaccount; and ( z) the Authority shall transfer the remainder of the County Funds that the Authority receives ( expected to cumulatively equal $ 3,299,708.00) to the County Funded Bayfront Infrastructure Improvements Account of the Construction Fund. The Authority shall cause the Trustee to make the deposits described in clauses (y) and (z), above.
b. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from: ( i) first, the 2022B Bond Proceeds Subaccount, ( ii) second, the County Funded Developer’ s Phase 1A Subaccount, ( iii) third, the Phase 1A Infrastructure 38 4825- 3218- 1203/ 024036- 0079
Improvements Subaccount; and (iv) fourth, the Authority Existing Revenues Account (in that order) for payments required to be made to the Developer for Developer’ s Phase 1A Infrastructure Improvements Costs, as and when required under this Section 9.1. Each Public Entity shall not interfere with any lawfully made disbursement request delivered to the Trustee. c. Until the County Funds Release Date, (A) Authority shall not permit any funds in the 2022B Bond Proceeds Subaccount, the County Funded Developer’ s Phase 1A Subaccount or the Phase 1A Infrastructure Improvements Subaccount of the 2022B Construction Account to be used for any purpose other than making payments to Developer in accordance with this Section 9.1 without the prior written consent of the Developer, which consent shall be granted or withheld in Developer’ s sole discretion, and ( B) Authority shall direct or authorize the Trustee to transfer funds out of the 2022B Bond Proceeds Subaccount, the County Funded Developer’ s Phase 1A Subaccount and the Phase 1A Infrastructure Improvements Subaccount of the 2022B Construction Account only to the account or accounts designated by Developer in writing (or as otherwise consented to in Developer’ s sole discretion). Until the County Funds Release Date, amounts in the 2022B Bond Proceeds Subaccount shall not be applied to any redemption of the Authority Bonds, except for the mandatory redemption of the Authority Bonds on or after June 1, 2027 if and to the extent required by the Authority Indenture. d. Until the County Funds Release Date, (A) Authority shall not permit any funds in the Authority Existing Revenues Account of the Revenue Fund to be used for any purpose other than (i) making payments to Developer in accordance with this Section 9.1 without the prior written consent of the Developer, which consent shall be granted or withheld in Developer’ s sole discretion, or (ii) transfers to any fund or account established under the Authority Indenture or disbursements to the Authority, the City or the Port District to pay any cost incurred by the Authority, the City or the Port District with respect to the Resort Hotel, Convention Center, Parking Improvements, or Developer’ s Phase 1A Infrastructure Improvements or otherwise relating to the transactions contemplated by the Convention Center Leases, the Authority Indenture, and this Agreement ( collectively, the “ Additional Authority Uses”), which during the first eighteen ( 18) months following the Commencement Date shall not to exceed $ 1,000,000 in the aggregate ( the Additional Authority Uses Cap”), and (B) Authority shall direct or authorize the Trustee to transfer funds out of the Authority Existing Revenues Account of the Revenue Fund only to the account or accounts designated by Developer in writing ( or as otherwise consented to in Developer’ s sole discretion) or, subject to the Additional Authority Uses Cap, to any other account or payee for the payment of Additional Authority Uses. After the date that is eighteen ( 18) months after the Commencement Date, the Authority may permit funds in the Authority Existing Revenues Account of the Revenue Fund to be used to pay Additional Authority Uses in excess of the Additional Authority Uses Cap so long as, immediately after giving effect to such payment, the remaining balance in in the Authority Existing Revenues Account of the Revenue Fund is at least $ 3,000,000 or a lesser amount with the reasonable consent of Developer). e. Until the County Funds Release Date, the Port District shall use the County Sweetwater Park Funds only for Remaining Phase 1A Infrastructure Improvements Costs. Notwithstanding the foregoing, not later than five (5) Business Days after the Developer exercises a Sweetwater Park Option, the Port District shall promptly transfer all remaining County Sweetwater Park Funds to the Trustee for deposit into the County Funded Developer’ s Phase 1A Subaccount.
39 4825- 3218- 1203/ 024036- 0079
f. Until Acceptance of the Developer’ s Phase 1A
Infrastructure Improvements and payment of all Developer’ s Phase 1A Infrastructure Improvements Costs: ( 1) the City, Financing District, and Port District shall use commercially reasonable efforts to ensure the receipt of amounts that, if received by the City, the Financing District, or the Port District, would be Pre-Completion Lease Payments ( as defined in the Facility Lease), Special Taxes ( as defined in the Loan Agreement), or Real Estate Revenues ( as defined in the Support Agreement), respectively, and are due and payable to the City, the Financing District, or the Port District, as applicable; ( 2) pursuant to and subject to the terms of the Support Agreement, the Port District shall transfer or cause all Real Estate Revenues that constitute Existing Revenues ( as defined in the Indenture) to be transferred to the Trustee for deposit into the Authority Existing Revenues Account in accordance with the Authority Indenture; ( 3) pursuant to and subject to Section 4.12 of the Facility Lease, the City shall transfer or cause to be transferred to the Trustee the Pre-Completion Lease Payments for deposit into the Authority Existing Revenues Account in accordance with the Authority Indenture; ( 4) pursuant to and subject to the terms of the Loan Agreement, the Financing District shall transfer or cause all Special Taxes that constitute Existing Revenues ( as defined in the Indenture) to be transferred to the Trustee for deposit into the Authority Existing Revenues Account in accordance with the Authority Indenture.
g. Not later than five (5) Business Days after the Sufficient Completion Date, and provided that the Developer has not previously exercised a Sweetwater Park Option, the Port District shall transfer any remaining County Sweetwater Park Funds held by the Port District directly to the Trustee for deposit in the County Funded Developer’ s Phase 1A Subaccount. h. Until the Sufficient Completion Date, the Authority shall direct the Trustee to disburse amounts on deposit in the 2022B Bayfront Infrastructure Improvements Account of the Construction Fund only for Remaining Phase 1A Infrastructure Improvements Costs.
If the Developer exercises a Sweetwater Park Option, the Authority shall cause the Trustee to disburse moneys from the 2022B Bayfront Infrastructure Improvements Account for Remaining Phase 1A Infrastructure Improvements Costs incurred by Developer pursuant to approved Developer’ s Phase 1A Infrastructure Improvements Payment Requests in accordance with this Section 9.1. Upon and after the Sufficient Completion Date the Authority shall have the right and authority under the Indenture to requisition amounts from the 2022B Bayfront Infrastructure Improvements Account for any purpose permitted under the Authority Indenture from time to time, without the Developer’ s approval or consent.
i. On and after the County Funds Release Date, all amounts in the County Funded Developer’ s Phase 1A Subaccount shall be available for withdrawal and use by the Authority for any purpose as may be agreed to by the City and the Port District from time to time without any obligation to confer with or obtain consent from the Developer. j. At all times, all amounts in the County Funded Bayfront Infrastructure Improvements Account shall be available for withdrawal and use by the Authority for CVBMP Infrastructure Improvements Costs as agreed to by the City and the Port District from time to time without any obligation to confer with or obtain consent from the Developer.
9.1.2. Prerequisites to Payment.
9.1.2.1. Developer’ s Phase 1A Payment Request. Prior to the disbursement of any amounts to pay the Developer’ s Phase 1A Contract Sum, Developer shall 40 4825- 3218- 1203/ 024036- 0079
provide the Executive Director with a Developer’ s Phase 1A Payment Request, together with all of the items described therein. Each Developer’ s Phase 1A Payment Request shall show ( i) the Developer’ s Phase 1A Infrastructure Improvements Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Developer’ s Phase 1A Payment Request and ( ii) the Stipulated Developer’ s Phase 1A Infrastructure Improvements Overhead Amount with respect to such Developer’ s Phase 1A Infrastructure Improvements. The form of Developer’ s Phase 1A Payment Request attached hereto as Exhibit K-1 may be modified or replaced by Developer, subject to the consent of Authority provided or withheld in Authority’ s sole discretion.
Each Developer’ s Phase 1A Payment Request shall be delivered in the following manner ( or by such other means as is reasonably agreed to by the Developer and the Authority): Developer shall send by electronic mail to the Authority Email Addresses a notice that the Developer’ s Phase 1A Payment Request and supporting documentation have been uploaded to an internet website, the link to which shall be included in such email notice. Authority shall send confirmation to the Developer by electronic mail once Authority has successfully accessed the Developer’ s Phase 1A Payment Request.
The Authority shall not have an obligation to make payment to Developer unless and until Developer provides the Executive Director with a Developer’ s Phase 1A Payment Request, together with all of the items described therein (including the Architect’ s Certificate), and such Developer’ s Phase 1A Payment Request is approved by the Executive Director as provided below.
9.1.2.2. Inspection. The Developer’ s Phase 1A Infrastructure Improvements shall be subject to City inspection, as applicable, as provided in section 2-11 of the Greenbook. Developer shall ensure that all persons and entities providing work or services for the Developer’s Phase 1A Infrastructure Improvements comply with the inspection requirements provided in section 2-11 of the Greenbook.
9.1.2.3. Prevailing Wage Compliance. Developer shall ensure that all persons and entities providing work or services for the Developer’s Phase 1A Infrastructure Improvements comply with prevailing wage requirements, as and to the extent described in Section 7.2.3.1.
9.1.2.4. Public Entity Approval. The Executive Director shall review each Developer’ s Phase 1A Payment Request and the supporting documentation. If the Executive Director finds in his/her reasonable discretion that any such Developer’ s Phase 1A Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Developer’ s Phase 1A Payment Request to Authority of the reasons for his/her finding. Developer shall have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Executive Director shall review any further documentation received from Developer in support of the Developer’ s Phase 1A Payment Request and inform Developer of his/her approval or denial of the Developer’ s Phase 1A Payment Request within five (5) Business Days after Developer provides such further documentation to Authority. If the Executive Director does not find that any such Developer’ s Phase 1A Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten ( 10) Business 41 4825- 3218- 1203/ 024036- 0079
Days after Developer provides such Developer’ s Phase 1A Payment Request to Authority and within that time period approve the Developer’ s Phase 1A Payment Request. If the Executive Director determines that the Developer’ s Phase 1A Payment Request is incomplete ( except to a de minimis extent) or contains material errors or misstatements on its face, but that sufficient and complete information exists with respect to a portion of the Phase 1A Payment Request, then the Executive Director shall approve the Developer’ s Phase 1A Payment Request with respect to such portion of the Developer’ s Phase 1A Payment Request and so notify Developer within ten (10) Business Days after Developer provides such Developer’ s Phase 1A Payment Request to Authority. The Authority shall cause the Executive Director to carry out his or her duties under this Section 9.1.2.4 in a reasonable and good faith manner. Notwithstanding anything to the contrary set forth in this Agreement, ( a) the Authority may make payment to Developer under protest and commence dispute resolution proceedings pursuant to Section 26.12 and ( b) if Authority has made a payment to Developer and later determines that the payment was made in error, whether due to an incomplete or inaccurate payment request or due to missing documentation or otherwise, Authority may commence dispute resolution proceedings pursuant to Section 26.12 to challenge such previous payment. A certificate or request that Developer delivers under this Agreement will be deemed to contain material errors or misstatements on its face if such material error or omission is apparent from the four corners of such certificate or request without the use of extrinsic evidence.
9.1.3. Time of Payment. If the Executive Director provides approval pursuant to Section 9.1.2 with respect to all or any portion of any Developer’ s Phase 1A Payment Request, then the Authority shall cause payment to be made to Developer for the approved costs/expenses associated with such Developer’ s Phase 1A Payment Request by the Payment Date ( excluding any Developer’ s Phase 1A Contested Charges). If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Business Day. Except for Developer Phase 1A Contested Charges, all costs/expenses associated with each Developer Phase 1A Payment Request shall accrue interest at the Specified Default Rate from the Payment Date until paid. At the request of the Authority, the Developer will waive the interest accrued during the first ten ( 10) Business Days following the applicable Payment Date up to a total of four ( 4) times in each calendar year for payments made after the required Payment Date under this Section 9.1.3 and Sections 9.1.4.3(b),
9.2.3 and 9.2.4.2(b). Any payment or portion thereof made to Developer in accordance with a Developer’ s Phase 1A Payment Request and later determined by the Authority and Developer or by an arbitrator after dispute resolution pursuant to Section 26.12 to have been incorrectly made shall accrue interest at the Specified Default Rate from the date the Authority made the incorrect payment until the date the Developer returns such amount to the Authority with interest. Developer shall pay the amount of the incorrect payment or portion thereof plus such accrued interest to Authority within ten ( 10) Business Days following the determination that such payment was incorrectly made to Developer, or, with the written approval of the Executive Director, such amounts shall be deducted from the following Developer’ s Phase 1A Payment Request( s) submitted by the Developer. Subject to Section 21.7 and Section 21.8, additional Developer’ s Phase 1A Infrastructure Improvements Costs incurred by the Developer that result from the failure to make payments when required by this Agreement will be the obligation of the Authority.
9.1.3.1. Additional Costs. Any costs that may accrue, such as interest on late payments to the General Contractor, Subcontractors, suppliers, or consultants as a result of the Developer’s failure to make a payment to such parties shall not be the obligation of the Authority if the Authority has timely made all required payments to Developer or Developer has failed to provide the corresponding complete Developer’ s Phase 1A Payment Request to Authority. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement. 42 4825- 3218- 1203/ 024036- 0079
9.1.4. Withholding and Contested Charges.
9.1.4.1. Withholding. Except to the extent required by law, Developer shall comply with and enforce the provisions relating to retainage and withholding set forth in the General Contract. Any deviations from such provisions of the General Contract shall be subject to the Authority’s approval, which shall be provided in the sole and absolute discretion of the Authority.
Without limiting the foregoing, Developer may release retainage or withholding amounts to a General Contractor, subject to Authority’ s reasonable approval, if it would reduce the overall cost of the applicable General Contract. Amounts required to be withheld or retained pursuant to this Agreement shall be excluded from amounts requested for payment pursuant to Developer Phase 1A Payment Requests until such amounts will be actually paid to the applicable General Contractor.
9.1.4.2. Payment and Invoicing for Withholding. Where a stop payment notice or mechanic’ s lien has been filed following the recordation of the Notice of Completion, Developer shall, to the extent in compliance with Law, withhold the amount in controversy until a fully executed release of stop payment notice or mechanic’ s lien or a bond releasing the stop payment notice or mechanic’ s lien has been filed and a conformed copy delivered to the Authority, as applicable. Notwithstanding anything in this Agreement to the contrary, Developer shall not be required to withhold any funds from the General Contractor or any Subcontractor to the extent doing so would violate any applicable law.
9.1.4.3. Developer’ s Phase 1A Contested Charges. In the event the Authority contests whether any amount that is included in any Developer’ s Phase 1A Payment Request is properly included in the Developer’ s Phase 1A Contract Sum (“ Developer’ s Phase 1A Contested Charges”), the Authority shall provide Developer a written statement of the Developer’ s Phase 1A Contested Charges, the reason why the costs/expenses are contested, and a proposed resolution.
a. Appeal to the Executive Director. Developer may appeal the determination by the Authority of any Developer’s Phase 1A Contested Charges. The appeal must be received within thirty ( 30) days after the Authority notifies the Developer of such Developer’ s Phase 1A Contested Charge. During the appeal period, and as long as any Developer’ s Phase 1A Contested Charge remains disputed, Developer shall proceed with the development of the Project, and the Authority shall compensate Developer for all amounts requested under Developer’ s Phase 1A Payment Request at issue other than the Developer’ s Phase 1A Contested Charges. If, following the appeal, the Executive Director determines that any Developer’ s Phase 1A Contested Charges are eligible for reimbursement or payment to Developer, such amounts shall be included in the next payment to Developer. If the Parties involved in the dispute regarding Developer’ s Phase 1A Contested Charges are unable to agree and settle such dispute within ten ( 10) Business Days after the commencement of the appeal period, then the Parties shall resolve the conflict pursuant to Section 26.12.
b. Interest. All Developer’s Phase 1A Contested Charges shall accrue interest at the Specified Default Rate from the Payment Date that would have been applicable to such Developer’ s Phase 1A Contested Charges if such Developer’ s Phase 1A Contested Charges were approved for payment until the date on which such Developer’ s Phase 1A Contested Charges are paid to Developer; provided, that no interest shall be paid to Developer with respect to any Developer’ s Phase 1A Contested Charges that are finally determined to be ineligible for reimbursement or payment to Developer. At the request of the Authority, the Developer will waive 43 4825- 3218- 1203/ 024036- 0079
the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section 9.1.4.3(b) and Sections 9.1.3, 9.2.3 and 9.2.4.2(b).
9.1.5. Cutoff for Submission of Invoices. Developer shall submit its final Developer’s Phase 1A Payment Request not later than the Cutoff Date. Any Developer’s Phase 1A Payment Requests submitted after the Cutoff Date shall not be reviewed or included as a Developer’ s Phase 1A Infrastructure Improvements Cost or Stipulated Developer’ s Phase 1A Infrastructure Improvements Overhead Amount. The final payment by the Authority for the Developer’ s Phase 1A Infrastructure Improvements will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing the Developer’ s Phase 1A Infrastructure Improvements associated with that phase, mechanic’ s lien free, stop payment notice free, substantially in accordance with the Approved Drawings and Specifications for the Developer’ s Phase 1A Infrastructure Improvements in all material respects. Final inspection and sign-off by the inspectors of the Authority with associated mechanic’ s lien and stop payment notice releases ( or bonds releasing contested mechanic’ s liens or stop payment notices) shall be sufficient evidence of the mechanic’ s lien or stop payment notice free completion of the Developer’ s Phase 1A Infrastructure Improvements.
9.1.6. Final Accounting. Following Completion of the Developer’s Phase 1A Infrastructure Improvements, Developer shall submit a Final Accounting to the Authority in order to determine the actual amount of the Developer’ s Phase 1A Infrastructure Improvements Costs, the Stipulated Developer’ s Phase 1A Infrastructure Improvements Overhead Amount and Developer’ s Phase 1A Contract Sum. Developer shall also submit all supporting information reasonably necessary ( to the extent not otherwise previously submitted in conjunction with a Developer’ s Phase 1A Payment Request) to document the Developer’ s Phase 1A Infrastructure Improvements Costs, including specific details on the costs and work attributable to the Developer’ s Phase 1A Infrastructure Improvements, including, as applicable, third-party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs, and similar expenses.
Developer shall also submit final lien releases and stop payment notice waivers and releases for all Developer’ s Phase 1A Infrastructure Improvements. Any dispute regarding the Final Accounting shall be resolved in accordance with Section 26.12.
9.1.6.1. True-up Payments. Within thirty (30) Business Days following a Final Accounting, the Authority shall determine whether the actual payments made with respect to the Developer’ s Phase 1A Infrastructure Improvements equal the audited approved costs and expenses and provide the Authority’s report thereon (the “ Authority’ s Phase 1A Final Review”) to Developer for Developer’ s review and approval. Any dispute regarding the Authority’ s Final Review shall be resolved in accordance with Section 26.12. In the event that the amount of the Developer’ s Phase 1A Contract Sum as determined in the approved Authority’ s Final Review ( the Developer’ s Phase 1A Final Amount”) exceeds the amount of the actual payments, then the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days. If the amount of actual payments to Developer exceeds the Developer’ s Phase 1A Final Amount, then Developer shall remit or cause the remittance of the difference to the Authority within twenty (20) Business Days of a notice of deficiency.
44 4825- 3218- 1203/ 024036- 0079
9.2. Convention Center Costs. The provisions of this Section 9.2 and each subsection of this Section 9.2 shall apply solely to the Convention Center.
9.2.1. Payment of Costs Associated with the Convention Center. On the Effective Date, Authority shall pay the Initial Development Fee Payment to Developer. Based upon the Convention Center Payment Requests submitted to the Authority by the Developer, the Authority shall make progress payments on account of the Convention Center Contract Sum to the Developer in accordance with the provisions of this Section 9.2. The amount of each progress payment shall be computed as follows:
9.2.1.1. The amount of each progress payment shall first include:
a. The Convention Center Costs incurred or to be incurred by Developer and for which Developer has made or intends to make actual payment prior to the next Convention Center Payment Request;
b. The Total Convention Center Development Fee that has accrued as of the date of such Convention Center Payment Request; and c. The Stipulated Convention Center Overhead Amount that has accrued as of the date of such Convention Center Payment Request.
9.2.1.2. The amount of each progress payment shall then be reduced by, without duplication:
a. The aggregate of any amounts previously paid by the
Authority in respect of the Convention Center Contract Sum; b. The amount by which the Architect, pursuant to the
Architect’ s Certificate that is attached to such Convention Center Payment Request, reduces the amount to be paid with respect to such Convention Center Payment Request. The Architect may reduce such amount to the extent the work performed by Developer for which payment is requested has not been performed substantially in accordance in all material respects with the Convention Center Plans, in which case the amount to be disbursed under the applicable Convention Center Payment Request shall be reduced to reflect the cost of causing such construction to be performed substantially in accordance in all material respects with the Convention Center Plans ( without duplication of any similar reduction that is made by Developer). In the event of any such reduction, Developer may seek payment for the amounts so reduced in any subsequent Convention Center Payment Request; and
c. Any amount for which the Developer does not intend to pay General Contractor or any Subcontractor, unless the work has been performed by others the Developer intends to pay.
9.2.1.3. Maximum Convention Center Amount. The maximum amount disbursed hereunder for the Convention Center Contract Sum shall not exceed the Maximum Convention Center Amount. Neither Developer nor its General Contractor nor any Subcontractor, nor any combination thereof, shall be entitled to payment in respect of the Convention Center Contract Sum in excess of the Maximum Convention Center Amount. For the avoidance of doubt, 45 4825- 3218- 1203/ 024036- 0079
Repair/Restoration Costs are not included in the Convention Center Contract Sum and shall not be limited to the Maximum Convention Center Amount, rather such amounts will also be funded from Net Proceeds transferred to the 2022A Construction Account and other amounts available to the Developer for Repair/Restoration Costs pursuant to the terms of the Sublease, Facility Lease and Authority Indenture. Once transferred to the 2022A Construction Account pursuant to the terms of the Authority Indenture, such Net Proceeds will be disbursed pursuant to the procedures set forth in Section 9.2.1.
9.2.1.4. Allocation of Common Costs. Common costs shall be reasonably and equitably allocated between the Developer’ s Phase 1A Infrastructure Improvements and the Convention Center, generally consistently with the allocation of such common costs set forth in the Form of Convention Center Budget attached hereto as Exhibit P, and such allocations shall be subject to review and approval by the Port District and City ( in their reasonable discretion). All such common costs shall be tracked and allocated so as to properly distinguish common cost allocations between the Developer’ s Phase 1A Infrastructure Improvements and the Convention Center for purposes of complying with provisions applicable to the Authority Tax-Exempt Bonds.
9.2.1.5. Funds for Payment of Costs/ Expenses.
a. Subject to Section 9.2.1.5(b) and Section 21.7, ( i) the source of funds for the payment of costs and expenses for the Convention Center shall be limited to A) eligible proceeds of the Taxable Authority Bonds actually on deposit in the 2022A Bond Proceeds Subaccount, ( B) amounts deposited in the Public Entity Contribution Subaccount, and C) any Net Proceeds authorized to be used for such payments ( in an amount not to exceed the Project Public Investment Amount plus any Net Proceeds or other amounts available therefor pursuant to the Authority Indenture, the Facility Lease and the Sublease), ( D) Advance Rent (to the extent received by any Public Entity and not paid to Developer pursuant to this Agreement), E) amounts on deposit or that are required to be on deposit in the Authority Surplus Fund (solely to the extent provided in Section 21.7), (F) other amounts to the extent provided in Section 21.7, and G) other amounts deposited by the Developer with the Authority to pay Convention Center Costs and ( ii) no other funds of the City, the Financing District, the Port District, the Authority, or the County, or monies held by, owed to, or in trust for, the City, the Financing District, the Port District, the Authority or the County, shall be used by the Authority or sought to be collected by any Developer Party for the payment of costs and expenses for the Convention Center other than those identified in this Section. Notwithstanding anything to the contrary set forth in this Agreement, the failure of the Authority to make payments with respect to the Convention Center Contract Sum in accordance with the provisions of this Section 9.2 shall not constitute a default or Event of Default of any Public Entity under this Agreement ( or require the payment of default interest by the Authority to the Developer under this Agreement), only if, and for so long as, such default or Event of Default occurs because the Authority is unable to disburse such funds, or is unable to cause such funds to be disbursed, solely because insufficient funds are available in the 2022A Bond Proceeds Subaccount because ( i) a Defaulting Purchaser ( as defined in the Bond Purchase Agreement) failed to make any Advance that (A) is with respect to the 2022A Bonds and (B) the Bond Purchase Agreement required any Defaulting Purchaser to make, or (ii) Purchasers ( as defined in the Bond Purchase Agreement) are not then required to make additional Advances because the aggregate amount of all Advances ( as defined in the Bond Purchase Agreement) then made is equal to or greater than the corresponding cumulative amount set forth for the appropriate time period on the Advance Funding Schedule ( as defined in the Bond Purchase Agreement), or ( iii) Purchasers are not then required to make additional Advances because a condition precedent to such Advance is not satisfied pursuant to 46 4825- 3218- 1203/ 024036- 0079
x) Section 4.02(b)(ii) of the Bond Purchase Agreement as a result of an Event of Default described in any of the following clauses of Section 7.01 of the Bond Purchase Agreement; ( e), ( f) (but only with respect to a default or event of default by a Developer Party or the Completion Guarantor), ( h), j) (other than as a result of an Authority Event of Default or a default of any Public Entity under a Related Document” ( as defined in the Bond Purchase Agreement)), ( k) ( but only if the void, voidable, unenforceable or illegal provision relates to an obligation of a Developer Party or the Completion Guarantor and such provision is not rendered void, voidable, unenforceable or illegal because of any act, circumstance or condition caused by any of the Public Entities), ( l) (but only terminations by Developer or the Completion Guarantor), ( n) ( but only with respect to insurance required to be maintained by a Developer Party or the Completion Guarantor), or (o) (but only with respect to material Governmental Approvals ( defined in the Bond Purchase Agreement) required to be obtained by a Developer Party or the Completion Guarantor pursuant to this Agreement, Ground Lease, or Sublease, in each case, unless arising from any failure of a Public Entity to perform its obligations under any Related Document) or (y) Section 4.02(b)(v) of the Bond Purchase Agreement but only if and to the extent the Authority is unable to make the certification described in Section 4.02(b)(v) of the Bond Purchase Agreement with respect to Governmental Approvals required to be obtained by a Developer Party or the Completion Guarantor pursuant to this Agreement, the Ground Lease, or the Sublease, in each case, unless arising from any failure of a Public Entity to perform its obligations under any Related Document). For the avoidance of doubt:
a) the absence of sufficient funds in any subaccount of the 2022B Construction Account or the Authority Existing Revenues Subaccount shall not waive the Authority’ s obligation to make payments to the Developer that are due and payable in accordance with Section 9.1 hereunder, and b) except as set forth in the preceding sentence and unless and until the full Project Public Investment Amount ( including any interest to the extent payable under Section 9.2) has been disbursed to Developer pursuant to Section 9.2 (excluding amounts with respect to Advance Rent), the absence of sufficient funds in any subaccount of the 2022A Construction Account or the Public Entity Contribution Subaccount shall not waive the Authority’ s obligation to make payments to the Developer that are due and payable in accordance with Section 9.2 hereunder. The Authority shall not consent to or permit any modification to the Advance Funding Schedule ( defined in the Bond Purchase Agreement) without the consent of the Developer, which shall not be unreasonably withheld, conditioned, or delayed. This Section 9.2.1.5(a) shall not limit the Developer’ s application of proceeds of Advance Rent to pay for the costs and expenses of the Convention Center. b. On the Effective Date, Authority shall cause the Trustee to deposit a portion of the Project Public Investment Amount into the 2022A Construction Account, as follows: ( i) the Authority shall deposit the Initial Advance ( as defined in the Indenture) of Taxable Authority Bonds into the 2022A Bond Proceeds Subaccount, ( ii) the City shall transfer to the Trustee and instruct the Trustee to deposit $ 9,500,000 into the Public Entity Contribution Subaccount, and (iii) the Port District shall transfer to the Trustee and instruct the Trustee to deposit 9,500,000 into the Public Entity Contribution Subaccount. Pursuant to the terms of the Authority Indenture, the Authority shall cause the Trustee to transfer ( x) any proceeds of an Advance received under the Bond Purchase Agreement into such accounts as provided in the Authority Indenture and y) any Net Proceeds deposited into the Insurance and Condemnation Fund that are available to be used for repair, rebuilding, restoration or reconstruction of the Convention Center to the 2022A Construction Account if required pursuant to the terms of the Authority Indenture, the Sublease and the Facility Lease. The Authority shall take all actions necessary to cause the Trustee to disburse moneys from the 2022A Construction Account ( except as provided in Section 9.2.1.7 below, first from the 2022A Bond Proceeds Subaccount, until the 2022A Bond Proceeds Subaccount is depleted, and then from the Public Entity Contribution Subaccount) ( a) for payments required to be made to 47 4825- 3218- 1203/ 024036- 0079
the Developer as and when required under this Agreement, the Sublease, the Facility Lease and the Authority Indenture, including for any repair, rebuilding, restoration or reconstruction of the Convention Center and ( b) until Full Payment, only to Developer. No Public Entity shall interfere with any lawfully made disbursement request delivered to the Trustee. Amounts in the 2022A Bond Proceeds Subaccount shall not be applied to redemption of the Authority Bonds, except for the mandatory redemption of the Authority Bonds on or after June 1, 2027 if and to the extent required by the Authority Indenture.
c. Until Full Payment, the Authority shall ( a) neither direct nor authorize the Trustee to transfer amounts out of the 2022A Construction Account or the Authority Surplus Fund for any purpose other than to Developer for payment of the Convention Center Contract Sum pursuant to Section 9.2 of this Agreement, interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of this Agreement, and amounts to be paid to Developer pursuant to Section 5.1.3, and ( b) direct or authorize the Trustee to transfer amounts out of the 2022A Construction Account or the Authority Surplus Fund only to the account or accounts designated by Developer in writing.
d. Until Full Payment, the Authority shall use reasonable efforts to cause the Trustee to deliver to the Developer and the Authority on a monthly basis statements for the 2022A Account and the 2022B Account ( but not the 2022B Bayfront Infrastructure Improvements Account or the County Funded Bayfront Infrastructure Improvements Account) of the Construction Fund showing the account balance and deposits and withdrawals for the month covered by the statement. If Developer exercises a Sweetwater Park Option, Authority shall also cause the Trustee to deliver monthly statements for the 2022B Bayfront Infrastructure Improvements Account of the Construction Fund to Developer showing the account balance and deposits and withdrawals for the month covered by the statement.
9.2.1.6. Application of Funds. Payments to the Developer made pursuant to this Section 9.2 shall be made:
a. First, from eligible proceeds of the Taxable Authority Bonds authorized to be used for such payments, subject to availability of amounts in the 2022A Bond Proceeds Subaccount; and
b. Second, except as otherwise provided in Section 9.2.1.7 below, upon the exhaustion of the proceeds described in clause a. or if, for any reason, under the Indenture or the Bond Purchase Agreement, such proceeds are not available to be disbursed, or are not to be disbursed, at such time, from amounts transferred to the Trustee by the City and Port District for deposit in the Public Entity Contribution Subaccount ( which shall be equal to 19,000,000) and any amounts transferred to replenish the Public Entity Contribution Subaccount; and
c. Third, upon the exhaustion of the proceeds described in clause a. and clause b., or sooner if and to the extent elected by the Developer in its sole discretion in a written notice delivered to the Authority, from the proceeds of Advance Rent received by the Authority pursuant to the Facility Lease;
d. Solely to the extent provided in Section 21.7, from
amounts on deposit in the Authority Surplus Fund; and
48 4825- 3218- 1203/ 024036- 0079
e. If and as needed in accordance with the terms of the Sublease, Facility Lease and Authority Indenture, from the Net Proceeds available for use for Repair/Restoration Costs.
9.2.1.7. Use of Amounts in Public Entity Contribution Subaccount.
Notwithstanding Section 9.2.1.6, Developer may submit a Convention Center Payment Request which requests disbursement of moneys from the Public Entity Contribution Subaccount prior to depletion of all proceeds of the Taxable Authority Bonds if insufficient Taxable Authority Bond proceeds are available in the 2022A Bond Proceeds Subaccount to make a payment of the Convention Center Contract Sum as required under this Section 9.2. Notwithstanding the provisions of Section 9.2.2.1 to the contrary, disbursements of moneys from the Public Entity Contribution Subaccount shall not be conditioned on delivery of an In-Balance Certificate by the Administrative Agent. Further, if the Executive Director does not respond to a Convention Center Payment Request which requests disbursement of moneys from the Public Entity Contribution Subaccount prior to depletion of all proceeds of the Taxable Authority Bonds within ten ( 10) Business Days after Developer provides such Convention Center Payment Request to Authority, then such Convention Center Payment Request shall be deemed to have been approved under protest by the Executive Director. Concurrently with the delivery of a Convention Center Payment Request which requests disbursement of moneys from the Public Entity Contribution Subaccount, Developer shall deliver a RIDA Requisition in the form attached as Exhibit F to the Authority Indenture to the Trustee and the Authority stating the amount of such Convention Center Payment Request that the Developer is requesting be paid from the Public Entity Contribution Subaccount. Authority shall provide the Trustee with a copy of any approval, denial, or request for additional documentation provided to Developer pursuant to Section 9.2.2.3 in response to such Convention Center Payment Request.
Authority and Developer acknowledge that the Trustee is instructed in the Authority Indenture to provide written notice to Authority if the Trustee has not received an approval or denial within seven 7) Business Days of receipt of the Developer’ s Public Entity Contribution Subaccount Requisition and to disburse the requested payment to Developer on the tenth ( 10th) Business Day following receipt of the RIDA Requisition if Trustee has not received a written denial of the Convention Center Payment Request on or before the ninth ( 9th) Business Day following the Trustee’ s receipt of the RIDA Requisition. In the event the amount on deposit in the Public Entity Contribution Subaccount is less than $19,000,000, future advances of Taxable Authority Bond proceeds made pursuant to the Bond Purchase Agreement shall be deposited into the Public Entity Contribution Subaccount until the balance therein equals $ 19,000,000 and thereafter into the 2022A Bond Proceeds Subaccount.
All other provisions of this Section 9.2 shall apply to all disbursements of moneys from the Public Entity Contribution Subaccount. All notices provided to Authority under this Section shall be submitted by email to the Authority Email Addresses with the subject line “ Developer Requisition for Convention Center Costs – Response Deadline [ insert response date]” ( and Developer shall insert the date on which the ninth ( 9th) Business Day following the submittal of the Convention Center Payment Request in the subject line of the email).
9.2.2. Prerequisites to Payment.
9.2.2.1. Convention Center Payment Request. Prior to the disbursement or reimbursement of any amounts to pay the Convention Center Contract Sum or Repair/Restoration Costs, Developer shall provide the Executive Director and the Administrative Agent with a Convention Center Payment Request, together with all of the items described therein. Each Convention Center Payment Request shall show ( i) the Convention Center Costs or Repair/Restoration Costs, as applicable, incurred or to be incurred by Developer and for which 49 4825- 3218- 1203/ 024036- 0079
Developer has made or intends to make actual payment prior to the next Convention Center Payment Request, ( ii) the Remaining Convention Center Development Fee computed upon such Convention Center Costs and ( iii) the Stipulated Convention Center Overhead Costs with respect to such Convention Center Costs and as applicable. The form of Convention Center Payment Request attached hereto as Exhibit K-2 may be modified or replaced by Developer, subject to the consent of Authority and Administrative Agent, provided or withheld in the sole discretion of each of the Authority and the Administrative Agent.
Each Convention Center Payment Request shall be delivered in the following manner ( or by such other means as is reasonably agreed to by the Developer and the Authority):
Developer shall send by electronic mail to the Authority Email Addresses and the Administrative Agent Email Address a notice that the Convention Center Payment Request and supporting documentation has been uploaded to an internet website, the link to which shall be included in the email notice. Authority shall send confirmation to the Developer by electronic mail once Authority has successfully accessed the Convention Center Payment Request.
The Authority shall not have an obligation to make payment to Developer unless and until (a) Developer provides the Executive Director with a Convention Center Payment Request, together with all of the items described therein (including the Architect’ s Certificate), and such Convention Center Payment Request is approved by the Executive Director as provided below and (b) Administrative Agent delivers to Authority an In-Balance Certificate in the form attached as Exhibit AA; provided that the Administrative Agent shall be deemed to have submitted such InBalance Certificate if the Administrative Agent has not delivered notice to the Authority and Developer stating that the Project (as defined in the Bond Purchase Agreement) is not In-Balance (as defined in the Bond Purchase Agreement) on or before six (6) Business Days following the later to occur of the date on which the Developer delivers (i) the Convention Center Payment Request to the Authority with a copy to the Administrative Agent and (ii) the Other Requisite Information (defined in the Bond Purchase Agreement) with respect to such Convention Center Payment Request to the Administrative Agent.
9.2.2.2. Prevailing Wage Compliance. Developer shall ensure that all persons and entities providing work or services for the Improvements comply with Prevailing Wage requirements, as and to the extent described in Section 7.2.3.1.
9.2.2.3. Public Entity Approval. The Executive Director shall review each Convention Center Payment Request and the supporting documentation. If the Executive Director finds in his/her reasonable discretion that any such Convention Center Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten (10) Business Days after Developer provides such Convention Center Payment Request to Authority, of the reasons for his/her finding. Developer shall have the right to respond to such finding by submitting further documentation requested in such finding after receipt of said finding. The Executive Director shall review any further documentation received from Developer in support of the Convention Center Payment Request and inform Developer of his/her approval or denial of the Convention Center Payment Request within five (5) Business Days after Developer provides such further documentation to Authority. If the Executive Director does not find that any such Convention Center Payment Request is incomplete (except to a de minimis extent) or contains material errors or misstatements on its face, then the Executive Director shall so inform Developer in writing within ten ( 10) Business Days after Developer provides such Convention Center Payment Request to Authority and within 50 4825- 3218- 1203/ 024036- 0079
that time period approve the Convention Center Payment Request. If the Executive Director determines that the Convention Center Payment Request is incomplete ( except to a de minimis extent) or contains material errors or misstatements on its face, but that sufficient and complete information exists with respect to a portion of the Construction Costs Payment Request, then the Executive Director shall approve the Convention Center Payment Request with respect to such portion of the Convention Center Payment Request and so notify Developer within ten (10) Business Days after Developer provides such Convention Center Payment Request to Authority. The Authority shall cause the Executive Director to carry out his or her duties under this Section 9.2.2.3 in a reasonable and good faith manner. Notwithstanding anything to the contrary set forth in this Agreement, ( a) the Authority may make payment to Developer under protest and commence dispute resolution proceedings pursuant to Section 26.12 and ( b) if Authority has made a payment to Developer and later determines that the payment was made in error, whether due to an incomplete or inaccurate payment request or due to missing documentation or otherwise, Authority may commence dispute resolution proceedings pursuant to Section 26.12 to challenge such previous payment. A certificate or request that Developer delivers under this Agreement will be deemed to contain material errors or misstatements on its face if such material error or omission is apparent from the four corners of such certificate or request without the use of extrinsic evidence.
9.2.3. Time of Payment. If the Executive Director provides approval pursuant to Section 9.2.2 with respect to all or any portion of any Convention Center Payment Request, then the Authority shall cause payment to be made to Developer for the approved costs/expenses associated with such Convention Center Payment Request to be paid by the Payment Date ( excluding any Convention Center Contested Charges). If the Payment Date falls on a weekend or holiday, the Payment Date shall be extended to the next Business Day. Except for Convention Center Contested Charges, all costs/expenses associated with each Convention Center Payment Request shall accrue interest at the Specified Default Rate from the Payment Date until paid. At the request of the Authority, the Developer will waive the interest accrued during the first ten ( 10) Business Days following the applicable Payment Date up to a total of four ( 4) times in each calendar year for payments made after the required Payment Date under this Section 9.2.3 and Sections 9.1.3,
9.1.4.3(b) and 9.2.4.2(b). Any payment or portion thereof made to Developer in accordance with a Convention Center Payment Request and later determined by the Authority and Developer or by an arbitrator after dispute resolution pursuant to Section 26.12 to have been incorrectly made shall accrue interest at the Specified Default Rate from the date the Authority made the payment until the date the Developer returns such payment together with such interest thereon to the Authority.
Developer shall pay the amount of the incorrect payment or portion thereof plus such accrued interest to Authority within ten ( 10) Business Days following the determination that such payment was incorrectly made to Developer, or, with the written approval of the Executive Director, such amounts shall be deducted from the following Convention Center Payment Request(s) submitted by the Developer. Subject to Section 21.7, additional costs incurred by the Developer in excess of the amount of interest paid to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) ( calculated as if interest at the Specified Default Rate had accrued during the ten ( 10) Business Day cure periods described in such Sections 9.2.3 and 9.2.4.2(b) and was not waived by Developer) that, in each case, result from the failure to make payments when required by this Agreement will be the obligation of the Authority.
9.2.3.1. Advance Rent Notices. In the event that the payment required pursuant to Section 9.2.3 will be made, in whole or in part, from the proceeds of Advance Rent received by the Authority under the Facility Lease, then the Authority shall, no later than two (2) days after submitting the applicable approval described in Section 9.2.2, provide a Facility Lease 51 4825- 3218- 1203/ 024036- 0079
Advance Rent Notice to the City for the amount of Advance Rent required to make such payment.
Except as set forth in this Section 9.2.3.1 or in Section 9.2.6.1, (a) the Authority shall not, without the Developer’ s prior written consent, provide a Facility Lease Advance Rent Notice to the City and b) the City shall not, without the Developer’ s prior written consent, provide a Sublease Advance Rent Notice to the Developer unless the City shall have received a corresponding Facility Lease Advance Rent Notice from the Authority. As provided in the Sublease, if Developer receives a notice from the City confirming that the City assigned to the Authority its right to receive the payment of Advance Rent under the Sublease, then, from and after the date of the receipt of such notice, Developer shall pay Advance Rent to the Authority as the City’ s assignee. The Parties acknowledge that additional procedures regarding the payment of Advance Rent are set forth in the Payment Direction Agreement.
9.2.3.2. Additional Costs. Any costs that may accrue, such as interest on late payments to the General Contractor, Subcontractors, suppliers, or consultants as a result of the Developer’ s failure to make a payment to such parties shall not be the obligation of the Authority if the Authority has timely made all required payments to Developer or Developer has failed to provide the corresponding complete Convention Center Payment Request to Authority. Such additional costs shall be the obligation of the Developer and not eligible for reimbursement.
9.2.4. Withholding and Contested Charges.
9.2.4.1. Payment and Invoicing for Withholding. Where a stop payment notice or mechanic’ s lien has been filed following the recordation of the Notice of Completion, Developer shall, to the extent in compliance with Law, withhold the amount in controversy until a fully executed release of stop payment notice or mechanic’ s lien or a bond releasing the stop payment notice or mechanic’ s lien has been filed and a conformed copy delivered to the Authority, as applicable. Notwithstanding anything in this Agreement to the contrary, Developer shall not be required to withhold any funds from the General Contractor or any Subcontractor to the extent doing so would violate any applicable law.
9.2.4.2. Convention Center Contested Charges. In the event the Authority contests whether any amount that is included in any Convention Center Payment Request is properly included in the Convention Center Contract Sum or as a Repair/Restoration Cost (“ Convention Center Contested Charges”), the Authority shall provide Developer a written statement of the Convention Center Contested Charges, the reason why the costs/expenses are contested, and a proposed resolution.
a. Appeal to the Executive Director. Developer may appeal the determination by the Authority of any Convention Center Contested Charges. The appeal must be received within thirty ( 30) days after the Authority notifies the Developer of such Convention Center Contested Charge. During the appeal period, and as long as any Convention Center Contested Charge remains disputed, Developer shall proceed with the development of the Project (or repair and restoration of the Convention Center, as applicable), and the Authority shall compensate Developer for all amounts requested under the Convention Center Payment Request at issue other than the Convention Center Contested Charges. If, following the appeal, the Executive Director determines that any Convention Center Contested Charges are eligible for reimbursement, such amounts shall be included in the next payment to Developer. If the Parties involved in the dispute regarding Convention Center Contested Charges are unable to agree and settle such dispute within ten ( 10) 52 4825- 3218- 1203/ 024036- 0079
Business Days after the commencement of the appeal period, then the Parties shall resolve the conflict pursuant to Section 26.12.
b. Interest. All Convention Center Contested Charges shall accrue interest at the Specified Default Rate from the Payment Date that would have been applicable to such Convention Center Contested Charges if such Convention Center Contested Charges were approved for payment until the date on which such Convention Center Contested Charges are paid to Developer; provided, that no interest shall be paid to Developer with respect to any Convention Center Contested Charges that are finally determined to be ineligible for reimbursement or payment to Developer. At the request of the Authority, the Developer will waive the interest accrued during the first ten (10) Business Days following the applicable Payment Date up to a total of four (4) times in each calendar year for payments made after the required Payment Date under this Section
9.2.4.2(b) and Sections 9.1.3, 9.1.4.3(b) and 9.2.3.
9.2.5. Cutoff for Submission of Invoices. Except with respect to any Convention Center Payment Request for Repair/Restoration Costs, Developer shall submit its final Construction Costs Payment Request not later than the Cutoff Date. Any Construction Costs Payment Requests other than those for Repair/Restoration Costs) submitted after the Cutoff Date shall not be reviewed or included in the Project Costs for the Convention Center. The final payment by the Authority, for the Project or for Repair/Restoration Costs, as applicable, will be made only after Developer has submitted all documentation reasonably necessary to substantiate the cost of construction and completing or restoring/repairing, as applicable, the Convention Center associated with that phase, mechanic’ s lien free, stop payment notice free, substantially in accordance with the Convention Center Plans in all material respects. Final inspection and sign-off by the inspectors of the Authority with associated mechanic’ s lien and stop payment notice releases ( or bonds releasing contested mechanic’ s liens or stop payment notices) shall be sufficient evidence of the mechanic’ s lien or stop payment notice free completion of the Convention Center.
9.2.6. Final Accounting. Following Completion of the Convention Center, Developer shall submit a Final Accounting to the Authority in order to determine the actual amount of the Convention Center Costs and Convention Center Contract Sum. Developer shall also submit all supporting information reasonably necessary ( to the extent not otherwise previously submitted in conjunction with a Convention Center Payment Request) to document the Convention Center Costs, including specific details on the costs and work attributable to the Convention Center, including, as applicable, third-party invoices, billings, and receipts for construction surveying, soil testing, blue printing, actual construction costs, and similar expenses. Developer shall also submit final lien releases and stop payment notice waivers and releases for the Convention Center. Any dispute regarding the Final Accounting shall be resolved in accordance with Section 26.12.
9.2.6.1. True-up Payments. Within thirty (30) Business Days following a Final Accounting, the Authority shall determine whether the actual payments made with respect to the Convention Center equal the audited approved costs and expenses and provide the Authority’ s report thereon (the “ Authority’ s Convention Center Final Review”) to Developer for Developer’ s review and approval. Any dispute regarding the Authority’ s Convention Center Final Review shall be resolved in accordance with Section 26.12. In the event that the amount of the Convention Center Contract Sum as determined in the Authority’ s Final Review ( the “ Convention Center Final Amount”) exceeds the amount of the actual payments, then: ( a) the Authority shall make a true-up payment to Developer for the difference within twenty (20) Business Days and ( b) in the event that the payment required pursuant to clause ( a) will be made, in whole or in part, from the proceeds of 53 4825- 3218- 1203/ 024036- 0079
Advance Rent received by the Authority under the Facility Lease, then the Authority shall, no later than two ( 2) Business Days after the final determination of the Convention Center Final Amount, provide an Advance Rent Notice to the City under the Facility Lease for the amount of Advance Rent required to make such payment. If the amount of actual payments to Developer exceeds the Convention Center Final Amount, then Developer shall remit or cause the remittance of the difference to the Trustee as assignee of the Authority for deposit in the Revenue Fund under the Authority Indenture within twenty (20) Business Days of a notice of deficiency.
9.2.6.2. Final Accounting and True-up for Repair/Replacement Costs. If requested by either the Authority or Developer not later than one ( 1) year following payment to Developer of the final Repair/Replacement Costs incurred as a result of any Condemnation as provided in Section 5.1 of the Sublease, the Developer shall submit a Final Accounting which shall be processed to resolution in a similar manner to the Final Accounting described in Sections 9.2.6 and 9.2.6.1 for Convention Center Costs. There will be no Final Accounting with respect to a casualty event pursuant to Section 5.2 of the Sublease.
9.2.7. Casualty and Condemnation. While the disbursement provisions of this Section 9.2 have been drafted primarily to address the disbursement of funds for the development of the Convention Center, the Parties intend that the provisions of this Section 9.2 (with the exception of Subsections 9.2.5 which will not be applicable in such context) will also govern the disbursement of funds for the reconstruction or modification of the Convention Center following any event of damage to or destruction of, or condemnation or eminent domain with respect to, any portion of the Convention Center. As such, when the provisions of this Section 9.2 ( with the exception of Subsections 9.2.5) are given effect in connection with such reconstruction or modification, such provision will be construed with the intent that Developer be able to access funds for such purposes, and the provisions of this Section 9.2 ( with the exception of Subsections 9.2.5) will be deemed modified as reasonably necessary to give effect to such intent. Net Proceeds not disbursed pursuant to this Section 9.2 shall be disbursed pursuant to Article V of the Sublease and Section 6.1(a) of the Facility Lease.
9.3. Investment of Amounts in the Construction Fund. The Parties acknowledge that proceeds of the Authority Bonds and Net Proceeds on deposit from time to time in the Construction Fund and the Insurance and Condemnation Fund will be invested in Permitted Investments pursuant to, and as defined in, the Authority Indenture. The Authority agrees to provide the Developer an opportunity to provide recommendations regarding the Permitted Investments in which amounts on deposit in the Construction Fund and the Insurance and Condemnation Fund will be invested by providing the Developer with ten ( 10) days’ notice prior to directing the Trustee to change the investment of such funds.
9.4. Calculation of Specified Default Rate. All interest at the Specified Default Rate shall compound on a monthly basis on the first day of each full calendar month in which such interest is payable.
9.5. Redemption of Authority Bonds and Certain Amendments Prior to Full Payment.
Prior to Full Payment, and provided that no Event of Default by Developer has occurred and is continuing:
54 4825- 3218- 1203/ 024036- 0079
9.5.1. The Authority shall not deliver a Request described in the last sentence of Section 4.4 of the Indenture for transfers out of the Authority Surplus Fund for purposes other than payments to Developer pursuant to Sections 5.1.3 and 9.2 hereof.
9.5.2. The Authority shall not redeem the Authority Bonds in whole or in part, unless:
9.5.2.1. Except for the mandatory redemption of the 2022 Bonds pursuant to Section 2.2(c) of the Authority Indenture, no Advances remain to be disbursed to Authority under the Bond Purchase Agreement; and
9.5.2.2. Except for the mandatory redemption of the 2022 Bonds pursuant to Section 2.2(c) of the Authority Indenture, immediately following such redemption, all amounts on deposit in the 2022A Account and 2022B Account of the Construction Fund and the Authority Existing Revenues Account (in the case of the Authority Existing Revenues Account, in an amount up to $ 3,000,000) immediately prior to such redemption shall remain on deposit in the 2022A Account and 2022B Account of the Construction Fund and the Authority Existing Revenues Account, respectively, under the Authority Indenture, or shall be held in an escrow with an escrow holder that meets the financial standards for a replacement trustee under the Authority Indenture and pursuant to a commercially reasonable escrow agreement providing substantially the same requirements for disbursement of, such moneys; and
9.5.2.3. the interest rate on any Additional Bonds issued to redeem Authority Bonds shall not exceed the Default Rate ( as such term is defined in the Bond Purchase Agreement) and the principal payments on such Additional Bonds shall not exceed, in any one fiscal year, one thirty-fifth (1/35) of the total original principal amount of the Authority Bonds issued on the Effective Date; provided that the restriction set forth in this Section 9.5.2.3 shall not apply if the Resort Hotel, Parking Improvements, and Convention Center are Complete.
9.5.3. The Authority shall not, without Developer’ s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed, terminate the Bond Purchase Agreement, Indenture, Support Agreement or Loan Agreement or amend or modify the Bond Purchase Agreement, Indenture, Support Agreement or Loan Agreement in any manner that results in a material adverse effect on the Developer (“ Material Adverse Effect”). For purposes of this Section 9.5.3, a Material Adverse Effect shall only include ( a) unless and until the Resort Hotel, Parking Improvements, and Convention Center are Complete, amendments to the Bond Purchase Agreement or Indenture that impose an interest rate or default rate on the Authority Bonds or Additional Bonds that exceeds the Default Rate ( as such term is defined in the Bond Purchase Agreement) or that provide for principal payments on the Authority Bonds or Additional Bonds that exceed, in any fiscal year, one thirty-fifth ( 1/35) of the total original principal amount of the Authority Bonds issued on the Effective Date; and (b) amendments to the Bond Purchase Agreement, Indenture, Support Agreement or Loan Agreement that reasonably could be expected to (i) reduce the amount of Revenues or bond proceeds then on deposit or that will be deposited into any of the funds and accounts maintained under the Indenture from which Developer is to receive payment of Developer’ s Phase 1A Infrastructure Improvements Costs pursuant to Section 9.1 hereof or Convention Center Costs pursuant to Section 9.2 hereof or ( ii) directly or indirectly place any additional or more onerous restrictions on the disbursement of moneys, or materially increase the risk that moneys will not be disbursed in a timely manner, to the Developer from the funds and accounts maintained under the Indenture.
55 4825- 3218- 1203/ 024036- 0079
9.6. Survival. With respect to any amounts that constitute part of Developer’ s Phase 1A Contract Sum or the Convention Center Contract Sum that have been incurred by Developer but have not been paid or reimbursed to Developer pursuant to this Article IX, this Article IX and Section 21.7 shall survive the prior expiration and/or termination of this Agreement.
ARTICLE X
ACCEPTANCE OF IMPROVEMENTS
10.1. Developer’s Phase 1A Infrastructure Improvements. If Developer’s Phase 1A Infrastructure Improvements are Completed by Developer substantially in accordance in all material respects with the Approved Drawings and Specifications, if they comply with all Laws and Construction Requirements, and if Developer has satisfied all conditions of Acceptance set forth in Section 10.1.1, the City and the Port District shall Accept their respective Developer’ s Phase 1A Infrastructure Improvements. Section 10.3, not this Section 10.1, governs Acceptance of the Remaining Phase 1A Infrastructure Improvements.
10.1.1. Conditions of Acceptance. Prior to Acceptance of any portion of Developer’s Phase 1A Infrastructure Improvements, Developer shall, as applicable:
10.1.1.1. Complete all punch-list items from the City’s inspection of Developer’ s Phase 1A Infrastructure Improvements.
10.1.1.2. Record a Notice of Completion ( NOC) with the County Recorder of San Diego County at least thirty-five (35) days prior to Acceptance of such portion of Developer’ s Phase 1A Infrastructure Improvements.
10.1.1.3. Submit to Port District and to the City, as applicable, the following with respect to such portion of Developer’ s Phase 1A Infrastructure Improvements, as applicable:
a. Record drawings or “ as-builts” in the form of final asbuilt CAD files; and b. Copies of the signed as-built mylars that are submitted to the City (a copy of which shall be provided to the Port District). c. With respect to City, evidence that adequate funds are available in City’ s deposit account to cover City’ s project close out costs with respect to permitting; d. With respect to City, record drawings or “ as-builts” in the form of signed as-built mylars, and with respect to Port District, copies of such signed “ as-builts”; e. One set of final soils reports (“ as-graded” Geotech report);
f. Completed City Form 5519 Certification;
g. Completed City Form 5522 Statement of Substantial
Conformance;
56 4825- 3218- 1203/ 024036- 0079
h. Operations and maintenance manuals; and
i. Warranty documentation.
10.1.1.4. Submit to Port District or City, as applicable, documentation and information reasonably necessary for Port District or City, as applicable, to provide the following items to Developer with respect to such portion of Developer’ s Phase 1A Infrastructure Improvements, as applicable:
a. Approval from Port District’ s or City’ s Land Surveyor, as applicable, confirming survey monuments are set and verified (as applicable); b. Confirmation that street lights are fully functional; and c. Written approval from Port District’ s or City’ s NPDES section, as applicable, confirming stormwater requirements have been satisfied.
Subject to Section 2.1.6.4, upon receipt of the documentation and information set forth in this Section 10.1.1.4, City and Port District, as applicable, shall take all actions reasonably required to provide the foregoing items to Developer.
10.1.2. Acceptance Notice and Confirmation of Acceptance. When Developer reasonably determines that the conditions for Acceptance of any component of Developer’s Phase 1A Infrastructure Improvements have been satisfied, Developer will provide written notice thereof to Authority, with a copy to the Administrative Agent (an “ Acceptance Notice”). Each of the City and the Port District, as applicable, shall either confirm its Acceptance ( in its reasonable discretion) of such component of Developer’ s Phase 1A Infrastructure Improvements or set forth the reasons for denying its Acceptance within ten (10) Business Days after Authority’ s receipt of such Acceptance Notice. If the City or the Port deny Acceptance, then Developer shall take such steps as may be reasonably necessary to address the City’s reasons or the Port District’ s reasons ( as applicable) for denying its Acceptance and submit a new Acceptance Notice to Authority and the foregoing process shall continue on an iterative basis ( and City and the Port District, as applicable, shall have ten (10) Business Days to respond to each Acceptance Notice) until the City or the Port District, as applicable, have confirmed that Acceptance of such component has occurred.
10.2. Convention Center. When Developer determines that the Convention Center is Complete, Developer will provide a copy of its certificate of occupancy or temporary certificate of occupancy to Authority, with a copy to the Administrative Agent, and the Authority shall confirm its Acceptance of the Convention Center within five (5) Business Days after Authority’ s receipt of such copy of such certificate of occupancy or temporary certificate of occupancy.
10.3. Sweetwater Park. This Section applies only if Developer exercises a Sweetwater Park Option.
10.3.1. When Developer reasonably determines that the conditions for Sweetwater Park to be Sufficiently Complete have been satisfied, Developer will provide written notice thereof to Port District ( a “ Sufficient Completion Notice”). Port District shall either confirm Sufficient Completion ( in its sole and good faith discretion) of Sweetwater Park or set forth the reasons for denying that Sweetwater Park is Sufficiently Complete within ten ( 10) Business Days after Port 57 4825- 3218- 1203/ 024036- 0079
District’ s receipt of such Sufficient Completion Notice. If Port District denies that Sweetwater Park is Sufficiently Complete, then Developer shall take such steps as may be reasonably necessary to address the Port District’ s reasons for such denial and submit a new Sufficient Completion Notice to Port District and the foregoing process shall continue on an iterative basis ( and Port District shall have ten (10) Business Days to respond to each Sufficient Completion Notice) until the Port District has confirmed that Sufficient Completion of Sweetwater Park has occurred.
10.3.2. Following Sufficient Completion and prior to Acceptance, Developer shall complete any remaining punch-list items, record a notice of completion with the County Recorder of San Diego County, and deliver to the Port District (i) “as-built” or record drawings, ( ii) final soils report (“ as-graded” Geotech report), ( iii) operations and maintenance manuals ( if applicable), and iv) all applicable warranty documentation. When Developer reasonably determines that Sweetwater Park has been Sufficiently Completed and the conditions to Acceptance described above in this Section have been satisfied, Developer will provide written notice thereof to the Port District ( an Acceptance Notice”). Port District shall either confirm its Acceptance (in its reasonable discretion) of Sweetwater Park or set forth the reasons for denying its Acceptance within ten (10) Business Days after Port District’ s receipt of such Acceptance Notice. If Port District denies Acceptance, then Developer shall take such steps as may be reasonably necessary to address the Port District’ s reasons for denying its Acceptance and submit a new Acceptance Notice to Port District and the foregoing process shall continue on an iterative basis ( and Port District shall have ten ( 10) Business Days to respond to each Acceptance Notice) until the Port District has confirmed that Acceptance of such component has occurred. Developer may provide an Acceptance Notice in addition or in lieu of providing a Sufficient Completion Notice pursuant to Section 10.3.1.
ARTICLE XI
WARRANTIES
11.1. Enforcement of Warranties. Upon Acceptance of each applicable Developer’s Phase 1A Infrastructure Improvement, Developer shall assign any manufacturer’ s warranties to the Public Entity accepting ownership of such applicable Developer’ s Phase 1A Infrastructure Improvements. Until such improvements are assigned to the applicable Public Entity, Developer shall enforce for the Authority’ s benefit all warranties provided in the Contract Documents with respect to such improvements and any other explicit warranties with respect to such improvements.
11.1.1. Materials and Workmanship. Developer shall require its General Contractor and Subcontractor( s) to warrant all work on the Project against Defective Work for a period of one (1) year following the date of Completion.
11.1.2. New Materials and Equipment. Developer shall require its General Contractor and Subcontractor(s) to warrant and guarantee to Authority that all materials and equipment incorporated into the Project are new unless otherwise specified.
11.1.3. Documentation. Developer shall furnish, or cause its General Contractor to furnish, the Public Entities with all warranty and guarantee documents prior to Acceptance.
11.2. Term of Warranties. Unless otherwise specified or provided by Law, warranties shall extend for a term of one (1) year following the date of Completion, except that, with respect to the Convention Center, the warranties shall extend for one year after the Convention Center is substantially complete in accordance with the Contract Documents ( excluding, for the avoidance of 58 4825- 3218- 1203/ 024036- 0079
doubt, punch list items, so that the Convention Center can be occupied or utilized for its intended use the “ Warranty Period”).
11.3. Additional Warranties. In addition to the warranties set forth in this Article, following Acceptance, Developer or its General Contractor shall assign to the Public Entities any and all other manufacturer’ s or installer’ s warranties for equipment or materials not manufactured by the General Contractor provided as part of the work related to the Developer’ s Phase 1A Infrastructure Improvements, to the extent that such third-party warranties are assignable and extend beyond the Warranty Period. Developer shall furnish, or cause its General Contractor to furnish, the Public Entities with all warranty and guarantee documents with respect to Developer’ s Phase 1A Infrastructure Improvements prior to Acceptance.
ARTICLE XII
DEFECTIVE WORK
12.1. Correction, Removal, or Replacement. The Developer shall require that if, within the Warranty Period, the Authority determines the Developer’s Phase 1A Infrastructure Improvements contain Defective Work and provides written notice thereof to the Developer, the Developer’ s General Contractor or applicable Subcontractor, as applicable, shall promptly correct, repair, or both remove and replace the Defective Work as determined by Developer in its sole discretion.
12.2. Extension of Warranty. With respect to the Developer’ s Phase 1A Infrastructure Improvements ( excluding plant materials), when Defective Work, or damage therefrom, has been corrected, repaired, replaced or removed, as applicable, during the initial Warranty Period, the Warranty Period for such Defective Work will be extended for an additional time period equal to that of the initial Warranty Period, after the date of the satisfactory completion of the correction, repair, replacement or removal, as applicable, but, in no event, beyond the earlier to occur of (a) one (1) year after the date of the expiration of the initial Warranty Period or (b) two (2) years after Acceptance of the applicable Improvement.
12.3. Right of Authority to Correct. In the event of the Developer’s failure, its General Contractor’s failure, or such Subcontractor’ s failure, as applicable, to adhere to Section 12.1 within thirty (30) days after Developer receives notice of such Defective Work from the Authority (provided that, if the nature of such Defective Work is such that the same cannot reasonably be corrected, repaired or replaced within such thirty ( 30) day period, and Developer diligently commences to perform such work within such thirty (30) day period and thereafter diligently proceeds with such work, then such thirty ( 30) day period shall be extended for as long as reasonably necessary to complete such work) or in the event of an emergency or immediate threat to public safety, Developer shall as promptly as practicable correct, remove, or replace the Defective Work or, if Developer does not do so, the Authority may, in its sole and absolute discretion, notify Developer in writing and then the Authority may correct, remove, or replace the Defective Work. In such circumstances, the costs payable to the Developer shall be reduced by the actual cost incurred by the Authority to correct, remove or replace the Defective Work.
12.4. No Limitation on Other Remedies. Exercise of the remedies for Defective Work pursuant to this Article XII shall not limit the remedies the Authority may pursue under this Agreement or at law or equity.
59 4825- 3218- 1203/ 024036- 0079
12.5. Disputes. If Developer and Authority are unable to reach agreement on disputed work, the Authority may direct Developer to proceed with the work and compensate Developer for undisputed amounts. Payment of disputed amounts shall be as later determined in accordance with Section 26.12. Developer shall maintain and keep all records relating to disputed work for a period of three (3) years in accordance with Article XVI.
12.6. Applicability. This Article XII shall not apply with respect to the Convention Center.
ARTICLE XIII
SECURITY FOR CONSTRUCTION
13.1. Bonds. The Contract Documents for the Developer’ s Phase 1A Infrastructure Improvements shall require each General Contractor to provide a performance bond on a form reasonably acceptable to the Authority for the construction of the Developer’ s Phase 1A Infrastructure Improvements and the aggregate amount of such bond will be no less than the amount payable pursuant to the General Contracts with respect to Developer’ s Phase 1A Infrastructure Improvements. Developer shall cause each of the Authority, the Trustee, the Senior Permitted Mortgage Lender, and the Senior Permitted Mezzanine Lender to be named as a co-obligees of such performance bond. Developer shall provide a payment bond on a form reasonably acceptable to Authority for the construction of the Developer’ s Phase 1A Infrastructure Improvements in the total amount set forth on the Developer’ s Phase 1A Infrastructure Improvements Budget. Developer shall deliver copies of the payment bond and performance bond to the Authority and each other co-obligee prior to commencement of construction for the Developer’ s Phase 1A Infrastructure Improvements.
With respect to any portion of the Developer’ s Phase 1A Infrastructure Improvements, Developer shall ensure that (a) the payment bond is maintained though the period of time required by California Civil Code Section 9558 and ( b) the performance bond is maintained for at least one ( 1) year following Acceptance of such portion of the Developer’ s Phase 1A Infrastructure Improvements, provided however that Developer may replace a performance bond with a warranty bond which shall remain in effect for the initial Warranty Period, subject to reasonable approval of the form of such warranty bond by the Public Entity accepting such Developer Phase 1A Infrastructure Improvements.
The Contract Documents for the Convention Center shall require each General Contractor to provide a performance bond on a form reasonably acceptable to the Authority for the construction of the Convention Center and the aggregate amount of such bonds will be no less than the amount payable pursuant to the General Contracts with respect to the Convention Center. Developer shall cause each of the Authority, the Trustee, the Senior Permitted Mortgage Lender, and the Senior Permitted Mezzanine Lender to be named as a co-obligees of such performance bond. Developer shall provide a payment bond on a form reasonably acceptable to Authority for the construction of the Convention Center in the total amount set forth on the Convention Center Budget. Developer shall deliver copies of the payment bond and performance bond to the Authority and each other coobligee prior to commencement of construction for the Convention Center. Developer shall ensure the payment bond is maintained though the period of time required by California Civil Code Section 9558. Developer shall ensure the performance bond is maintained until such time as the Convention Center is Complete.
If the estimated amount payable to a General Contractor pursuant to its General Contract is increased, the Developer shall advise such General Contractor and the surety of the increased amount and the payment bond shall be increased accordingly. Under no circumstances shall the payment bond surety be released from liability to those for whose benefit such bond has been given, by reason 60 4825- 3218- 1203/ 024036- 0079
of any breach of contract between the Developer and such General Contractor or on the part of any obligee named in such bond, but the sole conditions of recovery shall be that claimant is a person described in Civil Code Section 9100, and has not been paid the full amount of such person’ s claim.
13.2. Insolvency or Bankruptcy. If the surety on any of the above-mentioned bonds pertaining to Developer’s Phase 1A Infrastructure Improvements is declared bankrupt, becomes insolvent ( as defined in Insurance Code Section 985), or its right to do business is terminated in the State of California, Developer shall, within fifteen ( 15) Business Days after Developer’ s actual knowledge or receipt of notice from the Authority, substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent a replacement bond is commercially available.
If the surety on any of the above-mentioned bonds pertaining to the Convention Center is declared bankrupt, becomes insolvent ( as defined in Insurance Code Section 985), or its right to do business is terminated in the State of California, Developer shall within fifteen (15) Business Days after Developer’ s actual knowledge or receipt of notice from the Authority substitute or require the substitution of another bond and surety, reasonably acceptable to the Authority, to the extent ( i) a replacement bond is commercially available and ( ii) the cost of such replacement bond does not exceed one hundred ten percent ( 110%) of the portion of the cost of the original bond that is fairly allocable to the portion of the Convention Center that has not then been completed. The Parties acknowledge that the bonds required by Section 13.1 must be in place throughout the period of time required by Section 13.1 and, to that end, in the event replacement bonds are needed for the reasons described in the immediately preceding sentence but the thresholds set forth in clauses (i) and (ii) of the immediately preceding sentence are not met, the Parties shall meet and confer to determine how the Parties can replace the subject bonds or potentially obtain an alternative form of security; provided that Developer shall not be required to obtain any such replacement bond or alternative security unless the Parties mutually agree, and in no event shall the cost to the Developer of any replacement bond or alternative security exceed the cost threshold set forth in clause ( ii) of the immediately preceding sentence.
13.3. Calling a Bond.
13.3.1. Developer acknowledges and agrees that if Developer’ s construction of Developer’ s Phase 1A Infrastructure Improvements has not been performed in accordance with Section 5.1 or if the Developer has failed to cure any Defective Work within a commercially reasonable time after Developer’ s receipt of notice pursuant to Section 12.1 (subject to the notice and cure periods set forth in Section 12.3), and, in each case, such failure constitutes a breach by the General Contractor under the applicable Contract Documents, the Authority may use the performance bond referenced in Section 13.1 above to complete Developer’ s Phase 1A Infrastructure Improvements. This remedy is not a limitation on remedies of the Authority, as applicable. and is in addition to any other remedy that the Authority may have at law or in equity.
13.3.2. Developer acknowledges and agrees that if Developer’ s construction of the Convention Center has not been completed in accordance with Section 5.1 or if the Developer has failed to cure any Defective Work within a commercially reasonable time after Developer’ s receipt of notice pursuant to Section 12.1 (subject to the notice and cure periods set forth in Section 12.3), and, in each case, such failure constitutes a breach by the General Contractor under the applicable Contract Documents, the Authority may use the performance bond referenced in Section 13.1 above 61 4825- 3218- 1203/ 024036- 0079
to complete the Convention Center. This remedy is not a limitation on remedies of the Authority and is in addition to any other remedy that the Authority may have at law or in equity.
ARTICLE XIV
INDEMNITY AND DUTY TO DEFEND
14.1. General Indemnity. To the maximum extent allowed by law, Developer hereby indemnifies and shall defend the Authority, the Port District Parties and the City Parties, at Developer’ s sole cost and expense and with counsel reasonably selected by the Public Entities and reasonably approved by Developer, and hold the Authority, the Port District Parties, and the City Parties harmless from any and all claims ( including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (i) the performance by Developer of its obligations under this Agreement, ( ii) the construction of any Improvements and ( until Acceptance) the Developer’ s Phase 1A Infrastructure Improvements, iii) any breach by Developer of its obligations under this Agreement, ( iv) any accident, injury or damage whatsoever caused to any Person or the property of any Person on or about the Project Site or at the Improvements or ( until Acceptance) the Developer’ s Phase 1A Infrastructure Improvements; or ( v) the use, occupancy, possession or operation of the Project Site and the Improvements and (until Acceptance) the Developer’ s Phase 1A Infrastructure Improvements by any Developer Party or Hotel Operator, or any acts or omissions of any Developer Party or Hotel Operator, in each case, except for claims or litigation arising through the sole gross negligence or willful misconduct of the Authority, any Authority Party, any Port District Party (including, without limitation, with respect to the Remaining Phase 1A Infrastructure Improvements) or City Party (but subject to Section 15.4); provided, that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this Section 14.1. The foregoing indemnity, defense and hold harmless obligations of Developer shall not include any claims including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of ( w) the Project’ s failure or alleged failure to comply with Section 15 and Exhibit 3 of the Settlement Agreement or any other document implementing or duplicating Section 15 and Exhibit 3 of the Settlement Agreement, provided that Developer has satisfied its obligations under Section 5.8, Exhibit O, and any other agreement entered into between the Port District and/or City with Developer regarding the subject of this subsection ( w), (x) any Person’ s failure to comply with any applicable provisions of the PWL with respect to any work performed by, or on behalf of, any Port District Party ( other than by a Developer Party or Hotel Operator, or on behalf of a Developer Party or Hotel Operator, or by any Person acting directly or indirectly under a contract with a Developer Party or Hotel Operator), ( y) the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by Developer or a Developer Party or (z) any use, development or construction of any portion of the Developer’ s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding ( 1) claims pursuant to Articles XI and XII and ( 2) claims that arise directly or indirectly out of any act or omission of a Developer Party or Hotel Operator. If a Public 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 62 4825- 3218- 1203/ 024036- 0079
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 Section
14.1 shall survive the expiration or earlier termination of this Agreement. The foregoing indemnity obligations of Developer are in addition to, and not in limitation of, any other indemnity obligations of Developer contained in this Agreement or any other agreement between any of the Public Entities and Developer. Notwithstanding the foregoing, Section 19.2.3, and not this Section 14.1, shall apply to the reimbursement of any fees or expenses incurred by Public Entities in connection with a Tax Claim. Notwithstanding anything to the contrary in this Section, Developer shall have no obligation to pay or reimburse any Public Entity for costs incurred by such Public Entity that such Public Entity would have been obligated to pay without any express right to reimbursement by Developer, or for which such Public Entity would have been obligated to reimburse Developer, pursuant to this Agreement or the Sublease.
14.2. Damage to Other Properties. The indemnification and agreement to hold harmless set forth in Section 14.1 shall extend to damages, including without limitation monetary claims based on allegations of takings or inverse condemnation, resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of, and to the extent of and proportion caused by, the negligence by Developer, its officials, officers, the General Contractor, Subcontractor( s), agents, or employees in the construction of the Project. The foregoing indemnification obligations of Developer shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of ( x) the sole gross negligence or willful misconduct of any Public Entity Party (except that the sole gross negligence or willful misconduct of one Public Entity Party with respect to any Public Entity shall not be attributed to or affect the rights of any Public Entity Party with respect to any other Public Entity under this Section 14.2), (y) Public Entity conduct in connection with construction, maintenance, or operation of the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by Developer or a Developer Party, or (z) any use of the Developer’ s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding any claims pursuant to Articles XI or XII.
14.3. Hazardous Materials Indemnity.
14.3.1. Developer hereby assumes for itself and shall indemnify, defend the Authority, the Port District Parties, and the City Parties, and hold the Authority, the Port District Parties, and the City Parties harmless from any and all claims, demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders ( judicial or administrative), judgments, and all Related Costs ( whether or not based upon personal injury, negligence, strict liability, property damage, or contamination of, or adverse effects upon, the environment, waters or natural resources, including any loss of or damage to any Public Entity’ s real or personal property), which occur or arise during or after the Term relating to, or resulting from, any Hazardous Materials Activity, any Tenant Hazardous Material, any Material Exacerbation of PreExisting Hazardous Material by a Developer Party or Hotel Operator, or any breach by Developer of its obligations under this Section 14.3, at Developer’ s sole cost and expense and with counsel and experts selected by the Public Entities in their reasonable discretion, and reasonably approved by Developer, and who act according to the Public Entities’ reasonable direction, with reasonable input and cooperation from Developer. Developer’ s obligations under Section 6.20 of the Sublease ( and 63 4825- 3218- 1203/ 024036- 0079
the indemnification of the Authority, the Port District Parties, and the City Parties by Developer under this Section 14.2) include, without limitation, any Environmental Cleanup required by this Agreement, costs incurred in connection with any investigation of site conditions or any cleanup, treatment, remedial, removal, or restoration work required by this Agreement or any federal, state or local government agency because of Hazardous Materials present in the air, soil or ground water above, on, or under the Site or Improvements or ( until Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements) the Developer’ s Phase 1A Infrastructure Improvements and the Developer’ s Phase 1A Infrastructure Improvements Site. The Public Entities shall have a direct right of action against Developer even if no third party has asserted a claim. If a Public Entity determine 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 Entities, 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 indemnification and Environmental Cleanup requirements under Section 6.20 of the Sublease and this Section 14.3 include, but, are not necessarily limited to:
14.3.1.1. Losses attributable to diminution in the value of the Site, Improvements or ( with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements) the Developer’ s Phase 1A Infrastructure Improvements Site;
14.3.1.2. Losses of rental or other income from the Site, Improvements or with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements) the Developer’ s Phase 1A Infrastructure Improvements Site;
14.3.1.3. Loss of or damage to natural resources regarding which Port District is the lawfully designated trustee;
14.3.1.4. Loss or restriction of use of rentable space(s) in the Site, Improvements or ( with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements) the Developer’ s Phase 1A Infrastructure Improvements Site;
14.3.1.5. Adverse effect on the marketing of any space(s) in the Site, Improvements or ( with respect to occurrences or conditions existing prior to Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements) the Developer’ s Phase 1A Infrastructure Improvements Site; and
14.3.1.6. All other liabilities, obligations, penalties, fines, claims, actions including remedial or enforcement actions of any kind and administrative or judicial proceedings, orders, or judgments), damages (including consequential and punitive damages), and costs (including reasonable attorney, consultant, and expert fees and expenses).
Notwithstanding anything to the contrary in this Section, Developer shall have no obligation to pay or reimburse any Public Entity for costs incurred by such Public Entity that such Public Entity would 64 4825- 3218- 1203/ 024036- 0079
have been obligated to pay without express right to reimbursement by Developer, or for which such Public Entity would have been obligated to reimburse Developer, pursuant to this Agreement.
Further, notwithstanding anything to the contrary in this Section, Developer shall have no indemnity obligation to the Authority, the Port District Parties, and the City Parties resulting from Pre-Existing Hazardous Material other than a Material Exacerbation of Pre-Existing Hazardous Material by a Developer Party or Hotel Operator.
14.4. Illegal Discharge to Storm Drains. Developer shall defend, indemnify, protect, and hold harmless each of the Public Entity Parties from and against all claims asserted, or liability established for damages or injuries to any person or property resulting from a discharge to public storm drains in violation of applicable laws to the extent arising out of the construction of the Project an “ Illegal Discharge”) caused by any action or failure of Developer, its officials, officers, the General Contractor, Subcontractor( s), agents, or employees to take reasonable measures to prevent an Illegal Discharge or any Illegal Discharge by any such persons or entities. Developer shall also be responsible for payment of any fines or penalties assessed against any Public Entity for an Illegal Discharge. Developer’ s duty to indemnify and hold harmless shall not include any claims (including claims under negligence and strict liability), demands, liability, losses, causes of actions and suits of any kind, administrative or judicial proceedings, orders, judgments, and all Related Costs arising directly or indirectly out of (x) the sole negligence or willful misconduct of any Public Entity Party, y) Public Entity conduct in connection with construction, maintenance or operation of the Remaining Phase 1A Infrastructure Improvements or any development, construction or use thereof or activity thereon other than by the Developer or a Developer Party, or (z) any use of the Developer’ s Phase 1A Infrastructure Improvements after Acceptance thereof, excluding any claims pursuant to Articles XI or XII.
14.5. Implementation of Authority Resolution 2020-002. Without limitation of the Developer’s other obligations under this Agreement, the Developer agrees, at its sole cost and expense, and with counsel reasonably selected by the Public Entity Parties, each in its reasonable discretion, and reasonably approved by Developer, to indemnify, defend and hold harmless each of the Public Entity Parties, and their officers, directors, employees, partners, affiliates, agents, contractors, successors and assigns from any Claims, Related Costs, and amounts paid in settlement of any claims or actions brought by any third party and related to the subject matter of the Related Costs (as determined by the Developer and the Public Entity Parties), arising out of any action taken by the Authority, the Port District, or the City, as applicable, in implementation of Authority Resolution 2020-002; provided, however, such indemnity, defense and hold harmless obligations of the Developer under this Section 14.5 shall not include any Claims and Related Costs arising solely out of (a) the sole or collective negligence, or willful misconduct of the Authority, the Port District and/or the City, as applicable, ( b) the failure of the Authority Board to follow the procedures of the Authority in adopting Authority Resolution 2020-002, or (c) the lack of authority of the Authority Board to adopt Authority Resolution 2020-002, but shall include Claims and Related Costs arising from the Developer’ s delivery of incorrect, misleading, or inaccurate information to the City, the Port District, or Authority, officers of the City, the Port District or the Authority, or the Authority Board, which any of the aforementioned parties relied upon to adopt, or recommend the adoption of, Authority Resolution 2020-002. The indemnification, defense, and hold harmless obligations of the Developer under this Section 14.5 shall exist so long as a challenge or claim can be made against the Authority, the Port District of the City.
14.6. Costs of Defense and Award. Developer shall immediately accept all tenders and defend, at Developer’s own cost, expense and risk, any and all claims, demands, suits, actions, or 65 4825- 3218- 1203/ 024036- 0079
other legal or administrative proceedings that may be brought or instituted against each Public Entity, its officials, officers, employees and/or agents and that appear to be covered by the defense obligation defined in Sections 14.1, 14.2, 14.3, 14.4 and 14.5. Developer acknowledges and agrees that its obligation to accept tender and defend each Public Entity, its officials, officers, employees, and/or agents as provided in this Section 14.6 is absolute and not subject to any limitations in Sections 14.1, 14.2, 14.3, 14.4, and 14.5 of this Agreement, or elsewhere. Developer shall pay and satisfy any judgement, award, or decree that may be rendered against any Public Entity or its officials, officers, employees and/or agents, for any and all related legal expense and costs incurred by each of them subject to the limitations in Sections 14.1 through 14.5 and only to the extent Section 14.1 through 14.5 requires Developer to do so. If a court of competent jurisdiction determines by a final judgment that any Public Entity was not entitled to indemnification or defense by Developer pursuant to this Article XIV, then such Public Entity shall pay to Developer the cost incurred by Developer in providing such indemnification or defense ( including, without limitation, the reasonable costs of Developer’ s internal legal counsel). Where outside counsel has been retained, reasonable costs of Developer’ s internal legal counsel shall be limited to (x) supervising such outside counsel and ( y) such other customary work performed by in-house counsel in connection with proceedings of this type where outside counsel is engaged; provided that Developer shall use reasonable efforts to avoid duplicating work performed by its outside counsel and its internal legal team. For the avoidance of doubt, “ supervising such outside counsel” shall include, without limitation, review and revision of any documents prepared by outside counsel, preparation of memoranda or other similar correspondence to be provided to Developer, correspondence with regarding status of matter, review of billing matters, negotiation of contracts with outside counsel, and any other activities that would be reasonably performed by in house counsel in connection with such supervision.
14.7. Insurance Proceeds. Developer’s obligation to indemnify shall not be restricted to insurance proceeds, if any, it receives.
14.8. Declarations. Developer’s obligations under Article XIV shall not be limited by any prior or subsequent declaration by Developer.
14.9. Survival. Developer’ s obligations under Article XIV shall survive the expiration and/or termination of this Agreement.
ARTICLE XV
INSURANCE REQUIREMENTS
15.1. Insurance Requirements. During the Construction Period, and with respect to any portion of the Developer’s Phase 1A Infrastructure Improvements (including Sweetwater Park if the Developer exercises the Sweetwater Park Option), until Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements, Developer shall maintain the policies of insurance described in Sections 15.2 and 15.3 in full force and effect. Insurance requirements applicable to Alterations are set forth in the Sublease; however, if any Alterations are constructed during the Construction Period, the Developer shall comply with the insurance requirements set forth in this Article XV with respect to such Alterations.
66 4825- 3218- 1203/ 024036- 0079
15.2. Forms and Amounts of Coverage. The policies for said insurance shall, as a minimum, provide the following:
15.2.1. Commercial General Liability. “ Occurrence” form Commercial General Liability covering the Project Site, the Improvements, and Developer’s Phase 1A Infrastructure Improvements, operations and contractual liability assumed by Developer in this Agreement and the Sublease in the amount of not less than as set forth in Section 15.2.1.1. Developer’ s indemnification obligations under this Agreement and the Sublease shall in no event be limited by the terms or qualifications to the contractual liability coverage under such insurance.
15.2.1.1. Commercial General Liability Policy Amount: Not less than Twenty Million Dollars ($20,000,000) per occurrence limit for bodily injury and property damage.
The general aggregate limit shall be not less than Forty Million Dollars ($ 40,000,000) unless a Twenty Million Dollars ($ 20,000,000) per location aggregate limit is provided by separate endorsement. All such limits may, at Developer’ s option, be satisfied by limits set forth in primary policies and excess policies.
15.2.2. Builder’s Risk Property Coverage.
15.2.2.1. During the Construction Period, builder’s risk completed value form insurance covering the perils insured under the ISO special causes of loss form, including collapse, water damage and transit, covering the total value of work performed and equipment, supplies and materials furnished ( with an appropriate limit for soft costs in the case of construction) and covering the full insurable value (exclusive of the cost of noninsurable items) of all equipment, supplies and materials at any off-site storage location used with respect to the Project or in transit.
Specific limits of insurance for flood shall be determined at the joint discretion of Developer and Authority. Earthquake limits shall, at a minimum, cover 250 year maximum probable loss or such other limits as are agreed to by Developer and the Authority. The damage coverage shall be endorsed with a Loss Payee endorsement in favor of the Trustee. Notwithstanding anything to the contrary herein, the builder’ s risk insurance required by this Agreement may not be terminated until property insurance policies required by the Sublease are in effect. Net Proceeds shall be assigned by the Authority to the Trustee pursuant to the Indenture.
Developer shall if commercially available cause its builder’ s risk policy to define “ soft costs” to include the costs of issuance of the Authority Bonds and capitalized interest on the Authority Bonds and interest expense related thereto (“ Expanded Soft Cost Coverage”). The Developer shall request proposals for builder’ s risk policies including Expanded Soft Cost Coverage, and shall present such proposals to the Public Entities for their consideration. If and as needed, Developer and the Public Entities shall meet and confer regarding such proposals. Notwithstanding the foregoing provisions of this paragraph, if the Public Entities, in their reasonable discretion, select a proposal for the procurement of such builder’ s risk policy, and Developer ( A) determines that procuring such Expanded Soft Cost Coverage will neither adversely affect Developer’ s procurement of builders’ risk insurance nor adversely affect the coverage of such builder’ s risk insurance or B) determines in its reasonable discretion to procure such Expanded Soft Cost Coverage, then Developer shall procure such builder’ s risk policy for the applicable policy period with Expanded Soft Cost Coverage ( assuming that such builder’ s risk policy remains commercially available to Developer, and provided, that if there is more than one proposal and Developer determines that the proposal selected by the Public Entities would adversely affect Developer’ s procurement of builder’ s risk insurance or the coverage of such builder’ s risk insurance, then Developer may, in Developer’ s 67 4825- 3218- 1203/ 024036- 0079
sole discretion, select any proposal that would not adversely affect, or would have lesser adverse effect on, Developer’ s procurement of builder’ s risk insurance or the coverage of such builder’ s risk insurance), and the Authority shall promptly reimburse Developer for the amount by which (x) the aggregate amount expended by Developer in connection with obtaining and maintaining the builder’ s risk policy with Expanded Soft Cost Coverage exceeds ( y) the amount that Developer would have expended in connection with maintaining a builder’ s risk policy without Expanded Soft Cost Coverage. Promptly after any Public Entity so requests, Developer shall provide documentation to the Public Entities that reasonably evidences the amount of such excess.
The Public Entities shall be named as additional insureds under any builder’ s risk policy procured by the Developer pursuant to this Agreement.
15.2.2.2. Any Casualty Proceeds shall be paid to the Trustee as “ loss payee” under the property insurance policies that are required to be maintained pursuant to this Agreement or the Sublease and shall be deposited into the Insurance and Condemnation Fund pursuant to Section 4.5 of the Authority Indenture and Section 6.1(a) of the Facility Lease. Such Casualty Proceeds shall be held in trust by the Trustee in the Insurance and Condemnation Fund pursuant to the terms of the Indenture and shall be paid and be applied as provided in Section 9.2 hereof, Section 5.2 of the Sublease, and Section 6.1(a) of the Facility Lease. If there is no Trustee or if there is but the Trustee declines to act as a trustee for the disbursement of funds as provided in Section 5.2 of the Sublease, then any Casualty Proceeds shall be paid and disbursed as provided in Section 5.2 of the Sublease and Section 6.1(a) of the Facility Lease.
15.2.3. Worker’ s Compensation. Workers’ compensation insurance covering all persons employed by Developer at the Project Site, Improvements and Developer’ s Phase 1A Infrastructure Improvements and with respect to whom death or bodily injury claims could be asserted against Developer, any Public Entity, the Project Site, the Improvements, or the Developer’s Phase 1A Infrastructure Improvements, with statutorily required limits, and employer’ s liability insurance with minimum limits of not less than One Million Dollars ($ 1,000,000) for each accident/employee/disease. Workers’ compensation insurance shall include a waiver of subrogation in favor of Public Entity Parties.
15.2.4. Automobile Liability. If Developer owns or leases vehicles, business automobile liability insurance covering liability arising out of vehicles used on or about the Project Site, Improvements and Developer’ s Phase 1A Infrastructure Improvements by Developer or its employees insuring against liability for bodily injury, death and property damage in an amount not less than One Million Dollars ($1,000,000) each accident limit.
15.2.5. Contractor’s Pollution Liability Coverage. If either the City or the Port District determines, in its sole and absolute discretion, that Developer performs or contracts for any work which involves a Hazardous Materials Activity or which has the potential to disturb or result in the release of any Hazardous Material, for which there is potential exposure to pollution or Hazardous Materials to Persons or the environment, Developer shall obtain or cause its contractor to obtain Contractor’ s Pollution Liability, Pollution Legal Liability and/or Asbestos Pollution Liability and/or Errors & Omissions applicable to the work being performed or the potential release of any Hazardous Material, with limits of $5,000,000 per claim or occurrence and $ 10,000,000 aggregate per policy period of one year or the limits maintained by or available to the contractor, whichever is higher. The Public Entities shall also be named as additional insureds on any such policy. During the Construction Period, immediately upon learning of or reasonably suspecting that a release of 68 4825- 3218- 1203/ 024036- 0079
Hazardous Materials has occurred on, in, under or about the Project Site, Developer shall provide notice of the same to each of the Public Entities.
15.2.6. UST Coverage. To the extent the foregoing coverages do not cover any underground storage tanks ( USTs) located on the Site during the Construction Period, Developer shall procure such insurance in amounts and with limits reasonably acceptable to Developer and the Public Entities.
15.3. General Requirements.
15.3.1. Certificates and Other Requirements. The cost of all required insurance shall be borne by Developer. During the Construction Period, Developer shall provide the Public Entities with insurance certificates, in the form customary in the insurance industry, issued by the insurer evidencing the existence of the necessary insurance policies and certified endorsements effecting coverage required by this Article XV (“Certificates”). The Certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind insurance on its behalf. Notwithstanding the foregoing, Developer shall request copies of each insurance policy required under this Article XV and make available to the Public Entities for inspection at the Project Site or the Improvements any insurance policy it receives.
15.3.2. Additional Insureds and Other Requirements. All liability insurance policies shall name, or be endorsed to name the Public Entities as additional insureds and protect the Public Entities against any legal costs in defending claims. All liability policies shall provide crossliability coverage. If Developer receives notice of any cancellation, modification such that the requirements of this Agreement are no longer satisfied, suspension or voiding of an insurance policy required under this Article XV from the applicable insurance carrier, then Developer shall provide to the Public Entities written notice thereof within five (5) Business Days after receipt of such notice.
To the extent the policy is blanket endorsed or is specifically endorsed to provide the same, all insurance policies shall also provide that the subject policy shall not be cancelled without thirty (30) days’ prior written notice to the Public Entities. All insurance policies shall be endorsed to state that Developer’ s insurance is primary and not excess or contributory to any insurance issued in the name of the Public Entities. Further, all insurance companies must have an S& P or AM Best rating of not less than “A-”.
15.3.3. Deductibles. Any deductibles or self-insured retentions must be declared to each of the Developer and the Public Entities and be consistent with customary deductibles and selfinsured retentions, as applicable, for a convention center or conference center operating in the United States of America that is comparable with the Convention Center; provided, however, if the deductible or self-insured retention is in excess of Two Hundred Fifty Thousand Dollars ($250,000), Developer shall provide the Public Entities with reasonably satisfactory evidence of its ability to meet the deductible or self-insured retention. The evidence to be provided to the Public Entities must include separate, unconsolidated, audited financial statements to be provided annually or upon any Public Entities’ written request to Developer. If Developer does not provide reasonably satisfactory evidence of its ability to meet the deductible or self-insured retention, then Developer shall have the option to either: ( i) reduce or eliminate such deductible or self-insured retention as respects the Public Entity Parties; ( ii) procure a bond guaranteeing payment of losses and related investigations, claim administration, and defense expenses; or ( iii) agree to self-insure the risk with form of collateral or written agreement acceptable to the Public Entities. 69 4825- 3218- 1203/ 024036- 0079
15.3.4. Updates. If any Public Entity reasonably determines that the insurance provisions in this Agreement do not constitute Adequate Insurance, then such Public Entity shall notify Developer thereof and of the changes to the insurance requirements of this Agreement that any Public Entity reasonably believes are necessary to cause such requirements to constitute Adequate Insurance. The Parties agree that the insurance provisions will be modified to increase Developer’ s insurance obligations to the smallest extent that is consistent with such modified insurance provisions providing for Adequate Insurance. The Parties shall, in the first instance, attempt to agree on any revisions to such insurance provisions so that they provide for Adequate Insurance by entering into good faith negotiations and, if, within seven ( 7) days from the commencement of such negotiations, the Parties do not reach agreement, then, until the dispute is finally resolved by a final judgment rendered by a court of competent jurisdiction, the then-existing insurance requirements of this Agreement shall continue to govern Developer’ s obligations. After the Parties agree on a new insurance program that constitutes Adequate Insurance or such final judgment of a court of competent jurisdiction establishes a new insurance program, such new insurance program shall bind the Parties. Developer shall deposit new Certificates incorporating such changes within thirty (30) days of the Parties agreeing on such new insurance program. Failure by Developer to maintain insurance or deposit insurance Certificates as required in this Article XV, where such failure is not cured by Developer within ten ( 10) days following written notice thereof to Developer, shall constitute an Event of Default. Without limitation of the foregoing, Developer agrees that if Developer does not take out and maintain such insurance or furnish the Public Entities with Certificates in a timely manner, the Public Entities may, but shall not be required to, procure said insurance on Developer’ s behalf and charge Developer the cost thereof, which amount shall be payable by Developer to the Public Entities pursuant to the Reimbursement Procedure.
15.3.5. No Limit on Liability. The procuring of such required policies of insurance shall not be construed to limit Developer’s liability hereunder, nor to fulfill the indemnification provisions and requirements of this Agreement.
15.3.6. Compliance with Insurance Requirements. Developer agrees not to keep on the Project Site or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the Project Site. Developer shall, at its sole expense, comply with all reasonable requirements for maintaining fire and other insurance coverage on the Project Site and represents to the Public Entities that Developer will confirm that it is in compliance with such requirements at all times.
15.4. Waiver of Subrogation. Developer hereby releases the Public Entities from any and all liability or responsibility to Developer or anyone claiming through or under Developer by way of subrogation or otherwise for any loss or damage to the Project Site, any Improvements, and Developer’ s Phase 1A Infrastructure Improvements, or any of Developer’ s personal property or business caused by or arising from a fire or any other event that is covered by the insurance required to be carried pursuant to this Agreement or is actually carried, even if such fire or other event shall have been caused by the fault or negligence of any of the Public Entities.
15.5. Authority Obligation to Maintain Insurance. Until the earlier of (a) Full Payment or b) the earlier termination of the Sublease and this Agreement, the Authority shall maintain crime insurance, or its equivalent, with respect to conduct by officers and staff of the Authority and employees of the City and Port District relating to the transfer and requisition of Authority Bond proceeds and County Funds and processing of Developer’ s Phase 1A Payment Requests and Convention Center Payment Requests, in the minimum coverage amount of $5 million (“ Crime 70 4825- 3218- 1203/ 024036- 0079
Insurance”). In the event of the occurrence of any insurable event under such Crime Insurance, Authority shall pursue recovery under such Crime Insurance. The Crime Insurance shall name, or be endorsed to name the Developer as an additional insured or loss payee, as reasonably and commercially appropriate and available. If Authority receives notice of any cancellation, modification such that the requirements of this Section 15.5 are no longer satisfied or suspension or voiding of an insurance policy required under this Section 15.5 from the applicable insurance carrier, then Authority shall provide to the Developer written notice thereof within five (5) Business Days after receipt of such notice.
ARTICLE XVI
RECORDS AND AUDITS
16.1. Retention of Project Records. Developer shall use commercially reasonable efforts to maintain the Project Records ( defined below) for a period of not less than seven ( 7) years after the date such record is created ( or such longer period as Developer may decide in its sole discretion).
Developer shall make available to the Public Entities any of the Project Records upon request of any of the Public Entities. “ Project Records” means the following documents and materials, but only if such documents and materials are related to the Project: Contract Documents, plans and specifications, inspection reports, invoices related to Project Costs, and documents that evidence payment of Project Costs or the basis for such payments. Project Records also means such other documents that (a) are reasonably necessary to evaluate ( i) whether the Project has been or is being constructed in accordance with the requirements of this Agreement; ( ii) whether the certifications that have been made in any Developer Phase 1A Payment Request or Convention Center Payment Request are true and correct; ( iii) whether Developer is in compliance with Article XIII; (iv) the existence of any Force Majeure Event that Developer asserts exists and the duration of any delay in connection therewith; or ( vi) the amount of Project Costs that have been or will be incurred; and b) are reasonably requested by the Public Entities; provided, however, that “ Project Records” with respect only to such other documents under clauses ( a) and ( b) above shall not include any of the following: proprietary documents and information, documents and information that are subject to confidentiality agreements which do not permit their disclosure to the Public Entities, documents and information that are subject to the attorney client privilege, tax advisor privilege, internal communications among Developer, its Affiliates or any of their respective officers, employees or agents ( including, without limitation, attorneys and tax advisors and consultants), communications among Developer, Marriott, any lender, any direct or indirect owner of Developer or any of their respective officers, employees or agents. Developer may redact from documents provided under clauses ( a) and ( b) above any information that is not reasonably necessary for the purposes of such clauses.
16.2. Audit of Records. At any time during normal business hours, with 48 hours’ advanced notice and as often as the Public Entities reasonably deem necessary, Developer shall make available, or shall cause its General Contractor or any Subcontractor to make available, to the Public Entities for examination at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to the Public Entities all of the Project Records.
Developer, the General Contractor and Subcontractors will permit the Public Entities to make audits of the Project Records. If any Project Records are not made available at the Project Site, the Convention Center, or at such other location in San Diego County, California as is reasonably acceptable to Authority, then Developer shall pay all the travel related costs of the Authority to audit such Project Records at the location where the records are maintained. Such costs will not be Project Costs.
71 4825- 3218- 1203/ 024036- 0079
16.2.1. Costs. Developer and Developer’ s agents shall allow the Public Entities to audit and examine the Project Records and any and all accounting procedures and practices that the Public Entities reasonably determine 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
TITLE TO ALTERATIONS AND IMPROVEMENTS
17.1. Title to Project. The Improvements constituting the Project which may be installed, constructed or placed in, on, over or under the Project Site, from time to time by Developer in accordance with this Agreement, the Sublease, and other agreements, ( a) shall, subject to Developer’ s obligations under Section 6.6 of the Sublease or such other agreements, as applicable, be so installed, constructed or placed at the Authority’ s, the City’s or Port District’ s, as applicable, sole cost and expense, and ( b) shall remain the Authority’ s, the City’ s or Port District’ s, as applicable, property during the Term; provided that Developer’ s trade fixtures (that is fixtures relating uniquely to Developer and which are removable without non-repairable damage to the other Improvements), furnishings, moveable equipment and other personal property of Developer shall remain the property of Developer. Notwithstanding the foregoing, at least ninety ( 90) days before the last day of the Sublease Term or, in the case of earlier termination of the Sublease, within ten (10) days after such termination, unless the City expressly elects within the same time periods to require Developer to remove the same, any artworks that constitute personal property and that were provided to comply with Developer Art Investment but which are not governed by a separate agreement between Developer and the artist relating to the removal of such artworks at the end of the Sublease Term, shall not be removed and shall remain located on the Site or the Convention Center, as applicable.
Prior to the Expansion Date, any and all expenditures made by Developer with respect to the Project shall be treated as supplemental Rent for all purposes under the Sublease; provided that, for the avoidance of doubt, such expenditures shall not modify, reduce, substitute or credit any of Developer’ s other Rent obligations under the Sublease.
17.2. Survival. The terms of this Article XVII shall survive the expiration or earlier termination of this Agreement and the Sublease.
ARTICLE XVIII
LIENS
18.1. No Right to Bind Port District. Neither Developer, any Developer Party, nor the Hotel Operator shall have any power or authority to do any act or thing, or to make any contract or agreement which shall bind Port District in any way whatsoever, and Port District shall have no responsibility to Developer, Developer Party, the Hotel Operator, or other Person who performs, causes to perform, engages in or participates in any construction of any Developer’ s Phase 1A Infrastructure Improvements, Improvements, Alterations or any other work on the Project Site at the request of Developer, Developer Party, Hotel Operator, or other Persons. Port District shall not be required to take any action to satisfy any such contract or agreement or to remove or satisfy any lien resulting therefrom.
18.2. Notice of Non-Responsibility. Developer shall give written notice to all contractors, subcontractors and materialmen of Port District’ s non-responsibility in connection with any construction of the Developer’ s Phase 1A Infrastructure Improvements, Convention Center, 72 4825- 3218- 1203/ 024036- 0079
Alterations or any other construction work on the Project Site, and shall immediately provide Port District with true copies of such notices not less than ten (10) days prior to the commencement of any work on the Project Site. The Port District Parties shall have the right to post and keep posted thereon notices of non-responsibility, or such other notices which Port District may deem to be proper for the protection of Port District’ s interest in the Project Site. Developer shall provide Port District with any information required by Port District to complete the notice of non-responsibility.
18.3. Mechanics’ Liens. Developer shall pay or cause to be paid all costs for work, labor, services or materials supplied to or performed on the Project Site that might result in any mechanics’ lien or similar lien as and when Developer is required to do so under Developer’ s agreement with the respective provider thereof. If Developer receives notice that any mechanics’ lien or any similar lien is recorded against the Project Site and Developer is not contesting such lien in accordance herewith, then Developer shall cause such lien to be released and removed of record within thirty (30) days after Developer receives notice of the recordation of the mechanics’ lien or similar lien. Developer shall indemnify, defend, release and save Port District free and harmless from and against any and all claims of lien of laborers or materialmen or others for work performed or caused to be performed or for materials or supplies furnished for or at the Project Site, the Improvements or the Developer’ s Phase 1A Infrastructure Improvements by or for any Developer Party and the Hotel Operator and all Related Costs.
18.4. Contest of Lien. If Developer in good faith wishes to contest the amount or validity of any lien (other than any lien with respect to taxes), then Developer shall have the right to do so; provided that ( a) Developer shall first provide Port District with at least ten ( 10) Business Days’ written notice prior to any such contest, ( b) Developer shall first record a surety bond sufficient to release such lien; and ( c) Developer shall cause the following conditions to remain satisfied during such contest:
18.4.1. such contest shall not place the fee estate of the Project Site in material danger of being forfeited or lost;
18.4.2. such contest shall be without cost, liability, or expense to Port District;
18.4.3. Developer shall prosecute such contest with reasonable diligence and in good faith; and
18.4.4. no Event of Default shall exist under this Agreement at the time of or during such contest.
18.5. Port District’ s Right to Pay. If Developer shall be in default in paying any charge for which a lien claim has been filed, and if Developer has not contested such lien in accordance with Section 18.4, then Port District may, but shall not be so obliged to, pay said lien claim and any costs incurred in connection therewith, and the amount so paid, together with reasonable attorneys’ fees incurred in connection therewith, shall be immediately due and owing from Developer to Port District, and Developer shall pay the same to Port District pursuant to the Reimbursement Procedure, together with interest on the full amount thereof at the Default Rate from the date of Port District’ s payments until paid.
18.6. Notice of Liens. Should any claims of lien be filed against the Project Site or any Improvement or any action affecting the title to the Project Site, the Improvements or the 73 4825- 3218- 1203/ 024036- 0079
Developer’ s Phase 1A Infrastructure Improvements be commenced, the Party receiving notice of such lien or action shall give the other Party written notice thereof within five (5) Business Days of receipt.
18.7. Right of Entry. Nothing herein shall imply any consent on the part of Port District to subject Port District’s estate to liability under any mechanics’ lien or other lien. Without limiting Developer’ s obligations under Section 18.2 above, the Port District Parties shall have the right, but not the obligation, to enter upon and inspect the portions of the Developer’ s Phase 1A Infrastructure Improvements, Alterations, and Convention Center that are generally accessible to the general public or the portions of the Project Site where the operation of the Developer’ s Phase 1A Infrastructure Improvements, Alterations, and Convention Center is ongoing, during normal business hours and upon a three ( 3) Business Days’ prior notice to Developer ( except in the case of an emergency in which case no prior notice shall be required but each of such Port District Parties shall notify Developer and, prior to the Completion of the Resort Hotel and the Parking Improvements, Developer’ s Risk Construction Manager thereof by phone prior to entering the Project Site) and Port District shall, and shall cause each of such Port District Parties to: (a) comply with all applicable security and safety procedures of Developer of which Developer informs Port District in writing and with which such Port District Party can reasonably comply, and ( b) use commercially reasonable efforts to minimize any interference with Developer’ s operation and use of the Project Site, the Improvements, the Ground Lease Property, the Resort Hotel and the Parking Improvements, while on the Project Site and at the Improvements. Notwithstanding the foregoing, nothing herein shall limit the Port District’ s right to enter the Project Site, the Improvements or the Developer’ s Phase 1A Infrastructure Improvements at any time to exercise its police powers.
ARTICLE XIX
TAXES
19.1. Reporting.
19.1.1. The Public Entities and Developer acknowledge and agree that they have delivered the Ground Lease and the Convention Center Leases with the understanding that (i) during the Ground Lease Term, the Resort Hotel and Parking Improvements are owned by Developer, ( ii) during the Term, the Convention Center is owned by the Authority, (iii) from and after the Expansion Date, the Convention Center is owned by Port District, ( iv) Developer has only the right to the possession and use of the Convention Center during the Term upon the terms and conditions of the Sublease, and from and after the Expansion Date upon the terms and conditions of the Ground Lease, v) each of the Ground Lease and the Sublease is a “ true lease” for all applicable legal and federal state and local tax purposes and is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of the Ground Lease and the Sublease are those of a true lease, ( vi) all amounts paid by Developer pursuant to Article 5 of the Ground Lease, and with respect to the Convention Center pursuant to Article 7 and Article 15 of the Ground Lease, are Rent (as defined in the Ground Lease) for all applicable tax purposes, subject to Section 5.9 of the Ground Lease, ( vii) all amounts paid by Developer pursuant to Article III of the Sublease and with respect to the Facility, are Rent for all applicable tax purposes, subject to Section 3.6 of the Sublease, ( viii) the Ground Lease and the Convention Center Leases have been entered into by each of Port District, City, Authority, and Developer in reliance upon the mutual covenants, conditions and agreements contained therein; and ix) none of the covenants, conditions or agreements contained herein or therein is intended, nor shall the same be deemed or construed, to create a partnership between or among the Port District, City, 74 4825- 3218- 1203/ 024036- 0079
Authority, and Developer, to make them joint venturers, or to make Developer an agent, legal representative, partner, subsidiary or employee of Port District, the City, or the Authority.
19.1.2. The Public Entities and Developer agree not to (i) file or submit any tax return or other document with any Governmental Authority; ( ii) enter into any contract with any Person; or (iii) release any financial statements, in each case, that takes a position other than that x) both the Ground Lease and the Sublease are “ true leases” for federal, state and local tax purposes, y) the Authority is the owner of the Convention Center during the Sublease Term, and ( z) Port District is the owner of the Convention Center from and after the Expansion Date, in each case, unless otherwise required by a final “determination” within the meaning of Section 1313 of the Code.
The Parties agree that the foregoing includes their agreement that ( x) Developer will not claim depreciation deductions under Sections 167 or 168 of the Code with respect to the Convention Center and (y) Developer will report all payments described in Sections 19.1.1(vi) and (vii) as rent expense under Section 162 of the Code, subject to Section 5.9 of the Ground Lease or Section 3.6 of the Sublease, as applicable.
19.1.3. The terms of this Section 19.1 shall survive the expiration or earlier termination of this Agreement.
19.2. Tax Claims. Each Party agrees to (A) promptly notify the other Parties of any audit, examination or other proceeding with respect to any tax, tax return (including any schedule attached thereto) or information reporting related to the Ground Lease or the Sublease, the Improvements, the Resort Hotel, the Parking Improvements, or the Project, including without limitation, the agreed positions described in Sections 19.1.1 and 19.1.2 (collectively, the “ Tax Claims”, and individually, a Tax Claim”) and (B) reasonably cooperate with the other Parties in connection with any Tax Claim.
In the event that any Tax Claim is asserted against a Public Entity Party, Developer agrees to indemnify and defend such Public Entity Party, at Developer’ s sole cost and expense, and hold such Public Entity Party harmless from any and all Tax Expenses and documented Related Costs arising in connection with such Tax Claim; provided, that the Related Costs with respect to such Tax Claim shall be determined in accordance with the following principles:
19.2.1. Related Costs arising from the work of an employee of a Public Entity during a particular calendar year shall not exceed the product of (x) the salary of such employee and y) the percentage of such employee’ s time in such year which such employee was solely engaged on the Tax Claim (to be substantiated by time records in form and substance reasonably acceptable to Developer), plus, for the avoidance of doubt, any reasonable, out-of-pocket expenses incurred by such employee with respect to the Tax Claim in such calendar year. For example, if an employee of City earns $160,000, spends 25% of her time in the calendar year on the Tax Claim and incurs $100 of reasonable, out-of-pocket expenses, City would be entitled to no more than $ 40,100 of Related Costs with respect to the work of such employee during such calendar year.
19.2.2. A Public Entity shall not engage any outside counsel with respect to the Tax Claim without the prior written consent of Developer ( not to be unreasonably withheld, conditioned or delayed; provided, that Port District, Authority and Developer acknowledge and agree that consent from Developer shall not be required if the counsel selected by Port District or the Authority is Orrick Herrington & Sutcliffe LLP; provided, further, that the City and Developer acknowledge and agree that consent from Developer shall not be required if the counsel selected by the City is Stradling Yocca Carlson & Rauth, P.C.). For the avoidance of doubt, there shall be no cap on the 75 4825- 3218- 1203/ 024036- 0079
Related Costs incurred by outside counsel approved or deemed approved by Developer and such Related Costs shall include all legal fees and out of pocket expenses; and
19.2.3. in the event that a Public Entity engages outside counsel, then, notwithstanding Section 19.2.1 above, such Public Entity shall not be entitled to recovery of Related Costs with respect to the work performed by employees of the Public Entity except to the extent such work is limited to (x) supervising such outside counsel and (y) such other customary work performed by in-house counsel in connection with audits, examinations or other proceedings of this type where outside counsel is engaged; provided that such Public Entity shall use reasonable efforts to avoid duplicating work performed by its outside counsel. For the avoidance of doubt, “ supervising such outside counsel” shall include without limitation, review and revision of any documents prepared by outside counsel, preparation of memoranda or other similar correspondence to be provided to the governing board or other executives of the relevant Public Entity, correspondence with the general counsel or other executive members of the relevant Public Entity regarding status of matter, review of billing matters, negotiation of contract with outside counsel, and any other activities that would be reasonably performed by the office of the general counsel in fulfillment of its fiduciary duties to the relevant Public Entity.
This Section 19.2 shall survive the early termination or expiration of this Agreement.
Notwithstanding anything to the contrary herein, ( i) this Section 19.2 shall not apply to, and Developer shall have no responsibility with respect to, any taxes payable based on income or profits of the Public Entity Parties ( for the avoidance of doubt, such exclusion shall not apply to the extent such Tax Claim relates to withholding or information reporting with respect to the taxable income of the Developer), and (ii) Section 19.4 and either Section 4.6 of the Ground Lease or Section 6.19(b) of the Sublease, as applicable, and not this Section 19.2, shall govern all Tax Claims with respect to Property Tax Expenses.
19.3. Property Expenses. Without limitation of Developer’s other obligations under this Agreement and the Sublease, Developer agrees to pay, on or before the date due, all Property Expenses. As used herein, “ Property Expenses” shall include, without limitation, all costs and expenses of any nature incurred or payable, or arising in connection with, the ownership, management, maintenance, construction, repair, replacement, restoration or operation of the Site and/or the Improvements, including, without limitation, any amounts paid for: ( i) the cost of supplying any utilities, the cost of operating, maintaining, repairing, renovating and managing any utility systems, mechanical systems, communications systems, sanitary and storm drainage systems, and the cost of supplies and equipment and maintenance and service contracts in connection therewith; (ii) the cost of licenses, certificates, permits and inspections; ( iii) the cost of any insurance carried or required to be carried by Developer pursuant to this Agreement, the Sublease, the Ground Lease, and the Hotel Management Agreement with respect to the Site and/or the Improvements including without limitation any premiums and deductibles except the cost of any Facility Lease Lost Rental Insurance ( as defined in the Sublease) and the incremental cost of any Expanded Soft Cost Coverage; ( iv) the cost of landscaping, supplies, tools, equipment and materials, and all fees, charges and other costs incurred in connection with the management, operation, repair and maintenance of the Site and/or the Improvements; ( v) payments under any easement, license, permit, operating agreement, declaration, or covenant or instrument pertaining to the Site that exist as of the Commencement Date or that are created or consented to by Developer; and ( vi) the cost of any Improvements, capital repairs, capital alterations, or capital equipment, required by Laws, the Hotel Management Agreement or otherwise required under this Agreement, the Sublease, or the Ground Lease. Notwithstanding anything to the contrary in this Agreement or the Sublease, Property 76 4825- 3218- 1203/ 024036- 0079
Expenses shall not include (a) Property Tax Expenses, ( b) any amounts that constitute Advance Rent, or (c) any other amount that a Public Entity has expressly agreed to pay without reimbursement from Developer under this Agreement or any Contemporaneous Agreement or that this Agreement or any Contemporaneous Agreement expressly provides that the Developer is not required to pay.
19.4. Property Tax Contest Cooperation. Subject to its consent under the Ground Lease or Sublease, as applicable, and subject to any conditions which it has imposed thereunder, a Public Entity shall join in a Property Tax Contest if such Property Tax Contest is legally required to be initiated or prosecuted in such Public Entity’ s name. In such case, such Public Entity shall cooperate, as Developer reasonably requests, and at Developer’ s sole cost and expense, to permit the Property Tax Contest to be prosecuted in such Public Entity name. The Public Entities shall give Developer any publicly available documents requested by Developer in writing that are in their control and Developer determines are reasonably necessary for Developer to prosecute its Property Tax Contest except where ( i) the document is subject to an exemption or exception under the California Public Records Act (California Government Code Sections 6250 et seq.); ( ii) the document is confidential pursuant to another agreement between the relevant Public Entity and another Person; ( iii) the document is protected by the attorney-client privilege or work-product protections; (iv) the disclosure or release of such document would result in a breach of an agreement to which the relevant Public Entity is a party; or (v) the disclosure or release of the document would result in a violation of Laws.
Developer shall pay all costs and expenses, including any legal costs, of any Property Tax Contest, including, without limitation, any costs and expenses resulting from the withdrawal of a Property Tax Contest. If Developer requests that a Public Entity assist Developer with any Property Tax Contest in accordance with the Ground Lease or the Sublease, and such assistance is consistent with the requirements of Section 4.6 of the Ground Lease or Section 6.19 of the Sublease, as applicable, and this Section 19.4, then the Public Entity shall, within fifteen (15) days after receipt of such request, notify Developer of the total amount of Anticipated Assistance Costs. Developer may, but shall have no obligation to, fund the Anticipated Assistance Costs (“ Developer Funding”). If Developer does not notify the Public Entity that Developer will provide Developer Funding to the Public Entity, then the Public Entity shall have no obligation to assist Developer with such Property Tax Contest. If Developer notifies the Public Entity that Developer will provide Developer Funding to the Public Entity and Developer pays to the Public Entity an amount that is equal to or greater than the Anticipated Assistance Costs, then the Public Entity shall reasonably assist Developer with such Property Tax Contest as Developer reasonably requires. If the actual amount of Assistance Costs in connection with such assistance is at any time greater than the Developer Funding provided before and at such time, then the Public Entity shall promptly notify Developer thereof and the Parties shall follow the process set forth in the preceding three sentences. Port District shall have no obligation to reimburse Developer for Developer Funding up to the amount of Assistance Costs. A Public Entity shall have no liability to Developer if the Public Entity does not assist, or continue to assist, with any Property Tax Contest if Developer refuses to provide Developer Funding or the amount Developer has advanced is not sufficient to cover the Assistance Costs or the Property Tax Contest is not in compliance with this Section 19.5.2 and Section 4.6 of the Ground Lease or Section 6.19 of the Sublease, as applicable. A Public Entity shall return to Developer any portion of Developer Funding that the Public Entity receives from Developer and does not use for the Property Tax Contest within thirty (30) days after the Public Entity receives notice from Developer that the Property Tax Contest is concluded or Developer is withdrawing the Property Tax Contest. 77 4825- 3218- 1203/ 024036- 0079
ARTICLE XX
EQUAL EMPLOYMENT OPPORTUNITY/ NONDISCRIMINATION AND OFAC
20.1. Nondiscrimination. Developer shall comply with Title VII of the Civil Rights Act of 1964, as amended; the Civil Rights Act of 1991; the California Constitution; the California Fair Employment and Housing Act; the ADA; and any other applicable Laws now existing or hereinafter enacted, requiring equal employment opportunities or prohibiting discrimination. This shall include, without limitation, Laws prohibiting discrimination because of race, color, religion, sex, national origin, ancestry, physical or mental disability, veteran status, medical condition, marital status, age, sexual orientation, pregnancy, or other non-job related criteria. In complying with all such Laws, including, without limitation the ADA, Developer shall be solely responsible for such compliance and required programs, and there shall be no allocation of any such responsibility between Port District and Developer. Developer shall contractually require the General Contractor, all Subcontractors, and Developer’ s consultants, subconsultants, and contractors to comply with the requirements of this Article XX.
20.1.1. Equal Employment Opportunity Certification. Developer shall require all bidders to submit signed equal employment opportunity certifications, in substantially the form attached as Exhibit W, with their bid packages.
20.1.2. Equal Opportunity Contracting Nondiscrimination. Developer shall not discriminate on the basis of race, gender, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring, or treatment of bidders, the General Contractor, Subcontractors, vendors, or suppliers. Developer shall provide equal opportunity for bidders, contractors, the General Contractor, and Subcontractors to participate in contracting and subcontracting opportunities. Developer understands and agrees that violation of this Section 20.1.2 shall be considered a material breach of this Agreement and may result in termination of this Agreement or other sanctions. The language in this Section 20.1.2 shall be inserted in contracts between Developer, the General Contractor, any Subcontractors, vendors, and suppliers awarded in accordance with Section 6.6.
20.2. Compliance with Employment and Labor Requirements. Developer shall comply with the Federal Fair Labor Standards Act of 1938; the Federal Labor-Management Reporting and Disclosure Act of 1959; the Occupational Safety and Health Act of 1970; the California Constitution; and any other Laws now existing or hereinafter enacted, regarding employment and labor practices.
Developer shall also comply with the National Labor Relations Act, including the provisions with respect to the rights of employees to organize.
20.3. OFAC Compliance. Developer represents and warrants as of the Effective Date that i) Developer and, to the best of Developer’s knowledge, the Persons that directly or indirectly hold an interest in Developer ( collectively, “ Developer’ s Members”, each a “ Developer Member”) other than any such Person that owns an interest in Developer through publicly traded securities) is not now a Person with whom Port District or any citizen of the United States is restricted from doing business with under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, H.R. 3162, Public Law 107-56 commonly known as the “ USA Patriot Act”) and regulations promulgated pursuant thereto, or under any successor statutes or regulations, including, without limitation, persons and entities Prohibited Persons”) named on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, Department of the Treasury (“ OFAC”) or a 78 4825- 3218- 1203/ 024036- 0079
Person ( also, a “ Prohibited Person”) with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States, ( ii) to the best of Developer’ s knowledge, none of the funds or other assets of Developer constitute property of, or are beneficially owned, directly or indirectly, by any Prohibited Persons ( iii) to the best of Developer’ s knowledge, no Prohibited Person directly or indirectly Controls Developer, or any of Developer’ s Members, either individually or in the aggregate and (iv) to the best of Developer’ s knowledge, none of the funds of Developer have been derived from any unlawful activity with the result that the investment in Developer is prohibited by Laws or that the Agreement is in violation of Laws.
Developer covenants and agrees that at no time during the Term shall a Developer Member with a twenty percent ( 20%) or more direct or indirect interest in Developer be a Prohibited Person.
Developer shall reimburse Port District for all reasonable costs, including, without limitation, attorneys’ fees, resulting from Developer’ s failure to comply with this Section 20.3. If Developer receives written notice that any of Developer’ s Members ( other than any such Person that holds an interest in Developer through publicly traded securities) is a Prohibited Person, then Developer shall promptly use Developer’ s best and commercially reasonable efforts to cause such Person to divest such Person’ s interests in Developer. Notwithstanding any limits set forth in this Section 20.3, any Person who is blocked under the USA Patriot Act shall be blocked to the full extent required under the USA Patriot Act and any regulations promulgated thereunder.
ARTICLE XXI
EVENTS OF DEFAULT AND REMEDIES
21.1. Events of Default. The occurrence of any one ( 1) or more of the following events shall constitute an event of default by Developer hereunder (each, an “ Event of Default”):
21.1.1. Failure to Pay. Failure by Developer to pay, when due, any payment, and/or charge that Developer is required to pay hereunder, where such failure continues for a period of five (5) days after written notice thereof from another Party to this Agreement.
21.1.2. Failure to Perform. Failure by Developer to perform any express or implied covenants or conditions in this Agreement (other than as provided in the other subsections of this Section 21.1), where such failure continues for thirty ( 30) days after written notice thereof from another Party to this Agreement; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and Developer diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default; and provided, further, that if such failure is due to a Force Majeure Event in accordance with Section 5.5, then such failure shall not constitute an Event of Default for so long as the Force Majeure Event or the actual collateral effects of such Force Majeure Event exists.
21.1.3. Bankruptcy Event. The occurrence of a Bankruptcy Event.
21.1.4. Cross-Defaults During the Term. The occurrence or existence of an Event of Default as defined in and in accordance with the Sublease or an Event of Default as defined in and in accordance with the Ground Lease, in each case, at any time during the Term; provided that in the event an Event of Default under the Sublease is cured pursuant to the terms of the Sublease, such Event of Default shall be deemed cured hereunder and in the event an Event of Default under the 79 4825- 3218- 1203/ 024036- 0079
Ground Lease is cured pursuant to the terms of the Ground Lease, such Event of Default shall be deemed cured hereunder.
21.1.5. Breach of a Representation or Warranty.
21.1.5.1. Any representation or warranty by Developer under this Agreement or the Exhibits attached hereto, including any representation or warranty made in any payment request or certification provided or delivered by Developer pursuant to this Agreement, is not true, correct or complete in any material respect and Developer does not cure such deficiency within ten ( 10) Business Days after it actually knows about such deficiency, or within ten ( 10) Business Days after Developer receives written notice thereof; provided that, if the nature of such breach is such that the same cannot reasonably be cured within such ten (10) Business Day period, and Developer diligently commences such cure within such ten ( 10) Business Day period and thereafter diligently proceeds to rectify and cure such breach, then such failure shall not constitute an Event of Default.
21.1.5.2. Any representation or warranty by the Completion Guarantor under the Completion Guaranty is not true, correct or complete in any material respect and Developer does not, or does not cause the Completion Guarantor to (as the case may be), cure such deficiency within ten ( 10) Business Days after it actually knows about such deficiency, or within ten ( 10) Business Days after Developer receives written notice thereof; provided that, if the nature of such breach is such that the same cannot reasonably be cured within such ten ( 10) Business Day period, and Completion Guarantor diligently commences such cure within such ten (10) Business Day period and thereafter diligently proceeds to rectify and cure such failure, then such breach shall not constitute an Event of Default; provided that without limiting the Public Entities’ rights and remedies with respect to the original undersigned Developer under this Agreement or the Completion Guarantor, during the effectiveness of any New Agreement or the while any Foreclosure Purchaser has assumed and is holding Developer’ s interest under this Agreement or is holding the controlling interest in Developer, no failure or breach by the Completion Guarantor under the Completion Guaranty shall constitute a breach, default or Event of Default under this Agreement.
21.1.6. Specified Defaults. The occurrence of any event expressly stated to constitute an Event of Default under this Agreement.
21.2. Remedies for Events of Default. Upon any Event of Default but subject to Section 21.2.4, the Public Entities may, in addition to all other rights and remedies afforded to the Public Entities hereunder or by law or in equity, take any one or more of the following actions:
21.2.1. Termination of Agreement. Terminate this Agreement by giving Developer written notice thereof. Failure by the Public Entities to enforce one or more of the remedies herein provided upon an Event of Default shall not be deemed or construed to constitute a waiver of such Event of Default.
21.2.2. Perform Acts on Behalf of Developer. Perform any act that Developer is obligated to perform under this Agreement ( and enter upon the Site ( and, until Acceptance of the applicable Developer’ s Phase 1A Infrastructure Improvements, the Developer’ s Phase 1A Infrastructure Improvements Site) in connection therewith if necessary) in Developer’ s name and on Developer’ s behalf, without being liable for any claim for damages therefor, and Developer shall reimburse each Public Entity on demand for any expenses which such Public Entity may incur in 80 4825- 3218- 1203/ 024036- 0079
thus effecting compliance with Developer’ s obligations under this Agreement ( including, but not limited to, collection costs and legal expenses), plus interest thereon at the Default Rate.
21.2.3. Assignment of Plans and Other Matters. Require Developer to, in which case Developer shall, (i) at Developer’ s sole cost and expense, assign and transfer to the Authority all of Developer’ s right, title and interest in and to all plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site, free and clear of liens and claims by third parties, in connection with and (ii) execute and deliver to the Authority, within five (5) Business Days of the Authority’ s request, in a form provided by and acceptable to the Authority, an instrument confirming the Assignment and transfer of such property and interests to the Authority and, within such five (5) Business Day period, to deliver the originals of such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site to the Authority. Developer agrees to reasonably cooperate with the Authority at no cost or expense to the Authority in seeking any consent from the preparer of any plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site, which may be required for the Authority to rely on such plans, drawings, specifications, permits, approvals, warranties, entitlements, and other similar property and instruments relating to the Site.
21.2.4. Certain Limitations. The Public Entities shall not have the right to terminate this Agreement as a result of any Event of Default arising solely under Section 21.1.2 or Section 21.1.4 of the Agreement that is susceptible to cure ( but will retain all other remedies) if the following conditions apply: (i) (A) the Developer has, in good faith, by written notice served on the Public Entities within thirty (30) days of receipt of any notice from any Public Entity of such Event of Default, contested that (x) Developer has failed to perform any covenant or condition required to be performed by it under this Agreement or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, as applicable, and (B) there has been no final determination by a court with jurisdiction that ( x) the Developer has in fact failed to perform any covenant or condition required to be performed by it under this Agreement and that such failure has had a material adverse effect on one or more of the Public Entities or the Project or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, and that such Event of Default has had a material adverse effect on one or more of the Public Entities or the Project, as applicable; or (ii) after any final determination by a court with jurisdiction that ( x) the Developer has in fact failed to perform any covenant or condition required to be performed by it under this Agreement and that such failure has had a material adverse effect on one or more of the Public Entities or the Project or (y) an Event of Default as defined in the Sublease or an Event of Default as defined in the Ground Lease has occurred or is continuing, and that such Event of Default has had a material adverse effect on one or more of the Public Entities or the Project, as applicable, Developer promptly (and in all events, within thirty (30) days of such final determination), cures such failure, such Event of Default as defined in the Sublease or such Event of Default as defined in the Ground Lease, as applicable. Without limiting the foregoing, the Public Entities shall not have the right to terminate this Agreement as a result of any Event of Default arising solely under Section 21.1.4 unless the Sublease or the Ground Lease, as applicable, has been terminated in accordance with its terms. For purposes of this Section 21.2.4, a final determination by a court with jurisdiction” shall mean the entry of a final judgment by the trial court or equivalent tribunal in any such proceeding. For clarification, the thirty day cure period following such “ final determination” within which Developer’ s failure to perform must be cured in order to avoid the Public Entities’ right to terminate pursuant to this Section shall commence immediately upon entry of such judgment by the trial court and shall not be stayed, delayed or 81 4825- 3218- 1203/ 024036- 0079
otherwise postponed during any appeal periods or other post-judgment proceedings ( e.g., Motion for New Trial or JNOV) that Developer might pursue following entry of such judgment.
For purpose of this Section 21.2.4, “ material adverse effect on one or more of the Public Entities or the Project” shall mean, but shall expressly not be limited to, (i) a failure to comply with any provision of the Port Act, including but not limited to Port Act provisions limiting use of the Project Site or the Improvements, (ii) a material failure to comply with any CDP (as may be amended from time to time) applicable to the Project Site and Improvements, ( iii) a material failure to comply with the Port Master Plan, or any amendment thereto, ( iv) a material failure to comply with any provision of this Agreement related to Hazardous Materials, ( v) [reserved], ( vi) a failure to comply with any provision of this Agreement relating to PWL requirements, ( vii) a failure to comply with any provision of this Agreement that results or could reasonably be expected to result in a public health or safety issue, ( viii) a failure to comply with any provision of this Agreement the effect of which may be that any Public Entity Party has incurred or could reasonably be expected to incur criminal liability, (ix) a failure by Developer to comply with any provision of this Agreement that could reasonably be expected to result in a default by the Authority with respect to payment of debt service on the Authority Bonds or under the Indenture, a default by the City under the Facility Lease, a default by the Port District under the Support Agreement, or a default by the Financing District under the Loan Agreement, or ( x) a failure to comply with any provision of this Agreement that could reasonably be expected to result in significant irreparable harm or injury to any Public Entity.
Nothing in this Section 21.2.4 shall prejudice Developer’ s ability to appeal any decision of any court, provided, that, Developer’ s appeal shall not limit the Public Entities’ ability to pursue any remedies available to the Public Entities under this Agreement.
21.3. Sweetwater Park. Port District shall not be deemed in default or breach for failure to Sufficiently Complete Sweetwater Park on or prior to the Sweetwater Park End Date. Developer’s exercise of either the First Sweetwater Park Option or the Second Sweetwater Park Option shall be Developer’ s sole and exclusive remedy for any failure of Port District or Developer to Sufficiently Complete Sweetwater Park. Developer, Authority, Special Tax District, and City acknowledge and agree that the Port District shall not be liable to Developer, Authority, Special Tax District, or City or any other Person for monetary damages ( including but not limited to contract damages, consequential, incidental or punitive damages, lost profits, lost business opportunity, or any other type of monetary damage regardless of form) for Port District’ s failure to Sufficiently Complete Sweetwater Park. This Section 21.3 is not intended to limit (i) Developer’ s ability to recover its costs from Authority that are Developer’ s Phase 1A Infrastructure Improvements Costs (including, for the avoidance of doubt, costs incurred by Developer to Sufficiently Complete Sweetwater Park or otherwise construct Sweetwater Park in accordance with the Sweetwater Park Materials) or ii) Developer’ s right to the remedy of specific performance of the Port District’ s obligations under Section 2.3.2.2 and 2.3.3.2.
21.4. Reserved.
21.5. Authority Events of Default. The occurrence of any one (1) or more of the following events shall constitute an event of default by Authority hereunder ( each, an “ Authority Event of Default”):
21.5.1. Failure to Pay. Failure by Authority to pay, when due, any payment, and/or charge that Authority is required to pay hereunder, where such failure continues for a period of five 5) days after written notice thereof from Developer.
82 4825- 3218- 1203/ 024036- 0079
21.5.2. Failure to Perform. Failure by Authority to perform any express or implied covenants or conditions in this Agreement ( other than as provided in the other subsections of this Section 21.5), where such failure continues for thirty ( 30) days after written notice thereof from Developer; provided that, if the nature of such failure is such that the same cannot reasonably be cured within such thirty (30) day period, and Authority diligently commences such cure within such thirty (30) day period and thereafter diligently proceeds to rectify and cure such failure, then such failure shall not constitute an Event of Default.
21.6. Remedies for Authority Events of Default (Rent Offset). Upon any Authority Event of Default, Developer may, in addition to all other rights and remedies afforded to Developer hereunder or by law or in equity, offset against Rent ( excluding Advance Rent under the Sublease) under the Sublease any amount that Authority has failed to pay when due hereunder and that has not been paid by the Port District or the City under Section 21.7.
21.7. Payment Sources for Convention Center. In the event Authority fails to pay any Convention Center Contract Sum to Developer pursuant to Section 9.2 of this Agreement or any interest due to Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of this Agreement ( collectively, the “ Specified Obligations”), then such Convention Center Contract Sum or interest, as applicable, will be payable ( a) from any amounts remaining on deposit in the 2022A Construction Account, including the 2022A Bond Proceeds Subaccount and the Public Entity Contribution Subaccount maintained therein ( collectively, the “ Indenture Funds”); ( b) in the event such failure to pay is a result of the misappropriation of Indenture Funds that are in the possession or control of the City or that have been directed for City purposes by affirmative action of the City Council, then to the extent of such misappropriated Indenture Funds, from any source of funds legally available to the City, including general fund monies, to make such payments; ( c) in the event such failure to pay is a result of the misappropriation of Indenture Funds that are in the possession or control of the Port District or that have been directed for Port District purposes by affirmative action of the BPC, then to the extent of such misappropriated Indenture Funds, from any source of funds legally available to the Port District to make such payments; ( d) with respect to the Authority, the City or the Port District, respectively from amounts received thereby or otherwise available to the applicable Public Entity, if any, from the proceeds of a fidelity bond or crime insurance policy covering acts by their respective officers or employees that cause a misappropriation from the 2022A Construction Account or subaccounts therein, or amounts recovered from the Person that misappropriated such moneys; and e) from amounts on deposit in the Authority Surplus Fund, if and when available from time to time.
The City shall promptly pay to the Developer the amounts set forth in the foregoing clauses ( b) and d), if any, to the extent such amounts relate to the City. The Port District shall promptly pay to the Developer the amounts set forth in the foregoing clauses ( c) and ( d) if any, to the extent such amounts relate to the Port District. The Authority shall promptly pay to the Developer the amounts set forth in the foregoing clause ( d), if any, to the extent such amounts relate to the Authority. The Parties intend that the Port District and the City be deemed principal obligors ( and not guarantor) with respect to any payment obligations they may have pursuant to the terms of this Section and without limiting the express obligations of the Port District and the City under this Agreement) the Parties agree not to assert that the Port District or City are guarantors or sureties of the Authority’ s obligation hereunder under applicable law; provided, however, in an abundance of caution, in case, contrary to such intention, it is determined that the Port District and City are guarantors with respect to the foregoing payment obligations, each of Port District and City hereby waive ( i) until Full Payment, any rights of subrogation, reimbursement, indemnification, and contribution with respect to the Authority and (ii) any other rights and defenses that are or may become available to Port District or City, as applicable, by reason of California Civil Code §§ 2808, 2809, 2810, 2819, 2832, 2839 83 4825- 3218- 1203/ 024036- 0079
but only to the extent of a mere offer of performance in full by Authority without the capacity to perform or actual tender of performance, or where Developer has rejected an Authority offer to perform as inadequate), 2845 and 2855 ( but only with respect to Specified Disputes). Port District and City expressly reserve the right to assert, each on their own behalf, any defense( s) Authority may have under the terms of this Agreement to excuse or reduce any Authority obligation to pay Indenture Funds to Developer. The Authority shall use commercially reasonable efforts to pursue recovery from (a) individuals responsible for misappropriation of Indenture Funds and (b) any crime insurance maintained by the Authority in connection with misappropriation of Indenture Funds. Port District shall use commercially reasonable efforts to pursue recovery from (a) individuals employed by the Port District who are responsible for misappropriation of Indenture Funds and (b) any crime insurance maintained by the Port District in connection with misappropriation of Indenture Funds.
City shall use commercially reasonable efforts to pursue recovery from (a) individuals employed by the City who are responsible for misappropriation of Indenture Funds and ( b) any crime insurance maintained by the City in connection with misappropriation of Indenture Funds. The City and the Port District’ s only obligation to pay the Specified Obligations is set forth in this Section 21.7.
ARTICLE XXII
ASSIGNMENT PARTICIPATION FEE
22.1. Assignment Participation Fee. Upon each (a) Assignment of the Sublease pursuant to Section 10.7 of the Sublease, ( b) a change in the composition of the direct or indirect ownership of Developer, and (c) a sublease under the Sublease of all or Substantially All of the Facility (defined in the Sublease), Developer shall pay to the Port District, as the owner of the Site, a fee ( the Assignment Participation Fee”) in an amount equal to one percent ( 1%) of the Assignment Proceeds of such transaction; provided, however, that Developer shall not pay the Assignment Participation Fee (i) if one or more of the members of Developer (as of the date of Completion of the Convention Center and the City’ s issuance of the final certificate of occupancy for the Convention Center) which shall include, as applicable (A) each sibling of such Person, the spouse of such Person, and each parent, child, grandchild or great-grandchild of such Person ( including relatives by marriage); ( B) any trust for the benefit of such Person or any of the foregoing members of his or her family; (C) where such Person is a trust, any beneficiary of the trust of any of the foregoing family members of a beneficiary of the trust, or any other trust established for the benefit of any of the foregoing; and (D) each Person that Controls, is Controlled by, or in under common Control of, such Person or any of the foregoing Persons ( each, an “ Original Member”), collectively, directly or indirectly, owns at least a ten percent ( 10%) ownership interest in the Initial Project Improvements including through direct or indirect ownership in Developer), ( ii) in the case of any Transfer in connection with any foreclosure on the Permitted Encumbrance or any action in lieu of foreclosure by a Permitted Lender or to a Foreclosure Purchaser, which is a Permitted Lender or an SPE Lender Affiliate or the immediately subsequent Transfer by such Foreclosure Purchaser that is a Permitted Lender or an SPE Lender Affiliate to any other Person permitted by the terms of Article IX of the Sublease and this Agreement, (iii) in the case of a change in the composition of the direct or indirect ownership of Developer as a result of an Equity Collateral Enforcement Action by a Permitted Mezzanine Lender or ( iv) in the case of a change in the composition of the direct or indirect ownership of Developer resulting from a transfer of ownership interests traded on a recognized public exchange. Prior to any Public Entity’ s consent to any transaction subject to an Assignment Participation Fee, Developer shall deliver to the Port District a written statement showing the calculation of the Assignment Participation Fee owed to the Port District from Developer based on the terms of the transaction and an organizational chart showing all Persons holding at least a twenty percent ( 20%) direct or indirect ownership interest in the Initial Project Improvements prior to such 84 4825- 3218- 1203/ 024036- 0079
transaction and after such transaction. The statement of the calculation of the Assignment Participation Fee shall contain such detail as may be reasonably requested by the Port District to verify the calculation of the Assignment Participation Fee. Developer shall pay in full to the Port District the Assignment Participation Fee that is due to the Port District concurrent with the completion of the transaction. The obligation to pay the Assignment Participation Fee shall be a joint and several obligation of the transferee and transferor.
For the purposes of this Section 22.1, the term “ Assignment Proceeds” shall mean the purchase price or other consideration that is: (a) paid (either in cash or by an assumption of debt or other consideration and, if paid over time, the present value of the total consideration using the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent 1%)) to the Developer and/or holders of direct or indirect interests in Developer and ( b) fairly attributable to Developer’ s interest in the Sublease and the Initial Project Improvements in connection with the subject transaction less the sum of (x) any reasonable prorations, closing costs or other customary deductions to the purchase price for which the seller is responsible, ( y) the certified cost of designing, developing and constructing the Initial Project Improvements as of the time of the Completion of the Initial Project Improvements and ( z) one hundred ( 100) times the amount of any Assignment Proceeds that have been previously paid to the Port District, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements, which sum shall be prorated in the case of an assignment of a portion of the Initial Project Improvements.
Notwithstanding the foregoing, if at any time an Assignment Participation Fee is payable pursuant to this Agreement and an Assignment Participation Fee ( as defined in the Ground Lease) is payable pursuant to the Ground Lease, then Developer shall, in its reasonable discretion, determine the allocation of the assignment proceeds between the Assignment Proceeds with respect to this Agreement and the Assignment Proceeds ( as defined in the Ground Lease) with respect to the Ground Lease.
Upon the request of the Port District from time to time ( which request shall not be made more frequently than once per year), except in the case of Completion of the Convention Center, in which case Developer shall deliver to the Port District such schedule, and such evidence, without request from the Port District, within five ( 5) days of Completion of the Convention Center, Developer shall provide the Port District with a schedule listing the name and mailing address of each Person holding at least twenty percent ( 20%) of the direct or indirect ownership interests in Developer or the Initial Project Improvements and, if then true, evidence that one or more Original Members collectively holds at least ten percent ( 10%) of the direct or indirect ownership interest in Developer or the Initial Project Improvements. In the event that such Person is a trust, Developer shall include in such schedule the name and mailing address of each trustee of said trust, together with the name and mailing address of each beneficiary of said trust.
22.2. Assignment and Collateral Assignment. No Party shall assign its interest in this Agreement except to a permitted assignee to which such Party has assigned all of its interests in the Convention Center Leases entered into by such Party. No Party shall assign its interest in any of the Convention Center Leases unless the assignee assumes all of such Party’ s obligations under this Agreement arising from and after the date of such assignment pursuant to an assignment and assumption agreement reasonably acceptable to the other Parties. Notwithstanding anything to the contrary in this Section 22.2, the Developer may assign all or a part of its entire rights, interests and obligations hereunder, or create a security interest over its rights and interests hereunder, to the Permitted Lenders to whom Developer has assigned or collaterally assigned, or granted a lien or leasehold deed of trust in, the Sublease and the Ground Lease for the purpose of securing financing 85 4825- 3218- 1203/ 024036- 0079
for the Convention Center, Parking Improvements, and the Resort Hotel. The Public Entities hereby consent to the granting by the Developer to such Permitted Lenders of security interests in this Agreement. Each Public Entity acknowledges that a Permitted Lender may require that each Public Entity execute a consent to collateral assignment of this Agreement in connection with the Public Entity’ s consent or deemed consent to a Permitted Financing Encumbrance. As part of such collateral assignment, each Public Entity shall agree, in a manner materially and substantially consistent with the rights afforded to Permitted Lenders under Article IX of the Sublease and Article X of the Ground Lease, ( i) to provide such Permitted Lenders notice of and opportunity to cure the Developer’ s defaults hereunder, ( ii) to allow such Foreclosure Purchaser, including a Permitted Lenders or SPE Lender Affiliates or any successful bidder that is not a Permitted Lenders or SPE Lender, to assign and reassign all of the Developer’ s rights hereunder, ( iii) to provide for the Public Entities and the Foreclosure Purchaser to enter into a new agreement on the terms and conditions set forth in this Agreement in connection with a New Lease pursuant to Section 10.3.2 of the Ground Lease or a New Sublease pursuant to Section 9.3(b) of the Sublease; and ( iv) to provide for other customary lender protection provisions that are not in violation of applicable laws or regulations.
Each Public Entity shall, upon reasonable request of the Developer, shall execute such consents to or acknowledgements of such assignments by the Developer and other customary documents as Developer or its Permitted Lenders reasonably require in connection with this Agreement and the financing of the Convention Center, Parking Improvements, and the Resort Hotel provided they are materially and substantially consistent with the provisions of Article X of the Ground Lease and Article IX of the Sublease and do not conflict with, modify, or amend any of the terms of this Agreement, the Sublease, or the Ground Lease. As a condition to acquiring title in connection with a foreclosure proceeding ( or assignment in lieu thereof) or any assignment following a foreclosure of the tenant’ s interest under the Ground Lease, sub-sublessee’ s interest in the Sublease, or Developer’ s interest in the Project Implementation Agreement, Permitted Lender, SPE Lender Affiliate or Foreclosure Purchaser, as and if applicable, shall assume in writing the Ground Lease, Sublease, and this Agreement, and such Ground Lease, Sublease, and this Agreement, shall continue in full force and effect, in each case, subject to the terms thereof (including, without limitation, Section 10.6.2 of the Ground Lease). Without limiting the forgoing provisions of this Section 22, a foreclosure ( or assignment in lieu thereof) of the tenant’ s interest in the Ground Lease, sub-subtenant’ s interest in the Sublease, or Developer’ s interest in this Agreement by the Permitted Lender must be accompanied by a foreclosure (or assignment in lieu thereof) of all such interests, and following such foreclosure ( or assignment in lieu thereof), tenant’ s interest in the Ground Lease, sub-subtenant’ s interest in the Sublease, or Developer’ s interest in this Agreement may only be assigned to the same Person. Following a foreclosure of Developer’ s interest in the Site, Developer’ s interest in this Agreement may only be assigned to a permitted assignee that has acquired Developer’ s interest in the Sublease and who expressly assumes the Developer’ s obligations under the Sublease and this Agreement in an assumption agreement reasonable acceptable to the City and the Port District.
22.3. Non-Disturbance Agreement. With regard to the Hotel Management Agreement with Marriott International, Inc., a Delaware corporation, that has been consented to by the Port District and consented to or deemed to be consented to by the City, on the Commencement Date, and prior to or concurrently with the execution of any other Hotel Management Agreement consented to by the Port District and consented to or deemed to be consented to by the City, the Port District, the City and the Authority shall enter into a non-disturbance agreement with the Hotel Operator substantially in the form attached hereto as Exhibit Y and, if the Hotel Operator is not Marriott, based on terms reasonably acceptable to the Port District, the City, the Authority and Hotel Operator at that time. 86 4825- 3218- 1203/ 024036- 0079
ARTICLE XXIII
NONDISTURBANCE
23.1. Port District Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Site Lease terminates, 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 23.1 and is entitled to enforce this Section 23.1.
23.2. Authority Nondisturbance of Lessee and Sublessee Rights under the Convention Center Leases. In the event the Facility Lease terminates, 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 23.2 and is entitled to enforce this Section 23.2. 87 4825- 3218- 1203/ 024036- 0079
ARTICLE XXIV
OPERATION OF THE SITE AND THE CONVENTION CENTER
24.1. Approved Agreements. Pursuant to the Sublease, Developer shall take possession of the Site subject to the agreements, licenses, right of entry agreements, and other documents set forth in Exhibit S attached hereto and incorporated herein by reference (“ Approved Agreements”).
24.2. Reservations. The Port District Parties and any third party requested by Port District shall have the right to enter the Site and the Improvements for the purpose of constructing, installing, maintaining, repairing, replacing or removing monitoring wells during normal business hours and upon a three ( 3) Business Days’ prior notice to Developer ( except in the case of an emergency in which case no prior notice shall be required but each of such Port District Parties and each of such third parties shall notify Developer and, prior to the Completion of the Resort Hotel and Parking Improvements, Developer’ s Risk Construction Manager thereof by phone prior to entering the Site) and Port District shall, and shall cause each of such Port District Parties and each of such third parties to: ( a) comply with all applicable security and safety procedures of Developer of which Developer informs Port District in writing and with which such Port District Party and such third party can reasonably comply, and ( b) use commercially reasonable efforts to minimize any interference with Developer’ s operation and use of the Site, the Improvements, the Resort Hotel, the Parking Improvements, and the Ground Lease Property, while on the Site and at the Improvements, and, so long as such Port District Parties and such third parties comply with such requirements and do not cause damage to the Site or any Improvements, separate and apart from the construction, installation, maintenance, repairing, replacing, and removal of the monitoring well in or from the Site, Developer shall not be entitled to any monetary payment or other remuneration for incidental costs imposed on Developer resulting from, any such access to the Site or the Improvements by such Port District Parties or such third parties. The Port District Parties shall not cause any damage to the Site or any Improvements in connection with the construction, installation, maintenance, repairing, replacing and removal of any monitoring wells in or from the Site that adversely affects the use, operation or appearance of the Site or any of the Improvements. Port District shall reasonably cooperate with Developer in determining the location of any new monitoring well that is required by an order of the SDRWQCB. Except in the case of an emergency, Port District shall consult with Developer to ensure that the interference with Developer’ s operation and use of the Site, the Improvements, the Resort Hotel, the Parking Improvements, and the Ground Lease Property is minimized to the extent commercially reasonable efforts permit.
Port District and Developer shall independently have the right to grant on reasonable terms and notice to the other, a license or easement or other access agreement to Rohr, Inc., a United Technologies Aerospace Systems Company (together with its successors and assigns, “ Rohr”) for Rohr and its authorized contractors and agents to access the Site upon reasonable prior notice to Developer for sampling, operation, maintenance, relocation, replacement, removal and closure of groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities (as defined in the Relocation Agreement); provided, however, that if Port District grants a license or easement or other access agreement to Rohr, it shall first consult with Developer to attempt reasonably and in good faith, and shall use reasonable efforts, to avoid interference with Developer’ s day-to-day operations on the Site which interference is (a) unreasonable or ( b) both material and reasonably avoidable. Developer shall have the right to coordinate with Rohr to install, relocate, and/or remove any Remediation Facilities ( as defined in the Relocation Agreement), subject to ( a) Rohr securing any necessary approvals from the SDRWQCB and ( b) Developer providing advance notice to Port District that describes the proposed installation, relocation and/or removal of the Remediation 88 4825- 3218- 1203/ 024036- 0079
Facilities and requests Port District’ s approval thereof (“ Remediation Facilities Notice”) and receiving Port District’ s written approval thereof ( which approval shall not be unreasonably withheld, conditioned or delayed); provided, however, that, within twenty (20) days after Developer provides any Remediation Facilities Notice to Port District, Port District shall provide notice to Developer (“ Remediation Facilities Response”) that ( i) approves the activities described in such Remediation Facilities Notice or (ii) denies Port District’ s approval of some or all of the activities described in such Remediation Facilities Notice and describes in reasonable detail the reasonable basis for such denial; and provided, further, that if Port District fails to provide a Remediation Facilities Response to Developer within such twenty- ( 20-) day period, then Developer may redeliver its Remediation Facilities Notice to Port District and, if Port District fails to provide a Remediation Facilities Response thereto within ten ( 10) days after Developer provides such redelivered Remediation Facilities Notice to Port District, then Port District’ s approval of such Remediation Facilities Notice shall be deemed granted. Developer and Port District acknowledge and agree that neither Developer nor Port District shall be responsible to the other for any incidental costs or expenses ( e.g., security, overtime, inspection, or management-related expenses) incurred by the other Party arising from or related to providing Site access to Rohr and its authorized contractors and agents for the sampling, operation, maintenance, relocation, replacement, removal and closure of the groundwater monitoring, soil vapor or extraction wells or other Remediation Facilities ( as defined in the Relocation Agreement).
Port District shall present to the BPC for its reasonable consideration any reasonable request by Developer in writing for an easement on, over, under or across the Site to others, including, without limitation, any Governmental Authority, for the purpose of constructing, installing, maintaining, repairing, replacing and removing utility systems in connection with the development, construction, use or operation of the Site and the Improvements; provided, however, that, in each case, ( A) the term of such easement shall not exceed the Term; ( B) Port District shall not be responsible for any cost or expense relating to such easement, including without limitation, maintenance thereof; ( C) Port District shall have the right to terminate such easement at no cost or expense to Port District in the event of an early termination of this Agreement; ( D) Port District shall have the right to relocate such easement, at any time, in Port District’ s sole and absolute discretion, at the grantee’ s sole cost and expense with respect to the first relocation of such easement and at Port District’ s sole cost and expense with respect to any subsequent relocation of such easement, unless agreed to otherwise by Port District and the grantee ( provided that Port District shall not consider whether the prospective grantee has agreed to bear such costs for any relocation of such easement after the first relocation in determining whether to grant such an easement); ( E) Port District shall have the right to approve the location and dimensions of the easement in Port District’ s reasonable discretion; and ( F) at Port District’ s election, the grantee shall ( at the grantee’ s own cost and expense) remove any utility system constructed or installed pursuant to such easement at the expiration or earlier termination of the Ground Lease. The City and the Authority hereby consent to any such easement granted by the Port District.
No Public Entity shall, without the prior written consent of Developer and, while any Permitted Financing Encumbrance remains outstanding or during any New Lease Period, each Permitted Lender, which consent shall not be unreasonably withheld, conditioned or delayed, encumber the Site or the Improvements during the Term or during any New Lease Period, except for i) any documents effectuating public financing by the Port District, the City, and the Authority, including any refinancing thereof, of the Site or the Developer’ s Phase 1A Infrastructure Improvements that Developer has agreed to prior to the Commencement Date, or the Convention Center that Developer has agreed to prior to the Expansion Date, or that Developer agrees to, in 89 4825- 3218- 1203/ 024036- 0079
Developer’ s reasonable discretion, during the Term, except for any such document that may impose any new obligation, limitation or prohibition on Developer, the Site, the Improvements, the Convention Center prior to the Expansion Date, the Developer’ s Phase 1A Infrastructure Improvements, this Agreement or any Contemporaneous Agreement, in which case Developer’ s consent shall be in Developer’ s sole discretion, ( ii) the Special Tax District and any modifications thereto that Developer agrees to, in Developer’ s reasonable discretion, ( iii) as permitted under this Section 24.2, or (iv) with respect to Port District only, as required by Laws (provided, that, any such encumbrance under this subsection ( iv) shall not result in an encumbrance that is senior in right of priority to that of any Convention Center Lease).
The Port District and Developer agree to use commercially reasonable efforts to finalize and record that certain “ Easement for Utility Purposes” between the San Diego Gas & Electric Company, a California corporation (“ SDG& E”) and the Port District (“ SDG& E Easement”) consistent with the direction given to Port District staff by the Board of Port Commissioners ( Board) at the May 10, 2022 meeting of the BPC. The Port District, the City, the Developer, and the Authority hereby consent to the SDG& E Easement and agree to subordinate their leasehold interests in this Agreement and the Convention Center Leases to the SDG& E Easement.
24.3. Cooperation in connection with Condemnation. Each Party shall cooperate in good faith to ensure an award of fair market value is obtained in the event of any taking by eminent domain or condemnation with respect to the Convention Center. Each Party shall use commercially reasonable efforts to perform its respective obligations under the Convention Center Leases related to condemnation and casualty proceeds.
ARTICLE XXV
AS-IS” LEASE AND WAIVERS
25.1. Developer’s Acknowledgment. Developer acknowledges that prior to entering into this Agreement and the Sublease, Port District has given Developer sufficient opportunity to consider, inspect and review, to Developer’ s complete satisfaction: ( 1) any and all rights, appurtenances, entitlements, obligations, and liabilities concerning the Site, including without limitation any Existing Improvements; ( 2) the physical condition of the Site, including, without limitation, the condition and value of any Existing Improvements and the soils, subsoil media, and ground waters at or under the Site; ( 3) the risk of climate change and the possible adverse consequences thereof, including, without limitation, rises in sea level and possible damage to and destruction of the Site; (4) the development potential of the Site including, without limitation, as may be affected by the preceding clause (3); (5) the effect of all Laws, including, without limitation, those concerning land use, environmental quality and maintenance, endangered species, and traffic regulation; ( 6) the financial prospects of the Site and local market conditions; ( 7) Developer’ s determination of the feasibility of Developer’ s intended use and enjoyment of the Site; ( 8) the presence of any Pre-Existing Hazardous Material and any other contamination of the Site, including any Existing Improvements, soils, groundwater, water adjacent to San Diego Bay and sediment adjacent to San Diego Bay; and ( 9) all other facts, circumstances, and conditions affecting, concerning or relating to the Site. The land use; the environmental, biological, physical and legal condition of the Site; the risks associated with possible climate change; the feasibility of Developer’ s intended use and enjoyment of the Site; and such other facts, circumstances and conditions being collectively referred to herein as the “ Condition of the Site”; and, without limitation on any other provision of this Agreement or the Sublease, Developer expressly assumes the risk that adverse conditions affecting the Site have not been revealed by Developer’ s investigations. 90 4825- 3218- 1203/ 024036- 0079
25.2. Only Express Written Agreements Binding. Each Party acknowledges and agrees that no Person acting on behalf of a Party is authorized to make, and that except as expressly set forth in this Agreement and the Contemporaneous Agreements to which such Party is a party, none of the Public Entity Parties, the Developer Parties nor anyone acting for or on behalf of a Party has made, any representation, warranty, agreement, statement, guaranty or promise to any other Party, or to anyone acting for or on behalf of any other Party, concerning the Condition of the Site or any other aspect of the Site. Each Party further acknowledges and agrees that no representation, warranty, agreement, statement, guaranty or promise, if any, made by any Person for or acting on behalf of a Party which is not expressly set forth in this Agreement and the Contemporaneous Agreements as of the Commencement Date will be valid or binding on such Party.
25.3. As-Is. Developer further acknowledges and agrees that Developer’ s execution of this Agreement shall constitute Developer’ s representation, warranty and agreement that as of the Commencement Date the Condition of the Site has been independently verified by Developer to its full satisfaction, and that, except to the extent of the express covenants of the City set forth in the Sublease, Developer will be developing the Site and subleasing the Site based solely upon and in reliance on its own inspections, evaluations, analyses and conclusions, or those of Developer’ s representatives; and that DEVELOPER IS DEVELOPING THE SITE AND SUBLEASING THE SITE IN ITS “AS-IS, WITH ALL FAULTS” CONDITION AND STATE OF REPAIR INCLUSIVE
OF ALL FAULTS AND DEFECTS, WHETHER KNOWN OR UNKNOWN, AS MAY EXIST AS OF THE DEVELOPER’ S EXECUTION OF THIS AGREEMENT AND THE SUBLEASE, INCLUDING ANY EXISTING IMPROVEMENTS. Without limiting the scope or generality of the foregoing, Developer expressly assumes the risk that the Site does not or will not comply with any Laws now or hereafter in effect.
25.4. Waivers, Disclaimers and Indemnity.
25.4.1. Waiver and Disclaimer. Developer hereby fully and forever waives, and Port District hereby fully and forever disclaims, all warranties of whatever type or kind with respect to the Site, whether expressed, implied or otherwise including, without limitation, those of fitness for a particular purpose, tenantability, habitability or use.
25.4.2. Port District’ s Materials. Developer acknowledges that any information and reports, including, without limitation, any engineering reports, architectural reports, feasibility reports, marketing reports, soils reports, environmental reports, analyses or data, or other similar reports, analyses, data or information of whatever type or kind which Developer has received or may hereafter receive from Port District Parties ( collectively, the “ Port District’ s Materials”) have been furnished without warranty of any kind (other than that Port District has delivered true and correct copies of each of the items set forth on Exhibit T attached hereto as filed in the Office of the Port District Clerk (“ District Documents”)) and on the express condition that Developer will make its own independent verification of the accuracy, reliability and completeness of such Port District’ s Materials and that Developer will not rely thereon. Accordingly, subject to terms of Section 25.4.3 below, Developer agrees that under no circumstances will it make any claim against, bring any action, cause of action or proceeding against, or assert any liability upon, Port District Parties or any of the Persons that prepared or furnished any of the Port District’ s Materials as a result of the inaccuracy, unreliability or incompleteness of, or any defect or mistake in, any such Port District’ s Materials, and Developer hereby fully and forever releases, acquits and discharges Port District Parties and each Person furnishing such Port District’ s Materials of and from, any such claims, actions, causes of action, proceedings or liability, whether known or unknown ( other than in 91 4825- 3218- 1203/ 024036- 0079
connection with Port District’ s breach of its representation and warranty set forth in this Section 25.4.2 that Port District has delivered to Developer true and correct copies of each of the District Documents.
25.4.3. Release and Waiver.
25.4.3.1. Release. Except to the extent of Claims ( as defined below) against Port District arising from any breach by Port District of its covenants and obligations expressly provided in this Agreement or the Site Lease, or Port District’ s representation and warranty set forth in Section 22.4.2 of the Ground Lease or Section 18(d)(ii) of the Site Lease, Developer, on behalf of Developer, its successors and assigns, hereby fully and forever releases, acquits and discharges Port District of and from, and hereby fully, and forever waives and agrees not to assert any and all claims, actions, causes of action, suits, proceedings, demands, rights, damages, Related Costs, losses, judgments, provisional relief, fines, penalties, and fees, including, without limitation, any and all claims for compensation, reimbursement, or contribution whatsoever ( individually and collectively, “ Claims”), whether known or unknown, direct or indirect, foreseeable or unforeseeable, absolute or contingent, that any Developer Party, Hotel Operator or any of Developer’ s successors or assigns now has or may have or which may arise or be asserted in the future arising out of, directly or indirectly, or in any way connected with: (i) any act or omission of Port District (or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable), whether or not such act be the active, passive or sole negligence of Port District ( or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable), in connection with prior ownership, maintenance, operation or use of the Site; ( ii) any condition of environmental contamination or pollution at the Site ( including, without limitation, any Pre-Existing Hazardous Material or other contamination or pollution of any soils, subsoil media, surface waters or ground waters at the Site and any clean-up or abatement order effecting the Site); ( iii) to the extent not already included in clause ( ii) above, the prior, present or future existence, release or discharge, or threatened release, of any Hazardous Materials at the Site (including, without limitation, the release or discharge, or threatened release, of any Hazardous Materials into the air at the Site or into any soils, subsoils, surface waters or ground waters at the Site); ( iv) the violation of, or noncompliance with, any Environmental Law or other applicable Law now or hereafter in effect, however and whenever occurring; ( v) the condition of the soil and groundwater at the Site; ( vi) the Condition of the Site, including, without limitation, the condition of any improvements located on the Site including, without limitation, the structural integrity and seismic compliance of such improvements; vii) any matters which would be shown on an accurate ALTA land survey of the Site ( including, without limitation, all existing easements and encroachments, if any); ( viii) all applicable Laws now or hereafter in effect; (ix) matters which would be apparent from a visual inspection of the Site; or x) to the extent not already covered by any of the foregoing clauses ( i) through (ix) above, the use, maintenance, development, construction, ownership or operation of the Site by Port District (or any Person acting for or on behalf of Port District or for whose conduct Port District may be liable) or any predecessor( s)-in-interest in the Site of Port District.
25.4.3.2. Waiver of Civil Code Section 1542. With respect to all releases made by Developer under or pursuant to Section 6.12 of the Sublease and this Article XXV, Developer hereby waives the application and benefits of California Civil Code § 1542 and hereby verifies that it has read and understands the following provision of California Civil Code § 1542:
93 4825- 3218- 1203/ 024036- 0079
To the Trustee: Wilmington Trust, National Association
650 Town Center Drive, Suite 800,
Costa Mesa, California 92626
Attention: Corporate Trust Services
Fax No.: (714) 384-4151
To the 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 a copy to: James Millard at james.g.millard@jpmchase. com and Shawn Laljit at [email protected]
To the Port District: Executive Director
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
With a copy to: Director, Real Estate Department
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
Port Attorney
San Diego Unified Port District
Post Office Box 120488
San Diego, CA 92112-0488
To the Financing District: City of Chula Vista
276 Fourth Avenue
Chula Vista, California 91910
Attention: City Manager
To Developer: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Ira Mitzner
94 4825- 3218- 1203/ 024036- 0079
With copy to: RIDA Chula Vista, LLC
1777 Walker Street, Suite 501
Houston, Texas 77010
Attention: Luke Charlton
and
Latham & Watkins
12670 High Bluff Drive
San Diego, CA 92130
Attention: Steven Levine
Notices to the Trustee shall be given initially either telephonically or by written telecommunication or electronic mail and shall then be confirmed in writing delivered by first class mail, postage prepaid. The Authority, the City, the Port District, the Financing District, the Developer, and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent.
26.2. Captions. Captions in this Agreement are inserted for convenience of reference.
They do not define, describe or limit any term of this Agreement.
26.3. No Merger. At any time during the Term, if any of Port District’ s, Authority’ s, City’s, or Developer’ s estates in the Site become vested in the same owner, none of the Site Lease, the Facility Lease, or the Sublease shall be terminated by application of the doctrine of merger except at the express consent of all remaining parties to the Convention Center Leases and with the consent of any Permitted Mortgage Lender.
26.4. Recording. Unless the Parties agree otherwise in writing in advance, on or before the Commencement Date, the Parties shall execute a Memorandum of Agreement substantially in the form of Exhibit R attached hereto ( the “ Memorandum of Agreement”). Any Party may cause the Memorandum of Agreement to be recorded at such Party’ s sole cost and such Party shall be solely responsible for any transfer taxes or fees required to be paid in connection with the recording of the Memorandum of Agreement.
26.5. Port District Transfer. The Authority, the City, and the Developer each acknowledges that, subject to the Port Act and the oversight of the California State Lands Commission, Port District may be required by applicable law to transfer all or any portion of its interest in the Site and in the Site Lease, and the Authority, the City, and the Developer each agrees that in the event of any such transfer and the express assumption of Port District’ s obligations hereunder and under each of the documents set forth on Exhibit Q attached hereto ( a “ Port District Transfer”) by the transferee, Port District shall automatically be released from all liability under the Site Lease and this Agreement for periods after the date of such Port District Transfer, and the Authority, the City, and the Developer each agrees to look solely to such transferee for the performance of Port District’ s obligations hereunder that arise after the date of such Port District Transfer. Each Person constituting the Lessor under the Site Lease or the Port District under this Agreement shall be liable only for those obligations arising during its period of ownership of the Site and shall be released from further obligations after it completes a Port District Transfer. 95 4825- 3218- 1203/ 024036- 0079
26.6. Time of Essence. Time is of the essence with respect to this Agreement and each of its provisions.
26.7. Partial Invalidity. If any term, provision, covenant or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, provision, covenant or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other term, provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent possible permitted by Law.
26.8. Entire Agreement. It is understood and acknowledged that there are no oral agreements between the Parties affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations, arrangements, agreements and understandings, if any, between the Parties with respect to the subject matter hereof, except for the Prior Agreements, the Contemporaneous Agreements and the Approved Agreements. This Agreement contains all of the terms, covenants, conditions, warranties and agreements of the Parties relating in any manner to the construction of the Convention Center, the Developer’ s Phase 1A Infrastructure Improvements, and as between the Port District and the Developer) the Remaining Phase 1A Infrastructure Improvements and shall be considered to be the only agreement between the Parties and their representatives and agents, except for the applicable Prior Agreements, the applicable Contemporaneous Agreements and the applicable Approved Agreements; and none of the terms, covenants, conditions or provisions of this Agreement can be modified, deleted or added to except in writing signed by the Parties. All negotiations and oral agreements acceptable to the Parties have been merged into and are included herein. There are no other representations or warranties between the Parties, and all reliance with respect to representations is based totally upon the representations and agreements contained in this Agreement. However, Developer acknowledges and agrees that other documents may restrict Developer’ s use of the Project Site and the Improvements or impose other obligations not specifically referenced in this Agreement, including, but not limited to, conditions of approval of a CDP or mitigation measures under CEQA.
26.9. Joint and Several. If there is more than one Person constituting Developer (i) the obligations imposed upon such persons or entities under this Agreement shall be joint and several and ( ii) the act or signature of, or notice from or to, any one or more of them with respect to this Agreement shall be binding upon each and all of such persons and entities with the same force and effect as if each and all of them had so acted or signed, or given or received such notice.
26.10. Developer’ s Authority. Developer hereby represents and warrants as of the Effective Date that Developer is a duly formed and existing entity qualified to do business in the state in which the Project Site is located and that Developer has full right and authority to execute and deliver this Agreement and that each Person signing on behalf of Developer is authorized to do so.
26.11. Interaction with Sewer Agreement. The Parties agree that with respect to the sewer improvements specifically described in the Sewer Agreement (“ City Sewer Improvements”) only, because such City Sewer Improvements are being paid for solely out of City funds, they will be constructed by Developer within City rights of way, and will be accepted, owned, and maintained by the City, the Sewer Agreement shall govern the terms for the construction and reimbursement of such City Sewer Improvements. Notwithstanding the foregoing, Developer acknowledges and agrees that a) Developer’ s obligations under Section 3.1 ( Term – as it relates to the Developer’ s Phase 1A Infrastructure Improvements Site), Section 5.1.1.1 ( Construction of Project), Section 5.7 96 4825- 3218- 1203/ 024036- 0079
Entitlements), Section 7.2 ( Compliance with Laws ( except Section 7.2.1)), Section 8.1.2 ( Other), Section 8.1.3 ( Environment), Section 8.1.4 ( Access to Project Site), Section 8.2 ( Public Right-ofWay), Article XIV (as to Port District and Authority only), Article XV (as to Port District and Authority only), Article XVIII (as to the Port District and Authority only), Article XX (as to Port District and Authority only), and Article XXI (as to Port District and Authority only), shall govern and control as to the Port District and Authority with respect to the City Sewer Improvements and any portion of the Project Site upon which the City Sewer Improvements shall be constructed and the Port District and Authority shall have all of its rights to enforce such rights herein; ( 2) the Completion of the City Sewer Improvements shall not be considered in the definition of Developer’ s Phase 1A Infrastructure Improvements for purposes of determining the Outside Construction Completion Date for purposes of assessing Construction Late Charges; ( 3) with respect to the City Sewer Improvements only, Developer shall comply with the applicable requirements of the Sewer Agreement to provide payment bonds, performance bonds, and/or warranty bonds; and ( 4) this provision shall not restrict, modify, or amend, any rights of the Port District pursuant to any easement with the City for any public right of way in which any of the City Sewer Improvements shall be constructed.
26.12. Resolution of Specified Disputes.
26.12.1. Specified Disputes. This Section (other than Section 26.12.10) shall apply only to, and shall be the Parties’ exclusive method of dispute resolution for, the following specified disputes (“ Specified Disputes”), defined as:
26.12.1.1. ( a) Disputes over amounts that Developer included in a Developer’ s Phase 1A Payment Request pursuant to Section 9.1.2.1 that Authority ( i) did not approve per Section 9.1.2.4, (ii) contested pursuant to Section 9.1.4.3 to the extent the Developer or Authority are unable to agree or settle such dispute within the time period set forth in Section 9.1.4.3(a) or ( iii) did not pay within the time set forth in Section 9.1.3, or ( b) disputes regarding the Final Accounting or the Authority’ s Phase 1A Final Review pursuant to Section 9.1.6 and 9.1.6.1.
26.12.1.2. Disputes over the amount of any reduction in the costs payable to Developer as a result of Authority’ s correction, removal or replacement of Defective Work pursuant to Section 12.2.1 or Section 12.2.2.
26.12.1.3. ( a) Disputes over amounts that Developer included in a Convention Center Payment Request pursuant to Section 9.2.1 that Authority (a) did not approve per Section 9.2.2.3, (b) contested pursuant to Section 9.2.4.2 to the extent the Developer or Authority are unable to agree or settle such dispute within the time period set forth in Section 9.2.4.2(a) or (c) did not pay within the time set forth in Section 9.2.3 or (b) disputes regarding the Final Accounting or the Authority’ s Convention Center Final Review pursuant to Section 9.2.6 and 9.2.6.1.
26.12.1.4. Disputes over any amounts that Authority has paid to Developer that Authority alleges were not properly paid to Developer, except that this Section does not preclude Authority or any other Public Entity from bringing an action in court under the False Claims Act, or for fraud, or for similar actions.
26.12.1.5. Disputes pursuant to Section 26.12.4 as to whether a Demand is subject to arbitration.
97 4825- 3218- 1203/ 024036- 0079
26.12.2. Notice. Developer and Authority shall endeavor to reasonably inform the other Party of any Specified Disputes that they respectively believe may be the subject of formal dispute resolution proceedings.
26.12.3. Initiation of Dispute Resolution. Developer or Authority may initiate the dispute resolution process by providing notice and making a written demand to the other Party to initiate formal dispute resolution (“ Demand”). The Demand shall include documentation supporting the claimed right to payment, or if the documentation has already been provided, a specific reference to the documents and their location. Upon the filing of a Demand, Developer and Authority shall engage in good faith in executive-level negotiations to attempt to resolve the Specified Dispute.
Negotiation shall commence within ( a) with respect to disputes under Sections 26.12.1.1(b) or
26.12.1.3(b), five (5) Business Days from Developer’ s or Authority’ s Demand, and ( b) otherwise three ( 3) Business Days from Developer’ s or Authority’ s Demand. Developer and Authority may mutually agree to mediation of the Demand in lieu of or in addition to negotiation of a Specified Dispute. The reasonable costs of mediation will be shared evenly between Developer and Authority.
26.12.4. Binding Arbitration. Specified Disputes that remain unresolved within six 6) Business Days after the Demand ( the “ Negotiation Deadline”) shall be submitted to binding arbitration. The arbitration shall be inclusive of all Specified Disputes that have been initiated pursuant to Section 26.12.3 at the time Developer or Authority initiates arbitration, unless the Developer and Authority stipulate otherwise. The complaint in arbitration shall identify all Specified Disputes that are part of the arbitration as well as the amount in controversy. To the extent that the Developer and Authority do not agree in good faith whether a Demand is a Specified Dispute subject to arbitration, the question of whether a Demand is subject to arbitration shall be resolved by the arbitrator. Developer or Authority shall initiate arbitration of a Demand no later than six (6) months after the Cutoff Date.
26.12.5. Selection of Arbitrator. The Parties have approved each of the arbitrators the “ Approved Arbitrators”) listed on Exhibit N-1 (the “ Approved Arbitrator List”). After the Negotiation Deadline, Developer or Authority may contact the Approved Arbitrator that is highest on the Approved Arbitrator List to determine whether he/she is available to serve as the arbitrator. If such Approved Arbitrator responds that he/she is unavailable or does not indicate that he/she is available to serve as the arbitrator within three (3) Business Days after the date on which contacted, then such Approved Arbitrator shall be deemed unavailable. Developer or Authority may then contact the Approved Arbitrator that is next on the Approved Arbitrator List, and such process shall continue on an iterative basis until an Approved Arbitrator has confirmed their availability or until all of Approved Arbitrators on the Approved Arbitrator List are deemed unavailable. If none of the Approved Arbitrators is available, then Developer and Authority shall, within two (2) Business Days after Developer or Authority determines that none of the Approved Arbitrators is available, exchange a list of five preferred arbitrators, each of whom must be experienced in construction law and resolving construction claims, and each of whom shall be a retired judge or an attorney, located in Southern California. The Developer and Authority shall mutually agree on an arbitrator. In the event that an agreement cannot be reached within two (2) Business Days after receipt of such lists, each side shall strike one of the other parties’ arbitrators until only four names remain. Any of the remaining four who are unable to take on the Specified Dispute shall be stricken. If an agreement still cannot be reached, the arbitrator shall be selected by lot from the remaining names.
26.12.6. Selection of Arbitration Rules. The arbitration shall proceed in accordance with the JAMS Expedited Construction Arbitration Rules (the “ JAMS Rules”). The JAMS Rules 98 4825- 3218- 1203/ 024036- 0079
shall apply except to the extent inconsistent with this Section 26.12, and even though the amount of the dispute may be greater than $ 100,000. Any arbitration pursuant to this Section 26.12 shall be completed ( whether by settlement or the issuance of an award by the arbitrator) within twenty ( 20) Business Days after the arbitrator is selected.
26.12.7. Arbitrator’s Jurisdiction. The arbitrator’s jurisdiction shall be limited to determining whether a Demand is subject to arbitration as well as the amount due from one Party to other under this Agreement and ordering the payment of such amounts due from one Party to the other Party by a date certain.
26.12.7.1. For a Specified Dispute arising from a Demand involving a Developer’ s Phase 1A Payment Request, the arbitrator shall only have jurisdiction to determine whether any amount is owed to Developer in accordance with this Agreement and to order payment to Developer of the amount owed.
26.12.7.2. For a Specified Dispute arising from a Demand involving Defective Work, the arbitrator shall only have jurisdiction to determine the amount of the reduction, if any, in costs payable to Developer and to order payment to allocate such costs.
26.12.7.3. For a Specified Dispute arising from a Demand involving a Convention Center Payment Request, ( a) the arbitrator shall only have jurisdiction to determine whether any amount is owed to Developer in accordance with this Agreement and to order payment to Developer of the amount owed, and (b) the arbitrator shall have no power to order the Authority or any other Public Entity to pay any amount to Developer in excess of the sum of the Project Public Investment Amount (not paid to Developer pursuant to this Agreement ( other than default interest in accordance with this Agreement)) and the proceeds of Advance Rent (to the extent received by any Public Entity and not paid to Developer pursuant to this Agreement), to order any adjustment to the Project Public Investment Amount, or to order any payment of the Project Public Investment Amount before it is due and payable under this Agreement.
26.12.7.4. For a Specified Dispute arising from a Demand involving an overpayment by Authority, the arbitrator shall only have jurisdiction to determine whether any amount is owed to Authority in accordance with this Agreement and to order payment to Authority of the amount owed.
26.12.7.5. For all Specified Disputes, the costs necessary to retain and commence arbitration shall be shared evenly between Developer and Authority, but the arbitrator may order the non-prevailing party to pay the reasonable attorney’ s fees and costs of the prevailing party as part of an award.
26.12.7.6. For all Specified Disputes, the arbitrator shall have no authority or power to do any of the following: (i) award payment of any amount that is not consistent with this Agreement or expressly authorized within the terms of this Agreement; (ii) award any consequential, incidental or punitive damages or any amounts relating to lost profits, lost business opportunity or similar damages; ( iii) commit errors of law; (iv) decide any matter related to this Agreement that is not specifically identified as a Specified Dispute arising from a Demand; ( v) except with respect to disputes under Section 26.12.1.5, order injunctive relief or ( vi) order any Public Entity to perform any discretionary act.
99 4825- 3218- 1203/ 024036- 0079
26.12.7.7. For the resolution of Demands arising under all Specified Disputes, the arbitrator shall issue a written determination containing the arbitrator’ s findings and the basis of the award.
26.12.8. Judgment. Judgment on any award rendered by an arbitrator may be entered in any court having jurisdiction thereof.
26.12.9. Interpretation. This procedure for resolution of Specified Disputes shall not limit the rights of the Public Entities to initiate a claim against Developer or any other person:
a) arising from latent and/or patent deficiencies in workmanship, equipment or materials; ( b) arising from guarantees to repair or warranty obligations; ( c) for defense and indemnity pursuant to Article XIV of this Agreement (d) under any security for Developer’ s performance, including calling a bond per Article XIII of this Agreement or enforcing the Completion Guaranty per Section 5.6; or e) for any remedy under any other agreement between Developer and any of the Public Entities.
26.12.10. Resolution of Other Disputes. Any dispute, controversy or claim arising out of or relating to this Agreement or any Convention Center Lease, or the breach hereof or thereof, shall be subject to a non-binding mandatory mediation, other than ( i) a Specified Dispute; ( ii) any action of a Party to seek emergency, immediate, or preliminary relief; ( iii) any action of a Public Entity in its governmental or regulatory capacity; or (iv) any action involving fraud, false claims or similar actions. The mediator shall be a qualified mediator mutually acceptable to the Parties involved in the dispute. The Parties have approved each of the mediators ( the “ Approved Mediators”) listed on Exhibit N-2 ( the “ Approved Mediator List”). The Port District and Developer may elect to use the Approved Mediator List for any non-binding mediation elected or required under the Ground Lease. The Parties involved in the dispute shall each pay an equal share of the cost of the mediation and each such Party shall pay its own costs and expenses, including any attorneys’ fees, related to the mediation.
26.13. Attorneys’ Fees. Should any suit or action be commenced to enforce, protect, or establish any right or remedy of any of the terms and conditions hereof or under the Convention Center Subleases to which a Party hereto is a party or a third party beneficiary, including without limitation a summary action commenced by the Parties under the laws of the state of California relating to the unlawful detention of property, the prevailing party shall be entitled to have and recover from the losing party reasonable attorneys’ fees and costs of suit, including, without limitation, any and all costs incurred in enforcing, perfecting and executing such judgment.
26.14. Transaction Costs. To the extent Developer requests any approval, consent or other action by Port District, Authority, or the City under this Agreement, or Port District, Authority, or City, need to approve, consent, or perform another action for any of the Port District, Authority, or City, to process an approval, consent, or other action for Developer, Developer shall pay or reimburse Port District, Authority, or City, as applicable, upon written demand therefor, all of Port District’ s, Authority’ s, or City’ s, as applicable, reasonable attorneys’ fees and other third party costs incurred by Port District, Authority, or City in connection therewith, together with Port District’ s, Authority’ s, and City’ s, then current processing or cost recovery fee for, Port, Authority, or City similar transactions consistent with any schedule of such fees then utilized by Port District, Authority, or City. Port District, Authority, or City, as applicable, shall provide Developer with a copy of any such fee schedule following written request therefor from Developer. Such costs and fees shall be payable to Port District, Authority, or City, as applicable, whether or not Port District, Authority, or City, as applicable, grants such approval or consent, or undertakes the action requested 100
4825- 3218- 1203/ 024036- 0079
by Developer or performed by Port District, Authority, or City, to approve, consent, or perform another action for any of the Port District, Authority, or City, to process such approval, consent, or action for Developer. Notwithstanding anything to the contrary in this Section, ( i) Section 19.2 and not this Section 26.14 shall apply to any Tax Claim, ( ii) Developer shall have the right to seek reimbursement of any amount paid under this Section 26.14 that qualifies as a Developer’ s Phase 1A Infrastructure Improvements Costs and the Authority shall process such request in the same manner as any other payment request under Section 9.1, and ( iii) Developer shall have no obligation to pay Port District, Authority, or City for any cost that the Port District, Authority, or City has expressly agreed to pay in this Agreement or Contemporaneous Agreement.
26.15. Provisions Regarding Authority Operations. Until the earlier of (a) Full Payment or b) the earlier termination of the Sublease and this Agreement, the Authority agrees to comply with the following:
26.15.1. The Authority will not engage in any transactions or operations other than i) issuing the Authority Bonds, and (ii) engaging in the transactions described in this Agreement, the Convention Center Leases and the Indenture.
26.15.2. The Authority will neither incur nor guaranty any indebtedness other than the Authority Bonds (including additional Authority Bonds issued to refinance outstanding Authority Bonds).
26.15.3. The Authority will have a mailing address separate from the Public Entities.
26.15.4. The Authority will maintain financial books and records separate from those of any other Person.
26.16. Replacement Trustees. Until Full Payment or the earlier termination of this Agreement, Authority shall not approve or effect the replacement of the Trustee under the Authority Indenture unless the Developer first provides its written consent, which consent shall not unreasonably withheld, conditioned or delayed, and such approval shall not be required if US Bank National Association or The Bank of New York Mellon Trust Company, N.A., will be the replacement Trustee. Authority will provide Developer with written notice of any proposed replacement of the Trustee under the Authority Indenture promptly after Authority learns of such proposed replacement.
26.17. Effect of Section 365(h)(1) Election. If Port District becomes a debtor in a Bankruptcy Case and rejects the Site Lease under Section 365 of the Bankruptcy Code, then the Authority shall exercise its right under Section 365(h)(1) of the Bankruptcy Code to remain in possession of the Site under and as defined in the Site Lease. If the Authority becomes a debtor in a Bankruptcy Case and rejects the Facility Lease under Section 365 of the Bankruptcy Code, then the Port or the City, as then applicable, shall exercise its right under Section 365(h)(1) of the Bankruptcy Code to remain in possession of the Site and the Improvements, in each case under and as defined in the Facility Lease.
26.18. Financial Information Regarding Continuous Operations. To assist Developer in making any determination described in 6.1(c)of the Sublease, the Authority, the other Public Entities and the Financing District shall deliver to Developer, within fifteen ( 15) Business Days after Developer’ s reasonable request therefor, (i) a written and reasonably detailed forecast of the sources 101
4825- 3218- 1203/ 024036- 0079
and amounts of Revenues ( as defined in the Indenture) that will accrue during the next twelve ( 12) month period, ( ii) a description of all funds and accounts established pursuant to the Indenture including the amounts deposited therein) and ( iii) such other financial information as Developer shall reasonably request regarding revenues held, paid or to be paid by any Public Entity or the Financing District to the Authority or the Trustee pursuant to the terms of this Agreement, the Convention Center Leases and the Indenture, as applicable. If the Public Entities or Financing District do not provide information reasonably requested by Developer within such fifteen ( 15) Business Day period, the Developer will provide written notice to the Public Entity or Financing District, as applicable, describing the information that was not provided and the applicable Public Entity or Financing District shall provide such information to Developer within five ( 5) Business Days from the date such notice was received (or, with respect to information reasonably requested by Developer under clause ( iii) in the immediately preceding sentence, such additional time as may reasonably be required by the Public Entities or Financing District to compile and provide such information).
26.19. Governing Law. Venue for any legal proceeding shall be in San Diego County, California. This Agreement shall be construed and enforced in accordance with the Laws of the State of California.
26.20. Modification. This Agreement may not be amended, modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the Parties hereto, their successors or assigns. Neither the Facility Lease nor the Site Lease shall be terminated or rescinded, or amended or otherwise modified in any manner that could reasonably be expected to have an adverse effect on Developer or any Permitted Lender, without Developer’ s prior written consent and the consent of each Senior Permitted Lender. Each of the Developer, the Senior Permitted Mortgage Lender, and the Senior Permitted Mezzanine Lender ( each an “ Amendment Consent Party”) shall not withhold its consent to any amendment of the Facility Lease or the Site Lease that ( a) is necessary to refinance bonds that have been issued by the Authority and (b) could not reasonably be expected to have an adverse effect on Developer or any Permitted Lender (such an amendment, a “ Proposed Amendment”). If the Authority desires that the Amendment Consent Parties consent to a Proposed Amendment, then the Authority shall provide written notice to each Amendment Consent Party that attaches the final draft of such Proposed Amendment to such notice, requests that such Amendment Consent Party consent to such Proposed Amendment within ten (10) Business Days after such Amendment Consent Party receives such notice and states in 14 point type UNDER SECTION 26.20 OF THE PROJECT IMPLEMENTATION AGREEMENT DATED MAY 26, 2022, FAILURE TO RESPOND TO THIS NOTICE WITHIN 10 BUSINESS DAYS MAY RESULT IN DEEMED CONSENT.” If any Amendment Consent Party does not respond in writing to such written notice within ten ( 10) Business Days after such Amendment Consent Party receives such notice, either (i) consenting to the Proposed Amendment or (ii) briefly describing the nature of the adverse effect that the Developer or Senior Permitted Lender anticipates that the Proposed Amendment reasonably could be expected to have on the Developer or a Permitted Lender provided that the content of such brief descriptions shall not impair any Amendment Consent Party’ s right to withhold its consent under this Section), then the Authority may provide a second written notice to such Amendment Consent Party stating in 14 point type that “[ SUCH AMENDMENT CONSENT PARTY] HAS FAILED TO RESPOND TO A REQUEST FOR
CONSENT TO AN AMENDMENT OF THE FACILITY LEASE OR THE SITE LEASE UNDER SECTION 26.20 OF THE PROJECT IMPLEMENTATION AGREEMENT DATED MAY 26, 2022, WITHIN TEN ( 10) BUSINESS DAYS, AND SUCH CONSENT WILL BE DEEMED GIVEN UNDER SECTION 26.20 OF THE PROJECT IMPLEMENTATION AGREEMENT 102
4825- 3218- 1203/ 024036- 0079
DATED MAY 26, 2022, UNLESS [ SUCH AMENDMENT CONSENT PARTY] RESPONDS TO THIS NOTICE WITHIN FIVE (5) BUSINESS DAYS” and to which second notice will be attached a copy of the first notice, including a copy of the Proposed Amendment. If such Amendment Consent Party fails to object to such Proposed Amendment by written notice to the Authority as described above within five ( 5) Business Days after receiving such additional notice, then such Amendment Consent Party shall be deemed to have approved the Proposed Amendment.
26.21. Counterparts; Electronic Signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same agreement. The words “ execution”, “ execute”, “ signed”, signature”, and words of like import in or related to any document signed or to be signed in connection with this Agreement and the transaction contemplated hereby shall be deemed to include electronic signatures, contract formations on electronic platforms approved by the Parties, or the keeping of such electronic signatures and electronic contracts in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the California Uniform Electronic Transaction Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
26.22. Drafting Presumption; Review Standard. The parties acknowledge that this Agreement has been agreed to by each of the Parties, that each of the Parties have consulted with attorneys with respect to the terms of this Agreement and that no presumption shall be created against the drafting Party. Any deletion of language from this Agreement prior to its execution by the Parties shall not be construed to raise any presumption, canon of construction or implication, including, without limitation, any implication that the parties intended thereby to state the converse of the deleted language. Unless otherwise specified in this Agreement, any approval or consent to be given by Port District, BPC, City, or the City Council, may be given or withheld in Port District’ s, BPC’ s, City’ s, or the City Council’ s, sole and absolute discretion.
26.23. Administrative Claims. No suit or arbitration ( other than arbitration pursuant to Section 26.12) shall be brought arising out of this Agreement against the Authority or the Port District unless a claim has first been presented in writing and filed with the Authority or the Port District, as applicable, and acted upon by the Authority or the Port District, as applicable, in accordance with the procedures set forth in Section 910, et seq., of the California Government Code, as same may from time to time be amended ( the provisions of which are incorporated by this reference as if fully set forth herein), and such policies and procedures used by the Authority or the Port District, as applicable, in the implementation of same. No suit or arbitration ( other than arbitration pursuant to Section 26.12) shall be brought arising out of this Agreement against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the CVMC, as same may from time to time be amended ( the provisions of which are incorporated by this reference as if fully set forth herein), and such policies and procedures used by the City in the implementation of same. For the avoidance of doubt, this Section 26.22 shall not apply to prevent or delay the initiation of mediation or arbitration as permitted by Section 26.12.
26.24. Non-liability of Public Entity Officials and Employees. No officer, director, member, official, employee, consultant, or member of the governing board of any Public Entity shall be personally liable to Developer in the event of any default or breach by such Public Entity, or for any 103
4825- 3218- 1203/ 024036- 0079
amount which may become due to Developer, or on any obligations under the terms of this Agreement.
26.25. Authority Executive Director; Authority Approvals and Actions. Authority shall maintain authority of this Agreement and the authority to implement this Agreement on behalf of Authority through Authority’ s Executive Director ( or his/her duly authorized representative). The Executive Director and his/her duly authorized representative( s) shall have the authority to make approvals, issue interpretations, waive provisions, request issuance of warrants and make payments authorized hereunder, make and execute further agreements and/or enter into amendments of this Agreement on behalf of Authority so long as such actions do not materially or substantially change or modify the uses or development permitted on the Project Site, or materially or substantially add to the costs, responsibilities, or liabilities incurred or to be incurred by Authority as specified herein, and such interpretations, waivers and/or amendments may include extensions of time to perform. All material and/or substantive interpretations, waivers, or amendments shall require the consideration, action and written consent of the Authority Board. Further, the Executive Director shall maintain the right to submit to the Authority Board for consideration and action any non-material or nonsubstantive interpretation, waiver or amendment, if in his/her reasonable judgment he/she desires to do so.
26.26. Further Assurances. From time to time upon the request of a Party, the other Parties shall, at the requesting Party’ s expense, promptly execute, acknowledge and deliver such further documentation and do such other acts and things as the requesting Party may reasonably request in order to effect fully the purposes of this Agreement in such a manner that is consistent with and does not contradict, modify, or amend this Agreement.
CONTRACTOR’ S LICENSE NOTICE. CONTRACTORS ARE REQUIRED BY LAW TO
BE LICENSED AND REGULATED BY THE CONTRACTORS STATE LICENSE BOARD,
WHICH HAS JURISDICTION TO INVESTIGATE COMPLAINTS AGAINST
CONTRACTORS IF A COMPLAINT REGARDING A PATENT ACT OR OMISSION IS FILED WITHIN 4 YEARS OF THE DATE OF THE ALLEGED VIOLATION. A
COMPLAINT REGARDING A LATENT ACT OR OMISSION PERTAINING TO STRUCTURAL DEFECTS MUST BE FILED WITHIN 10 YEARS OF THE DATE OF THE ALLEGED VIOLATION. ANY QUESTIONS CONCERNING A CONTRACTOR MAY BE
REFERRED TO THE REGISTRAR, CONTRACTORS STATE LICENSE BOARD, P.O. BOX 26000, SACRAMENTO, CA 95826.
End of page. Signature pages follow this page.]
1 4845- 4814- 1790/ 024036- 0079
Definitions Addendum
This Definitions Addendum constitutes a part of that certain Project Implementation Agreement (the “ Agreement”) entered into as of the Date of Agreement by and among the City, acting on its behalf and for and on behalf the Financing District, the Port District, the Authority, and Developer and by reference to the same in the Agreement, the following definitions are incorporated into and constitute a part of the Agreement.
DEFINITIONS ADDENDUM
California Code of Regulations in effect as of May 4, 2010.
SUBACCOUNT:
Authority Indenture.
ACCOUNT: pursuant to the Authority Indenture.
SUBACCOUNT:
Authority Indenture.
ACCOUNT: pursuant to the Authority Indenture.
STANDARD:
Settlement Agreement) area achieve, in the aggregate, a fifty percent 50%) reduction in annual energy compared to that allowed under 2010 Title 24.
ACCEPTED: or any component thereof, acceptance of the Developer’ s Phase 1A Infrastructure Improvements or such component by the City and the Port District, as applicable, which shall occur pursuant to Section 10.1 of the Agreement.
With respect to the Convention Center, acceptance of the Convention Center by the Authority, which shall occur pursuant to Section 10.2 of the Agreement and shall be evidenced by a certificate of the Authority confirming the Authority’ s Acceptance of the Convention Center.
With respect to Sweetwater Park, acceptance of Sweetwater Park by the Port District shall occur pursuant to Section 10.3 of the Agreement. 2 4845- 4814- 1790/ 024036- 0079
regulations promulgated thereunder, as the same may be amended from time to time.
SAVINGS MEASURES: 50% Energy Standard. Such Additional Energy Savings Measures may include, without limitation, Developer’ s participation in renewable or time of use”
identified in Section 15.2 of the Settlement Agreement.
INSURANCE: provides adequate protection for the Site and Improvements (other than Existing Improvement
operation or occupancy of the Site and Improvements (other than the Existing Improvements) by Developer Parties and Hotel Operator.
AGENT: administrative agent for the Purchasers under and as defined in the Bond Purchase Agreement.
AGENT EMAIL
ADDRESS:
james.g.millard@jpmchase. com shawn.laljit@jpmchase. com substituted by Administrative Agent from time to time by written notice to Developer and Authority.
to the extent the right to such payment has been assigned by the City to the Authority under the Facility Lease.
with, such Person.
City, the Financing District, the Port District and the Developer. The term “ Agreement”
properly approved and executed pursuant to the terms of the Agreement.
3 4845- 4814- 1790/ 024036- 0079
Improvements following the Completion of the Convention Center, including the addition, installation or removal of any fixtures (other replacement or refreshing of any furniture, trade fixtures or equipment.
ASSISTANCE COSTS: provide to
assistance.
AGREEMENTS:
AND SPECIFICATIONS: means the drawings and specifications for the Developer’s Phase 1A Infrastructure Improvements attached as Exhibit Xotherwise modified from time to time in accordance with Section 2.1.6 of the Agreement; and ( b) with respect to the Remaining Phase 1A Infrastructure Improvements means the drawings and specifications for the Remaining Phase 1A Infrastructure Improvements
Exhibit X-2, as revised by the Port District from time to time before Developer exercises a Sweetwater Park Option.
to be unreasonably withheld, conditioned or delayed).
CERTIFICATE: attached as Exhibit 1 to the Developer Phase 1A Payment Request or the Convention Center Payment Request, as applicable.
transfer of all or any portion of Developer’ s interest in the Sublease created thereby, the Site or the Improvements, whether by operation of law or otherwise, but, for the avoidance of doubt, excluding any Subsublease ( as defined in the Sublease).
PARTICIPATION FEE:
PROCEEDS:
4 4845- 4814- 1790/ 024036- 0079
incurred or to be incurred by Port District in providing such assistance.
Authority.
adopted by the Authority Board on July 25, 2019.
counsel to the Authority.
ADDRESSES: addresses as shall be provided or substituted by Authority from time to time by written notice to Developer.
payments@cvbayfront. org – to be used for payment requests construction@cvbayfront. org – to be used for change orders, requests for information, and other communications relating to issues arising in the field
notices@cvbayfront. org – to be used for legal notices required by the Agreements
DEFAULT:
REVENUES ACCOUNT Revenue Fund and maintained by the Trustee pursuant to the Authority Indenture.
INDENTURE: between the Authority and Wilmington Trust, National Association, as trustee.
Board
and assigns of the Authority, City employees an
District employees and agents, in each case, when acting only in the capacity of an Authority Party.
5 4845- 4814- 1790/ 024036- 0079
PROCUREMENT
POLICY:
Policy for Developer-Performed Public Works”
Authority Board by the adoption of Authority Resolution 2020-002.
RESOLUTION 2020-002: 2020-007.
FUND:
BONDS:
2022A (Federally Taxable) issued to finance a portion of the Project Costs.
EXEMPT BONDS: Revenue Bonds (Phase 1A Infrastructure Improvements) Series 2022B Tax-Exempt) issued to finance a portion of the Developer’ s Phase 1A Infra
Phase 1A Infrastructure Improvements.
CONVENTION CENTER
FINAL REVIEW:
PHASE 1A FINAL
REVIEW:
amended, and any successor statute.
or any other Person liable for Developer’
including without limitation any member or manager of Developer) of any of the following: (a) appointment of a receiver or custodian for any property of such Person, or the institution of a foreclosure or attachment action upon any property of such Person; ( b) filing by such Person of a c) an involuntary petition under the provisions of the Bankruptcy Code shall be filed and (i) Developer shall have consented to such involuntary petition or failed to contest in a timely and appropriate manner or (ii) such involuntary petition continues undismissed for a period of 60 days or an order for relief shall have been entered; or (d) such Person making composition of creditors.
6 4845- 4814- 1790/ 024036- 0079
INFRASTRUCTURE
IMPROVEMENTS
ACCOUNT:
Construction Fund maintained by the Trustee pursuant to the Authority Indenture.
PROGRAM: authorized by Chula Vista Municipal Code Chapter 3.54.
AGREEMENT: as of the Date of Agreement,
District, the City and the Administrative Agent.
County, California are open for ordinary banking business.
BUILDING CODE: Municipal Code), as amended, and any successor statute.
STANDARD SPECIAL
PROVISIONS
Vista Standard Special Provisions.
Unless specifically provided otherwise, whenever the Agreement requires an action or approval by City, that action or approval shall be performed by the City representative designated by the Agreement. set forth in Schedule 1 of the Authority Bylaws.
7 4845- 4814- 1790/ 024036- 0079
assigns of the City, in each case, when acting only in the capacity of a City Party.
DATE:
COMPLETION:
temporary certificate of occupancy for the Convention Center from the City,
b) with respect to the Developer’ s Phase
Improvements, means that the Developer’s Phase
Improvements
Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Developer’ s Phase 1A Infrastructure Improvements can be utilized for their intended use,
c) with respect to the Remaining Phase
Improvements, means that the Remaining Phase
Improvements
Contract Documents (excluding, for the avoidance of doubt, punch list items) so that the Remaining Phase 1A Infrastructure Improvements can be utilized for their intended use; and
d) with respect to the Resort Hotel, as defined in the Ground Lease.
GUARANTOR(S):
GUARANTY:
CONDEMNED:
SITE:
CHARGES:
8 4845- 4814- 1790/ 024036- 0079
PERIOD: Project is Complete.
REQUIREMENTS:
Improvements (except the Existing Improvements) and Alterations as described in Exhibit “E” attached to the Agreement.
SERVICES:
AGREEMENTS: Date by the Parties with respect to the Development, including, but not limited to the Agreement, the Convention Center Leases, the Ground Lease, the Completion Guaranty
Easements
Protection Agreements, the Hotel Operator Non-Disturbance Agreements, the Payment Direction Agreement, and the Fee Deferral Agreement.
DOCUMENTS:
exhibits and addenda, subcontrac
addenda, and any of the following: notice inviting bids, instructions to bidders, bid (including documentation accompanying bid and any postbid documentation submitted prior to notice of award), the bonds, the general co
plans, standard plans, standard specifications and reference specifications that are incorporated into such prime contract(s subcontract(s)
modifications issued after the execution of the subcontract(s), in each case, in connection with the Project or the Remaining Phase 1A Infrastructure Improvements, as applicable.
CONTROLLED AND
CONTROLLING:
ownership of more than fifty percent ( 50%) of the stock, membership interests
beneficial interests in such Person, or ( ii)
Person, whether through voting interests or by way of agreement.
BUDGET: contingency reserve, broken down by line item, as amended from time to time.
9 4845- 4814- 1790/ 024036- 0079
CONTESTED CHARGES:
CONTRACT SUM: Convention Center Development Fee, plus ( iii) Convention Center Overhead Amount.
COSTS: respect to the development, design, construction, maintenance and permitting of the Convention Center; provided, that Convention Center Costs shall not include Non-Project Costs.
FINAL AMOUNT:
LEASES:
PAYMENT REQUEST: Exhibit K-2.
PLANS:
accordance with Section 5.1 of the Agreement.
DEVELOPER’ S
PHASE 1A
SUBACCOUNT:
within the 2022B Construction Account and maintained by the Trustee pursuant to the Authority Indenture.
BAYFRONT
IMPROVEMENTS
ACCOUNT:
within the Construction Fund and maintained by the Trustee pursuant to the Authority Indenture.
AGREEMENT:
County Funding Agreement.
RELEASE DATE: with respect to Developer’ s Phase
Costs have been finally resolved; and (iii) the date on which all amounts that are owing to Developer in respect of the Developer’ s Phase 1A Infrastructure Improvements Costs have been paid to Developer. 10 4845- 4814- 1790/ 024036- 0079
PARK FUNDS:
Improvements, two (2) years from the date of Completion, and with respect to the Convention Center, two ( 2) years
Completion.
Vista Bayfront Development Policies ( District Clerk No. 59407); iii) Chula Vista Bayfront Master Plan Natural Resources Management Plan ( District Clerk No. 65065), approved by the BPC on May 10, 2016, by Resolution No. 2016-79, and the City Council on June 14, 2016, by Resolution No. 2016-119; ( iv) Chula Vista Bayfront Master Plan Public Access Program ( District Clerk No. 59408); ( v) Chula Vista Bayfront Design Guidelines ( District Clerk No. 67959); vi) Integrated Planning Vision (District Clerk No. 63989); ( vii) Chula Vista Bayfront Master Plan & Port Master Plan Amendment ( District Clerk Nos. 59406); ( viii) Mitigation Monitoring and Reporting No. 56555) and ( ix)
Center and the Parking Improvements.
INFRASTRUCTURE
IMPROVEMENTS COSTS:
in the CVBMP, which may include but is not limited Developer’s Phase Infrastructure Improvements.
Office of the District Clerk as Document No. 74083.
RECIPROCAL
EASEMENTS:
Commencement Date, by and among the Port District, the Authority, the City and the Developer.
rate cited in the Federal Reserv
District and Developer shall reasonably agree upon if such rate ceases to be published), plus four (4) percentage points, and ( ii) the highest rate permitted by applicable Law.
11 4845- 4814- 1790/ 024036- 0079
the Contract Documents.
CONSTRUCTION
STANDARDS:
City for
Drawings and Specifications are approved by the City for purposes of the bids and which is available in the City’ s Department of Engineering and Capital Projects, acting on behalf of the Authority, City’s website.
INVESTMENT:
DEVELOPER MEMBERS:
concessionaires, Affiliates and successors and assigns of Developer, and Subtenants, and the agents, employees, representatives, each of such Subtenants, in each case, when acting only in the capacity of a Developer Party.
1A CONTESTED
CHARGES:
PHASE 1A CONTRACT
SUM:
Costs, plus (ii) Developer’s Phase 1A Project Administration Fee, plus iii) the Stipulated Developer’ s Phase 1A Infrastructure Improvements under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’ s Phase 1A Contract Sum.
PHASE 1A FINAL
AMOUNT
1A INFRASTRUCTURE
IMPROVEMENTS:
12 4845- 4814- 1790/ 024036- 0079
1A INFRASTRUCTURE
IMPROVEMENTS
BUDGET:
Improvements Costs, including a contingency reserve, broken down by line item, as amended or otherwise modified from time to time. 1A INFRASTRUCTURE
IMPROVEMENTS COSTS:
with respect to the development, design, construction, maintenance and permitting of Developer’ s Phase 1A Infrastructure Improvements and b) the Early Work Costs; provided, that Developer’ s Phase 1A Infrastructure Improvements Costs shall include neither Non-Project Costs nor Excluded Costs.
1A INFRASTRUCTURE
IMPROVEMENTS SITE:
for purposes of pre-construction services and construction. 1A PAYMENT REQUEST: Exhibit K-1.
PHASE 1A PROJECT
ADMINISTRATION FEE:
the Resort Hotel, the Convention Center and Developer’ s Phase 1A Infrastructure Improvements.
ENTITLEMENT:
PROJECT:
PAYMENT / DSP:
AGREEMENT:
Agreement).
13 4845- 4814- 1790/ 024036- 0079
and Port Master Plan Amendment Final
Report,” ( UPD# # 83356-EIR56562), including, but not limited to, the “ Mitigation Monitoring and Reporting Program”
Environmental Impact Report, Resolution No. 2010-79, adopted by the BPC on May 18, 2010.
CLEANUP: with all Environmental Laws and in a manner and to the satisfaction of applicable regulatory authority.
LAWS: Hazardous Materials or otherwise relate to public health and safety or the protection of the environment.
ENFORCEMENT
ACTION:
CONVENTION CENTER
COSTS:
construction of the Convention Center, as shown in Section 4.2.1. architectural work, and engineering work for the Developer’ s Phase 1A reimbursed by the City pursuant to the Reimbursement Agreement and b) costs incurred by the Developer in connection with the construction of specified sewer improvements included in the Developer’ s Phase 1A reimbursed, or is eligible to be reimbursed, by the City pursuant to the Sewer Agreement.
14 4845- 4814- 1790/ 024036- 0079
LIEN WAIVERS: are or would be from any contractor, mechanic, subcontractor, materialman or other Person if: (a) if the expected aggregate amount to be paid to such Person in connection with the Project is less than 200,000 individually; ( b)
security that is reasonably satisfactory to the Authority with respect to c) because of the nature of work, services, materials or supplies to be provided by such Person in connection with the Project, such Person is not, under California law, entitled to record a mechanics lien or deliver a stop payment notice in connection with the Project.
Executive Director, or his or her designees, may delegate the authority granted in Authority Resolution 2020- 002 to two or more members of the staff of the Authority, provided that such delegation is made to a contingent comprised of an equal number of City and Port District staff Director or his or her designees, shall provide notice of such delegation to the Parties hereto pursuant to Section 26.1 hereto.
IMPROVEMENTS: located upon the land (and water, if applicable) that are in existence and located on, in, over or under the Site as of the Commencement Date, whether constructed by Port District
party.
COVERAGE:
15 4845- 4814- 1790/ 024036- 0079
INDIVIDUAL: the Expedited Review Individual
indivi
approvals and denials under this Agreement
including any Deputy City Manager, and (b) when the Public Entity pr
Review Authority shall be the Port District Executive Director, or an individual expressly authorized by the Port District Executive Director to provide approvals and denials under this Agreement, who shall be a senior person with knowledge and authority with respect to the Project, including the Vice President of Business Operations.
The Expedited Review Individual for all matters relating to stormwater regulation compliance shall be a representative of the Port District. The Expedited Review Individual
Improvements ( except stormwater regulations)
construction of the Convention Center shall be a representative of the City.
PROCESS: described in Section 2.1.6.1 of the Agreement.
CONSTRUCTION
PERIOD DEADLINE:
amended from time to time.
ADVANCE RENT
NOTICE:
AGREEMENT: Capacity Fees [Bayfront Resort and Convention Center] dated as of the Date of Agreement, by and between the City and the Developer.
Improvements,
with Section 9.1.6, and (b) with respect to the Convention Center the final accounting of costs prepared in accordance with Section 9.2.6. 16 4845- 4814- 1790/ 024036- 0079
TRANSACTION:
COMPLETION NOTICE:
PARK END DATE:
PARK OPTION:
EVENT:
NOTICE:
PARTY:
RESPONSE:
PURCHASER:
satisfied: ( a)
confirmed in writing to Developer that the Completion Guaranty has terminated and ( b) Developer shall have confirmed
Authority that Developer has received payment of (i) the Project Public Investment Amount, (ii) the Developer’ s Phase 1A Contract Sum, and iii) and all interest due to Developer pursuant to Sections 9.2.3 and
9.2.4.2(b) of the Agreement
occurrence of “Full Payment” does not require completion of the Final Accounting with respect to the Convention Center or the Developer’ s Phase 1A Infrastructure Improvements.
General Contractor for the Developer’ s Phase
Improvements and the construction contract between the Developer and the General Contractor for the Convention Center.
CONTRACTOR: Developer to perform the work or provide supplies for the Developer’s Phase 1A Infrastructure Improvements and/or the Convention Center. 17 4845- 4814- 1790/ 024036- 0079
AUTHORITY: quasiclaiming jurisdiction over the Site (or any activity the Sublease allows), including without limitation, the Port and the City, United States federal government, the State and County governments and their subdivisions governmental authorities, and subdivisions thereof.
Construction.
PROPERTY:
MAXIMUM PRICE:
MATERIAL:
and petroleum products, which is a “ Hazardous Material” or Hazardous Substance”
including, but not limited to, hazardous substances as defined by Cal.
Health & Safety Code §
contamination or pollution as defined by Cal. Water Code § 13050), subst
waste, that is regulated by, or may form the basis of liability under, any Environmental Laws.
MATERIALS ACTIVITY:
hazardous substance as a component by any Developer Party. holidays. If the holiday should fall on a Sunday, then the Sunday and the following Monday are both legal holidays):
18 4845- 4814- 1790/ 024036- 0079
New Year’ s Day January 1
Martin Luther King, Jr. Day Third Monday in January
Caesar Chavez Day March 31
Independence Day July 4
Labor Day First Monday in September
Veteran’ s Day November 11
Thanksgiving Day Fourth Thursday in November
Thanksgiving Day Friday Friday after Thanksgiving
Christmas Day December 25
AGREEMENT: the Parking Improvements between Developer and the Hotel Operator.
Ground Lease.
DISTURBANCE
AGREEMENTS: Delaware corporation, dated as of the Date of Agreement certain Convention Center Agreement, by and among the Developer, Inc., a Delaware corporation, dated as of the Date of Agreement. utilities and other underground improvements) now or hereafter located on, in, over or under the Site.
FEE PAYMENT:
MAJEURE NOTICE:
IMPROVEMENTS: developed by Developer and described by the Convention Center Plans referred to in Exhibit F to the Agreement.
CONDEMNATION
PROCEEDS FUND:
19 4845- 4814- 1790/ 024036- 0079
Phase 1A Infrastructure Improvements, the Convention Center, or any activity under the Agreement, ( ii)
iii)
Authority: present and future state of California, federal and local laws, executive orders, including, without limitation, the ADA, and any law respect thereto, including without lim
relating to Hazardous Materials, environmental matters (including, but Compensation and Liability Act (“ CERCLA”
Conservation and Recovery Act (“ RCRA”), the Cl
Clean Water Act, Oil Pollution Act, the Toxic Substances Control Act Coastal Act, CEQA, the Public Trust Doctrine, public health and safety matters and landmarks protection, as any of the same now exist or may hereafter be adopted or amended. Said Laws shall include, but are not limited to, the Laws enacted by the San Diego Unified Port District Act, such as Article
PMP; the policies of the BPC; the Chula Vista Municipal Code and any applicable ordinances of the City, including the building code thereof, and any permits and approvals by any Governmental Authority and the Port District, including, without limitation, any Calif Park or the use or development thereof.
Lease.
terms of the Loan Agreement.
entered into by the Financing District and the Authority, as amended from time to time.
Affiliates.
EXACERBATION: remediation action required.
CONVENTION CENTER
AMOUNT:
Advance Rent paid or deemed to be paid, plus
Developer pursuant to Sections 9.2.3 and 9.2.4.2(b) of the Agreement. 20 4845- 4814- 1790/ 024036- 0079
PERIOD:
PROTECTION
AGREEMENTS:
Estoppel Certificate (Ground Lease), by and among the Developer, the corporation, and Marriott International, Inc., a Delaware corporation, dated as of the Date of Agreement, that certain Mezzanine Protection Delaware corporation, and Marriott Inter
corporation, dated as of the Date of Agreement
District, the City, the Authority,
Marriott International, Inc., a Delaware corporation, dated as of the Date of Agreement.
EFFICIENCY DESIGN
STANDARD: standards: (i) fifteen percent (15%) less than the amount of energy that each building would otherwise be permitted t
Title 24; or (ii) the minimum energy efficiency performance standard submitted for each building.
of M.A. Mortenson Company and McCarthy Building Companies, Inc.
PROTECTION
AGREEMENT:
Certificate (Ground Lease), by and among the Developer, Port District and Wells Fargo Bank, National Association, as administrative agent, dated as of the Date of Agreement, that certain Mortgagee Protection administrative agent, dated as of the Date of Agreement Project Implementation Agreement), by and among the Developer, the Port District, the City, the Authority, the Financing District, and Wells Fargo Bank, National Association, as administrative agent, dated as of the Date of Agreement.
21 4845- 4814- 1790/ 024036- 0079
the Agreement ( except for a breach of the Port District’ s obligations that are set forth in Section 2.3, which is governed by Section 21.3), a breach by City under the Sublease, a breach by the City or the Authority under the Site Lease, or a brea
Lease.
DEADLINE:
District, the Port District, and the Administrative Agent, dated as of the Date of Agreement, relating to the Agreement.
payment as part of the Project Costs under this Agreement: (i) salaries and other compensation of the Developer’ s personnel; ( ii) bonuses, payments, paid to General Contractor or any Subcontractor or vendor, unless the Authority has provided prior approval; ( iii) general expenses; ( iv) Developer’ s cost of capital, including interest on the Developer’s capital employed for the Project (provided, that for the avoidance of doubt, this clause (iv) shall not restrict payment of interest to the Developer at the Specified Default Rate as and when required by the Agreement); ( v)
misconduct by, the Developer, its General Cont
Subcontractors,
suppliers, equipment providers, employees, or agents and (vi) any costs incurred by Developer, the General Contractor, Subcontractors or their respective agents to remedy Defective Work, unless the Contract Documents require the Developer to reimburse for such costs (except to the extent such costs have been recovered from an alternate source e.g. insurance or bond)).
COMPLETION:
practices of the City as adopted by the Authority.
22 4845- 4814- 1790/ 024036- 0079
CONSTRUCTION
COMPLETION DATE:
Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii)
Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement ( if Developer exercises a Sweetwater Park Option) or (y) a Municipal Breach delays Completion of the Project pursuant to the terms of the Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise a Sweetwater Park Option) only if Developer has already Completed t
and Developer’ s Phase 1A Infrastructure Improvements, or ( c) the Completion Date (as defined in the Ground Lease) as such date may be extended by one day for each day that a Force Majeure Event or Municipal Breach (as defined in the Ground Lease) delays Completion as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements.
LEASES:
CONSTRUCTION
COMMENCEMENT
DATE:
CONSTRUCTION
COMPLETION DATE:
Commencement Date, as such date may be extended by one day for each day that (x) a Force Majeure Event delays (i) Completion of the Project pursuant to the terms of the Agreement or (ii)
Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement ( if Developer exercises a Sweetwater Park Option) or (y) a Municipal Breach delays Completion of the Project pursuant to the terms of the Agreement, (b) the Sufficient Completion of the Remaining Phase 1A Infrastructure Improvements pursuant to the terms of the Agreement (if Developer does not exercise a Sweetwater Park Option) only if Developer has already Completed and Developer’s Phase 1A Infrastructure Improvements, ( c) Section 9.3 of the Sublease, the New Outside Completion Date (as such date is defined in the Ground Lease), if any,
extended by one day for each day that a Force Majeure Event or Municipal Breach (each as defined in the Sublease) delays Completion as defined in the Sublease) of the Project, (d)
23 4845- 4814- 1790/ 024036- 0079
each as defined in the Ground Lease) delays Completion ( as defined Improvements, or (e) if a Foreclosure Purchaser acquires the leasehold interest under Section 10.3.2 of the Ground Lease, the New Outside Completion Date (as defined in the Ground Lease), if any, as such date may be extended by one day for each day that a Force Majeure Event or Municipal Breach ( each
Completion (as defined in the Ground Lease) of the Resort Hotel and/or the Parking Improvements.
IMPROVEMENTS:
on which Developer submits a Developer’s Phase 1APayment Request or a Construction Costs Payment Request to the Authority; provided, that if the Executive Director
accordance with Section
applicable, within ten (10) Business Days after Developer submits such Payment Request, then the Payment Date shall be the later of (a) fifteen 15) Business Days following the date the applicable Payment Request was delivered to the Authority or (b) ten (10) Business Days following the date the Developer submitted such additional documentation.
AGREEMENT: by and among the Developer, the City, and the Authority.
ENCUMBRANCE:
ENCUMBRANCE:
MEZZANINE LENDER: Section
agreement or similar instrument or agreement that creates any security interest in the Mezzanine Interests securing Developer’ s payment and b) from and after the date that is the later of (i) the date when the Resort Hotel is Complete and (ii) the date when the Parking Improvements are Complete, any Person that holds an interest in a loan that is secured by any security interest in the Mezzanine Interests in circumstances where a permitted syndication has occurred and such security interest is held by, and the administration of such loan is done by, an agent that is approved by Port District.
24 4845- 4814- 1790/ 024036- 0079
LENDER:
corporation, limited liability company, government agency or any other form of business entity.
INFRASTRUCTURE
IMPROVEMENTS:
Remaining Phase 1A Infrastructure Improvements.
INFRASTRUCTURE
IMPROVEMENTS
SUBACCOUNT:
within the 2022B Construction Account and maintained by the Trustee pursuant to the Authority Indenture.
DATE:
DATE:
California Harbors and Navigation Code APPENDIX I, Section 1 et
otherwise, whenever the Agreement requires an action or approval by the Port District, that action or approval shall be performed by the Port District representative designated by the Agreement.
GENERAL COUNSEL: authorized deputy set forth in Schedule 1 of the Authority Bylaws.
PARTIES: employees, partners, affiliates, agents, contractors, architects, successors and assigns of Port District, in each case, when acting only in the capacity of a Port District Party.
TRANSFER:
25 4845- 4814- 1790/ 024036- 0079
MATERIALS:
HAZARDOUS
MATERIAL:
Effective Date, whether known or unknown, or any Hazardous Material located outside the Project Site (including any premises owned by the City and/or the Port District) prior to the Effective Date that migrates to the Project Site thereafter.
AGREEMENT: dated as of the Date of Agreement, as amended from time to time.
PROHIBITED PERSONS:
Convention Center.
Infrastructure Improvements Costs.
INVESTMENT AMOUNT:
construction.
CONTEST:
EXPENSES: Project Improvements (including, without limitation, real estate taxes, possessory interest taxes, general and special taxes and assessments, leasehold taxes or taxes based upon Developer’
excluding all taxes imposed upon net income or gain).
ENTITIES: Authority, the City and the Port District.
CONTRIBUTION
SUBACCOUNT:
2022A Construction Account and maintained by the Trustee pursuant to the Authority Indenture.
DEVELOPMENT PARTY: ( including any inspector retained by a Public Entity). 26 4845- 4814- 1790/ 024036- 0079
PARTIES: Parties
ESTIMATED
DEVELOPER’ S PHASE
1A INFRASTRUCTURE
IMPROVEMENTS COST:
Phase 1A Infrastructure Improvements, as shown in Exhibit C-3 attached to the Agreement.
OBLIGATION / PDSO:
AGREEMENT:
PROCEDURE: Lease.
in value and loss
reasonable attorneys’, consultants’ and experts’
penalties and court costs related to the subject matter of the Related Costs and amounts paid in settlement of any claims or actions related to the subject matter of the Related Costs. For the avoidance of doubt, Related Costs shall not include any Tax Expenses or items expressly excluded from the definition of Tax Expenses.
AGREEMENT: among the City, Redevelopment Agency of the City of Chula Vista, Port District, and Rohr, as amended by the Amendment to Relocation Agreement, dated as of November 1, 1999, the Second Amendment to Relocation Agreement, dated as of February
Amendment to Relocation Agreement, dated as of September 10, 2013.
INFRASTRUCTURE
IMPROVEMENTS:
INFRASTRUCTURE
IMPROVEMENTS COSTS:
respect to the development, design, construction and permitting of the Remaining Phase 1A Infrastructure Improvements.
INFRASTRUCTURE
IMPROVEMENTS SITE:
for purposes of pre-construction services and construction. 27 4845- 4814- 1790/ 024036- 0079
COSTS: restoration, reconstruction or redevelopment of the Convention Center or any portion thereof in connection with a casualty or condemnation event pursuant to Article V of the Sublease.
Exhibit “B-1” attached hereto, with an Acceptable Brand. to the Authority Indenture.
COMPLETION NOTICE:
PARK END DATE: Commencement Date
Outside Construction Completion Date.
PARK OPTION:
AGREEMENT: 2010, among the Bayfront Coalition Member Organizations identified therein, Port, the City of Chula Vista and the Redevelopment Agency of the City of Chula Vista (District Clerk No. 56523).
28 4845- 4814- 1790/ 024036- 0079
RATE:
Center and Developer’s Phase 1A Infrastructure Improvements, an annual rate equal to ten percent (10%) per annum and (b) commencing upon Completion (defined in the Ground Lease) of the Resort Hotel and Parking Improvements and Completion of the Convention Center and Developer’ s Phase
equal to fifteen percent (15%) per annum.
PROCESSING
AGREEMENT:
Agreement between City and Developer dated effective June 3, 2020.
SPECIFICATIONS: the Approved Drawings and Specifications, in each case, as in effect on the Plan Submission Date
approved by the Developer, the City, the District and the Authority.
CONVENTION CENTER
OVERHEAD AMOUNT:
accrue on the last day of each month beginning with the month in which month until $3,500,000 has accrued.
STIPULATED
DEVELOPER’ S PHASE
1A INFRASTRUCTURE
IMPROVEMENTS
OVERHEAD AMOUNT:
Improvements Overhead Amount will accrue on the last day of each month beginning with the month in which the Commencement Date accrued
perform the work or provide supplies for the Developer’s Phase 1A applicable.
RENT NOTICE:
29 4845- 4814- 1790/ 024036- 0079
franchisee, licensee, or concessionaire under any Sub-Sublease; provided, however, that “ Subtenant” shall exclude the Hotel Operator.
COMPLETION /
SUFFICIENTLY
COMPLETE:
COMPLETION DATE: 1A Infrastructure Improvemen
Phase 1A Infrastructure Improvements Costs to Sufficiently Complete the Remaining Phase 1A Infrastructure Improvements ( or such earlier determines tha
District to Sufficiently Complete Sweetwater Park).
Agreement.
CONTRACTS: Park Construction Contracts.
CONSTRUCTION
CONTRACT:
Port District is a party, as amended, restated, supplemented, modified or replaced from time to time.
DESIGN CONTRACT:
modified or replaced from time to time; provided, however, Sweetwater Park Design Contract” shall apply to each such design services agreement if more than one but shall exclude the Sweetwater Park Construction Contract.
MATERIALS:
Remaining Phase 1A Infrastructure Improvements that are reasonably necessary for the Developer to Sufficiently Complete Sweetwater Park.
OPTION: Option.
30 4845- 4814- 1790/ 024036- 0079
municipal taxes, fees,
possessory interest taxes, use taxes, general and special assessments, leasehold taxe
including gross receipts or sales taxes applicable to Developer’ s receipt of rent, personal property taxes imposed upon the fixtures, machinery, equipment, apparatus, systems and equipment, appurtenances, furniture and other personal property used by Developer in connection with the connection with the Project Site and the Improvements. Tax Expenses also shall include, without limitation:
i) Any tax on a Public Entity’s receipt of Rent (as defined herein or under the Ground Lease), right to Rent (as defined herein or under the Ground Lease) or other revenue from the Project
Improvements other than any tax on the income of a Public Entity; ii)
charge previously included within the definition of real property tax, assessments, taxes, fees, levies and charges that may be imposed by a sidewalk and roa
owners or occupants. It is the intention of the Parties that all such new similar assessments, taxes, fees, levies and charges be included within the definition of Tax Expenses; and
iii)
assessed based upon the area of the Project Site or the Improvements or the Rent p
Developer of the Project Site, the Improvements, or any portion thereof.
Agencies, the direct or indirect owners of Developer, Hotel Operator or the Affiliates of Hotel Operator, whether bas
income generated by Developer, the Public Agencies, Hotel Operator or otherwise.
31 4845- 4814- 1790/ 024036- 0079
MATERIAL: Improvements during the Term by any Person or (ii) brought onto the Site, Improvements or any other property by Developer, Developer Party, or Hotel Operator or generated by any of the same.
CENTER DEVELOPMENT
FEE:
as and when set forth on Exhibit J.
A-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit A-1
Legal Description of the Site
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHULA VISTA,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN PORTION OF LAND CONVEYED TO THE SAN DIEGO UNIFIED
PORT DISTRICT BY THAT CERTAIN ACT OF LEGISLATURE OF THE STATE OF CALIFORNIA PURSUANT TO CHAPTER 67, STATUTES OF 1962, 1ST EXTRAORDINARY
SESSION, AS AMENDED AND DELINEATED ON THAT CERTAIN MISCELLANEOUS MAP NO. 564, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MAY 28, 1976, FILE NO. 76-164686, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO AND THAT PORTION OF “ G” STREET, AS SAID “G” STREET WAS DEDICATED AND
ESTABLISHED AS AND FOR A PUBLIC STREET BY THE CITY OF CHULA VISTA COUNSEL RESOLUTION NO. 4205, DATED 4TH OF OCTOBER 1966, (SAN DIEGO UNIFIED PORT DISTRICT DOCUMENT NO. 2249, DATED 14TH OF OCTOBER 1966) AND THAT
PORTION OF TIDELANDS AVENUE, SUBSEQUENTLY RENAMED MARINA PARKWAY BY THE CITY OF CHULA VISTA COUNCIL RESOLUTION NO. 12338, WAS ALSO
ESTABLISHED AS AND FOR A PUBLIC STREET BY THE SAID DOCUMENTS OF
CONVEYANCE, TOGETHER WITH THAT PORTION OF PROPERTY DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RECORDED JUNE 26, 2018 AS INSTRUMENT NO. 2018-0259561, OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAY OF SAN DIEGO, AS SAID MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANEOUS MAP NO. 217, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF SAN DIEGO; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" EAST (RECORD SOUTH 58°28'01" EAST), 105.95 FEET TO THE INTERSECTION WITH THE RIGHT-OF-WAY OF MARINA PARKWAY,
FORMERLY TIDELANDS AVENUE AS DEDICATED PER DOCUMENT RECORDED OCTOBER 10,1966 AS FILE NO. 163052 AND THE BEGINNING OF A NON TANGENT 20.00
FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 33°15'14" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 49° 04' 34" A DISTANCE OF 17.13 FEET TO THE TRUE POINT OF BEGINNING. THENCE CONTINUING SOUTHERLY ALONG SAID CURVE AND RIGHT-OFWAY OF MARINA PARKWAY THROUGH A CENTRAL ANGLE OF 22°02'58" A DISTANCE OF 7.70 FEET; THENCE CONTINUING ALONG SAID RIGHT OF WAY THE FOLLOWING THREE COURSES: 1) SOUTH 14°22'45" EAST, 269.73 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4,740.00 FEET; 2) THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03°32'06" A DISTANCE OF 292.44 FEET; 3) THENCE SOUTH 17°54'50" EAST, 705.69 FEET; THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 72°12'12" WEST, 14.67 FEET; THENCE SOUTH 67°45'00" WEST, 64.39 FEET;
THENCE SOUTH 72°12'12" WEST, 72.20 FEET;
THENCE NORTH 88°19'10" WEST, 23.16 FEET;
THENCE NORTH 78°16'38" WEST, 13.37 FEET;
A-1-2
4825- 3218- 1203/ 024036- 0079
THENCE NORTH 74°05'34" WEST, 21.14 FEET;
THENCE NORTH 79°25'36" WEST, 27.73 FEET;
THENCE NORTH 87°11'55" WEST, 23.86 FEET;
THENCE NORTH 03°28'36" EAST, 8.00 FEET;
THENCE NORTH 87°00'15" WEST, 23.79 FEET;
THENCE NORTH 88O14'32" WEST, 31.74 FEET;
THENCE NORTH 89°22'43" WEST, 32.40 FEET;
THENCE SOUTH 89°25'59" WEST, 24.07 FEET;
THENCE SOUTH 88°15'34" WEST, 32.25 FEET;
THENCE NORTH 37°33'31" WEST, 5.60 FEET;
THENCE NORTH 56°17'05" WEST, 8.85 FEET;
THENCE NORTH 76°31'40" WEST, 12.98 FEET;
THENCE NORTH 86°10'39" WEST, 16.09 FEET;
THENCE NORTH 86°35'34" WEST, 18.27 FEET;
THENCE NORTH 80°35'22" WEST, 17.55 FEET;
THENCE NORTH 72°42'50" WEST, 19.41 FEET;
THENCE NORTH 62°34'06" WEST, 24.53 FEET;
THENCE NORTH 63°24'30" WEST, 68.58 FEET;
THENCE NORTH 70°4r58" WEST, 17.06 FEET;
THENCE NORTH 84O56'52" WEST, 14.79 FEET;
THENCE SOUTH 85°45'23" WEST, 11.10 FEET;
THENCE SOUTH 74°10'06" WEST, 9.39 FEET;
THENCE NORTH 17°34'06" WEST, 22.65 FEET;
THENCE NORTH 72°52'32" EAST, 14.25 FEET;
THENCE NORTH 17°34'06" WEST, 346.24 FEET;
THENCE SOUTH 72°45'10" WEST, 45.60 FEET;
THENCE NORTH 62°34'06" WEST, 33.81 FEET;
THENCE NORTH 17°47'38" WEST, 193.43 FEET;
THENCE SOUTH 72°26'06" WEST, 121.66 FEET;
THENCE NORTH 17°34'06" WEST, 1.81 FEET;
THENCE SOUTH 72°25'54" WEST, 118.07 FEET;
THENCE NORTH 17°34'06" WEST, 100.27 FEET;
THENCE NORTH 72°25'54" EAST, 84.95 FEET;
THENCE NORTH 17°47'46" WEST, 372.75 FEET;
THENCE NORTH 63°11'58" EAST, 366.02 FEET;
THENCE SOUTH 26°48'02" EAST, 11.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 83.00 FEET, A RADIAL LINE TO SAID CURVE BEARS NORTH 26°48'02" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39°43'43" A DISTANCE OF 57.55 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY HAVING A RADIUS OF
77.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 12°55'41" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 25°46'25" A DISTANCE OF 34.64 FEET; THENCE SOUTH 17°34'06" EAST, 279.27 FEET; THENCE NORTH 72°25'54" EAST, 305.50 FEET; THENCE NORTH 17°34'06" WEST, 237.50 FEET; THENCE NORTH 72°19'26" EAST, 54.89 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN A-1-3
4825- 3218- 1203/ 024036- 0079
STATUTES 1962 FIRST EXTRAORDINARY SESSION, CHAPTER 67, SECTION 87; STATUTES OF 1963 REGULAR SESSION, CHAPTER 673, SECTION 40.
ALSO EXCEPTING THEREFROM TO THE STATE OF CALIFORNIA, IN ALL THE LAND
DESCRIBED HEREIN, ALL MINERAL AND MINERAL DEPOSITS, INCLUDING BUT NOT
LIMITED TO, OIL AND GAS, OTHER GASES, INCLUDING, BUT NOT LIMITED TO
NONHYDROCARBON AND GEOTHERMAL GASES, OIL SHALE, COAL, PHOSPHATE,
ALUMINA, SILICA, FOSSILS OF ALL GEOLOGICAL AGES, SODIUM, GOLD, SILVER,
METALS AND THEIR COMPOUNDS, ALKALI, ALKALI EARTH, SAND, CLAY, GRAVEL,
SALTS AND MINERAL WATERS, URANIUM, TRONA, AND GEOTHERMAL RESOURCES,
TOGETHER WITH THE RIGHT OF THE STATE OR PERSONS AUTHORIZED BY THE
STATE TO PROSPECT FOR, DRILL FOR, EXTRACT, MINE AND REMOVE SUCH DEPOSITS
OR RESOURCES, AND TO OCCUPY AND USE SO MUCH OF THE SURFACE OF THE
LANDS AS MAY BE NECESSARY THEREFORE AS RESERVED IN THAT CERTAIN GRANT DEED RECORDED DECEMBER 30, 1999 AS INSTRUMENT NO. 1999-0845740 OF OFFICIAL RECORDS.
A-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit A-2
Legal Description of the Ground Lease Property
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF CHULA VISTA,
IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
ALL THAT CERTAIN PORTION OF LAND CONVEYED TO THE SAN DIEGO UNIFIED
PORT DISTRICT BY THAT CERTAIN ACT OF LEGISLATURE OF THE STATE OF CALIFORNIA PURSUANT TO CHAPTER 67, STATUTES OF 1962, 1ST EXTRAORDINARY
SESSION, AS AMENDED AND DELINEATED ON THAT CERTAIN MISCELLANEOUS MAP NO. 564, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON MAY 28, 1976, FILE NO. 76-164686, IN THE CITY OF SAN DIEGO, COUNTY OF SAN DIEGO AND THAT PORTION OF “ G” STREET, AS SAID “G” STREET WAS DEDICATED AND
ESTABLISHED AS AND FOR A PUBLIC STREET BY THE CITY OF CHULA VISTA COUNSEL RESOLUTION NO. 4205, DATED 4TH OF OCTOBER 1966, (SAN DIEGO UNIFIED PORT DISTRICT DOCUMENT NO. 2249, DATED 14TH OF OCTOBER 1966) AND THAT
PORTION OF TIDELANDS AVENUE, SUBSEQUENTLY RENAMED MARINA PARKWAY BY THE CITY OF CHULA VISTA COUNCIL RESOLUTION NO. 12338, WAS ALSO
ESTABLISHED AS AND FOR A PUBLIC STREET BY THE SAID DOCUMENTS OF
CONVEYANCE, TOGETHER WITH THAT PORTION OF PROPERTY DESCRIBED IN THE FINAL ORDER OF CONDEMNATION RECORDED JUNE 26, 2018 AS INSTRUMENT NO. 2018-0259561, OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL 'A'
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAY OF SAN DIEGO, AS SAID MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANEOUS MAP NO. 217, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF SAN DIEGO; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" EAST (RECORD SOUTH 58°28'01" EAST), 105.95 FEET TO THE INTERSECTION WITH THE RIGHT-OF-WAY OF MARINA PARKWAY,
FORMERLY TIDELANDS AVENUE AS DEDICATED PER DOCUMENT RECORDED OCTOBER 10, 1966 AS FILE NO. 163052 AND THE BEGINNING OF A NON TANGENT 20.00
FOOT RADIUS CURVE, CONCAVE SOUTHEASTERLY, A RADIAL LINE TO SAID CURVE BEARS NORTH 33°15'14" WEST; THENCE ALONG SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 49° 04' 33" A DISTANCE OF 17.13 FEET TO A POINT HEREINAFTER KNOWN AS POINT 'A'; THENCE CONTINUING ALONG
SAID RIGHT OF WAY AND THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 22° 02' 58" A DISTANCE OF 7.70 FEET; THENCE CONTINUING ALONG SAID RIGHT OF WAY THE FOLLOWING THREE COURSES: 1) SOUTH 14°22'45" EAST, 269.73 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4,740.00 FEET; 2) THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 03°32'06" A DISTANCE OF 292.44 FEET; 3) THENCE SOUTH 17°54'50" EAST, 705.69 FEET;
A-2-2
4825- 3218- 1203/ 024036- 0079
THENCE LEAVING SAID RIGHT-OF-WAY SOUTH 72°12'12" WEST, 14.67 FEET; THENCE SOUTH 67°45'00" WEST, 64.39 FEET;
THENCE SOUTH 72°12'12" WEST, 72.20 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 72°12'12" WEST, 76.74 FEET;
THENCE SOUTH 65°55'34" WEST, 100.60 FEET;
THENCE SOUTH 72°12'12" WEST, 421.30 FEET;
THENCE SOUTH 68°48'31" WEST, 50.66 FEET;
THENCE SOUTH 72°12'12" WEST, 353.50 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 69.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71°44'52" A DISTANCE OF 86.40 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 94.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 53°57'04" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18°00'01" A DISTANCE OF 29.53 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE WESTERLY HAVING A RADIUS OF 506.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°20'39" A DISTANCE OF 38.36 FEET;
THENCE NORTH 22°23'34" WEST, 59.77 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 494.00 FEET;
THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°35'46" A DISTANCE OF 39.63 FEET; THENCE NORTH 17°47'48" WEST, 460.08 FEET TO THE
BEGINNING OF A TANGENT CURVE
CONCAVE EASTERLY HAVING A RADIUS OF 4,994.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 02°25'18" A DISTANCE OF 211.08 FEET; THENCE NORTH 15°22'30" WEST, 136.86 FEET TO THE BEGINNING OF TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 272.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 78°34'28" A DISTANCE OF 373.02 FEET;
THENCE NORTH 63°11'58" EAST, 207.99 FEET;
THENCE SOUTH 17°47'46" EAST, 372.75 FEET;
THENCE SOUTH 72°25'54" WEST, 84.95 FEET;
THENCE SOUTH 17°34'06" EAST, 100.27 FEET;
THENCE NORTH 72°25'54" EAST, 118.07 FEET;
THENCE SOUTH 17°34'06" EAST, 1.81 FEET;
THENCE NORTH 72°26'06" EAST, 121.66 FEET;
THENCE SOUTH 17°47'38" EAST, 193.43 FEET;
THENCE SOUTH 62°34'06" EAST, 33.81 FEET;
THENCE NORTH 72°45'10" EAST, 45.60 FEET;
THENCE SOUTH 17°34'06" EAST, 346.24 FEET;
THENCE SOUTH 72°52'32" WEST, 14.25 FEET;
THENCE SOUTH 17°34'06" EAST, 22.65 FEET;
THENCE NORTH 74°10'06" EAST, 9.39 FEET;
THENCE NORTH 85°45'23" EAST, 11.10 FEET;
THENCE SOUTH 84°56'52" EAST, 14.79 FEET;
THENCE SOUTH 70°41'58" EAST, 17.06 FEET;
THENCE SOUTH 63°24'30" EAST, 68.58 FEET;
THENCE SOUTH 62°34'06" EAST, 24.53 FEET;
A-2-3
4825- 3218- 1203/ 024036- 0079
THENCE SOUTH 72°42'50" EAST, 19.41 FEET;
THENCE SOUTH 80°35'22" EAST, 17.55 FEET;
THENCE SOUTH 86°35'34" EAST, 18.27 FEET;
THENCE SOUTH 86°10'39" EAST, 16.09 FEET;
THENCE SOUTH 76°31'40" EAST, 12.98 FEET;
THENCE SOUTH 56°17'05" EAST, 8.85 FEET;
THENCE SOUTH 37°33'31" EAST, 5.60 FEET;
THENCE NORTH 88°15'34" EAST, 32.25 FEET;
THENCE NORTH 89°25'59" EAST, 24.07 FEET;
THENCE SOUTH 89°22'43" EAST, 32.40 FEET;
THENCE SOUTH 88°14'32" EAST, 31.74 FEET;
THENCE SOUTH 87°00'15" EAST, 23.79 FEET;
THENCE SOUTH 03°28'36" WEST, 8.00 FEET;
THENCE SOUTH 87°11'55" EAST, 23.86 FEET;
THENCE SOUTH 79°25'36" EAST, 27.73 FEET;
THENCE SOUTH 74°05'34" EAST, 21.14 FEET;
THENCE SOUTH 78°16'38" EAST, 13.37 FEET;
THENCE SOUTH 88°19'10" EAST, 23.16 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN STATUTES 1962 FIRST EXTRAORDINARY SESSION, CHAPTER 67, SECTION 87; STATUTES OF 1963 REGULAR SESSION, CHAPTER 673, SECTION 40.
ALSO EXCEPTING THEREFROM TO THE STATE OF CALIFORNIA, IN ALL THE LAND
DESCRIBED HEREIN, ALL MINERAL AND MINERAL DEPOSITS, INCLUDING BUT NOT
LIMITED TO, OIL AND GAS, OTHER GASES, INCLUDING, BUT NOT LIMITED TO
NONHYDROCARBON AND GEOTHERMAL GASES, OIL SHALE, COAL, PHOSPHATE,
ALUMINA, SILICA, FOSSILS OF ALL GEOLOGICAL AGES, SODIUM, GOLD, SILVER,
METALS AND THEIR COMPOUNDS, ALKALI, ALKALI EARTH, SAND, CLAY, GRAVEL,
SALTS AND MINERAL WATERS, URANIUM, TRONA, AND GEOTHERMAL RESOURCES,
TOGETHER WITH THE RIGHT OF THE STATE OR PERSONS AUTHORIZED BY THE
STATE TO PROSPECT FOR, DRILL FOR, EXTRACT, MINE AND REMOVE SUCH DEPOSITS
OR RESOURCES, AND TO OCCUPY AND USE SO MUCH OF THE SURFACE OF THE
LANDS AS MAY BE NECESSARY THEREFORE AS RESERVED IN THAT CERTAIN GRANT DEED RECORDED DECEMBER 30, 1999 AS INSTRUMENT NO. 1999-0845740 OF OFFICIAL RECORDS.
TOGETHER WITH
PARCEL 'B'
BEGINNING AT THE AFOREMENTIONED POINT 'A'; THENCE SOUTH 72°19'26"WEST,
54.89 FEET TO THE TRUE POINT OF BEGINNING OF PARCEL 'B'; THENCE SOUTH 17°34'06" EAST, 237.50 FEET; THENCE SOUTH 72°25'54" WEST, 305.50 FEET; THENCE NORTH 17°34'06" WEST, 279.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 77.00 FEET, A RADIAL LINE TO SAID CURVE BEARS SOUTH 12°50'44" EAST; THENCE ALONG THE ARC OF SAID CURVE A-2-4
4825- 3218- 1203/ 024036- 0079
THROUGH A CENTRAL ANGLE OF 20°30'53" A DISTANCE OF 27.57 FEET TO THE
BEGINNING OF A TANGENT REVERSE CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 130.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 38°58'15" A DISTANCE OF 88.42 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 481.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 23°17'12" A DISTANCE OF 195.49 FEET; THENCE NORTH 72°19'26" EAST, 1.43 FEET TO THE TRUE POINT OF BEGINNING OF PARCEL 'B'.
EXCEPTING THEREFROM ALL DEPOSITS OF MINERALS, INCLUDING OIL AND GAS, IN
SAID LAND, TOGETHER WITH THE RIGHT TO PROSPECT FOR, MINE AND REMOVE
SUCH DEPOSITS FROM SAID LANDS, AS RESERVED BY THE STATE OF CALIFORNIA IN STATUTES 1962 FIRST EXTRAORDINARY SESSION, CHAPTER 67, SECTION 87; STATUTES OF 1963 REGULAR SESSION, CHAPTER 673, SECTION 40.
ALSO EXCEPTING THEREFROM TO THE STATE OF CALIFORNIA, IN ALL THE LAND
DESCRIBED HEREIN, ALL MINERAL AND MINERAL DEPOSITS, INCLUDING BUT NOT
LIMITED TO, OIL AND GAS, OTHER GASES, INCLUDING, BUT NOT LIMITED TO
NONHYDROCARBON AND GEOTHERMAL GASES, OIL SHALE, COAL, PHOSPHATE,
ALUMINA, SILICA, FOSSILS OF ALL GEOLOGICAL AGES, SODIUM, GOLD, SILVER,
METALS AND THEIR COMPOUNDS, ALKALI, ALKALI EARTH, SAND, CLAY, GRAVEL,
SALTS AND MINERAL WATERS, URANIUM, TRONA, AND GEOTHERMAL RESOURCES,
TOGETHER WITH THE RIGHT OF THE STATE OR PERSONS AUTHORIZED BY THE
STATE TO PROSPECT FOR, DRILL FOR, EXTRACT, MINE AND REMOVE SUCH DEPOSITS
OR RESOURCES, AND TO OCCUPY AND USE SO MUCH OF THE SURFACE OF THE
LANDS AS MAY BE NECESSARY THEREFORE AS RESERVED IN THAT CERTAIN GRANT DEED RECORDED DECEMBER 30, 1999 AS INSTRUMENT NO. 1999-0845740 OF OFFICIAL RECORDS.
A-3-1
4825- 3218- 1203/ 024036- 0079
Exhibit A-3
Legal Description of Developer’ s Phase 1A Site
STREET DEDICATION
BEGINNING AT STATION NO. 107 ON THE MEAN HIGH TIDE LINE OF THE BAY OF SAN DIEGO, AS SAID MEAN HIGH TIDE LINE IS SHOWN ON MISCELLANEOUS MAP NO. 217, FILED IN THE RECORDER'S OFFICE OF THE COUNTY OF SAN DIEGO SEPTEMBER 25, 1950 AS FILE NO. 110422; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" EAST (RECORD PER M.M. 217 SOUTH 58°28'01" EAST), 105.95 FEET TO THE
INTERSECTION WITH THE NORTHERLY RIGHT OF WAY LINE OF MARINA PARKWAY
FORMERLY TIDELANDS AVENUE) AS DEDICATED PER DOCUMENT RECORDED OCTOBER 10, 1966 AS FILE NO. 163052 O.R. AND SHOWN ON SAN DIEGO UNIFIED PORT DISTRICT DRAWING NO. 484-MB, ALSO BEING A POINT ON A NON-TANGENT CURVE, CONCAVE EASTERLY, HAVING A RADIUS OF 20.00 FEET, A RADIAL TO WHICH BEARS NORTH 33°15'14" WEST, BEING THE TRUE POINT OF BEGINNING; THENCE SOUTHERLY ALONG SAID RIGHT OF WAY AND SAID 20.00 FOOT RADIUS CURVE THROUGH A CENTRAL ANGLE OF 49° 04' 33" A DISTANCE OF 17.13 FEET; THENCE LEAVING SAID RIGHT OF WAY SOUTH 72°19'26" WEST, 56.32 FEET TO THE
BEGINNING OF A TANGENT CURVE, CONCAVE NORTHERLY, HAVING A RADIUS OF 481.00 FEET; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 23° 17' 12", A DISTANCE OF 195.49 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 130.00 FEET; THENCE WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 38° 58' 15" A DISTANCE OF 88.42 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 77.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 33°21'37" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 46°17'18" A DISTANCE OF 62.21 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 83.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 12°55'41" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 39°43'43" A DISTANCE OF 57.55 FEET; THENCE NORTH 26°48'02" WEST, 11.00 FEET;
THENCE SOUTH 63°11'58" WEST, 574.01 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 272.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 78°34'28" A DISTANCE OF 373.02 FEET;
THENCE SOUTH 15°22'30" EAST, 136.86 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 4,994.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 02°25'18" A DISTANCE OF 211.08 FEET;
THENCE SOUTH 17°47'48" EAST, 460.08 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE EASTERLY HAVING A RADIUS OF 494.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°35'46" A DISTANCE OF 39.63 FEET;
THENCE SOUTH 22°23'34" EAST, 59.77 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 506.00 FEET; THENCE ALONG THE ARC A-3-2
4825- 3218- 1203/ 024036- 0079
OF SAID CURVE THROUGH A CENTRAL ANGLE OF 04°20'39" A DISTANCE OF 38.36
FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 94.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 71°57'05" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18'00'01" A DISTANCE OF 29.53 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 69.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 53°57'04" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 71°44'52" A DISTANCE OF 86.40 FEET; THENCE NORTH 72°12'12" EAST, 353.50 FEET;
THENCE NORTH 68°48'31" EAST, 50.66 FEET;
THENCE NORTH 72°12'12" EAST, 421.30 FEET;
THENCE NORTH 65°55'34" EAST, 100.60 FEET;
THENCE NORTH 72°12'12" EAST, 107.82 FEET TO THE WESTERLY RIGHT OF WAY LINE OF SAID MARINA PARKWAY (FORMERLY TIDELANDS AVENUE);
THENCE ALONG SAID RIGHT OF WAY SOUTH 17°54'50" EAST, 84.00 FEET; THENCE LEAVING SAID RIGHT OF WAY SOUTH 72°12'12" WEST, 72.38 FEET; THENCE SOUTH 48°21'08" WEST, 27.20 FEET;
THENCE SOUTH 72°12'12" WEST, 497.74 FEET;
THENCE NORTH 17°47'48" WEST, 3.00 FEET;
THENCE SOUTH 72°12'12" WEST, 468.85 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 25.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41°37'40" A DISTANCE OF 18.16 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 74.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 59°25'28" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 177°46'16" A DISTANCE OF 229.60 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE WESTERLY HAVING A RADIUS OF 66.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 61°39'12" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44°48'44" A DISTANCE OF 51.62 FEET TO THE
BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 5.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 73° 32'04" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 82°11'46" A DISTANCE OF 7.17 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 14.09 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 08°24'24" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 77°42'50" A DISTANCE OF 19.12 FEET;
THENCE NORTH 17°47'48" WEST, 901.20 FEET;
THENCE NORTH 27°12'12" EAST, 38.28 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHEASTERLY HAVING A RADIUS OF 320.03 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 73°24'20" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 79°47'38" A DISTANCE OF 445.69 FEET; THENCE NORTH 63°11'58" EAST, 527.07 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHWESTERLY HAVING A RADIUS OF 194.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33°43'27" A DISTANCE OF 114.19 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE A-3-3
4825- 3218- 1203/ 024036- 0079
WESTERLY HAVING A RADIUS OF 84.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 60°31'29" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37°26'04" A DISTANCE OF 54.88 FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 175.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 82°02'27" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43°17'27" A DISTANCE OF 132.22 FEET;
THENCE NORTH 38°45'00" EAST, 50.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE SOUTHWESTERLY HAVING A RADIUS OF 225.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 38°45'00" EAST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 33°21'13" A DISTANCE OF 130.98 FEET TO
THE BEGINNING OF A REVERSE CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 143.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 72°06'13" WEST; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 28°50'01" A DISTANCE OF 71.96 FEET;
THENCE SOUTH 46°43'48" EAST, 29.05 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHEASTERLY HAVING A RADIUS OF 90.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 37°42'36" A DISTANCE OF 59.23 FEET; THENCE SOUTH 84°26'24" EAST, 30.34 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 419.00 FEET; THENCE ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14°01'34" A DISTANCE OF 102.57 FEET TO SAID NORTHERLY RIGHT OF WAY LINE OF MARINA PARKWAY AND
THE BEGINNING OF A NON-TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 20.00 FEET, A RADIAL TO SAID POINT BEARS SOUTH 60°30'13" EAST; THENCE ALONG SAID RIGHT OF WAY THE FOLLOWING FIVE COURSES: NORTHERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 43°53'06" A DISTANCE OF 15.32 FEET; THENCE NORTH 75°36'41" EAST, 60.00 FEET; THENCE SOUTH 14°23'19" EAST, 1.46 FEET; THENCE NORTH 75°36'41" EAST, 14.28 FEET TO SAID MEAN HIGH TIDE LINE; THENCE ALONG SAID MEAN HIGH TIDE LINE SOUTH 58°27'22" WEST, 85.18 FEET TO THE TRUE POINT OF BEGINNING.
AREA = 264,248 S.F. OR 6.066 ACRES, MORE OR LESS.
B-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit B-1
Depiction of the Site
B-1-
2 4825- 3218- 1203/ 024036- 0079
B-1-
3 4825- 3218- 1203/ 024036- 0079
B-1-
4 4825- 3218- 1203/ 024036- 0079
B-1-
5 4825- 3218- 1203/ 024036- 0079
B-1-
6 4825- 3218- 1203/ 024036- 0079
B-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit B-2
Depiction of the Ground Lease Property
B-2-
2 4825- 3218- 1203/ 024036- 0079
B-2-
3 4825- 3218- 1203/ 024036- 0079
B-2-
4 4825- 3218- 1203/ 024036- 0079
B-2-
5 4825- 3218- 1203/ 024036- 0079
B-2-
6 4825- 3218- 1203/ 024036- 0079
B-3-1
4825- 3218- 1203/ 024036- 0079
Exhibit B-3
Depiction of the Developer’ s Phase 1A Infrastructure Improvements Site B-3-
2 4825- 3218- 1203/ 024036- 0079
B-3-
3 4825- 3218- 1203/ 024036- 0079
B-3-
4 4825- 3218- 1203/ 024036- 0079
B-3-
5 4825- 3218- 1203/ 024036- 0079
C-1-1
4825- 3218- 1203/ 024036- 0079
Exhibit C-1
Developer’ s Phase 1A Infrastructure Improvements
Developer’ s Phase 1A infrastructure Improvements include the following improvements, as described in Attachment D to the DCPA:
E Street (G Street to H Street)
G Street Connection
H Street (Bay Blvd to Street A)
H Street (Marina Pkwy to E Street )
H-3 Utility Corridor
H-3 Site Prep
C-2-1
4825- 3218- 1203/ 024036- 0079
Exhibit C-2
Sources for Developer’ s Phase 1A Infrastructure Improvements Cost Source Amount
Agreement
Total
NOTE: Harbor Park is not included in Developer’ s Phase 1A Infrastructure Improvements.
NOTE: Amounts available to be reimbursed to Developer under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’ s Phase 1A Contract Sum.
C-3-1
4825- 3218- 1203/ 024036- 0079
Exhibit C-3
Developer’ s Phase 1A Infrastructure Improvements Budget Gaylord Pacific - RIDA Chula Vista, LLC - Phase 1A Infrastructure - 05.12.2022 / Final Item Description Project Goal
A
B
C GENERAL ADMINISTRATION AND SUPERVISION
E BUILDERS RISK, GL AND WC INSURANCE
F
Sweetwater Authority costs, Stormwater Outfall - Waterboard Fee, Army Corps of Engineers, etc.
G IMPACT FEES $0 / CONNECTION FEES $0
H CONTINGENCY
I PAYMENT BONDS
J LEGAL & OTHER PROFESSIONAL FEES
K PROPOSED GATEWAY SIGN
L EARLY WORK - revised as of 3/28/2022
M PROJECT ADMINISTRATION FEE 5%
TOTAL PHASE 1A PROJECT COST EXCLUDING HARBOR
NOTE: Harbor Park is not included in Developer’ s Phase 1A Infrastructure Improvements.
NOTE: Amounts available to be reimbursed to Developer under the Sewer Agreement or credited to Developer under the BFDIF Program are excluded from the Developer’ s Phase 1A Contract Sum.
D-1-A
4825- 3218- 1203/ 024036- 0079
Exhibit D-1-A
Remaining Phase 1A Infrastructure Improvements
Sweetwater Park)
Sweetwater Park
A 21-acre signature park on Parcel S-2 (defined in the PMP) with passive use, meadow-type open space with amenities such as: landscaping, lighting, restrooms, drinking fountains, bicycle racks, children play areas, picnic areas, benches, trash receptacles, interpretive signage, landscaped berms, public art, decomposed granite paving, and parking. The park is to be passive in nature, be lowimpact and contain minimal structures. Allowed structures include restrooms, equipment shed, picnic tables, shade structures and overlooks, and are limited to single-story heights. No athletic field amenities or unattended food vending will be allowed. The park will utilize low water-use ground cover alternatives where possible and trails will not be paved. Due to the immediate adjacency to sensitive habitat areas, amplified sound equipment and issuance of park use permits for group events will be prohibited. Development of the park also includes the development within the Transition Buffer Areas and Limited Use zones of parcel SP-1 and the fencing of the No Touch Buffer Area of parcel SP-1, all as described in the certified PMP.
D-1-B
4825- 3218- 1203/ 024036- 0079
Exhibit D-1-B
Sources for Remaining Phase 1A Infrastructure Improvements Cost Source Amount
Total
A portion of the Other Port District Funds has been spent for costs of the Remaining Phase 1A Infrastructure Improvements incurred prior to the Date of Agreement.
D-1-C
4825-3218-1203/024036-0079
Exhibit D-1-C
Engineering Budget for Sweetwater Park
Attached on following pages.)
Port of San Diego
CVB Sweetwater Park
Chula Vista, CA
KTU+ A
60% CONSTRUCTION DOCUMENT COST ESTIMATE
OCMI JOB #: 19041. 001
25 January 2022
CVB Sweetwater Park
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022 S1.01 thru S6.09 (23 sheets )
P1-001 thru P1-501 (05 sheets)
EC1. 0 thru E5.2 (27 sheets)
Specifications and Reports
COST ESTIMATE
INTRODUCTORY NOTES
This estimate is based on verbal direction from KTU+A and the following items, received through 08 November 2021:
General
Civil
Landscape
Architectural
Structural
Plumbing
Electrical
TS- 1.0 thru TS- 4.0 (04 sheets)
G-1 thru C-31 (36 sheet)
LC- 1.0 thru LP- 32.0 (142 sheets)
A0-100 thru AD 800 (20 sheets)
Construction start date of September 2022
The following items are excluded from this estimate:
Inspections and tests.
Construction change order contingency.
The midpoint of construction of March 2023 is based on:
Under the direction of the Port, the escalation reflected is to Start of Construction based on:
We strongly advise the client to review this estimate in detail. If any interpretations in this estimate appear to differ from those intended by the design documents, they should be addressed immediately.
Estimated construction duration of 12 months
This estimate is based on a Design-Bid-Build delivery method.
This estimate is based on prevailing wage labor rates.
This estimate is based on a detailed measurement of quantities. We have made allowances for items that were not clearly defined in the drawings. The client should verify these allowances.
This estimate is based on a minimum of four competitive bids and a stable bidding market.
This estimate should be updated if more definitive information becomes available, or if there is any change in scope.
CVB Sweetwater Park
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
ELEMENT TOTAL COST
01. GENERAL REQUIREMENTS TOTAL $ 184, 970
Direct construction cost $ 140,450
Markups $ 44,520
02. SITE PREPARATION / DEMOLITION TOTAL $ 383, 102
Direct construction cost $ 290,894
Markups $ 92,208
03. GRADING TOTAL $ 1,191, 868
Direct construction cost $ 905,000
Markups $ 286,868
04. UTILITIES TOTAL $ 475, 487
Direct construction cost $ 361,043
Markups $ 114,444
05. ELECTRICAL / LIGHTING TOTAL $ 211, 548
Direct construction cost $ 160,631
Markups $ 50,917
06. RESTROOM TOTAL $ 445, 871
Direct construction cost $ 338,555
Markups $ 107,316
07. GROWING GROUND MAINTENANCE SHED TOTAL $ 255, 621
Direct construction cost $ 194,096
Markups $ 61,525
08. PARKING LOT IMPROVEMENTS TOTAL $ 1,204, 839
Direct construction cost $ 914,849
Markups $ 289,990
09. HARDSCAPE / PAVING/ PATHS TOTAL $ 1,899, 812
Direct construction cost $ 1,442, 550
Markups $ 457,262
10. INTERPRETIVE / SIGNS / SITE FURNISHINGS TOTAL $ 1,404, 592 Direct construction cost $ 1,066, 524
Markups $ 338,068
11. PLAYGROUND AREAS TOTAL $ 779, 635
Direct construction cost $ 591,986
Markups $ 187,649
DETAILED PROJECT SUMMARY
Prepared by: OCMI Sheet 1 of 76
12. LANDSCAPE IRRIGATION TOTAL $ 1,682, 364
Direct construction cost $ 1,277, 439
Markups $ 404, 925
13. LANDSCAPE PLANTING TOTAL $ 3,145, 027
Direct construction cost $ 2,388, 057
Markups $ 756, 970
14. DESIGN AND PERMIT FEES TOTAL $ 1,093, 403
Design Fees $ 955,000
Permit Fees $ 10,000
Water Capacity Fees
Domestic water service $ 34,008
Irrigation water service $ 677,138
TOTAL PARK CONSTRUCTION COST $ 14,358,139
ELEMENT BREAKOUTS TOTAL COST
01. MAIN PARKING LOT ($ 838, 268)
Cost with markups ($ 1,103, 984)
02. DG LOTS ($ 268, 851)
Cost with markups ($ 354, 072)
03. KUMEYAAY TOOL MAKING PLAZA ($ 24,759)
Cost with markups ($ 32,607)
04. GROWING GROUNDS ($ 237, 859)
Cost with markups ($ 313, 256)
05. GROUP EDUCATION RING ($ 12,546)
Cost with markups ($ 16,523)
06. MEADOW ARRIVAL ENTRY PLAZA ($ 221, 986)
Cost with markups ($ 292, 351)
07. TIMELINE PLAZA ($ 205, 743)
Cost with markups ($ 270, 960)
08. SOLAR CALENDAR PLAZA ($ 77,904)
Cost with markups ($ 102, 598)
09. MAP PLAZA AND OVERLOOK ($ 43,302)
Cost with markups ($ 57,028)
10. NATURE PLAYGROUND ($ 782, 475)
Cost with markups ($ 1,030, 505)
11. ADVENTURE PLAYGROUND ($ 249, 519)
Cost with markups ($ 328, 612)
Prepared by: OCMI Sheet 2 of 76
12. WILDLIFE BLINDS ($ 81,807)
Cost with markups ($ 107, 738)
13. BOARDWALK ($ 119, 336)
Cost with markups ($ 157, 163)
14. SPECIALTY GARDENS ($ 92,419)
Cost with markups ($ 121, 714)
15. CHANNEL OVERLOOK ($ 48, 162)
Cost with markups ($ 63,428)
ELEMENT BREAKOUTS SUBTOTAL ($ 4,352,540)
ADJUSTED TOTAL PARK CONSTRUCTION COST $ 10,005,599
Prepared by: OCMI Sheet 3 of 76
CVB Sweetwater Park
GENERAL REQUIREMENTS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
ELEMENT TOTAL COST
01 GENERAL REQUIREMENTS $ 140, 450
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
33 UTILITIES
NET DIRECT SITE COST $ 140,450
DESIGN CONTINGENCY 2.50%$ 3,511
SUBTOTAL $ 143,961
ESCALATION TO START 09/ 2022 4.31%$ 6,205
SUBTOTAL $ 150,166
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 7,508
SUBTOTAL $ 157,674
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 23,651
SUBTOTAL $ 181,325
INSURANCE 1.00%$ 1,813
SUBTOTAL $ 183,139
BONDS: CONTRACTOR 1.00%$ 1,831
TOTAL SITE COST $ 184,970
SITE SUMMARY
Prepared by: OCMI Sheet 4 of 76
CVB Sweetwater Park
GENERAL REQUIREMENTS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
01 GENERAL REQUIREMENTS
Mobilization 1 LS 10,000. 00 $ 10,000
Traffic Control 1 LS 5,000. 00 $ 5,000
Construction BMPs / Erosion Control 1 LS 30,000. 00 $ 30,000 BMP Monitoring & Reporting 1 LS 15,000. 00 $ 15,000
Construction Fencing 12,990 LF 5.00 $ 64,950
Surveying For Construction Staking 1 LS 15,500. 00 $ 15,500 TOTAL - 01 GENERAL REQUIREMENTS $ 140,450
Prepared by: OCMI Sheet 5 of 76
CVB Sweetwater Park
SITE PREPARATION / DEMOLITION
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
ELEMENT TOTAL COST
01 GENERAL REQUIREMENTS
02 EXISTING CONDITIONS $ 50,370
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 $ 240,524
32 EXTERIOR IMPROVEMENTS
33 UTILITIES
NET DIRECT SITE COST $ 290,894
DESIGN CONTINGENCY 2.50%$ 7,272
SUBTOTAL $ 298,166
ESCALATION TO START 09/ 2022 4.31%$ 12,851
SUBTOTAL $ 311,017
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 15,551
SUBTOTAL $ 326,568
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 48,985
SUBTOTAL $ 375,553
INSURANCE 1.00%$ 3,756
SUBTOTAL $ 379,309
BONDS: CONTRACTOR 1.00%$ 3,793
TOTAL SITE COST $ 383,102
SITE SUMMARY
Prepared by: OCMI Sheet 6 of 76
CVB Sweetwater Park
SITE PREPARATION / DEMOLITION
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
02 EXISTING CONDITIONS
Demolition
Existing Signs 30 EA 100.00 $ 3,000
Permeable concrete 900 SF 1.15 $ 1,035
Existing Asphalt Driveway & Concrete Apron 4,740 SF 1.15 $ 5,451 Existing Road ( Asphalt & Hardened Earth) 5,185 SF 1.15 $ 5,963 Existing DG Areas with 0" curb 1,700 SF 1.00 $ 1,700
K rail 170 LF 5.00 $ 850
Existing Chainlink Fencing 1,850 LF 6.12 $ 11,329
Promenade Chainlink Fencing 2,010 LF 6.12 $ 12,309
Recycle and Re-use chainlink fence fabric)
Wood fence 75 LF 3.03 $ 227
Existing Bollard 3 EA 125.00 $ 375
Existing Water Main Removal 330 LF 14.01 $ 4,624
Existing Water Main Abandonment 220 LF 8.00 $ 1,760
slurry fill pipe under improvements)
Existing fire hydrant removal 2 EA 500.00 $ 1,000
Concrete curb and gutter removal 75 LF 5.68 $ 426
Existing Asphalt Curb removal 70 LF 4.59 $ 321
TOTAL - 02 EXISTING CONDITIONS $ 50,370
31 EARTHWORK
Clearing and grubbing
Clearing and grubbing 1,116, 690 SF 0.20 $ 223, 338
Clearing and grubbing in disturbed habitat areas 39,500 SF 0.20 $ 7,900 Protect in place native vegetation & mitigation 98,000 SF 0.05 $ 4,900 Remove tree, medium 6 EA 731.02 $ 4,386
TOTAL - 31 EARTHWORK $ 240,524
Prepared by: OCMI Sheet 7 of 76
CVB Sweetwater Park
GRADING
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 $ 905,000
32 EXTERIOR IMPROVEMENTS
33 UTILITIES
NET DIRECT SITE COST $ 905,000
DESIGN CONTINGENCY 2.50%$ 22,625
SUBTOTAL $ 927,625
ESCALATION TO START 09/ 2022 4.31%$ 39,981
SUBTOTAL $ 967,606
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 48,380
SUBTOTAL $ 1,015, 986
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 152,398
SUBTOTAL $ 1,168, 384
INSURANCE 1.00%$ 11,684
SUBTOTAL $ 1,180, 068
BONDS: CONTRACTOR 1.00%$ 11,801
TOTAL SITE COST $ 1,191,868
SITE SUMMARY
Prepared by: OCMI Sheet 8 of 76
CVB Sweetwater Park
GRADING
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
31 EARTHWORK
Earth work
Site cut 16,500 CY 20.00 $ 330, 000
Import 25,000 CY 15. 00 $ 375, 000
Grading
Fine grading 200, 000 SF 1.00 $ 200, 000
TOTAL - 31 EARTHWORK $ 905,000
Prepared by: OCMI Sheet 9 of 76
CVB Sweetwater Park
UTILITIES
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
33 UTILITIES $ 361,043
NET DIRECT SITE COST $ 361,043
DESIGN CONTINGENCY 2.50%$ 9,026
SUBTOTAL $ 370,069
ESCALATION TO START 09/ 2022 4.31%$ 15,950
SUBTOTAL $ 386,019
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 19,301
SUBTOTAL $ 405,320
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 60,798
SUBTOTAL $ 466,118
INSURANCE 1.00%$ 4,661
SUBTOTAL $ 470,779
BONDS: CONTRACTOR 1.00%$ 4,708
TOTAL SITE COST $ 475,487
SITE SUMMARY
Prepared by: OCMI Sheet 10 of 76
CVB Sweetwater Park
UTILITIES
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
33 UTILITIES
Electrical service
Conduit and conductor from meter to restroom
Ductbank
Conduits, PVC
1) 1-1/ 4" 486 LF 28. 68 $ 13,938
Conductors
1 1,458 LF 3.25 $ 4,739
8 486 LF 1.17 $ 569
Conduit and conductor for sewer lift station
Ductbank
Conduits, PVC 3/ 4" 150 LF 20.87 $ 3,131
Conductors , # 12 600 LF 0.83 $ 498
Additional circuit breaker to meter pedestal 1 EA 500.00 $ 500 Storm Drain Infrastructure
12" PVC Storm Drain 1,220 LF 80.07 $ 97,685
Catch basin with grate 18" x18" 15 EA 1,820. 00 $ 27,300 Biofiltration Media 318 CY 80.00 $ 25,440
Drainage Rock 318 CY 100.00 $ 31,800
Impermeable Liner 5,730 SF 3.00 $ 17,190
Tybe B Curb Inlet 1 EA 3,230. 00 $ 3,230
Swale 24,270 SF 1.50 $ 36,405
Perforated drain, bedding and filter fabric 380 LF 34.64 $ 13,162 Culvert, 8" PVC 50 LF 38.84 $ 1,942
Culvert, 12" RCP 28 LF 43.94 $ 1,230
Culvert, 24" RCP 26 LF 96.53 $ 2,510
Domestic water service
Connect To Existing Water 1 LS 1,000. 00 $ 1,000
Reduced Pressure Backflow Preventer 1 EA 950.00 $ 950
Water Meter 1 EA 490.00 $ 490
Pipe and fittings, PVC C900, including
trench and backfill, 2" 470 LF 37.81 $ 17,771
Thrust blocks 2 EA 170.22 $ 340
Valves 2 EA 561.67 $ 1,123
Water meter - water capacity fee, 1.5", refer to design and NIC permit fees on summary sheet
Sanitary Waste Service
Pump Station - ReliaSource 6x6 Above ground Station 1 LS 6,470. 00 $ 6,470 Wet Well - 4' diameter, t-lock lined 1 LS 1,000. 00 $ 1,000 Connect To Existing Sewer 1 LS 1,000. 00 $ 1,000
Manhole 4 EA 5,620. 00 $ 22,480
Pipe and fittings, PVC SDR- 35, including
trench and backfill
4" 480 LF 27.77 $ 13,330
Sewer Cleanout 5 EA 2,400. 00 $ 12,000
Prepared by: OCMI Sheet 11 of 76
CVB Sweetwater Park
UTILITIES
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Irrigation Water Service
Connect To Existing Stubouts 2" 1 EA 650.00 $ 650
Water Meter, 2" 1 EA 1,170. 00 $ 1,170
Water meter - water capacity fee, 2", refer to design and NIC permit fees on summary sheet
TOTAL - 33 UTILITIES $ 361,043
Prepared by: OCMI Sheet 12 of 76
CVB Sweetwater Park
ELECTRICAL / LIGHTING
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 $ 160,631
27 COMMUNICATIONS
28 ELECTRONIC SAFETY AND SECURITY
31 EARTHWORK
32 EXTERIOR IMPROVEMENTS
33 UTILITIES
NET DIRECT SITE COST $ 160,631
DESIGN CONTINGENCY 2.50%$ 4,016
SUBTOTAL $ 164,647
ESCALATION TO START 09/ 2022 4.31%$ 7,096
SUBTOTAL $ 171,743
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 8,587
SUBTOTAL $ 180,330
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 27,050
SUBTOTAL $ 207,380
INSURANCE 1.00%$ 2,074
SUBTOTAL $ 209,454
BONDS: CONTRACTOR 1.00%$ 2,095
TOTAL SITE COST $ 211,548
SITE SUMMARY
Prepared by: OCMI Sheet 13 of 76
CVB Sweetwater Park
ELECTRICAL / LIGHTING
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
26 ELECTRICAL
Lighting
Lighting Fixtures, exterior LED, pole mounted
Ouro Arm Mount ( Double) 3 EA 2,850. 00 $ 8,550
Ouro Arm Mount ( Single) 6 EA 2,660. 00 $ 15,960
Ouro Post Top 3 EA 2,996. 00 $ 8,988
Conduit & Wire 3,585 LF 16.00 $ 57,360
Pull Boxes 4 EA 1,663. 20 $ 6,653
Future EV charging station
Equipment, by others NIC
Electrical utility trench, including excavation, 550 LF 75.00 $ 41,250 backfill and patch back
Ductbank
Conduits, PVC 1" 1,000 LF 21.87 $ 21,870
TOTAL - 26 ELECTRICAL $ 160,631
Prepared by: OCMI Sheet 14 of 76
CVB Sweetwater Park
RESTROOM
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022 ELEMENT TOTAL COST $/ SF AREA
01 GENERAL REQUIREMENTS
02 EXISTING CONDITIONS
03 CONCRETE $ 86,872 $ 286. 71
04 MASONRY
05 METALS $ 119, 300 $ 393. 73
06 WOOD, PLASTICS, AND COMPOSITES
07 THERMAL AND MOISTURE PROTECTION $ 13,675 $ 45.13
08 OPENINGS $ 13,982 $ 46.15
09 FINISHES $ 11,942 $ 39.41
10 SPECIALTIES $ 10,255 $ 33.84
11 EQUIPMENT
12 FURNISHINGS
13 SPECIAL CONSTRUCTION
14 CONVEYING EQUIPMENT
21 FIRE SUPPRESSION
22 PLUMBING $ 58,637 $ 193. 52
23 HEATING, VENTILATING, AND AIR CONDITIONING
26 ELECTRICAL $ 23,892 $ 78.85
27 COMMUNICATIONS
28 ELECTRONIC SAFETY AND SECURITY
31 EARTHWORK
32 EXTERIOR IMPROVEMENTS
33 UTILITIES
NET DIRECT BUILDING COST $ 338, 555 $ 1,117. 34
DESIGN CONTINGENCY 2.50%$ 8,464 $ 27.93
SUBTOTAL $ 347, 019 $ 1,145. 28
ESCALATION TO START 09/ 2022 4.31%$ 14,957 $ 49.36
SUBTOTAL $ 361, 975 $ 1,194. 64
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 18,099 $ 59.73
SUBTOTAL $ 380, 074 $ 1,254. 37
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 57,011 $ 188. 16 SUBTOTAL $ 437, 085 $ 1,442. 53
INSURANCE 1.00%$ 4,371 $ 14.43
SUBTOTAL $ 441, 456 $ 1,456. 95
BONDS: CONTRACTOR 1.00%$ 4,415 $ 14.57
TOTAL BUILDING COST $ 445,871 $ 1,471.52
GROSS FLOOR AREA: 303 SF
BUILDING SUMMARY
Prepared by: OCMI Sheet 15 of 76
CVB Sweetwater Park
RESTROOM
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
03 CONCRETE
Pier footing, assembly 7 CY 629. 96 $ 4,410
Matt footing, assembly 28 CY 638.55 $ 17,879
Slab on grade NIC
Cast in place concrete wall
8" Concrete retaining wall, reinforced 1,233 SF 50. 90 $ 62,759 CIP Concrete bench 6 LF 303.92 $ 1,824
Miscellaneous
Sealer, see divion 09 NIC
TOTAL - 03 CONCRETE $ 86,872
05 METALS
Structural steel 9 TON 5,148. 04 $ 46,332
Galvanized premium, Allowance 9 TON 868.66 $ 7,818
Roof
Metal deck
Verco, shallow vercor deck 945 SF 3.26 $ 3,077
Exterior rated steel, premium 945 SF 2.49 $ 2,356
Parasoleil 4x8 screen panel system 12 EA 4,500. 00 $ 54,000 Metal perforated screen 155 SF 36.89 $ 5,717
TOTAL - 05 METALS $ 119,300
07 THERMAL AND MOISTURE PROTECTION
Roofing
Solid membrane roof 945 SF 7.78 $ 7,352
Rigid insulation 945 SF 4.89 $ 4,622
Flashing and sheet metal accessories 945 SF 1.80 $ 1,701 TOTAL - 07 THERMAL AND MOISTURE PROTECTION $ 13,675
08 OPENINGS
Exterior doors
Hollow metal including frame and hardware
Single , FRP 2 EA 1,593. 15 $ 3,186
Single stall door 4" undercut , FRP 4 EA 1,493. 15 $ 5,973 Miscellaneous
Prepared by: OCMI Sheet 16 of 76
CVB Sweetwater Park
RESTROOM
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Closer 6 EA 389.95 $ 2,340
Interior doors
Hollow metal including frame and hardware
Single 1 EA 2,093. 15 $ 2,093
Miscellaneous
Closer 1 EA 389.95 $ 390
TOTAL - 08 OPENINGS $ 13,982
09 FINISHES
Wall
Concrete, sealer 4,988 SF 1.58 $ 7,894
Floor
Concrete, sealer 2,558 SF 1.58 $ 4,048
TOTAL - 09 FINISHES $ 11,942
10 SPECIALTIES
Restroom accessories
Grab bar set 1 EA 251.68 $ 252
Paper towel dispenser and waste receptacle 1 EA 911.66 $ 912 Soap dispenser 1 EA 105.09 $ 105
Feminine napkin dispenser, 1 coin 1 EA 993.59 $ 994
Feminine napkin disposal 3 EA 174.78 $ 524
Toilet seat cover dispenser 5 EA 138.34 $ 692
Single 5 EA 67.05 $ 335
Robe hook 5 EA 30.49 $ 152
Mirror, metal frame 1 EA 91.01 $ 91
Diaper changing station 1 EA 380.45 $ 380
Hand dryer, electric sensor 1 EA 959.79 $ 960
Mop and broom rack 1 EA 258.18 $ 258
Miscellaneous
Signage 1 LS 600.00 $ 600
Interpretative element at oculus, Allowance 1 LS 4,000. 00 $ 4,000 TOTAL - 10 SPECIALTIES $ 10,255
22 PLUMBING
Equipment NIC
Fixtures including rough- in
Water closet 4 EA 2,558. 00 $ 10,232
Prepared by: OCMI Sheet 17 of 76
CVB Sweetwater Park
RESTROOM
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Water closet ( ADA) 1 EA 2,905. 00 $ 2,905
Lavatory, vanity mounted 2 EA 2,526. 00 $ 5,052
Service sink 1 EA 2,086. 00 $ 2,086
Drinking fountain, high- low 1 EA 3,968. 00 $ 3,968
Floor drain with P- trap and strainer 6 EA 369.00 $ 2,214 Hose bibb 2 EA 215. 80 $ 432
EEW 1 EA 350.00 $ 350
Domestic water system
Building entrance 2"
Main shut- off valve 1 EA 292.29 $ 292
Backflow preventer 1 EA 2,375. 41 $ 2,375
Pressure regulator 1 EA 620.00 $ 620
Trap primer with access panel 2 EA 154.00 $ 308
Water hammer arrester with access panel 2 EA 208.86 $ 418 Pipe with fittings and supports
Below grade ( type " K" copper)
1/ 2" 28 LF 19.51 $ 546
2" 6 LF 57.70 $ 346
Trench, backfill, and remove excess spoil 2 CY 96.38 $ 193 Above grade, cold water ( type " L" copper)
1/ 2" 100 LF 16.98 $ 1,698
3/ 4" 34 LF 18.57 $ 631
1" 58 LF 20.20 $ 1,172
1-1/ 4" 13 LF 32.32 $ 420
1-1/ 2" 15 LF 28.07 $ 421
2" 32 LF 39.06 $ 1,250
Hot water piping NIC
Valves 1 LS 1,000. 00 $ 1,000
Sanitary waste system
Pipe with fittings, below grade, Cast iron
2" 55 LF 38.70 $ 2,129
3" 5 LF 43.47 $ 217
4" 74 LF 50.66 $ 3,749
Trench, backfill, and remove excess spoil 13 CY 96.38 $ 1,253 Floor clean- out 1 EA 503.00 $ 503
Two way clean- out 1 EA 1,156. 00 $ 1,156
Sanitary vent system, includes vent through roofs
Pipe with fittings and supports, above grade, Cast iron 1-1/ 2" 59 LF 40.25 $ 2,375
2" 171 LF 43.47 $ 7,433
4" 11 LF 55.67 $ 612
Vent through roof
3"- 4" 1 EA 199.00 $ 199
Miscellaneous including seismic control, system test,
Prepared by: OCMI Sheet 18 of 76
CVB Sweetwater Park
RESTROOM
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
flush and chlorinate, identification and fire stop 215 SF 0.38 $ 82 TOTAL - 22 PLUMBING $ 58,637
23 HEATING, VENTILATING, AND AIR CONDITIONING
Assume building is naturally ventilated NIC
TOTAL - 23 HEATING, VENTILATING, AND AIR CONDITIONING
26 ELECTRICAL
Service and distribution
Normal power
Main switch gear, assumed in site NIC
Meter Pedestal 2 EA 250.00 $ 500
Panel board 1 EA 3,400. 00 $ 3,400
Building feeder 1 LS 500.00 $ 500
Building grounding system 1 LS 650.00 $ 650
Equipment connection including disconnect switch 1 LS 600.00 $ 600 and junction box
Lighting system
Lighting control 1 LS 500.00 $ 500
Fixtures
L04 - 6'long led tape light 6 EA 550.00 $ 3,300
L01- Surface mounted half round led 3 EA 650.00 $ 1,950 L02- Surface mounted vandal resistant led 5 EA 550.00 $ 2,750 L03- Surface mounted industrial strip 4' long 3 EA 450.00 $ 1,350 L05 Recessed direct view led 15 LF 100.00 $ 1,500
Junction box 2 EA 46.17 $ 92
Light switch, Toggle, 1-3 gang 1 EA 79.37 $ 79
Occupancy sensor 10 EA 197.22 $ 1,972
Conduit and wire 333 LF 9.61 $ 3,200
Convenience power
Receptacles
Duplex 3 EA 103.87 $ 312
Junction box 1 EA 46.17 $ 46
Conduit and wire 105 LF 9.61 $ 1,009
Miscellaneous including seismic bracing,
identification and fire stop 303 SF 0.60 $ 182
TOTAL - 26 ELECTRICAL $ 23,892
Prepared by: OCMI Sheet 19 of 76
CVB Sweetwater Park
GROWING GROUND MAINTENANCE SHED
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022 ELEMENT TOTAL COST $/ SF AREA
01 GENERAL REQUIREMENTS
02 EXISTING CONDITIONS
03 CONCRETE $ 68,121 $ 108. 13
04 MASONRY
05 METALS $ 64,465 $ 102. 33
06 WOOD, PLASTICS, AND COMPOSITES
07 THERMAL AND MOISTURE PROTECTION $ 27,725 $ 44.01
08 OPENINGS $ 12,840 $ 20.38
09 FINISHES $ 4,210 $ 6.68
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 $ 16,735 $ 26.56
27 COMMUNICATIONS
28 ELECTRONIC SAFETY AND SECURITY
31 EARTHWORK
32 EXTERIOR IMPROVEMENTS
33 UTILITIES
NET DIRECT BUILDING COST $ 194, 096 $ 308. 09
DESIGN CONTINGENCY 2.50%$ 4,852 $ 7.70
SUBTOTAL $ 198, 948 $ 315. 79
ESCALATION TO START 09/ 2022 4.31%$ 8,575 $ 13.61
SUBTOTAL $ 207, 523 $ 329. 40
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 10,376 $ 16.47
SUBTOTAL $ 217, 899 $ 345. 87
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 32,685 $ 51.88
SUBTOTAL $ 250, 584 $ 397. 75
INSURANCE 1.00%$ 2,506 $ 3.98
SUBTOTAL $ 253, 090 $ 401. 73
BONDS: CONTRACTOR 1.00%$ 2,531 $ 4.02
TOTAL BUILDING COST $ 255,621 $ 405.75
GROSS FLOOR AREA: 630 SF
BUILDING SUMMARY
Prepared by: OCMI Sheet 20 of 76
CVB Sweetwater Park
GROWING GROUND MAINTENANCE SHED
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
03 CONCRETE
Steel post pier footing 4 CY 629.96 $ 2,520
Matt footing, assembly 26 CY 638. 55 $ 16,602
Slab on grade
Reinforced concrete slab, 4" thick 534 SF 10.43 $ 5,571 Sand base course 3 CY 63. 65 $ 191
Concrete retaining wall, reinforced 853 SF 50.69 $ 43,237 TOTAL - 03 CONCRETE $ 68,121
05 METALS
Structural steel 2 TON 5,206. 18 $ 10,412
Galvanized premium, Allowance 1 TON 895.58 $ 896
Exposed steel finish, premium 1 TON 488.77 $ 489
Roof
Metal deck
1-1/ 2" 630 SF 3.33 $ 2,097
Woven wiremesh panels 228 SF 68.29 $ 15,571
Parasoleil screen panel system 250 SF 140.00 $ 35,000
TOTAL - 05 METALS $ 64,465
07 THERMAL AND MOISTURE PROTECTION
Roofing
Corrugated metal steel 630 SF 11.10 $ 6,991
Fascia 150 LF 14.33 $ 2,149
Growing Grounds Shade Shelter 413 SF 45.00 $ 18,585
TOTAL - 07 THERMAL AND MOISTURE PROTECTION $ 27,725
08 OPENINGS
Exterior doors
Hollow metal including frame and hardware
Single 2 EA 2,091. 13 $ 4,182
Roll- up door
10' 0" x 8' 0" high 2 EA 3,061. 32 $ 6,123
Miscellaneous
Prepared by: OCMI Sheet 21 of 76
CVB Sweetwater Park
GROWING GROUND MAINTENANCE SHED
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Closer 2 EA 389.20 $ 778
Panic hardware 2 EA 878. 68 $ 1,757
TOTAL - 08 OPENINGS $ 12,840
09 FINISHES
Wall
Concrete, sealer 1,706 SF 1.58 $ 2,700
Floor
Concrete, sealer 540 SF 1.58 $ 855
Ceiling
Paint 540 SF 1.21 $ 655
TOTAL - 09 FINISHES $ 4,210
26 ELECTRICAL
Service and distribution, Growing Ground Maintenance Equipment shade Normal power
Panel board 1 EA 3,400. 00 $ 3,400
Building feeder 1 LS 500.00 $ 500
Building grounding system 1 LS 500.00 $ 500
Lighting system
Lighting control 1 LS 500.00 $ 500
Fixtures, LED Industrial strip 3 EA 550.00 $ 1,650
Junction box 1 EA 46.17 $ 46
Light switch, Three way 2 EA 92.61 $ 185
Occupancy sensor 1 EA 197.22 $ 197
Conduit and wire 315 LF 9.61 $ 3,027
Convenience power
Receptacles
Duplex 3 EA 103.87 $ 312
Special receptacle 5 EA 337.39 $ 1,687
Junction box 1 EA 46.17 $ 46
Conduit and wire 450 LF 9.61 $ 4,325
Miscellaneous including seismic bracing,
identification and fire stop 600 SF 0.60 $ 360
TOTAL - 26 ELECTRICAL $ 16,735
Prepared by: OCMI Sheet 22 of 76
CVB Sweetwater Park
PARKING LOT IMPROVEMENTS
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 $ 914,849
33 UTILITIES
NET DIRECT SITE COST $ 914,849
DESIGN CONTINGENCY 2.50%$ 22,871
SUBTOTAL $ 937,720
ESCALATION TO START 09/ 2022 4.31%$ 40,416
SUBTOTAL $ 978,136
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 48,907
SUBTOTAL $ 1,027, 043
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 154,056
SUBTOTAL $ 1,181, 099
INSURANCE 1.00%$ 11,811
SUBTOTAL $ 1,192, 910
BONDS: CONTRACTOR 1.00%$ 11,929
TOTAL SITE COST $ 1,204,839
SITE SUMMARY
Prepared by: OCMI Sheet 23 of 76
CVB Sweetwater Park
PARKING LOT IMPROVEMENTS
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
Sweetwater Park Parking Lot
Hardscape
Pedestrian Concrete paving, 4" nat gray 979 SF 6.10 $ 5,972 Scarify & Compact Top 6" 979 SF 0.73 $ 715
Vehicular Concrete paving, 7.5" nat gray 775 SF 9.03 $ 7,000 Scarify & Compact Top 6" 775 SF 0.73 $ 566
Dune Concrete paving, 7.5" vehicular, int. color 131 SF 22. 03 $ 2,886 Scarify & Compact Top 6" 131 SF 0.73 $ 96
Construction joints 398 LF 1.04 $ 414
Expansion joints 130 LF 0.81 $ 105
Asphaltic concrete paving, 3" 20,258 SF 2.22 $ 44,973
Base, 8.5" 20,258 SF 3.66 $ 74,144
Scarify & Compact Top 6" 20,258 SF 0.73 $ 14,788
Asphaltic concrete paving, 4" heavy duty 18,259 SF 5.00 $ 91,295 Recycled base 13.5" 18,259 SF 5.02 $ 91,660
Scarify & Compact Top 6" 18,259 SF 0.73 $ 13,329
Curb 2,956 LF 16.36 $ 48,366
Curb ramp concrete 390 SF 12.25 $ 4,779
Cross gutter 75 LF 29.47 $ 2,210
Curb, 12" 132 LF 16.36 $ 2,160
Driveway Apron 180 SF 8.10 $ 1,458
Paving specialties
Striped parking stall 76 EA 18.73 $ 1,424
ADA symbol, painted 8 EA 100.48 $ 804
Pole mounted sign 8 EA 312.74 $ 2,502
Cross hatching 373 SF 1.21 $ 451
Truncated dome, plastic 176 SF 29.49 $ 5,190
Wheel Stops, concrete 8 EA 85.65 $ 685
Miscellaneous
Stabilized Decomposed Granite, 6" 32,151 SF 5.42 $ 174, 387 over aggregate base, 9-1/ 2"
Scarify & compact soil base top 12", 95% compacted 32,151 SF 0.73 $ 23,470 Trash enclosure
Concrete paving slab top cast finish 7.5"thick 562 SF 12.94 $ 7,270 Sub- base course 4" 2 CY 85.84 $ 184
Scarify & Compact Top 6" 562 SF 0.73 $ 410
Concrete curb 25 LF 17.87 $ 447
Thickened edge 1 CY 279.50 $ 280
Structural steel 1 TON 5,206. 18 $ 5,206
Metal gate, double 18'wide 1 PR 3,003. 52 $ 3,004
CMU, split faced filled and reinforced 8" 249 SF 74.61 $ 18,579 Continuous footings 5 CY 778.90 $ 3,895
Spread footing, assembly 1 CY 638.55 $ 639
Corrugated metal roof 183 SF 17.07 $ 3,124
Concrete filled, steel bollard 2 EA 785.18 $ 1,570
Prepared by: OCMI Sheet 24 of 76
CVB Sweetwater Park
PARKING LOT IMPROVEMENTS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Ancillary Decomposed Granite Parking Lots ( 2)
Hardscape
Pedestrian Concrete paving, 4" nat gray 1,760 SF 6.10 $ 10,737 Scarify & Compact Top 6" 1,760 SF 0.73 $ 1,285
Vehicular Concrete paving, 7.5" nat gray 843 SF 9.03 $ 7,614 Scarify & Compact Top 6" 843 SF 0.73 $ 615
Construction joints 306 LF 1.04 $ 318
Expansion joints 97 LF 0.81 $ 79
Asphaltic concrete paving, 4" heavy duty 555 SF 5.00 $ 2,775 Recycled base 13.5" 555 SF 5.02 $ 2,786
Scarify & Compact Top 12" 555 SF 0.73 $ 405
Curb 967 LF 16.36 $ 15,822
Concrete mow strip 72 LF 9.20 $ 662
Ramp, premium 450 SF 12.25 $ 5,514
Paving specialties
Stop/ Yield Sign 1 EA 322.74 $ 323
Striped parking stall 4 EA 18.73 $ 75
ADA symbol, painted 4 EA 100.48 $ 402
Pole mounted sign, ADA parking 4 EA 312.74 $ 1,251
Cross hatching 178 SF 1.21 $ 215
Truncated dome, plastic 54 SF 29.49 $ 1,592
Miscellaneous
Stabilized Decomposed Granite, 6" 28,059 SF 5.42 $ 152, 080 over aggregate base, 9-1/ 2"
Scarify & compact soil base top 12", 95% compacted 28,059 SF 0.73 $ 20,483 Stabilized Decomposed Granite, 4" 5,596 SF 4.52 $ 25,294 Scarify & compact soil base top 12", 5,596 SF 0.73 $ 4,085 moisture- conditioned 90%
TOTAL - 32 EXTERIOR IMPROVEMENTS $ 914,849
Prepared by: OCMI Sheet 25 of 76
CVB Sweetwater Park
HARDSCAPE / PAVING/ PATHS
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 $ 1,442, 550
33 UTILITIES
NET DIRECT SITE COST $ 1,442, 550
DESIGN CONTINGENCY 2.50%$ 36,064
SUBTOTAL $ 1,478, 614
ESCALATION TO START 09/ 2022 4.31%$ 63,728
SUBTOTAL $ 1,542, 342
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 77,117
SUBTOTAL $ 1,619, 459
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 242,919
SUBTOTAL $ 1,862, 378
INSURANCE 1.00%$ 18,624
SUBTOTAL $ 1,881, 002
BONDS: CONTRACTOR 1.00%$ 18,810
TOTAL SITE COST $ 1,899,812
SITE SUMMARY
Prepared by: OCMI Sheet 26 of 76
CVB Sweetwater Park
HARDSCAPE / PAVING/ PATHS
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
Pedestrian Concrete paving, 4" nat gray 14,944 SF 6.10 $ 91,167 Scarify & Compact Top 6" 14,944 SF 0.73 $ 10,909
Vehicular Concrete paving, 7.5" nat gray 3,129 SF 9.03 $ 28,261 Scarify & Compact Top 6" 3,129 SF 0.73 $ 2,284
Pedestrian concrete paving, 4" pedestrian, integral color 5,021 SF 10.10 $ 50,721 Scarify & Compact Top 6" 5,021 SF 0.73 $ 3,665
Pedestrian concrete paving, 4", pedes., int. color, Dune as 2,091 SF 20.10 $ 42,030 lithocrete
Scarify & Compact Top 6" 2,091 SF 0.73 $ 1,526
Vehicular concrete paving, 7.5" integral color, Dune 1,903 SF 22.03 $ 41,927 Scarify & Compact Top 6" 1,903 SF 0.73 $ 1,389
Pedestrian concrete paving, 4", integral color Kailua 1,505 SF 18.10 $ 27,241 Scarify & Compact Top 6" 1,505 SF 0.73 $ 1,099
Pedestrian concrete paving, 4", integral color Kailua as 484 SF 18.10 $ 8,761 lithocrete
Scarify & Compact Top 6" 484 SF 0.73 $ 353
Pedestrian concrete paving, 4", seeded aggregate 980 SF 9.62 $ 9,426 Scarify & Compact Top 6" 980 SF 0.73 $ 715
Construction joints 4,228 LF 1.04 $ 4,397
Expansion joints 2,277 LF 0.81 $ 1,844
Truncated dome, plastic 251 SF 29.49 $ 7,401
Ramp, premium 924 SF 12.25 $ 11,322
Curb 6" 5,133 LF 16.36 $ 83,985
Mow Curb 12" 449 LF 19.20 $ 8,621
Concrete Curb at Playground 12" 641 LF 30.87 $ 19,788
Porous Concrete Path Shoulder 337 SF 25.00 $ 8,425
Base, 8.5" washed crushed rock 337 SF 3.66 $ 1,233
Scarify & Compact Top 12" 337 SF 0.73 $ 246
Concrete thickened edge at Playground 4 CY 279.50 $ 1,118 Asphaltic concrete paving, 3" 2,085 SF 2.22 $ 4,629
Base, 8.5" 2,085 SF 3.66 $ 7,631
Scarify & Compact Top 12" 2,085 SF 0.73 $ 1,522
Miscellaneous
Metal banding in concrete at Restroom 263 LF 9.76 $ 2,567 4" tall etched lettering in concrete 208 EA 50.00 $ 10,400 Map plaza lithochrome chemstain graphic 300 SF 6.00 $ 1,800 Map Plaza - bronze lettering 97 EA 75.00 $ 7,275
Medaliion etched logo 10.6 SF 125.00 $ 1,325
Stabilized Decomposed Granite, 4" 65,164 SF 4.52 $ 294, 541 Scarify & compact soil base top 12", 65,164 SF 0.73 $ 47,570 moisture- conditioned 90%
Sand Surfacing ( playground) 4" depth 12.8 CY 136.53 $ 1,748 Sand Surfacing ( playground) 12" depth 137.2 CY 136.53 $ 18,732 95% Compacted subgrade 12" 4,745 SF 0.73 $ 3,464
Filter fabric 4,745 SF 1.00 $ 4,745
Prepared by: OCMI Sheet 27 of 76
CVB Sweetwater Park
HARDSCAPE / PAVING/ PATHS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Perforated drain, bedding and filter fabric 126 LF 34.64 $ 4,364 Dune Sand ( on dunes) 12" depth 686. 3 CY 136. 53 $ 93,701 PIP Rubberized Surfacing with aliphatic binder 13,348 SF 13.02 $ 173, 791 Over pedestrian thickness natural gray concrete 13,348 SF 6.18 $ 82,523 Scarify & Compact Top 6" 13,348 SF 0.73 $ 9,744
Area Drains beneath PIP, slope PIP concrete 1 LS 6,000. 00 $ 6,000 PIP Rubberized Surfacing Taper 144 LF 10.00 $ 1,440
Boardwalk 1,631 SF 70. 00 $ 114, 170
Footing, assembly 8.2 CY 629.96 $ 5,166
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
Pedestrian Bridge
Pedestrain bridge - Guardrail 48 LF 297.65 $ 14,287
CIP Concrete wall 8" 296 SF 52.23 $ 15,461
Turn down edge 1.76 CY 278.33 $ 490
Concrete pan 59 SF 13.37 $ 782
Aggregate for turn down edge 59 SF 2.51 $ 147
TOTAL - 32 EXTERIOR IMPROVEMENTS $ 1,442,550
Prepared by: OCMI Sheet 28 of 76
CVB Sweetwater Park
INTERPRETIVE / SIGNS / SITE FURNISHINGS
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 $ 1,066, 524
33 UTILITIES
NET DIRECT SITE COST $ 1,066, 524
DESIGN CONTINGENCY 2.50%$ 26,663
SUBTOTAL $ 1,093, 187
ESCALATION TO START 09/ 2022 4.31%$ 47,116
SUBTOTAL $ 1,140, 303
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 57,015
SUBTOTAL $ 1,197, 319
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 179,598
SUBTOTAL $ 1,376, 916
INSURANCE 1.00%$ 13,769
SUBTOTAL $ 1,390, 686
BONDS: CONTRACTOR 1.00%$ 13,907
TOTAL SITE COST $ 1,404,592
SITE SUMMARY
Prepared by: OCMI Sheet 29 of 76
CVB Sweetwater Park
INTERPRETIVE / SIGNS / SITE FURNISHINGS
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
Interpretive Signs & Elements 13 EA 4,020. 00 $ 52,260
Sign Footing, assembly 5.6 CY 639.96 $ 3,584
Entry Monument Sign 1
Dry stack rubble stone masonary wall 362 SF 18. 00 $ 6,516 Concrete wall 10" 114 SF 67.23 $ 7,664
Continuous footings 6.9 CY 778. 90 $ 5,374
Compacted subgrade 265 SF 0.73 $ 193
2'4"Steel lettering 3/ 8"thk. 4 EA 2,250. 00 $ 9,000
2'0"Steel lettering 3/ 8"thk. 24 EA 2,000. 00 $ 48,000
Lettering tube pipe support, Allowance 1 LS 2,000. 00 $ 2,000 Entry Monument Sign 2
Dry stack rubble stone masonary wall 124 SF 18.00 $ 2,223 Concrete wall 12" 20 SF 77.23 $ 1,545
Continuous footings 1.7 CY 778.90 $ 1,324
Column Footing, assembly 0.6 CY 629.96 $ 378
Compacted subgrade 110 SF 0.73 $ 80
14" Steel lettering 3/ 8"thk. 2 EA 1,250. 00 $ 2,500
12" Steel lettering 3/ 8"thk. 12 EA 1,000. 00 $ 12,000
Lettering tube pipe support, Allowance 1 LS 3,000. 00 $ 3,000 Fragment wall at Timeline plaza
Dry stack rubble stone masonary wall 584 SF 18.00 $ 10,512 Column Footing, assembly 4 CY 629.96 $ 2,457
Compacted subgrade 219 SF 0.73 $ 160
12" Steel lettering 3/ 8"thk. 70 EA 1,000. 00 $ 70,000
Lettering tube pipe support, Allowance 1 LS 10,000. 00 $ 10,000 Park Safety, Regulatory & Directional Signs 45 EA 680.00 $ 30,600 Bench ( With Back & Center Armrest) 2 EA 1,500. 00 $ 3,000 Composite Bench 4 EA 2,500. 00 $ 10,000
Swing Bench ( At Shuttle Stop Overlook Mound) 1 EA 3,000. 00 $ 3,000 Swing Bench footing, assembly 0.14 CY 629.96 $ 88
Picnic Tables including ADA 10 EA 2,800. 00 $ 28,000
Litter Receptacles 14 EA 2,000. 00 $ 28,000
Bike Racks 11 EA 500.00 $ 5,500
Dog Waste Bag Stations 3 EA 750.00 $ 2,250
Seatwalls & Freestanding Walls
Seat wall 18" special 27 LF 200.00 $ 5,400
Continuous footings 2.70 CY 778.90 $ 2,103
Seat wall 18" with one side graphic standard 134 LF 210.00 $ 28,140 Continuous footings 16 CY 778.90 $ 12,462
Seat wall 24" with one side graphic 73 LF 250.00 $ 18,250 Continuous footings 9 CY 778.90 $ 7,010
Boulder seating 32 LF 250.00 $ 8,000
Wildlife Blind 408 SF 65.00 $ 26,520
Approximately 6'x35' laser cut galvanized steel screen) Continuous footings 9 CY 778.90 $ 7,010
Prepared by: OCMI Sheet 30 of 76
CVB Sweetwater Park
INTERPRETIVE / SIGNS / SITE FURNISHINGS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Fences and gates
Growing ground fencing, with windscreen 195 LF 85. 00 $ 16,575 Fence Footing, assembly 2.1 CY 629.96 $ 1,323
Growing ground gate, double 6'wide 1 EA 1,221. 28 $ 1,221 Environmental Buffer fencing 2,318 LF 87.40 $ 202, 593
Fence Footing, assembly 20 CY 629. 96 $ 12,599
Environmental Fence 3' Gate with vinyl coating 3 EA 937.50 $ 2,812 Mitigation Area fencing, 4x4 square pressure treated posts 5,895 LF 15. 41 $ 90,842 Wood Posts At 6' O.C. With Stainless Steel Cable)
Playground planting fencing, 4x4 squ. Press. treated posts 1,056 LF 15.00 $ 15,840 rope and post )
Meadow Arrival Plaza Shade Shelters 775 SF 160.00 $ 124, 000 Footing, assembly 17 CY 629.96 $ 10,709
Picnic Shade Shelters 2 EA 40,000. 00 $ 80,000
Footing, assembly 11.6 CY 629.96 $ 7,308
Safety Bollard 3 EA 685.56 $ 2,057
Interpretive Sign Bollard - 6x6 wood post with
5"x5" colored signage on (4) sides 10 EA 785.18 $ 7,852 Solar plinth 4 EA 3,200. 00 $ 12,800
Solar plinth footings 3 CY 629.96 $ 1,890
TOTAL - 32 EXTERIOR IMPROVEMENTS $ 1,066,524
Prepared by: OCMI Sheet 31 of 76
CVB Sweetwater Park
PLAYGROUND AREAS
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 $ 591,986
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
33 UTILITIES
NET DIRECT SITE COST $ 591,986
DESIGN CONTINGENCY 2.50%$ 14,800
SUBTOTAL $ 606,786
ESCALATION TO START 09/ 2022 4.31%$ 26,152
SUBTOTAL $ 632,938
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 31,647
SUBTOTAL $ 664,585
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 99,688
SUBTOTAL $ 764,273
INSURANCE 1.00%$ 7,643
SUBTOTAL $ 771,915
BONDS: CONTRACTOR 1.00%$ 7,719
TOTAL SITE COST $ 779,635
SITE SUMMARY
Prepared by: OCMI Sheet 32 of 76
CVB Sweetwater Park
PLAYGROUND AREAS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
11 EQUIPMENT
Nature Playground
Playbooster 2-5 yrs
Ramp Deck Extension DB, 16" Dk 2 EA 805. 00 $ 1,610
Mushroom Stepper 40" Deck 1 EA 5,490. 00 $ 5,490
w/ 2 Recycled Wood- Grain Handholds
Kick Plate 8"Rise 1 EA 130.00 $ 130
Square Deck Extension 1 EA 1,085. 00 $ 1,085
Square Tenderdeck 1 EA 1,135. 00 $ 1,135
Tree Stump Transfer Module, 2-5yrs 48" Dk (DB Only) 1 EA 8,115. 00 $ 8,115 Triangular Tenderdeck 1 EA 875.00 $ 875
DigiFuse Barrier Panel, Above Dec 1 EA 1,435. 00 $ 1,435 Marble Panel Above Deck 1 EA 2,590. 00 $ 2,590
Recycled Wood- Grain Lumber Panel 1 EA 1,365. 00 $ 1,365 Storefront Panel 1 EA 690.00 $ 690
116" Alum Post DB 3 EA 340.00 $ 1,020
124" Alum Post DB 3 EA 395.00 $ 1,185
233" Steel Post, For CoolTopper Single Post Pyramid Roof 1 EA 1,015. 00 $ 1,015 84" Alum Post DB 4 EA 300.00 $ 1,200
CoolToppers Single Post Pyramid Roof DB Only 1 EA 3,650. 00 $ 3,650 Double Slide 40" Dk DB 2 EA 2,280. 00 $ 4,560
Rollerslide 56" Dk DB 1 EA 10,495. 00 $ 10,495
Single Slide 48" Dk DB 1 EA 1,730. 00 $ 1,730
Freestanding play 2-5 yrs
Set of 30 TRI- HANDHOLD HANDGRIPS 1 EA 1,900. 00 $ 1,900 Upcharge CUSTOM DIGIFUSE® PANEL 1 EA 615.00 $ 615
OmniSpin Spinner Surface Mount1 1 EA 9,040. 00 $ 9,040
We-saw DB Only1 1 EA 11,730. 00 $ 11,730
Cozy Dome DB 1 EA 4,895. 00 $ 4,895
Log Crawl Tunnel DB Only1 1 EA 7,020. 00 $ 7,020
Welcome Sign ( LSI Provided) Ages 2-5 years Direct Bury NIC Playbooster 5-12 yrs
Clatterbridge 123 w/ Barriers 1 EA 7,450. 00 $ 7,450
SwiggleKnots Bridge, w/ o Deck Connections DB Only 1 EA 6,775. 00 $ 6,775 The Ascent Rock1 1 EA 6,740. 00 $ 6,740
The Bend Rock1 1 EA 8,840. 00 $ 8,840
The Den Rock1 1 EA 8,840. 00 $ 8,840
GeoPlex Climber 72" Dk 1 EA 1,795. 00 $ 1,795
GeoPlex Ground- To-Deck Double Climber 72" Dk Alum DB 1 EA 4,435. 00 $ 4,435 Deck Link w/ Barriers Steel end panels 2 Steps 2 EA 4,530. 00 $ 9,060 DTR PB 7-Post Netplex w/ RPL Wood- Grain Accent Panels 1 EA 15,125. 00 $ 15,125 Hexagon Tenderdeck 1 EA 3,245. 00 $ 3,245
Square Tenderdeck 2 EA 1,135. 00 $ 2,270
Tree Stump Transfer Module 48" Dk (DB Only) 1 EA 8,115. 00 $ 8,115 Triangular Tenderdeck 1 EA 875.00 $ 875
DigiFuse Barrier Panel w/ Medallions Above Deck 1 EA 2,115. 00 $ 2,115 Animal Tracks Medallion Set
Prepared by: OCMI Sheet 33 of 76
CVB Sweetwater Park
PLAYGROUND AREAS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
DigiFuse Barrier Panel Above Deck 1 EA 1,435. 00 $ 1,435 Custom Artwork/ Requires CP
Disc Net Climber for 7-Post Mainstructure 1 EA 24,800. 00 $ 24,800 Blender Spinner DB1 1 EA 2,760. 00 $ 2,760
E-Pod Seat 1 EA 340.00 $ 340
132" Alum Post DB 5 EA 410. 00 $ 2,050
148" Alum Post DB 4 EA 435.00 $ 1,740
148" Steel Post DB 7 EA 395. 00 $ 2,765
265" Steel Post , For CoolTopper Single Post Pyramid Roof 2 EA 1,090. 00 $ 2,180 CoolToppers Single Post Pyramid Roof DB Only1 2 EA 3,650. 00 $ 7,300 Alpine Slide 72" Deck DB1 1 EA 4,260. 00 $ 4,260
Freestanding play 5-12 yrs
Log Stepper 8"Height DB Only 1 EA 785.00 $ 785
DTR IND Recycled Board Oak Leaf Wobble Pod DB 1 EA 3,685. 00 $ 3,685 Upcharge CUSTOM DIGIFUSE® PANEL ART 1 EA 615.00 $ 615
Welcome Sign ( LSI Provided) Ages 5-12 years Direct Bury NIC Oodle Swing DB Only1 1 EA 6,055. 00 $ 6,055
Boulders
Playground Boulder 1' 9 EA 85.00 $ 765
Playground Boulder 2' 9 EA 100.00 $ 900
Adventure Playground ( Logs, boulders, ropes and nets)
Log pile 4.1 1 EA 20,150. 00 $ 20,150
Log pile 3.2 1 EA 22,100. 00 $ 22,100
Fossil dig 3 EA 3,369. 00 $ 10,107
Robinia sand desk 1 EA 5,170. 00 $ 5,170
Log stepper
150 - 6" tall 10 EA 1,400. 00 $ 14,000
300 - 12" tall 14 EA 1,550. 00 $ 21,700
450 - 18" tall 13 EA 1,700. 00 $ 22,100
600 - 24" tall 3 EA 1,900. 00 $ 5,700
Boulders
Playground Boulder 4' 1 EA 325.00 $ 325
Playground Boulder 3' 6 EA 200.00 $ 1,200
Playground Boulder 2' 8 EA 100.00 $ 800
Standard swing set 1 EA 7,750. 00 $ 7,750
Shell seat swing 1 EA 6,340. 00 $ 6,340
Supernova 1 EA 7,827. 82 $ 7,828
Zip line (sloped) 1 EA 16,696. 68 $ 16,697
Shipping 1 LS 59,198. 55 $ 59,199
Installation 1 LS 138, 129.95 $ 138, 130
TOTAL - 11 EQUIPMENT $ 591,986
Prepared by: OCMI Sheet 34 of 76
CVB Sweetwater Park
LANDSCAPE IRRIGATION
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 $ 1,277, 439
33 UTILITIES
NET DIRECT SITE COST $ 1,277, 439
DESIGN CONTINGENCY 2.50%$ 31,936
SUBTOTAL $ 1,309, 375
ESCALATION TO START 09/ 2022 4.31%$ 56,434
SUBTOTAL $ 1,365, 809
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 68,290
SUBTOTAL $ 1,434, 099
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 215,115
SUBTOTAL $ 1,649, 214
INSURANCE 1.00%$ 16,492
SUBTOTAL $ 1,665, 707
BONDS: CONTRACTOR 1.00%$ 16,657
TOTAL SITE COST $ 1,682,364
SITE SUMMARY
Prepared by: OCMI Sheet 35 of 76
CVB Sweetwater Park
LANDSCAPE IRRIGATION
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
Irrigation
Mainline Pipe and fittings, PVC C900, including
3" 2,917 LF 31. 42 $ 91,642
2-1/ 2" 3,321 LF 28.27 $ 93,897
2" 935 LF 20. 62 $ 19,279
1-1/ 2" 1,026 LF 18.83 $ 19,320
Irrigation Wiring 12,000 LF 0.80 $ 9,600
Irrigation Sleeving 381 LF 2.00 $ 762
Irrigation Conduit 12,000 LF 9.35 $ 112, 200
Remote Control Valves 185 EA 30.00 $ 5,550
Drip Remote Control Valves 6 EA 30.00 $ 180
Quick Couplers 59 EA 35.00 $ 2,065
POC Equipment
2" Reduced Pressure Backflow Preventer 1 EA 2,040. 00 $ 2,040 2" Master Valve 1 EA 561.67 $ 562
2" Flow Meter 1 EA 920.00 $ 920
Isolation Valves At Manifolds 65 EA 85.00 $ 5,525
Isolation Valves At Mainline Branches 21 EA 195.00 $ 4,095 Relocate existing controller & pedestal assembly 1 EA 11,000. 00 $ 11,000 add Controller within the pedestal
New Controller 1 EA 12,000. 00 $ 12,000
Permanent Irrigation 208, 505 SF 1.00 $ 208, 505
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzleHead) Heads )( Permanent Irrigation 176, 970 SF 0.85 $ 150, 425
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzlepopHeads )( up) Landscape Mitigation Area Irrigation 323, 165 SF 0.75 $ 242, 374 Above Grade UV Resistant Pipe & Gear Driven Rotor Heads) Landscape Mitigation Area Irrigation 35,688 SF 0.75 $ 26,766 Above Grade UV Resistant Pipe & Rotar pop Heads)
Landscape Mitigation Area Irrigation 76,800 SF 0.60 $ 46,080 Above Grade UV Resistant Pipe & Rotory stream Heads on fix riser) Landscape Mitigation Area Irrigation 19,645 SF 0.75 $ 14,734 Above Grade UV Resistant Pipe & Rotory stream Heads )
Sub- Surface Drip Irrigation 17,306 SF 3.00 $ 51,918
Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree) 584 EA 250.00 $ 146, 000 TOTAL - 32 EXTERIOR IMPROVEMENTS $ 1,277,439
Prepared by: OCMI Sheet 36 of 76
CVB Sweetwater Park
LANDSCAPE PLANTING
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 $ 2,388, 057
33 UTILITIES
NET DIRECT SITE COST $ 2,388, 057
DESIGN CONTINGENCY 2.50%$ 59,701
SUBTOTAL $ 2,447, 758
ESCALATION TO START 09/ 2022 4.31%$ 105,498
SUBTOTAL $ 2,553, 257
GENERAL CONDITIONS/ REQUIREMENTS 5.00%$ 127,663
SUBTOTAL $ 2,680, 920
CONTRACTOR OVERHEAD AND PROFIT 15.00%$ 402,138
SUBTOTAL $ 3,083, 058
INSURANCE 1.00%$ 30,831
SUBTOTAL $ 3,113, 888
BONDS: CONTRACTOR 1.00%$ 31,139
TOTAL SITE COST $ 3,145,027
SITE SUMMARY
Prepared by: OCMI Sheet 37 of 76
CVB Sweetwater Park
LANDSCAPE PLANTING
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
Softscape
Trees
15 Gal 106 EA 160. 00 $ 16,960
24" box 186 EA 600.00 $ 111, 600
Shrubs
Diegan Coastal Sage Scrub - Non- Compensatory, 1 Gal 9,136 EA 12.00 $ 109, 632 Diegan Coastal Sage Scrub - Non- Compensatory, 5 Gal 158 EA 29. 00 $ 4,582 Diegan Coastal Sage Scrub - Mitigation Area, 1 Gal 11,015 EA 12.00 $ 132, 180 Diegan Coastal Sage Scrub - Mitigation Area, 5 Gal 190 EA 29.00 $ 5,510 Disturbed Diegan Coastal Sage Scrub, 1 Gal 4,578 EA 12.00 $ 54,936 Disturbed Diegan Coastal Sage Scrub, 5 Gal 79 EA 29.00 $ 2,291 Dune Landscape, 4"pot 108 EA 7.00 $ 756
Dune Landscape, 1 Gal 1,479 EA 12.00 $ 17,748
Maritime Succulent Scrub, 1 Gal 47,825 EA 12.00 $ 573, 900 Maritime Succulent Scrub - Non- Compensatory, 1 Gal 13,628 EA 10.00 $ 136, 280 Native Meadow, 6" Pot 9,141 EA 10.00 $ 91,410
Native Meadow, 1 Gal 4,039 EA 12.00 $ 48,468
Native Grassland, 6" Pot 9,055 EA 10.00 $ 90,550
Native Grassland, 1 Gal 1,974 EA 12.00 $ 23,688
Basin & Swale Landscape, 6" Pot 589 EA 10.00 $ 5,890
Basin & Swale Landscape, 1 Gal 1,937 EA 12.00 $ 23,244
Riparian Landscape, 6"Pot 1,660 EA 10.00 $ 16,600
Riparian Landscape, 1 Gal 4,364 EA 12.00 $ 52,368
Riperian Landscape, 15 Gal 10 EA 160.00 $ 1,600
Mule Fat Scrub, 1 Gal 2,340 EA 12.00 $ 28,080
Specialty Gardens & Ornamental Park Landscape, 6" Pot 2,186 EA 10.00 $ 21,860 Specialty Gardens & Ornamental Park Landscape, 1 Gal 17,291 EA 12.00 $ 207, 492 Specialty Gardens & Ornamental Park Landscape, 5 Gal 92 EA 29.00 $ 2,668 Mulches
Gravel bed, 3" pea gravel over weed blocking fabric 164 CY 102.26 $ 16,770 Bark Mulch 3" depth 571 CY 85.50 $ 48,821
Cobble 3" depth, 1"- 3" Mexican Beach Pebble, at solar calender plaza over weed blocking fabric 0.50 CY 95.00 $ 48
Decorative Cobble 3" depth, 6"- 9" Mexican Beach Pebble, over weed blocking fabric 8.80 CY 105.00 $ 924
Landscape Cobble 3" depth, mix: 20% 6"- 9", 40% 1"- 3", 40% 3/ 4"- 1" Mexican Beach Pebble over weed blocking fabric 6-9" Cobble 35 CY 105.00 $ 3,675
1-3" Cobble 69 CY 95.00 $ 6,555
3/ 4"- 1" Cobble 69 CY 75.00 $ 5,175
Boulders
4'x4' x4' Landscape Boulder 15 EA 325.00 $ 4,875
3'x3' x3' Landscape Boulder 196 EA 200.00 $ 39,200
2'x2' x2' Landscape Boulder 172 EA 100.00 $ 17,200
1'x1' x1' Landscape Boulder 28 EA 85.00 $ 2,380
Prepared by: OCMI Sheet 38 of 76
CVB Sweetwater Park
LANDSCAPE PLANTING
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Miscellaneous
Root Barrier - 24" UB 24- 2 by DeepRoot 2,573 LF 6.00 $ 15,438 Maintenance of landscape 180 days
Specialty and ornamental Landscape 103, 366 SF 0.15 $ 15,505 Non- Mitigation Park Landscape 416, 520 SF 0.15 $ 62,478 Park Mitigation Areas 376, 934 SF 0.15 $ 56,540
5-Year Maintenance & Establishment Period
Mitigation Areas 376, 934 SF 0.30 $ 113, 080
Soil tilling 250, 000 SF 0.48 $ 119, 100
Soil Leaching ( to reduce soil salinity) 250, 000 SF 0.16 $ 40,000 Grow- Kill Cycles 250, 000 SF 0.16 $ 40,000
3 Cycles of irrigation and subsequent weed- kill/ removal) TOTAL - 32 EXTERIOR IMPROVEMENTS $ 2,388,057
Prepared by: OCMI Sheet 39 of 76
CVB Sweetwater Park
MAIN PARKING LOT
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 ($ 734, 779)
33 UTILITIES ($ 103, 489)
NET DIRECT SITE COST ($ 838, 268)
DESIGN CONTINGENCY 2.50%($ 20,957)
SUBTOTAL ($ 859, 225)
ESCALATION TO START 09/ 2022 4.31%($ 37,033)
SUBTOTAL ($ 896, 257)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 44,813)
SUBTOTAL ($ 941, 070)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 141, 161)
SUBTOTAL ($ 1,082, 231)
INSURANCE 1.00%($ 10,822)
SUBTOTAL ($ 1,093, 053)
BONDS: CONTRACTOR 1.00%($ 10,931)
TOTAL SITE COST ($ 1,103,984)
SITE SUMMARY
Prepared by: OCMI Sheet 40 of 76
CVB Sweetwater Park
MAIN PARKING LOT
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
Pedestrian Concrete paving, 4" nat gray ( 803) SF 6.10 ($ 4,899) Scarify & Compact Top 6"( 803) SF 0.73 ($ 586)
Vehicular Concrete paving, 7.5" nat gray ( 775) SF 9.03 ($ 7,000) Scarify & Compact Top 6"( 775) SF 0.73 ($ 566)
Dune Concrete paving, 7.5" vehicular, light blue ( 131) SF 22. 03 ($ 2,886) Scarify & Compact Top 6"( 131) SF 0.73 ($ 96)
Construction joints ( 398) LF 1.04 ($ 414)
Expansion joints ( 130) LF 0.81 ($ 105)
Asphaltic concrete paving, 3" heavy duty ( 20,258) SF 2.22 ($ 44,973) Base, 8.5"( 20,258) SF 3.66 ($ 74,144)
Scarify & Compact Top 12"( 20,258) SF 0.73 ($ 14,788)
Asphaltic concrete paving, 4" heavy duty ( 18,259) SF 5.00 ($ 91,295) Recycled base 13.5"( 18,259) SF 5.02 ($ 91,660)
Scarify & Compact Top 12"( 18,259) SF 0.73 ($ 13,329)
Curb ( 2,956) LF 16.36 ($ 48,366)
Curb ramp concrete ( 390) SF 12.25 ($ 4,779)
Cross gutter ( 75) LF 29.47 ($ 2,210)
Concrete mow strip ( 132) LF 9.20 ($ 1,214)
Driveway Apron ( 180) SF 8.10 ($ 1,458)
Paving specialties
Striped parking stall ( 76) EA 18.73 ($ 1,424)
ADA symbol, painted ( 8) EA 100.48 ($ 804)
Pole mounted sign ( 8) EA 312.74 ($ 2,502)
Cross hatching ( 373) SF 1.21 ($ 451)
Truncated dome, plastic ( 176) SF 29.49 ($ 5,190)
Wheel Stops, concrete ( 8) EA 85.65 ($ 685)
Miscellaneous
Stabilized Decomposed Granite, 6"( 32,151) SF 5.42 ($ 174, 258) over aggregate base, 9-1/ 2"
Scarify & compact soil base top 12", 95% compacted ( 32,151) SF 0.73 ($ 23,470) Trash enclosure
Concrete paving slab top cast finish 7.5"thick ( 116) SF 12.94 ($ 1,500) Sub- base course 4"( 2) CY 85.84 ($ 184)
Scarify & Compact Top 6"( 116) SF 0.73 ($ 85)
Concrete curb ( 25) LF 17.87 ($ 447)
Thickened edge ( 1) CY 279.50 ($ 280)
Structural steel ( 1) TON 5,206. 18 ($ 5,206)
Metal gate, double 18'wide ( 1) PR 3,003. 52 ($ 3,004)
CMU, split faced filled and reinforced 8"( 249) SF 74.61 ($ 18,579) Continuous footings ( 5) CY 778.90 ($ 3,895)
Spread footing, assembly ( 1) CY 638.55 ($ 639)
Corrugated metal roof ( 183) SF 17.07 ($ 3,124)
Concrete filled, steel bollard ( low)( 2) EA 785.18 ($ 1,570) Prepared by: OCMI Sheet 41 of 76
CVB Sweetwater Park
MAIN PARKING LOT
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Softscape
Trees
24" box ( 31) EA 600. 00 ($ 18,600)
Specialty Gardens & Ornamental Park Landscape, 6" Pot ( 143) EA 10.00 ($ 1,430) Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 319) EA 12. 00 ($ 3,828) Miscellaneous
Gravel bed, 3" pea gravel over weed blocking fabric ( 69) CY 102. 26 ($ 7,056) Root Barrier - 24" UB 24-2 by DeepRoot ( 1,295) LF 6.00 ($ 7,770) Irrigation
Sub- Surface Drip Irrigation ( 7,407) SF 3.00 ($ 22,221) Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree)( 62) EA 250.00 ($ 15,500) Furnishings
Safety Bollard ( 2) EA 685.56 ($ 1,371)
Litter Receptacles ( 2) EA 2,000. 00 ($ 4,000)
Parking rules and regulation Pole mounted sign ( 3) EA 312.74 ($ 938) TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 734,779)
33 UTILITIES
Lighting
Lighting Fixtures, exterior LED, pole mounted
Ouro Arm Mount ( Double)( 3) EA 2,850. 00 ($ 8,550)
Ouro Arm Mount ( Single)( 6) EA 2,660. 00 ($ 15,960)
Ouro Post Top ( 1) EA 2,996. 00 ($ 2,996)
Conduit & Wire ( 700) LF 16.00 ($ 11,200)
Pull Boxes ( 1) EA 1,663. 20 ($ 1,663)
Future EV charging station
Equipment, by others NIC
Electrical utility trench, including excavation,( 550) LF 75.00 ($ 41,250) backfill and patch back
Ductbank
Conduits, PVC 1"( 1,000) LF 21.87 ($ 21,870)
TOTAL - 33 UTILITIES ($ 103,489)
Prepared by: OCMI Sheet 42 of 76
CVB Sweetwater Park
DG LOTS
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 ($ 251, 596)
33 UTILITIES ($ 17,255)
NET DIRECT SITE COST ($ 268, 851)
DESIGN CONTINGENCY 2.50%($ 6,721)
SUBTOTAL ($ 275, 572)
ESCALATION TO START 09/ 2022 4.31%($ 11,877)
SUBTOTAL ($ 287, 449)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 14,372)
SUBTOTAL ($ 301, 822)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 45,273)
SUBTOTAL ($ 347, 095)
INSURANCE 1.00%($ 3,471)
SUBTOTAL ($ 350, 566)
BONDS: CONTRACTOR 1.00%($ 3,506)
TOTAL SITE COST ($ 354,072)
SITE SUMMARY
Prepared by: OCMI Sheet 43 of 76
CVB Sweetwater Park
DG LOTS
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
Ancillary Decomposed Granite Parking Lots ( 2)
Hardscape
Pedestrian Concrete paving, 4" nat gray ( 1,365) SF 6.10 ($ 8,327) Base, 6"( 1,365) SF 2.51 ($ 3,426)
Scarify & Compact Top 6"( 1,365) SF 0.73 ($ 996)
Ramp, premium ( 450) SF 12. 25 ($ 5,514)
Vehicular Concrete paving, 7.5" nat gray ( 843) SF 9.03 ($ 7,614) Base, 8.5"( 843) SF 3.66 ($ 3,085)
Scarify & Compact Top 6"( 843) SF 0.73 ($ 615)
Curb ( 967) LF 16.36 ($ 15,822)
Construction joints ( 306) LF 1.04 ($ 318)
Expansion joints ( 97) LF 0.81 ($ 79)
Paving specialties
Stop/ Yield Sign ( 1) EA 322.74 ($ 323)
Striped parking stall ( 4) EA 18.73 ($ 75)
ADA symbol, painted ( 4) EA 100.48 ($ 402)
Pole mounted sign ( 4) EA 312.74 ($ 1,251)
Cross hatching ( 178) SF 1.21 ($ 215)
Truncated dome, plastic ( 54) SF 29.49 ($ 1,592)
Miscellaneous
Stabilized Decomposed Granite, 6"( 28,059) SF 5.42 ($ 152, 080) over aggregate base, 9-1/ 2"
Scarify & compact soil base top 12", 95% compacted ( 28,059) SF 0.73 ($ 20,483) Stabilized Decomposed Granite, 4"( 5,596) SF 4.52 ($ 25,294) Scarify & compact soil base top 12", ( 5,596) SF 0.73 ($ 4,085) moisture- conditioned 90%
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 251,596)
33 UTILITIES
Lighting
Lighting Fixtures, exterior LED, pole mounted
Ouro Post Top ( 2) EA 2,996. 00 ($ 5,992)
Conduit & Wire ( 600) LF 16.00 ($ 9,600)
Pull Boxes ( 1) EA 1,663. 20 ($ 1,663)
TOTAL - 33 UTILITIES ($ 17,255)
Prepared by: OCMI Sheet 44 of 76
CVB Sweetwater Park
KUMEYAAY TOOL MAKING PLAZA
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 ($ 24,759)
33 UTILITIES
NET DIRECT SITE COST ($ 24,759)
DESIGN CONTINGENCY 2.50%($ 619)
SUBTOTAL ($ 25,378)
ESCALATION TO START 09/ 2022 4.31%($ 1,094)
SUBTOTAL ($ 26,472)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 1,324)
SUBTOTAL ($ 27,795)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 4,169)
SUBTOTAL ($ 31,965)
INSURANCE 1.00%($ 320)
SUBTOTAL ($ 32,284)
BONDS: CONTRACTOR 1.00%($ 323)
TOTAL SITE COST ($ 32,607)
SITE SUMMARY
Prepared by: OCMI Sheet 45 of 76
CVB Sweetwater Park
KUMEYAAY TOOL MAKING PLAZA
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
Pedestrian Concrete paving, 4" nat gray ( 1,165) SF 6.10 ($ 7,107) Scarify & Compact Top 6"( 1,165) SF 0.73 ($ 850)
Construction joints ( 235) LF 1.04 ($ 244)
Expansion joints ( 111) LF 0.81 ($ 90)
Seat walls & Freestanding Walls
Seat wall 18" with one side graphic standard ( 25) LF 210.00 ($ 5,250) Continuous footings ( 3) CY 778.90 ($ 2,415)
Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.42) CY 639.96 ($ 269)
Softscape
Trees
15 Gal ( 1) EA 160.00 ($ 160)
Shrubs
Ornamental Park Landscape, 1 Gal ( 24) EA 12.00 ($ 288) Permanent Irrigation ( 219) SF 0.85 ($ 186)
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzlepopHeads )( up) Tree Irrigation ( 2 Bubblers Per Tree)( 2) EA 250.00 ($ 500) Boulders
3'x3' x3' Landscape Boulder ( 9) EA 200.00 ($ 1,800)
2'x2' x2' Landscape Boulder ( 9) EA 100.00 ($ 900)
1'x1' x1' Landscape Boulder ( 8) EA 85.00 ($ 680)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 24,759)
Prepared by: OCMI Sheet 46 of 76
CVB Sweetwater Park
GROWING GROUNDS
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 ($ 68, 121)
04 MASONRY
05 METALS ($ 64, 465)
06 WOOD, PLASTICS, AND COMPOSITES
07 THERMAL AND MOISTURE PROTECTION ($ 27,725)
08 OPENINGS ($ 12,840)
09 FINISHES ($ 4,210)
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 ($ 16,735)
27 COMMUNICATIONS
28 ELECTRONIC SAFETY AND SECURITY
31 EARTHWORK
32 EXTERIOR IMPROVEMENTS ($ 43,763)
33 UTILITIES
NET DIRECT BUILDING COST ($ 237, 859)
DESIGN CONTINGENCY 2.50%($ 5,946)
SUBTOTAL ($ 243, 805)
ESCALATION TO START 09/ 2022 4.31%($ 10,508)
SUBTOTAL ($ 254, 313)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 12,716)
SUBTOTAL ($ 267, 029)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 40,054)
SUBTOTAL ($ 307, 084)
INSURANCE 1.00%($ 3,071)
SUBTOTAL ($ 310, 154)
BONDS: CONTRACTOR 1.00%($ 3,102)
TOTAL BUILDING COST ($ 313,256)
BUILDING SUMMARY
Prepared by: OCMI Sheet 47 of 76
CVB Sweetwater Park
GROWING GROUNDS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
03 CONCRETE
Steel post pier footing ( 4) CY 629.96 ($ 2,520)
Matt footing, assembly ( 26) CY 638. 55 ($ 16,602)
Slab on grade
Reinforced concrete slab, 4" thick ( 534) SF 10.43 ($ 5,571) Sand base course ( 3) CY 63. 65 ($ 191)
Concrete retaining wall, reinforced ( 853) SF 50.69 ($ 43,237) TOTAL - 03 CONCRETE ($ 68,121)
05 METALS
Structural steel ( 2) TON 5,206. 18 ($ 10,412)
Galvanized premium, Allowance ( 1) TON 895.58 ($ 896)
Exposed steel finish, premium ( 1) TON 488.77 ($ 489)
Roof
Metal deck
1-1/ 2"( 630) SF 3.33 ($ 2,097)
Woven wiremesh panels ( 228) SF 68.29 ($ 15,571)
Parasoleil screen panel system ( 250) SF 140.00 ($ 35,000) TOTAL - 05 METALS ($ 64,465)
07 THERMAL AND MOISTURE PROTECTION
Roofing
Corrugated metal steel ( 630) SF 11.10 ($ 6,991)
Fascia ( 150) LF 14.33 ($ 2,149)
Growing Grounds Shade Shelter ( 413) SF 45.00 ($ 18,585) TOTAL - 07 THERMAL AND MOISTURE PROTECTION ($ 27,725)
08 OPENINGS
Exterior doors
Hollow metal including frame and hardware
Single ( 2) EA 2,091. 13 ($ 4,182)
Roll- up door
10' 0" x 8' 0" high ( 2) EA 3,061. 32 ($ 6,123)
Miscellaneous
Closer ( 2) EA 389.20 ($ 778)
Prepared by: OCMI Sheet 48 of 76
CVB Sweetwater Park
GROWING GROUNDS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Panic hardware ( 2) EA 878.68 ($ 1,757)
TOTAL - 08 OPENINGS ($ 12, 840)
09 FINISHES
Wall
Concrete, sealer ( 1,706) SF 1.58 ($ 2,700)
Floor
Concrete, sealer ( 540) SF 1.58 ($ 855)
Ceiling
Paint ( 540) SF 1.21 ($ 655)
TOTAL - 09 FINISHES ($ 4,210)
26 ELECTRICAL
Service and distribution, Growing Ground Maintenance Equipment shade Normal power
Panel board ( 1) EA 3,400. 00 ($ 3,400)
Building feeder ( 1) LS 500.00 ($ 500)
Building grounding system ( 1) LS 500.00 ($ 500)
Lighting system
Lighting control ( 1) LS 500.00 ($ 500)
Fixtures, LED Industrial strip ( 3) EA 550.00 ($ 1,650) Junction box ( 1) EA 46.17 ($ 46)
Light switch, Three way ( 2) EA 92.61 ($ 185)
Occupancy sensor ( 1) EA 197.22 ($ 197)
Conduit and wire ( 315) LF 9.61 ($ 3,027)
Convenience power
Receptacles
Duplex ( 3) EA 103.87 ($ 312)
Special receptacle ( 5) EA 337.39 ($ 1,687)
Junction box ( 1) EA 46.17 ($ 46)
Conduit and wire ( 450) LF 9.61 ($ 4,325)
Miscellaneous including seismic bracing,
identification and fire stop ( 600) SF 0.60 ($ 360)
TOTAL - 26 ELECTRICAL ($ 16,735)
32 EXTERIOR IMPROVEMENTS
Prepared by: OCMI Sheet 49 of 76
CVB Sweetwater Park
GROWING GROUNDS
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Hardscape
Vehicular Concrete paving, 7.5" nat gray ( 636) SF 9.03 ($ 5,744) Scarify & Compact Top 6"( 636) SF 0.73 ($ 464)
Construction joints ( 86) LF 1.04 ($ 89)
Expansion joints ( 43) LF 0.81 ($ 35)
Stabilized Decomposed Granite, 4"( 3,488) SF 4.52 ($ 15,766) Scarify & compact soil base top 12", ( 3,488) SF 0.73 ($ 2,546) Fences and gates
Growing ground fencing, with windscreen ( 195) LF 85.00 ($ 16,575) Fence Footing, assembly ( 2.1) CY 629.96 ($ 1,323)
Growing ground gate, double ( 1) EA 1,221. 28 ($ 1,221) TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 43,763)
Prepared by: OCMI Sheet 50 of 76
CVB Sweetwater Park
GROUP EDUCATION RING
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 ($ 4,750)
33 UTILITIES ($ 7,796)
NET DIRECT SITE COST ($ 12,546)
DESIGN CONTINGENCY 2.50%($ 314)
SUBTOTAL ($ 12,860)
ESCALATION TO START 09/ 2022 4.31%($ 554)
SUBTOTAL ($ 13,414)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 671)
SUBTOTAL ($ 14,085)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 2,113)
SUBTOTAL ($ 16,197)
INSURANCE 1.00%($ 162)
SUBTOTAL ($ 16,359)
BONDS: CONTRACTOR 1.00%($ 164)
TOTAL SITE COST ($ 16,523)
SITE SUMMARY
Prepared by: OCMI Sheet 51 of 76
CVB Sweetwater Park
GROUP EDUCATION RING
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
Dune Concrete paving, 4" pedestrian, integral color ( 1,706) SF 10. 10 $ 50,721 Scarify & Compact Top 6"( 1,706) SF 0.73 $ 3,665
Dune Concrete paving, 7.5" vehicular ( 273) SF 22. 03 ($ 6,015) Scarify & Compact Top 6"( 273) SF 0.73 ($ 199)
Construction joints ( 284) LF 1.04 ($ 295)
Expansion joints ( 153) LF 0.81 ($ 124)
Miscellaneous
Stabilized Decomposed Granite, 4"( 491) SF 4.52 ($ 2,219) Scarify & compact soil base top 12", ( 491) SF 0.73 ($ 358) moisture- conditioned 90%
Interpretive Signs & Elements ( 2) EA 4,020. 00 ($ 8,040) Sign Footing, assembly ( 0.83) CY 639.96 ($ 531)
Snake Warning Sign ( 1) EA 150.00 ($ 150)
Boulder seating ( 32) LF 250.00 ($ 8,000)
Boulders
3'x3' x3' Landscape Boulder ( 18) EA 200.00 ($ 3,600)
2'x2' x2' Landscape Boulder ( 15) EA 100.00 ($ 1,500)
1'x1' x1' Landscape Boulder ( 4) EA 85.00 ($ 340)
Stepping stone, P-38/ LC18 ( 9) EA 700.00 ($ 6,300)
Softscape
Trees
24" box ( 2) EA 600.00 ($ 1,200)
15 Gal ( 7) EA 160.00 ($ 1,120)
Shrubs
Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 480) EA 12.00 ($ 5,760) Permanent Irrigation ( 1,640) SF 0.85 ($ 1,394)
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzlepopHeads )( up) Sub- Surface Drip Irrigation ( 340) SF 3.00 ($ 1,020)
Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree)( 18) EA 250.00 ($ 4,500) Bark Mulch 3" depth ( 18) CY 85.50 ($ 1,539)
Root Barrier - 24" UB 24-2 by DeepRoot ( 82) LF 6.00 ($ 492) Boulders
3'x3' x3' Landscape Boulder ( 18) EA 200.00 ($ 3,600)
2'x2' x2' Landscape Boulder ( 5) EA 100.00 ($ 500)
1'x1' x1' Landscape Boulder ( 4) EA 85.00 ($ 340)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 4,750)
33 UTILITIES
Lighting
Prepared by: OCMI Sheet 52 of 76
CVB Sweetwater Park
GROUP EDUCATION RING
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Lighting Fixtures, exterior LED, pole mounted
Ouro Post Top ( 1) EA 2,996. 00 ($ 2,996)
Conduit & Wire ( 300) LF 16.00 ($ 4,800)
TOTAL - 33 UTILITIES ($ 7,796)
Prepared by: OCMI Sheet 53 of 76
CVB Sweetwater Park
MEADOW ARRIVAL ENTRY PLAZA
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 ($ 221, 986)
33 UTILITIES
NET DIRECT SITE COST ($ 221, 986)
DESIGN CONTINGENCY 2.50%($ 5,550)
SUBTOTAL ($ 227, 536)
ESCALATION TO START 09/ 2022 4.31%($ 9,807)
SUBTOTAL ($ 237, 342)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 11,867)
SUBTOTAL ($ 249, 210)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 37,381)
SUBTOTAL ($ 286, 591)
INSURANCE 1.00%($ 2,866)
SUBTOTAL ($ 289, 457)
BONDS: CONTRACTOR 1.00%($ 2,895)
TOTAL SITE COST ($ 292,351)
SITE SUMMARY
Prepared by: OCMI Sheet 54 of 76
CVB Sweetwater Park
MEADOW ARRIVAL ENTRY PLAZA
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
Dune Concrete paving, 4" pedestrian, integral color ( 940) SF 10.10 ($ 9,496) Scarify & Compact Top 6"( 940) SF 0.73 ($ 686)
Kailua Concrete paving, 4", integral color ( 823) SF 18.10 ($ 14,897) Scarify & Compact Top 6"( 823) SF 0.73 ($ 601)
Concrete paving, 4", seeded aggregate ( 362) SF 9.62 ($ 3,482) Scarify & Compact Top 6"( 362) SF 0.73 ($ 264)
Construction joints ( 629) LF 1.04 ($ 654)
Expansion joints ( 429) LF 0.81 ($ 347)
Stabilized Decomposed Granite, 4"( 95) SF 4.52 ($ 429)
Scarify & compact soil base top 12", ( 95) SF 0.73 ($ 69) moisture- conditioned 90%
Seat walls & Freestanding Walls
Seat wall 24" with one side graphic ( 73) LF 250.00 ($ 18,250) Continuous footings ( 9) CY 778.90 ($ 7,010)
Meadow Arrival Plaza Shade Shelters ( 775) SF 160.00 ($ 124, 000) Footing, assembly ( 17) CY 629.96 ($ 10,709)
Boulders
3'x3' x3' Landscape Boulder ( 22) EA 200.00 ($ 4,400)
2'x2' x2' Landscape Boulder ( 24) EA 100.00 ($ 2,400)
1'x1' x1' Landscape Boulder ( 2) EA 85.00 ($ 170)
Primary regulatory sign ( 1) EA 312.74 ($ 313)
Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.42) CY 639.96 ($ 269)
Litter Receptacles ( 2) EA 2,000. 00 ($ 4,000)
Softscape
Trees
15 Gal ( 2) EA 160.00 ($ 320)
24" box ( 2) EA 600.00 ($ 1,200)
Shrubs
Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 190) EA 12.00 ($ 2,280) Sub- Surface Drip Irrigation ( 416) SF 3.00 ($ 1,248)
Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree)( 8) EA 250.00 ($ 2,000) Miscellaneous
Bark Mulch 3" depth ( 4) CY 85.50 ($ 342)
Root Barrier - 24" UB 24-2 by DeepRoot ( 160) LF 6.00 ($ 960) Boulders
3'x3' x3' Landscape Boulder ( 23) EA 200.00 ($ 4,600)
2'x2' x2' Landscape Boulder ( 24) EA 100.00 ($ 2,400)
1'x1' x1' Landscape Boulder ( 2) EA 85.00 ($ 170)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 221,986)
Prepared by: OCMI Sheet 55 of 76
CVB Sweetwater Park
TIMELINE PLAZA
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 ($ 205, 743)
33 UTILITIES
NET DIRECT SITE COST ($ 205, 743)
DESIGN CONTINGENCY 2.50%($ 5,144)
SUBTOTAL ($ 210, 887)
ESCALATION TO START 09/ 2022 4.31%($ 9,089)
SUBTOTAL ($ 219, 976)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 10,999)
SUBTOTAL ($ 230, 975)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 34,646)
SUBTOTAL ($ 265, 621)
INSURANCE 1.00%($ 2,656)
SUBTOTAL ($ 268, 277)
BONDS: CONTRACTOR 1.00%($ 2,683)
TOTAL SITE COST ($ 270,960)
SITE SUMMARY
Prepared by: OCMI Sheet 56 of 76
CVB Sweetwater Park
TIMELINE PLAZA
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
Kailua Concrete paving, 4", integral color ( 682) SF 18. 10 ($ 12,345) Scarify & Compact Top 6"( 682) SF 0.73 ($ 498)
Dune Concrete paving, 4" pedestrian, integral color ( 1,246) SF 10. 10 ($ 12,587) Scarify & Compact Top 6"( 1,246) SF 0.73 ($ 910)
Concrete paving, 4", seeded aggregate ( 619) SF 9.62 ($ 5,954) Scarify & Compact Top 6"( 619) SF 0.73 ($ 452)
Construction joints ( 479) LF 1.04 ($ 498)
Expansion joints ( 256) LF 0.81 ($ 207)
Medallion etched logo ( 10.6) SF 125.00 ($ 1,325)
Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.60) CY 639.96 ($ 384)
P10 Park Trail Map Sign ( 1) EA 312.74 ($ 313)
R6 Bayshore Bikeway Loop Sign ( 1) EA 312.74 ($ 313)
Fragment wall at Timeline plaza
Dry stack rubble stone masonry wall ( 584) SF 18.00 ($ 10,512) Column Footing, assembly ( 4) CY 629.96 ($ 2,520)
Compacted subgrade ( 219) SF 0.73 ($ 160)
12" Steel lettering 3/ 8"thk.( 70) EA 1,000. 00 ($ 70,000) Lettering tube pipe support, Allowance ( 1) LS 10,000. 00 ($ 10,000) Softscape
Specialty Gardens & Ornamental Park Landscape, 6" Pot ( 5,641) EA 10.00 ($ 56,410) Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 189) EA 12.00 ($ 2,268) Sub- Surface Drip Irrigation ( 4,689) SF 3.00 ($ 14,067) Sub- Surface In-Line Drip Emitter Tubing)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 205,743)
Prepared by: OCMI Sheet 57 of 76
CVB Sweetwater Park
SOLAR CALENDAR PLAZA
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 ($ 77,904)
33 UTILITIES
NET DIRECT SITE COST ($ 77,904)
DESIGN CONTINGENCY 2.50%($ 1,948)
SUBTOTAL ($ 79,852)
ESCALATION TO START 09/ 2022 4.31%($ 3,442)
SUBTOTAL ($ 83,293)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 4,165)
SUBTOTAL ($ 87,458)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 13,119)
SUBTOTAL ($ 100, 577)
INSURANCE 1.00%($ 1,006)
SUBTOTAL ($ 101, 582)
BONDS: CONTRACTOR 1.00%($ 1,016)
TOTAL SITE COST ($ 102,598)
SITE SUMMARY
Prepared by: OCMI Sheet 58 of 76
CVB Sweetwater Park
SOLAR CALENDAR PLAZA
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
Dune Concrete paving, 4", pedes., int. color as lithocrete ( 2,091) SF 20. 10 ($ 42,030) Scarify & Compact Top 6"( 2,091) SF 0.73 ($ 1,526)
Kailua Concrete paving, 4", integral color as lithocrete ( 484) SF 18. 10 ($ 8,761) Scarify & Compact Top 6"( 484) SF 0.73 ($ 353)
Construction joints ( 568) LF 1.04 ($ 591)
Expansion joints ( 154) LF 0.81 ($ 125)
Metal banding in concrete at Restroom ( 263) LF 9.76 ($ 2,567) 4" tall etched lettering in concrete ( 208) EA 50.00 ($ 10,400) Seat walls & Freestanding Walls
Seat wall 18" special ( 27) LF 200.00 ($ 5,400)
Continuous footings ( 2.70) CY 778.90 ($ 2,103)
Miscellaneous
Cobble 3" depth, 1"- 3" Mexican Beach Pebble, at solar calender plaza over weed blocking fabric ( 0.50) CY 95.00 ($ 48)
Litter Receptacles ( 2) EA 2,000. 00 ($ 4,000)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 77,904)
Prepared by: OCMI Sheet 59 of 76
CVB Sweetwater Park
MAP PLAZA
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 ($ 43,302)
33 UTILITIES
NET DIRECT SITE COST ($ 43,302)
DESIGN CONTINGENCY 2.50%($ 1,083)
SUBTOTAL ($ 44,385)
ESCALATION TO START 09/ 2022 4.31%($ 1,913)
SUBTOTAL ($ 46,298)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 2,315)
SUBTOTAL ($ 48,612)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 7,292)
SUBTOTAL ($ 55,904)
INSURANCE 1.00%($ 559)
SUBTOTAL ($ 56,463)
BONDS: CONTRACTOR 1.00%($ 565)
TOTAL SITE COST ($ 57,028)
SITE SUMMARY
Prepared by: OCMI Sheet 60 of 76
CVB Sweetwater Park
MAP PLAZA
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
Dune Concrete paving, 4" pedestrian, integral color ( 707) SF 10. 10 ($ 7,142) Scarify & Compact Top 6"( 707) SF 0.73 ($ 516)
Construction joints ( 238) LF 1.04 ($ 248)
Expansion joints ( 83) LF 0.81 ($ 67)
Bench ( With Back & Center Armrest)( 2) EA 1,500. 00 ($ 3,000) Map plaza lithochromatic chemstain ( 300) SF 6.00 ($ 1,800) Map Plaza - bronze lettering ( 97) EA 75.00 ($ 7,275)
Solar plinth ( 4) EA 3,200. 00 ($ 12,800)
Solar plinth footings ( 3) CY 629.96 ($ 1,890)
Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.42) CY 639.96 ($ 269)
Boulders
4'x4' x4' Landscape Boulder ( 7) EA 325.00 ($ 2,275)
3'x3' x3' Landscape Boulder ( 10) EA 200.00 ($ 2,000)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 43,302)
Prepared by: OCMI Sheet 61 of 76
CVB Sweetwater Park
NATURE PLAYGROUND
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 ($ 782, 475)
33 UTILITIES
NET DIRECT SITE COST ($ 782, 475)
DESIGN CONTINGENCY 2.50%($ 19,562)
SUBTOTAL ($ 802, 037)
ESCALATION TO START 09/ 2022 4.31%($ 34,568)
SUBTOTAL ($ 836, 605)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 41,830)
SUBTOTAL ($ 878, 435)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 131, 765)
SUBTOTAL ($ 1,010, 200)
INSURANCE 1.00%($ 10,102)
SUBTOTAL ($ 1,020, 302)
BONDS: CONTRACTOR 1.00%($ 10,203)
TOTAL SITE COST ($ 1,030,505)
SITE SUMMARY
Prepared by: OCMI Sheet 62 of 76
CVB Sweetwater Park
NATURE PLAYGROUND
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
Pedestrian Concrete paving, 4" nat gray ( 870) SF 6.10 ($ 5,307) Scarify & Compact Top 6"( 870) SF 0.73 ($ 635)
Construction joints ( 122) LF 1.04 ($ 127)
Expansion joints ( 52) LF 0.81 ($ 42)
Concrete Curb at Playground 12"( 641) LF 30. 87 ($ 19,788) PIP Rubberized Surfacing with aliphatic binder ( 12,818) SF 13.02 ($ 166, 890) Over pedestrian thickness natural gray concrete ( 12,818) SF 6.18 ($ 79,246) Base, 6"( 12,818) SF 2.51 ($ 32,173)
Area Drains beneath PIP, slope PIP concrete ( 1) LS 6,000. 00 ($ 6,000) Thickened edge ( 3.33) CY 279.50 ($ 931)
Seat walls & Freestanding Walls
Seat wall 18" with one side graphic ( 70) LF 210.00 ($ 14,700) Continuous footings ( 8.2) CY 778.90 ($ 6,387)
Interpretive Signs & Elements ( 1) EA 4,020. 00 ($ 4,020) Sign Footing, assembly ( 0.42) CY 639.96 ($ 269)
Playground Rules Sign ( 1) EA 312.74 ($ 313)
Fences and gates
Playground planting fencing ( rope and post )( 839) LF 15.00 ($ 12,585) Softscape
Trees
24" box ( 6) EA 600.00 ($ 3,600)
15 Gal ( 3) EA 160.00 ($ 480)
Shrubs
Specialty Gardens & Ornamental Park Landscape, 6" Pot ( 162) EA 10.00 ($ 1,620) Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 159) EA 12.00 ($ 1,908) Irrigation
Permanent Irrigation ( 1,119) SF 0.85 ($ 951)
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzlepopHeads )( up) Sub- Surface Drip Irrigation ( 1,172) SF 3.00 ($ 3,516) Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree)( 18) EA 250.00 ($ 4,500) Miscellaneous
Root Barrier - 24" UB 24-2 by DeepRoot ( 338) LF 6.00 ($ 2,028) Nature Playground equipment
Playbooster 2-5 yrs
Ramp Deck Extension DB, 16" Dk ( 2) EA 805.00 ($ 1,610) Mushroom Stepper 40" Deck ( 1) EA 5,490. 00 ($ 5,490)
w/ 2 Recycled Wood- Grain Handholds
Kick Plate 8"Rise ( 1) EA 130.00 ($ 130)
Square Deck Extension ( 1) EA 1,085. 00 ($ 1,085)
Square Tenderdeck ( 1) EA 1,135. 00 ($ 1,135)
Prepared by: OCMI Sheet 63 of 76
CVB Sweetwater Park
NATURE PLAYGROUND
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Tree Stump Transfer Module, 2-5yrs 48" Dk (DB Only)( 1) EA 8,115. 00 ($ 8,115) Triangular Tenderdeck ( 1) EA 875. 00 ($ 875)
DigiFuse Barrier Panel, Above Dec ( 1) EA 1,435. 00 ($ 1,435) Marble Panel Above Deck ( 1) EA 2,590. 00 ($ 2,590)
Recycled Wood- Grain Lumber Panel ( 1) EA 1,365. 00 ($ 1,365) Storefront Panel ( 1) EA 690. 00 ($ 690)
116" Alum Post DB ( 3) EA 340.00 ($ 1,020)
124" Alum Post DB ( 3) EA 395. 00 ($ 1,185)
233" Steel Post, For CoolTopper Single Post Pyramid Roof ( 1) EA 1,015. 00 ($ 1,015) 84" Alum Post DB ( 4) EA 300.00 ($ 1,200)
CoolToppers Single Post Pyramid Roof DB Only ( 1) EA 3,650. 00 ($ 3,650) Double Slide 40" Dk DB ( 2) EA 2,280. 00 ($ 4,560)
Rollerslide 56" Dk DB ( 1) EA 10,495. 00 ($ 10,495)
Single Slide 48" Dk DB ( 1) EA 1,730. 00 ($ 1,730)
Freestanding play 2-5 yrs
Set of 30 TRI- HANDHOLD HANDGRIPS ( 1) EA 1,900. 00 ($ 1,900) Upcharge CUSTOM DIGIFUSE® PANEL ( 1) EA 615.00 ($ 615)
OmniSpin Spinner Surface Mount1 ( 1) EA 9,040. 00 ($ 9,040) We-saw DB Only1 ( 1) EA 11,730. 00 ($ 11,730)
Cozy Dome DB ( 1) EA 4,895. 00 ($ 4,895)
Log Crawl Tunnel DB Only1 ( 1) EA 7,020. 00 ($ 7,020)
Welcome Sign ( LSI Provided) Ages 2-5 years Direct Bury NIC Playbooster 5-12 yrs
Clatterbridge 123 w/ Barriers ( 1) EA 7,450. 00 ($ 7,450) SwiggleKnots Bridge, w/ o Deck Connections DB Only ( 1) EA 6,775. 00 ($ 6,775) The Ascent Rock1 ( 1) EA 6,740. 00 ($ 6,740)
The Bend Rock1 ( 1) EA 8,840. 00 ($ 8,840)
The Den Rock1 ( 1) EA 8,840. 00 ($ 8,840)
GeoPlex Climber 72" Dk ( 1) EA 1,795. 00 ($ 1,795)
GeoPlex Ground- To-Deck Double Climber 72" Dk Alum DB ( 1) EA 4,435. 00 ($ 4,435) Deck Link w/ Barriers Steel end panels 2 Steps ( 2) EA 4,530. 00 ($ 9,060) DTR PB 7-Post Netplex w/ RPL Wood- Grain Accent Panels ( 1) EA 15,125. 00 ($ 15,125) Hexagon Tenderdeck ( 1) EA 3,245. 00 ($ 3,245)
Square Tenderdeck ( 2) EA 1,135. 00 ($ 2,270)
Tree Stump Transfer Module 48" Dk (DB Only)( 1) EA 8,115. 00 ($ 8,115) Triangular Tenderdeck ( 1) EA 875.00 ($ 875)
DigiFuse Barrier Panel w/ Medallions Above Deck ( 1) EA 2,115. 00 ($ 2,115) Animal Tracks Medallion Set
DigiFuse Barrier Panel Above Deck ( 1) EA 1,435. 00 ($ 1,435) Custom Artwork/ Requires CP
Disc Net Climber for 7-Post Mainstructure ( 1) EA 24,800. 00 ($ 24,800) Blender Spinner DB1 ( 1) EA 2,760. 00 ($ 2,760)
E-Pod Seat ( 1) EA 340.00 ($ 340)
132" Alum Post DB ( 5) EA 410.00 ($ 2,050)
148" Alum Post DB ( 4) EA 435.00 ($ 1,740)
148" Steel Post DB ( 7) EA 395.00 ($ 2,765)
265" Steel Post , For CoolTopper Single Post Pyramid Roof ( 2) EA 1,090. 00 ($ 2,180) Prepared by: OCMI Sheet 64 of 76
CVB Sweetwater Park
NATURE PLAYGROUND
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
CoolToppers Single Post Pyramid Roof DB Only1 ( 2) EA 3,650. 00 ($ 7,300) Alpine Slide 72" Deck DB1 ( 1) EA 4,260. 00 ($ 4,260)
Freestanding play 5-12 yrs
Log Stepper 8" Height DB Only ( 1) EA 785. 00 ($ 785)
DTR IND Recycled Board Oak Leaf Wobble Pod DB ( 1) EA 3,685. 00 ($ 3,685) Upcharge CUSTOM DIGIFUSE® PANEL ART ( 1) EA 615. 00 ($ 615) Welcome Sign ( LSI Provided) Ages 5-12 years Direct Bury NIC Oodle Swing DB Only1 ( 1) EA 6,055. 00 ($ 6,055)
Boulders
Playground Boulder 1'( 9) EA 85.00 ($ 765)
Playground Boulder 2'( 9) EA 100.00 ($ 900)
Standard swing set ( 1) EA 7,750. 00 ($ 7,750)
Shell seat swing ( 1) EA 6,340. 00 ($ 6,340)
Supernova ( 1) EA 7,827. 82 ($ 7,828)
Zip line (sloped)( 1) EA 16,696. 68 ($ 16,697)
Shipping ( 1) LS 42,946. 20 ($ 42,946)
Installation ( 1) LS 100, 207.80 ($ 100, 208)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 782,475)
Prepared by: OCMI Sheet 65 of 76
CVB Sweetwater Park
ADVENTURE PLAYGROUND
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 ($ 249, 519)
33 UTILITIES
NET DIRECT SITE COST ($ 249, 519)
DESIGN CONTINGENCY 2.50%($ 6,238)
SUBTOTAL ($ 255, 757)
ESCALATION TO START 09/ 2022 4.31%($ 11,023)
SUBTOTAL ($ 266, 780)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 13,339)
SUBTOTAL ($ 280, 119)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 42,018)
SUBTOTAL ($ 322, 137)
INSURANCE 1.00%($ 3,221)
SUBTOTAL ($ 325, 358)
BONDS: CONTRACTOR 1.00%($ 3,254)
TOTAL SITE COST ($ 328,612)
SITE SUMMARY
Prepared by: OCMI Sheet 66 of 76
CVB Sweetwater Park
ADVENTURE PLAYGROUND
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
Seat walls & Freestanding Walls
Seat wall 18" with one side graphic ( 15) LF 210.00 ($ 3,150) Continuous footings ( 1.75) CY 778. 90 ($ 1,363)
PIP Rubberized Surfacing with aliphatic binder ( 530) SF 13.02 ($ 6,901) Over pedestrian thickness natural gray concrete ( 530) SF 6.18 ($ 3,277) Scarify & Compact Top 12"( 530) SF 0.73 ($ 387)
Area Drains beneath PIP, slope PIP concrete ( 1) LS 4,000. 00 ($ 4,000) PIP Rubberized Surfacing Taper ( 82) LF 10.00 ($ 820)
Concrete thickened edge at Playground ( 0.88) CY 279.50 ($ 246) Fences and gates
Playground planting fencing ( rope and post )( 217) LF 15.00 ($ 3,255) Miscellaneous
Sand Surfacing ( playground) 4" depth ( 11.5) CY 136.53 ($ 1,570) Sand Surfacing ( playground) 12" depth ( 137.2) CY 136.53 ($ 18,732) 95% Compacted subgrade 12"( 4,636) SF 0.73 ($ 3,384)
Filter fabric ( 4,636) SF 1.00 ($ 4,636)
Perforated drain, bedding and filter fabric ( 126) LF 34.64 ($ 4,364) Adventure Playground ( Logs, boulders, ropes and nets)
Fossil dig ( 3) EA 3,369. 00 ($ 10,107)
Log pile 3.2 ( 1) EA 22,100. 00 ($ 22,100)
Log pile 4.1 ( 1) EA 20,150. 00 ($ 20,150)
Log stepper
150 - 6" tall ( 10) EA 1,400. 00 ($ 14,000)
300 - 12" tall ( 14) EA 1,550. 00 ($ 21,700)
450 - 18" tall ( 13) EA 1,700. 00 ($ 22,100)
600 - 24" tall ( 3) EA 1,900. 00 ($ 5,700)
Robinia sand desk ( 1) EA 5,170. 00 ($ 5,170)
Playground Boulder 4'( 1) EA 325.00 ($ 325)
Playground Boulder 3'( 6) EA 200.00 ($ 1,200)
Playground Boulder 2'( 8) EA 100.00 ($ 800)
Shipping ( 1) LS 18,502. 80 ($ 18,503)
Installation ( 1) LS 43,173. 20 ($ 43,173)
Softscape
Trees
24" box ( 3) EA 600.00 ($ 1,800)
Shrubs
Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 205) EA 12.00 ($ 2,460) Sub- Surface Drip Irrigation ( 722) SF 3.00 ($ 2,166)
Sub- Surface In-Line Drip Emitter Tubing)
Tree Irrigation ( 2 Bubblers Per Tree)( 6) EA 250.00 ($ 1,500) Prepared by: OCMI Sheet 67 of 76
CVB Sweetwater Park
ADVENTURE PLAYGROUND
Chula Vista, CA
60% CONSTRUCTION DOCUMENT COST ESTIMATE OCMI JOB #: 19041. 001 | 25 January 2022
DESCRIPTION QUANTITY UNIT UNIT RATE ESTIMATED COST
Root Barrier - 24" UB 24-2 by DeepRoot ( 80) LF 6.00 ($ 480) TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 249, 519)
Prepared by: OCMI Sheet 68 of 76
CVB Sweetwater Park
WILDLIFE BLINDS
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 ($ 81,807)
33 UTILITIES
NET DIRECT SITE COST ($ 81,807)
DESIGN CONTINGENCY 2.50%($ 2,045)
SUBTOTAL ($ 83,852)
ESCALATION TO START 09/ 2022 4.31%($ 3,614)
SUBTOTAL ($ 87,466)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 4,373)
SUBTOTAL ($ 91,840)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 13,776)
SUBTOTAL ($ 105, 615)
INSURANCE 1.00%($ 1,056)
SUBTOTAL ($ 106, 672)
BONDS: CONTRACTOR 1.00%($ 1,067)
TOTAL SITE COST ($ 107,738)
SITE SUMMARY
Prepared by: OCMI Sheet 69 of 76
CVB Sweetwater Park
WILDLIFE BLINDS
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"( 3,271) SF 4.52 ($ 14,785) Scarify & compact soil base top 12", ( 3,271) SF 0.73 ($ 2,388) moisture- conditioned 90%
Wildlife Blind ( 408) SF 65.00 ($ 26,520)
Approximately 6'x35' laser cut galvanized steel screen) Continuous footings ( 9) CY 778.90 ($ 7,010)
Composite Bench ( 2) EA 2,500. 00 ($ 5,000)
Fences and gates
Mitigation Area fencing, 4x4 square pressure treated posts ( 690) LF 15.41 ($ 10,633) Wood Posts At 6' O.C. With Stainless Steel Cable)
Interpretive Signs & Elements ( 2) EA 4,020. 00 ($ 8,040) Sign Footing, assembly ( 0.83) CY 639.96 ($ 531)
Softscape
Trees
15 Gal ( 10) EA 160.00 ($ 1,600)
Tree Irrigation ( 2 Bubblers Per Tree)( 20) EA 250.00 ($ 5,000) Boulders
3'x3' x3' Landscape Boulder ( 1) EA 200.00 ($ 200)
2'x2' x2' Landscape Boulder ( 1) EA 100.00 ($ 100)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 81,807)
Prepared by: OCMI Sheet 70 of 76
CVB Sweetwater Park
BOARDWALK
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 ($ 119, 336)
33 UTILITIES
NET DIRECT SITE COST ($ 119, 336)
DESIGN CONTINGENCY 2.50%($ 2,983)
SUBTOTAL ($ 122, 319)
ESCALATION TO START 09/ 2022 4.31%($ 5,272)
SUBTOTAL ($ 127, 591)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 6,380)
SUBTOTAL ($ 133, 971)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 20,096)
SUBTOTAL ($ 154, 067)
INSURANCE 1.00%($ 1,541)
SUBTOTAL ($ 155, 607)
BONDS: CONTRACTOR 1.00%($ 1,556)
TOTAL SITE COST ($ 157,163)
SITE SUMMARY
Prepared by: OCMI Sheet 71 of 76
CVB Sweetwater Park
BOARDWALK
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
Boardwalk ( 1,631) SF 70.00 ($ 114, 170)
Footing, assembly ( 8.20) CY 629. 96 ($ 5,166)
TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 119,336)
Prepared by: OCMI Sheet 72 of 76
CVB Sweetwater Park
SPECIALTY GARDENS
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 ($ 92,419)
33 UTILITIES
NET DIRECT SITE COST ($ 92,419)
DESIGN CONTINGENCY 2.50%($ 2,310)
SUBTOTAL ($ 94,729)
ESCALATION TO START 09/ 2022 4.31%($ 4,083)
SUBTOTAL ($ 98,812)
GENERAL CONDITIONS/ REQUIREMENTS 5.00%($ 4,941)
SUBTOTAL ($ 103, 753)
CONTRACTOR OVERHEAD AND PROFIT 15.00%($ 15,563)
SUBTOTAL ($ 119, 316)
INSURANCE 1.00%($ 1,193)
SUBTOTAL ($ 120, 509)
BONDS: CONTRACTOR 1.00%($ 1,205)
TOTAL SITE COST ($ 121,714)
SITE SUMMARY
Prepared by: OCMI Sheet 73 of 76
CVB Sweetwater Park
SPECIALTY GARDENS
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
Miscellaneous
Decorative Cobble 3" depth, 6"- 9" Mexican Beach Pebble, over weed blocking fabric ( 9) CY 105.00 ($ 945)
Stabilized Decomposed Granite, 4"( 2,494) SF 4.52 ($ 11,273) Scarify & compact soil base top 12", ( 2,494) SF 0.73 ($ 1,821) moisture- conditioned 90%
Interpretive Signs & Elements ( 2) EA 4,020. 00 ($ 8,040) Sign Footing, assembly ( 0.83) CY 639.96 ($ 531)
Boulders
4'x4' x4' Landscape Boulder ( 2) EA 325.00 ($ 650)
3'x3' x3' Landscape Boulder ( 12) EA 200.00 ($ 2,400)
2'x2' x2' Landscape Boulder ( 12) EA 100.00 ($ 1,200)
1'x1' x1' Landscape Boulder ( 1) EA 85.00 ($ 85)
Softscape
Trees
24" box ( 6) EA 600.00 ($ 3,600)
15 Gal ( 2) EA 160.00 ($ 320)
Shrubs
Specialty Gardens & Ornamental Park Landscape, 1 Gal ( 2,254) EA 12.00 ($ 27,048) Specialty Gardens & Ornamental Park Landscape, 5 Gal ( 61) EA 29.00 ($ 1,769) Maritime Succulent Scrub, 1 Gal ( 1,258) EA 12.00 ($ 15,096) Irrigation
Permanent Irrigation ( 0) SF 1.00
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzleHead) Heads )( Permanent Irrigation ( 16,048) SF 0.85 ($ 13,641)
Below BelowGrade GradePipe & Pipe, 12" HighPop- Efficiency up Rotating RotaryStream NozzlepopHeads )( up) Tree Irrigation ( 2 Bubblers Per Tree)( 16) EA 250.00 ($ 4,000) TOTAL - 32 EXTERIOR IMPROVEMENTS ($ 92,419)
Prepared by: OCMI Sheet 74 of 76
CVB Sweetwater Park