Agmt10 R.C. Peninsula Park, LLC (2)

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Section 4.11. Relationship to Public Works; Bidding Requirements. The following shall apply to all contracts applicable to the Facilities and any Discrete Components thereof acquired with funds withdrawn from the Improvement Fund: A. General. This Acquisition Agreement is for the acquisition by the City of the Facilities and payment for Discrete Components thereof listed in Exhibit A and B hereto from moneys in the Improvement Fund and is not intended to be a public works contract. The City and the Developer agree that the Facilities are of local, and not state- wide concern, and that the provisions of the California Public Contract Code shall not apply to the construction of the Facilities. The City and the Developer agree that the Developer shall solely award all contracts for the construction of the Facilities and the Discrete Components thereof listed in Exhibit B hereto and that this Acquisition Agreement is necessary to assure the timely and satisfactory completion of the Facilities and that compliance with the Public Contract Code with respect to the Facilities would work an incongruity and would not produce an advantage to the City or the CFD. (Please explain the meaning of this paragraph) B. Bidding Procedures. Notwithstanding the foregoing, the Developer shall award all contracts for construction of the Facilities and any Discrete Components thereof, and materials related thereto, by means of a bid process consistent with this Section 4.11(B) or otherwise acceptable to the City Engineer and the Developer, in each case consistent with applicable City regulations and any applicable State law. The Developer shall establish a list of written criteria acceptable to the City Engineer (including experience, ability to perform on schedule and financial ability) to determine qualified contractors for any contract. Such contractors shall comply with any applicable City regulations. Formal bids shall be requested from those entities on the list of qualified contractors. The Developer shall prepare bid packages, including engineering reports and estimates, for each of the Facilities (or any specific Discrete Components thereof to be separately bid). If the Developer would like the option to proceed under the provisions of Section 4.10(C) below, the bid documents shall expressly disclose the rights of the Developer to elect to perform or have its agent perform the work with a specific reference to Section 53329.5 of the Act. Bid packages shall be provided to at least three qualified bidders, unless Developer and the City Engineer reasonably determine that three such bidders are not available. A list of qualified bidders and copies of each bid package shall be provided to the City Engineer prior to their submission to the qualified bidders. The Developer may prequalify bidders, subject to the prior written approval by the City Engineer of the prequalification procedures. The Developer shall, subject to the provisions of Section 4.10(C) below, award the applicable contract to the lowest responsible bidder. Upon written request of the City Engineer, the Developer shall provide an analysis of bids for construction and materials for the Facilities or applicable Discrete Components, indicating how the winning bid was determined. -11-