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HomeMy WebLinkAbout07 EXCLUSIVE NEGOTIATION AGREEMENT WITH SCHOOLSFIRST FEDERAL CREDIT UNIONAgenda Item 7 Reviewed: AGENDA REPORT City Manager Finance Director I� MEETING DATE: FEBRUARY 21, 2017 TO: JEFFREY C. PARKER, CITY MANAGER FROM: ECONOMIC DEVELOPMENT DEPARTMENT SUBJECT: EXCLUSIVE NEGOTIATION AGREEMENT WITH SCHOOLSFIRST FEDERAL CREDIT UNION SUMMARY: City Council approval is requested to enter into an Exclusive Negotiation Agreement (ENA) with SchoolsFirst Federal Credit Union ("SchoolsFirst"). RECOMMENDATION: It is recommended the City Council authorize the City Manager to enter into an Exclusive Negotiation Agreement By and Between the City of Tustin and SchoolsFirst Federal Credit Union. FISCAL IMPACT: SchoolsFirst will make a Fifty Thousand Dollars ($50,000) good faith deposit to the City. Staff will negotiate the terms and conditions under which the property will be sold including the purchase price. If negotiations are successful, staff will present to City Council a Disposition and Development Agreement (DDA) for consideration. COORELATION TO STRATEGIC PLAN: The ENA with SchoolsFirst aligns with Goal A — Economic and Neighborhood Development, developing a disposition and entitlement strategy for City -owned property in Pacific Center East. BACKGROUND: In Pacific Center East, the City owns an approximate 1.3 -acre triangularly shaped parcel along with a portion of abandoned Old Del Amo Avenue adjacent to a SchoolsFirst parcel and framed to the west by Newport Avenue and to the north by Del Amo Avenue. The SchoolsFirst parcel is one of the five parcels they own from Edinger Avenue to Valencia Avenue. There are currently two office buildings and a warehouse Agenda Report February 21, 2017 Page 2 building located on three parcels. SchoolsFirst has submitted a letter of interest to purchase the City -owned property for the purposes of building a four-story office building and four-story parking structure. SchoolsFirst, with more than $13 billion in assets, is the largest credit union in California and the fifth largest Credit Union—and the largest serving school employees—in the country. For the fifth year in a row, they were named the best credit union in the Orange County Register's 2016 Best of Orange County readers' poll. SchoolsFirst serves more than 723,000 school employees and their families in 10 Southern California counties. SchoolsFirst's Operations Center moved to Tustin in 1994 and there are over 900 employees working here. In addition, there are approximately 13,000 Members whom they serve living in Tustin. The proposed new office building will allow for approximately 750 additional employees. The City and SchoolsFirst have agreed to negotiate the DDA under the following ENA terms: • SchoolsFirst will relocate their corporate headquarters, including the "C -Suite" and Board of Directors, into the proposed four-story office building. • SchoolsFirst will allow the City to place Tustin gateway signage on the property. • The purchase price will be based on an opinion of fair market value as determined by appraisers hired by each party. • SchoolsFirst will make a $50,000 good faith deposit. Staff is recommending that the City Council authorize the City Manager to execute an ENA with SchoolsFirst for a period of ten months from the date of execution. Staff are available to answer any questions the City Council may have. Jerry Craig Economic D"lo,erl � ousing Manager Attac ments Exclusive Negotiation Agreement By and Between the City of Tustin and SchoolsFirst Federal Credit Union EXCLUSIVE NEGOTIATION AGREEMENT BY AND BETWEEN THE CITY OF TUSTIN AND SCHOOLSFIRST FEDERAL CREDIT UNION THIS EXCLUSIVE NEGOTIATION AGREEMENT Agreement (“”) is entered into Effective DateCITY this _____ day of __________________, 2017(the “”) by and between the OF TUSTINCitySCHOOLSFIRST FEDERAL CREDIT UNION (the “”) and , a federally SchoolsFirst chartered credit union (“”). The City and SchoolsFirst (each referred to herein as a Party“Parties “” and collectively, as the ”) hereby agree as follows: Introduction. The City has previously diverted traffic fromold Del Amo Avenue between Old Del Amo Avenue Edinger Avenue and Valencia Avenue as depicted on Exhibit “A”(“”) and has constructed and utilizes aspublic right of way, a nearby streetalso known as Del Amo Avenue, New Del Amo Avenue in the location depicted on Exhibit “A”(“”). SchoolsFirst owns certain real property comprised of (a)thelotsdescribed by APNNos.430-253-16,430-253-13, 430-253-18,430-253-19 and 430-253-20as further shown as the SchoolsFirst Parcels onExhibit“B”and consisting of approximately 16.59 acres of real property;and (b)pursuant to Quitclaim Deed from PAC Operating Limited Partnership, a Delaware limited partnership,dated July 28, 2011 and recorded in the official records of Orange County,California on July 28, 2011 as Instrument No. 2011000367897, the southerly one-half of the area depicted as Old Del Amo Avenueshown on Exhibit “B”,comprised of approximately .74 Southern Old Del AmoParcel acres (“”) each in the City of Tustin, County of Orange, State of Californiaandtogether comprised of approximately 17.33 acres of land (collectively, SchoolsFirst Parcel “”). The City of Tustin owns the real property in the City of Tustin, County of Orange, State of Californiacomprised of (a)Parcel 6 of Parcel Map No. 2010-127,a triangularly shaped Triangle Parcel parcel of real property as depicted on Exhibit “B”(the “”);and (b)pursuant to Quitclaim Deed from PAC Operating Limited Partnership, a Delaware limited partnership dated November 1, 2011 and recorded in the official records of Orange County,California on November 2, 2011 as Instrument No. 2011000555199the northerly one-half of the area depicted as Old Del Northern Old Del Amo Parcel Amo AvenueonExhibit “B”,(““), which parcel is contiguous to and located between the Triangle Parcel and the Southern Old Del Amo Parcel. The Triangle Parcel City Parcel and the Northern Old Del Amo Parcel arereferred to herein collectively as the “”. The CityParcel isbelieved to be comprised of approximately 1.73 acres of land; however as there currently exists some uncertainty as to the boundaries and acreage of the Triangle Parcel and the Northern Old Del Amo Parcel, the Parties intend to determine the boundaries and acreage of each such parcel by causing a survey of the City Parcel to be conducted during the term of this Agreement as discussed in Section 7.9.3.The SchoolsFirst Parcel and the City Parcel are referred Development Parcels. to herein collectively as the “ The Development Parcels are located within the Pacific Center East Specific Plan Specific Plan area of the City of Tustin (“”), and aredesignated for development of a mixed use Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 1 City of Tustin/SchoolsFirst Credit Union commercial and office center. The Parties will discuss what vacation proceedings the City would need to undertake to vacate the public right of way interest of the City in Old Del Amo Avenue Vacation Proceedings (which proceedings are referred to herein as “”),thereby making Northern Old Del Amo Parcel and Southern Old Del Amo Parcel available for private development.The scope of the required Vacation Proceedings has not been determined by the City as of the Effective Date.Neither Party waives through this Agreement any rights to assert that vacation proceedings are or are not required. SchoolsFirst desires to construct and occupy an approximately 185,000 SF,4-story office building and a 4-story parking structure, as its corporate campus which will include limited retail comprised of a retail branch for SchoolsFirst customers,and accompanying infrastructure and amenitiesas is conceptually depicted on the Conceptual Site Plan attached as Exhibit “C”to Project this Agreement (the “”). This is asuitable use for the SchoolsFirst Parcel given the property’s adjacency to the State Route55 (SR-55) Freeway and its current designation under the City of Tustin General Plan ofPCCB –Planned Community Commercial/Business and Specific Plan designation of Regional Center. Subject to Transaction Documents (as defined below) being agreed upon and inall necessary aspects approved by the City, SchoolsFirst has requested that the City sell the City Parcel to SchoolsFirst for the purpose of developing the corporate campus and upon completion thereof, the relocation of SchoolsFirst’scorporate headquarters, including,without limitation, itsC-Suite SchoolsFirst Headquarters and Board of Directors (“”) from Santa Ana to the new corporate campus in the City. The City Parcel consists of remnant parcels that are best suited for development in accordance with the Specific Plan and the proposed sale of the City Parcel for a SchoolsFirst Headquarters (if agreed upon by the Parties in Transaction Documents) as described in this Agreement is consistent with City policy in that the City will obtain fair market value for the sale of the land. Accordingly, the City is willing to enter into negotiations to sell the City Parcel to SchoolsFirst in order to accommodate the proposed campus construction and in order to secure the SchoolsFirstHeadquarters in the City of Tustin provided that the Parties are able to agree upon the terms of such sale and development and relocation of the SchoolsFirst Headquarters as further described below. Agreement to Negotiate. Transaction Documents. The Parties desire, for the period set forth herein, to negotiate diligently and in good faith the terms and conditions of a Disposition and Development DDADA Agreement (“”)and Development Agreement (“”,collectively with the DDAand any Transaction other documents agreed upon by the Parties pursuant to this Agreement, the “ Documents ”)with respect to the Development Parcels which, if agreed upon and executed, will set forth (a)the terms and conditions upon which (i) the City shall carry out and completeany necessaryVacation Proceedings, (ii)for fair market value consideration as further described in the DDA, the City Parcel shall be conveyed by the City to SchoolsFirst, (iii)SchoolsFirst shall develop the Development Parcels with the Project, and (iv)the SchoolsFirst Headquarters shall be relocated to the Development Parcels;and (b)the rights and obligations of the Parties with respect Transaction tothe foregoing(“”). Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 2 City of Tustin/SchoolsFirst Credit Union Essential Terms Not Agreed. The City and SchoolsFirst acknowledge that this Agreement is a framework for negotiation oftheessential terms of the Transactionbut that(a)they have not herein agreed upon the essential terms or the material elements of a transaction, including, without limitation, the purchase price, the time or manner of and significant terms related to the conveyance, the conditions precedent to conveyance (including,without limitation, related to the design and entitlement of the Project) and the requirements related to development of the Project, Essential Terms each of which isan essential component of the Transaction (collectively, the “”); (b)they do not intend this Agreement to be a statement of Essential Terms, which shall be the subject matter of their further negotiations;and (c)the Essential Terms of the Transaction, if agreed to by the City and SchoolsFirst, shall be set forth, if at all, in the Transaction Documents approved and executed by the Parties as describedin Sections2.3 and2.4.Further, SchoolsFirst acknowledges that the design of the Proposed Project, the identity, stability and financialcapacity of SchoolsFirst (and any proposed manager/operator of the Project)to design, entitle, construct, development, use, manage and maintain the Project and the terms and conditions of thesale of the Project, if any, will be of material concern to the City and comprise part of the Essential Terms that are not yet agreed upon by the Parties. Not a Final Agreement. The Parties acknowledge and agree that this Agreement is for the sole purpose of establishing and facilitating the initial basis for negotiation of the Transaction. This Agreementis not, and the Parties do not intend this Agreementto be, a lease, purchase and sale agreement, option or similar contract setting forth the Essential Terms of a land transaction. Subject to the obligations and rights expressed in this Agreement, unless and until a DDA, DAand any other agreed upon Transaction Documents are approved as set forth in Sections 2.2,2.4. and 2.5and executed by authorized representatives of each of theParties, the Parties do not intend to be bound in any way to an Essential Terms agreement, nor do they intend to be bound by any other agreement except for the specific undertakings of each set forth in this Agreement. Each Party acknowledges that with respect to the Transaction Documents this Agreementis merely an agreement to enter intogood faith negotiations (as defined in Sections4.5.1 and 4.5.2)during the ENA Negotiating Period (as defined below) according to the concepts presented herein, reserving final discretion and approval of any Transaction Documents to, in the case of the City, CityCouncil the City of Tustin City Council (“”) and,in the case of SchoolsFirst, the Board of Board Directors of SchoolsFirst(“”) as to actions required, if any. Effectiveness of Subsequent Agreements. Each of the DDA, the DA and any other Transaction Documents shall be binding if and only if such document is approved by counsel to each Party as to form, and approved by the City Council and by the Boardand fully executed by authorized representatives of both Parties. The Transaction Documents, and any of them, shall become effective only after and if the agreements have been considered and approved by the City Council at one or more properly noticed meetings as required by law and after compliance with CEQA the California Environmental Quality Act (“”) as further described below.Nothing in this Agreementshall supersede or waive any discretionary or regulatory approvals required to be obtained from the City pursuant to the Tustin City Code or the provisions of any applicable State or Federal law or regulation. Public Hearings and Compliance. If the negotiations hereunder culminate in a DDAand DA(and any other Transaction Documents),each such document will be considered for approval by the City only after all required public hearings have been held and after compliance Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 3 City of Tustin/SchoolsFirst Credit Union with all applicable laws and ordinances. The concurrence of the City negotiators with the terms and provisions of proposed Transaction Documents under any provisions of this Agreement shall not be construed or interpreted as the City approving or accepting such terms. Such concurrence shall be viewed as nothing more than the willingness of the City negotiators to recommend to the City Council and any other legislative body of the City having jurisdiction that City staff recommends such terms. Nothing in this Agreement shall supersede or waive any discretionary or regulatory approvals required to be obtained under from the City pursuant to the Tustin City Code or the provisions of any applicable State or Federal law or regulation. Assumption of Risk. Each Party assumes the risk that, notwithstanding this Agreement and good faith negotiations, the Parties may not enter into any Transaction Documents due to theirfailure to agree upon Essential Terms of the transactionor the Transaction Documents or any one thereof. Accordingly, except as specifically set forth in this Agreement, neither Party will have any liability to the other in the event that the Parties are unable to reach such a definitive agreement with respect to the proposed Transaction for any reason or no reason. SchoolsFirst Release. SchoolsFirst,onbehalf of itself and its successors and assigns, hereby waives the right to recover from and fully and irrevocably releasesthe Cityand its elected and appointed officials, employees, agents, attorneys, affiliates, representatives, City Parties consultants, contractors, successors and assigns(the “”) with respect to any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including, without limitation, attorneys’ fees, consultant fees and court, arbitration and litigation costs)or any other type of compensation whatsoever, direct or Claims indirect, known or unknown, foreseen or unforeseen(“”) that SchoolsFirst or its officers, directors, employees, agents, representatives, tenants, prospective tenants, consultants or contractorsmay now or hereafter have or incur relating to or arising from: (a)the terms of this Agreement including,without limitation, the information set forth herein;(b)except as specifically set forth in Section 4.5.1,the breach by the City of its obligations under this Agreementor the termination of this Agreement;(c)the failure of the Parties or either of them to agree upon the Essential Terms or the terms of the Transaction Documents;(d)any disputes, claims, actions, causes of action, demands or orders arising between SchoolsFirst and any third parties;and/or (e)any actions of the City or the City Parties in connection with the foregoing (including, without limitation, the exercise by the City of its discretion, decision, or judgment with respect to the foregoing); provided that nothing set forth herein shall be deemed to waive the rights of SchoolsFirstto contend that Old Del Amo Avenue has been vacated as a matter of law prior to the Effective Date or to assert its right to develop Old Del Amo Avenue on that basis; and provided further that notwithstanding the foregoing, SchoolsFirst acknowledges that the City has not addressed and does not by this reference or otherwise, validate, agree to or approve such contention in any manner.Thiswaiver and releaseincludes,without limitation, a waiver and release with respect to:(1) any and all damages and/or monetary relief (whether based in contract or in tort), including, without limitation, any right to claim direct, compensatory, reliance, special, indirect, consequential,expectation, anticipation, exemplary or punitive damages or lossesexcept as specifically set forth in Sections4.3.4, 4.5.1 or 4.5.3;(2)any right to payment or reimbursement from the City,except as specifically set forth in Sections4.2.7, 4.3.4, 4.5.1, 4.5.3 or 12.4;(3) the right to protest the terms of this Agreement, any Transaction Document or the selection or negotiation process;(4) the failure of the City to negotiate in good faith pursuant to this Agreement, Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 4 City of Tustin/SchoolsFirst Credit Union except as specifically set forth in Sections4.3.4 and 4.5.1;or(5) the failure of the Cityto enter into any one or more of theTransaction Documents. __________________ Initial by SchoolsFirst SchoolsFirst’s Representations Warranties and Agreements. SchoolsFirst represents, warrants and agrees as follows: Expertise and Financial Qualifications. SchoolsFirst (with its consultants) has the necessary expertise, experience and financial capability to undertake development of the Project at the Development Parcels as contemplated by this Agreement. No Speculation in Land Holding. SchoolsFirst intends to acquire the City Parcel and carry out its other intended undertakings pursuant to this Agreement for the timely development of the Project and not for speculation in land holding. Experience. SchoolsFirst represents that it(with its consultants)isexperienced in real estate acquisition and development of corporate facilities and understands the process and requirements necessary to pursue a corporate campus project such as the Project and to carry out the Transaction describedherein. Project Financing .SchoolsFirsthas sufficient equity to acquirethe City Parcel and develop the Projectwithout the need to obtain financing (whether from a bank group,other institutional lenderor otherwise) that is secured by a lien, mortgage, deed of trust or similar instrument recorded against the Development Parcelsor any portion thereof. Negotiations. Good Faith Negotiations. The City will prepare the Transaction Documents and submit the draft documents to SchoolsFirst for review and comment.The City and SchoolsFirst agree for the period set forth in Section4.2to exclusively negotiate with one another diligently and in good faith to prepare Transaction Documents and related documents to be entered into between the Cityand SchoolsFirst with respect to the Development Parcels and the Project.It is acknowledged and agreed by the Parties that,as SchoolsFirst will apply for entitlements andwill seek to enter into a DA with the City with respect to the entitlementsduring the ENA Negotiating Period. Period of Negotiations . ENA Negotiating Period. 4.2.1TheParties agree to negotiate for a period commencing on the Effective Date and terminating on the date that is ten (10) months following Initial ENANegotiating Period the Effective Date of this Agreement (the “”). If at the end of the Initial ENA Negotiating Period (or within any extension of time mutually approved by the Parties in accordance with the terms of the Agreement(including the Offer Period, if applicable), ENA Negotiating Period collectively referred to herein as the “”), SchoolsFirst has not signed and submitteda DDAand a DA, eachin form and substance approved by the City Manager in his or Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 5 City of Tustin/SchoolsFirst Credit Union hersole discretion for presentation to the City Council then this Agreement shall automatically terminate. Extensions of Initial ENA Negotiating Period. 4.2.2SchoolsFirst may request from the City an extension of the end of the Initial ENA Negotiating Period and at the end of any initial extension approved by the City. The Citywill determine whether reasonable and sufficient progress has been made toward fulfillment of the requirements of this Agreement in its consideration of any extension. The Initial ENA Negotiating Period may be extended by the mutual consent of the Parties for up to two (2) additional periods of sixty (60) calendar dayseach. Outside Termination Date. 4.2.3It is the intent of the Parties to negotiate and prepare definitive documentation reflecting the Transaction for execution and delivery on or before December 15, 2017. Thus, unless otherwise extended in writing by the Parties, this Agreement shall automatically terminate at the end of the period set forth in Section4.2.1. City Manager Authority. 4.2.4The City hereby delegates to the City Manager the authority to agree to grant the extensions specified in Section 4.2.2upon determination by the City Manager in his or hersole discretion that SchoolsFirst has negotiated diligently and in good faith and that reasonable and sufficient progress has been made toward fulfillment of the requirements of this Agreement. No such extension of time shall be effective unless it is in writing. Any extensions other than the two (2) periods of sixty(60)calendar daysspecified in Section4.2.2 shall require approval by the City Council, which approval shall be at the sole discretion of the City Council. Offerand Offer Period. 4.2.5The execution by SchoolsFirst of a form DDA and DA to which City staff has provided its concurrence as described in Section2.5shall constitute an offer to purchase the City Parcel. The City shall have no obligation to consider the DDA, DA or any other Transaction Document unless it has been offered to the City as aforesaid. SchoolsFirst hereby agrees that it shall not withdraw such offer to purchase for a period of ninety (90) calendar daysfollowing its submittal of the executed DDA and DA to the City(as such period may be Offer Period extended by written agreement of the Parties, the “”). Such offer shall remain in effect for the Offer Periodto enable the City to (a)consider the environmental impacts of the proposed DDA, DA (and other entitlements)and any other then-agreed-uponTransaction Documents as evaluated in an environmental document prepared in accordance with the California Environmental Quality Act;(b)determine whether it desires to enter into such Transaction Documentsand approve the entitlements;(c)take the actions necessary to authorize the City to sign the DDA and the DA if the City desires to do so;and (d)sign the DDAand DA. If the City has not considered and approved the DDA and DA by the end of the Offer Period,then this Agreement shall automatically terminate.The Offer Period shall comprise part of the ENA Negotiating Period. Rights of the Parties to Earlier Terminate This Agreement forBreach. 4.2.6 SchoolsFirst may terminate this Agreement upon provision of seven (7) calendar days’prior written notice to the City alleging breach of Section 4.5.1of this Agreement by the City,and the City may terminate this Agreement upon provision of seven (7) calendar days’prior written notice to SchoolsFirst alleging breach of Sections4.3,4.5.2, 5.1, 5.2 or 5.3by SchoolsFirst. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 6 City of Tustin/SchoolsFirst Credit Union Rights of the Parties to Earlier Terminate Due to Infeasibilityor Non- 4.2.7 Economic Transaction. Either Party may terminate this Agreement and the ENA Negotiating Period upon provision of seven (7)calendar days’prior written notice to the other Party in the event that during the course of the investigations and evaluation of the City Parcel and the Project and negotiations by the Parties,SchoolsFirst determines in good faith that the Project is not feasible or financeable,the City determines in good faith that the offer price by SchoolsFirstfor the City Parcelis not sufficient, or either Party determines in good faith that based on the terms offeredby the other,that it is unlikely to reach agreement on theterms of the Transaction Documents or any one thereof.In the event that this Agreement is terminated pursuant this Section or as a result of the termination of the ENA Negotiating Period without approval and execution by SchoolsFirst or the City of a DDAand DA,and provided that each of the Parties has negotiated in good faith and materially complied with the terms of this Agreement and no breach by either Party is alleged, the City shall return one half of the ENA Deposit(as defined in Section4.3.2) (i.e., $25,000) to SchoolsFirst within fifteen (15) calendardaysfollowing such termination. In the event that the Parties execute a DDAand DA, the ENA Deposit shall be retained by the City in full as compensation to the City for costs (including, without limitation,staff, appraisal, outside counsel and other consultant costs) incurred by the City in negotiation of the Transaction Documents City Transaction Expenses (“”) and regardless of the actual amount of such costs (greater or lesser) incurred by the City.City Transaction Expenses do not include Processing Fees and nothing in this Agreement shall relieve SchoolsFirst from the obligation to pay Processing Fees. The provisions of this Section shall survive theexpiration of the ENA Negotiating Period and the termination of this Agreementunless and until a DDA and DA areexecuted by the Parties. Deposits and Costs . SchoolsFirst Costs. 4.3.1Exceptas specifically set forth in Section 4.5.1, SchoolsFirstacknowledges and agrees that the City shall have no responsibility to pay or reimburse SchoolsFirstfor costs and expenses incurred by SchoolsFirstin connection with this Agreement or the compliance by SchoolsFirstwith its obligations under this Agreement unless the City assumes any specific responsibilities in the fully executed DDAand/or DA. Costs and expenses for which SchoolsFirstshall be responsible includewithout limitation(a) all pre- contractual expenses incurred by SchoolsFirst,all costs and expenses incurred by SchoolsFirstto comply ees anddeposits required of SchoolsFirstfor with the terms of this Agreement;and (b)all f processing entitlement applications,complying with provisions of the California Environmental CEQA Quality Act (“”) or its State CEQA implementing regulationsand allother typical processing fees and costs charged by the City for the processing of entitlements, plans and Processing Fees specifications, permits and inspection costs(“”). City Costs. 4.3.2Except asspecificallyset forth in Sections4.2.7,4.3.1(b), 4.3.3,4.3.4,4.4.3,5.3,11.2and/or12.4,the City acknowledges and agrees that SchoolsFirstshall have no responsibility to pay or reimburse the City for costs and expenses incurred by the City in connection with this Agreement or the compliance by the City with its obligations under this Agreement unless SchoolsFirst assumes any specific responsibilities in the fully executed DDA and/or DA. Costs and expenses for which the City shall be responsible include all pre-contractual expenses incurred by the City and all costs and expenses incurred by the City, if any, with respect to compliance with the terms of this Agreement. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 7 City of Tustin/SchoolsFirst Credit Union Good Faith Deposit. 4.3.3Prior to theexecution of this Agreementby the City, SchoolsFirsthas submitted to the City a good faith deposit in the sum of Fifty Thousand Dollars ENA Deposit ($50,000)(together with any interest accruing thereon, the “”) in the form of a check to the City to ensure that SchoolsFirstwill proceed diligently and in good faith to negotiate and perform all of SchoolsFirstobligations under this Agreementand which shall, except as otherwise specifically set forth in this Agreement, be retained by the City for reimbursement of City.Except in the event of a default by the City as set forth in Sections 4.3.4 and 4.5.1, or as otherwise specifically provided in Section4.2.7,the City shall be entitled to retainthe ENA Deposit at the termination of this Agreement. Return of Deposit Under Specified Conditions. 4.3.4If the Parties fail to enter into the DDA and DA within the ENA Negotiating Period, including any Offer Period,the City may retain one-half of the ENA Deposit as further described in Section 4.2.7. Further, if SchoolsFirsthas not negotiated diligently or in good faith or has not otherwise carried out its obligations under this Agreement, the City may retain the ENA Deposit unless a court of competent jurisdiction determines in a final decision that the City has not negotiated in good faith as described in Section 4.5.1.The provisions of this Section shall survive theexpiration of the ENA Negotiating Period and the termination of this Agreementunless and until a DDA and DA areexecuted by the Parties. Additional DDA Deposit. 4.3.5SchoolsFirstacknowledges that it is currently anticipated that the DDA shall require an additional deposit in an amount to be determinedas security for the performance of SchoolsFirst's obligations under the DDA. Due Diligence . As-Is Conveyance. 4.4.1SchoolsFirst should undertake its own investigation to determine the presence of hazardous materials and suitability of the Development Parcelsfor development,SchoolsFirst acknowledges and agrees that if the City Parcel is conveyed by the City pursuant to a DDA, the City Parcel shall be conveyed on an “AS-IS, WHERE-IS AND WITH ALL FAULTS” basis,andSchoolsFirst shall be obligated to release, defend, indemnify and hold harmless the City with respect to its acquisition and development of the City Parcel and the condition of the City Parcel, including, without limitation,any and all land use and environmental conditions of the City Parcel. DDADue Diligence Period. 4.4.2In addition to the due diligence investigation conducted by SchoolsFirst during the term of this Agreement, the DDA shall provide an additional Due Diligence Period sixty (60) day period (“”) during which SchoolsFirst may undertake specific additional inspections and investigations as are necessary and specifically permitted therein to allow SchoolsFirst to continue to evaluate the feasibility and advisability of itspurchase of the City Parcel.SchoolsFirst’s obligation to consummatethe Transaction shall be contingent upon SchoolsFirst satisfaction, in its sole discretion, of the results of such inspection, examination and other due diligence with regard to the City Parcel and its suitability for construction of the Project as SchoolsFirstmay elect to conduct during the Due Diligence Period. SchoolsFirstacknowledges and agrees that the Due Diligence Period is adequate time to complete such investigation. The Parties acknowledge and agree that SchoolsFirst is solely responsible to investigate to determine Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 8 City of Tustin/SchoolsFirst Credit Union the presence of hazardous materials and suitability of the City Parcel for development of the Project. City Plans, Reports, Studies and Investigations. 4.4.3The City agrees, within fifteen (15)calendar daysfollowingexecution of thisAgreement to provide SchoolsFirst, upon payment by SchoolsFirst of the City’s copying costs at ratesnormally charged in connection with Public Records Act requests, copies of all public plans, reports, studies or investigationsand other materials that the City, to the knowledge of its management staff has in its possession (collectively, City Plans “”) prepared by or on behalf of the City with respect to the City Parcel;provided, however, that the City makes no representations,warrantiesor guaranteesregarding the completeness or accuracy of such plans, reports, studies, investigations and other materials. Exclusivity; Good Faith Negotiations and Remedies . City Failure to Negotiate in Good Faith. 4.5.1During theENA Negotiating Period, the City covenants and agrees to negotiate exclusively with SchoolsFirstand not to solicit another party for the Project or enter into any agreement with any other party regarding the sale or development of the City Parcel or any portion thereof. The City acknowledges and agrees that but for this exclusivity, SchoolsFirstwould not have entered into this Agreement. The City shall be deemed to have failed to negotiate in good faith only if a court of competent jurisdiction determines in a final decision that the City has breached this exclusivity covenant; the breach of this exclusivity covenant shall be the sole means of breach by the City of its obligationsunder this Agreement.SchoolsFirst’s sole remedies for any breach by the City of the City’s obligations under this Agreementshall be (a)the right to terminate this Agreement;and (b)thereturn to SchoolsFirst of the ENA Deposit. SchoolsFirstFailure to Negotiate in Good Faith. 4.5.2During theENA Negotiating Period, the SchoolsFirst covenants and agrees to negotiate exclusively with the City and not to solicit another party for the Project or enter into any agreement with any other party regarding the sale or development of the SchoolsFirst Parcel or any portion thereof.SchoolsFirst’s failure to negotiate exclusively with the City and not to solicit another party for the Project, failure to submit to the City plans, reports, studies, investigations, applications and materials specified in Sections6 and 7of this Agreementwithin thetime periods specified therein, failure to provide and maintain the insurance required by Section 5.2, or breach of the representations, warranties and agreements set forth in Sections3.0 or 8.0shall be deemed to demonstrate SchoolsFirst’sfailure to negotiate diligently and in good faith and its failure to carry out its obligations hereunder. In such event, inasmuch as the actual damages that would result from a breach by SchoolsFirstof its obligations under this Agreementare uncertain and would be impractical or extremely difficult to determine, the City shall be entitled to retain the ENA Deposit as liquidated and agreed damages, which shall, in addition to the City’s right to terminate this Agreementas set forth in Section 4.2.7, bethe City’s sole remediesfor breach by SchoolsFirst of its obligations under this Agreement; provided that nothing herein shall be deemed to preclude the City from seeking or receiving payment for amounts which SchoolsFirstis obligated to pay pursuant to Sections 4.2.7, 4.3.1, 4.3.3, 4.5.2,5.3, 6.3.4,11.2, 12.1 and 12.4of this Agreementprovided that City shall not be entitled to any damages in addition to the actual amounts owed by the SchoolsFirstto City pursuant to such Sections. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 9 City of Tustin/SchoolsFirst Credit Union Limitation on Damages Payable by City. 4.5.3SchoolsFirstacknowledges that the City would not have entered into this Agreementif the City could become liable for significant damages under or with respect to this Agreementor the proposed transaction. Consequently, and notwithstanding any other provision of this Agreement, except as set forth in the following sentence, the City shall not be liable in damages under this Agreementto SchoolsFirstor any third party and SchoolsFirst, on behalf of itself and its successors and assigns, hereby waives any and all rights to claim damages, reimbursements or monetary payments of any kind or nature from the City except as set forth herein. Nothing herein shall be deemed to preclude SchoolsFirstfrom seeking payment for amounts which City is obligated to pay pursuant to Sections 4.2.7,4.5.1, and/or 12.4of this Agreement, provided that SchoolsFirstshall not be entitled to any damages in addition to the actual amounts owed by the City to SchoolsFirstpursuant to such Sections. No Liens or Lis Pendens. 4.5.4Each of the Parties,onbehalf of itself and its successors and assigns, hereby expressly waives any and all rights to record a lis pendens or to otherwise place a lien or restriction of any type upon or affecting the portions of the Development Parcels owned by the other Party. Other Remedies and Restrictions. 4.5.5In the event the Parties enter into a DDAand/or DA with respect to all or any portion of the Development Parcels, each Party, on behalf of itself and its successors and assigns, hereby expressly waives its right to assert any breach by the other Party of the covenants of good faith and exclusivity in this Agreement. Nothing herein shall preclude either party from seeking injunctive relief in order to enforce the Offer Period, release and/or confidentiality requirements of thisAgreement.Notwithstanding the right of any Party to seek recovery of reimbursements or monetary payments expressly permitted by this Agreement, in no event shall either Party be liable to the other Party for payment of direct, compensatory, reliance, special, indirect,consequential,expectation, anticipation, exemplary or punitive damages or losses. Survival of Provisions. 4.5.6The provisions of this Section 4.5shall survive theexpiration of the ENA Negotiating Period and the termination of this Agreement. Inspection; License. Access License. The City hereby grants to SchoolsFirst for use by its employees, representatives, agents, contractors, suppliers, consultants andother related parties(collectively, SF Parties the “”), a license during the ENA Negotiating Period to enter upon the City Parcel for purposes of conducting SchoolsFirst’s due diligence inspection, provided that SchoolsFirst shall and shall cause the SF Parties to: (a)deliver to the City written evidence that SchoolsFirst has procured the insurance required under Section 5.2prior to entry on the City Parcel;(b)give the City twenty-four (24) hours telephonic or written noticeof any intendedaccess which involves work on the City Parcel or may result in any impairment of the use of the City Parcel by the City or its current occupants, if any;(c)access the City Parcel in a safe manner;(d)conduct no invasive testing or boring without the written consent of the City;(e)allow no dangerous or hazardous condition created by SchoolsFirst or the SF Parties to continue beyond the completion of such access;(f)comply with all laws and obtain all permits required in connection withsuch access; (g)keep the City Parcel free and clear of any and all liens of any kind caused by SchoolsFirst or Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 10 City of Tustin/SchoolsFirst Credit Union the SF Parties, including,without limitation, mechanics’liens or materialmen’s liens related to SchoolsFirst’s access to or inspection of theCity Parcel or the other Development Parcels;and (h)conduct inspections and testing, subject to the rights of any existing tenants of the City Parcel, if any (which inspections and testing, if conducted at times other than normal business hours, shall be conducted only after obtaining the City's consent, which shall not be unreasonably withheld) and in accordance with reasonable terms and conditions established by the City. The limited license granted herein is revocable by the City during the continuation of any breach of this Agreement by SchoolsFirst and shall be automatically revoked and terminated, without further action of the City, upon the expiration of the ENA Negotiating Period or the earlier termination of this Agreement or any period of exclusive negotiation hereunder. Insurance. SchoolsFirstshall obtain(or cause the SF Parties to obtain), with no cost or expense to the City, prior to commencement ofany investigativeactivities on the City Parcel, a policy of commercial general liability insurance covering anyand all liability of SchoolsFirst, the SF Partiesand/orthe City arising out ofany investigative activities of SchoolsFirstorits consultants with respect to the City Parcelin an amount of One Million Dollars ($1,000,000) and issuedby a company authorizedby the Insurance Department of the State of California and rated A, VII or better (if an admitted carrier) or A-, X (if offered by a surplus line broker), by the latest edition of Best’s Key Rating Guide. Such policy of insurance shall name the City, its officials and employees as additional insured on the policy. SchoolsFirst shall provide certificates of insurance and insurer endorsements (or a copy of the signed policy binder, if applicable), signed bya representative of the carrier evidencing the required insurance.Such policy of insuranceshall be kept and maintained in force during the ENA Negotiating Period and so long thereafter asnecessary to cover any Claims ofdamages suffered by persons or property resulting from the abovereferenced activities and any acts or omissions of SchoolsFirst and/or the SF Parties in undertaking said referenced activities. Indemnity. SchoolsFirsthereby agrees to indemnify, defend, protect and hold the City and itselected officials, employees, agents, representatives, consultants and contractors free and harmless from and against any and all Claims arising or resulting from or related to SchoolsFirst’s or the SF Parties’: (a)exercise of the license provided in Section 5.1, including, without limitation, entry onto or access to the City Parcel or its exercise of its rights hereunder, and any inspections, surveys, tests or studies performed by SchoolsFirst or the SF Partiesin connection therewith;(b)presence,activities or work on or related to use of the Development Parcels and any mechanics’ or materialmen’s liens arising with respect thereto;or (c)bodily injury to or death of any person (including, without limitation, any of the City Parties) or damage to or loss of use of property resulting fromthe foregoing, save and except to the extent such Claims result from (x) the discovery by SchoolsFirst of any pre-existing environmental conditions on the Development Parcels not caused or contributed to by SchoolsFirst or the SF Parties, save and except to the extent such Claims result from the gross negligence or willful misconduct of the City or its agents, employees or representatives. SchoolsFirst shall keep the City Parcel free and clear of any mechanics’liensor materialmen's liens related to SchoolsFirst’s inspection of the City Parcel. Survival of Provisions. The insurance obligations in Section 5.2and the indemnification by SchoolsFirst set forth in Section 5.3shall survive the expiration of the ENA Negotiating Period and the termination of this Agreement andif applicable, the execution of the Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 11 City of Tustin/SchoolsFirst Credit Union DDAand DAand the closing and transfer to SchoolsFirst of the City Parcel with respect to Claims arising during the term of this Agreementand shall not merge into any deed conveying the City Parcel. Proposed Development Concept and Negotiation of Essential Terms and Conditions. Compliance with Existing Land Use and Zoning Requirements . The proposed Project to be negotiated hereunder shall include the development and use of the City Parcel consistent with the General Plan and the Specific Plan. SchoolsFirst shall, during the ENA Negotiating Period,prepare and process applications for, and obtain from the City and other federal, state and local jurisdictions, the DA and all applicable land use, planning and zoning approvals for the proposed development with the support of the City. These entitlements will be required to be consistent with the Pacific Center East Specific Plan, as the same may need to be amended, or any final revisions approved by the City Council. As part of the entitlements that SchoolsFirst shall apply and seek to obtain approval for, SchoolsFirst is willing to process any necessary amendments to the Pacific Center East Specific Plan which are requested by the City [[1430,1204,1481,1261][12][B,I,][Times New Roman]]. and are mutually acceptable to the City and SchoolsFirst Determination of Purchase Price; Appraisal . Definition of Fair Market Value. 6.2.1The Parties acknowledge and agree that Purchase Price they have not agreed upon a purchase price for the City Parcel (“”). The terms and conditions of the conveyance of the City Parcel, including, without limitation,the manner of conveyance, the conditions precedent to conveyance and the amount of the purchase price and any participation price, shall be determined as part of the negotiation of and detailed in the DDA. The Parties have agreed upon the following principles and process to determine the Purchase Price: (a)The Purchase Price shall be based on fair market value as determined by appraisal. (b)Within thirty (30) calendardays following the Effective Date, the Parties shall each endeavor to select athird party appraiser with the qualifications required by Section 6.2.2and within sixty (60) calendar daysafter the Effective Date, theParties and the selected appraisers shall endeavor to establish appraisal parameters. Upon agreement to appraisal parameters, eachParty shall authorize a “directed appraisal” utilizing such parameters to its selected appraiser. (c)Each Partyshall each endeavor to have itswritten appraisalas to the value of the City Parcelcompleted within forty five (45) calendar daysafter authorization of same, which authorization shall take place within five (5) calendar days following the later of receipt by the City of the completed surveydescribed in Section 7.9.3or agreement upon appraisal parameters as specified in Section 6.2.1(b)If theopinion of fair market valueprovided by each of the appraisersis within ten percent (10%)of theopinion provided by the otherappraiser,then the appraisals shall be averagedto determine the purchase pricefor the City Parcel to be considered by each of the Parties in its evaluation of the financial feasibility of the proposed Transaction and if determined by each to be financially feasible, shall be the Purchase Price for the City Parcel. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 12 City of Tustin/SchoolsFirst Credit Union (d)If there is a difference of ten percent (10%) or greater between the two appraisals, then the two appraisers shall agree upon a third, independent appraiser who shall, following review of the two appraisals, prepare an independent appraisal to establish his or her opinion of the fair market valueof the City Parcelutilizing a directed appraisal following the approved appraisal parameters. The third appraiser’s opinion of fair market valueshallbe the purchase pricefor the City Parcel to be considered by each of the Parties in its evaluation of the financial feasibility of the proposed Transaction and if determined by each to be financially feasible, shall be the Purchase Pricefor the City Parcel. The cost of the third appraisal shall be borne equally by the Parties. 6.2.2All appraisers selected by the Parties shall be qualified as State of California Bureau of Real Estate Appraisers Certified General (AG)and shall haveat least ten (10) years’experience in appraisal of commercial office and retail property in Orange County, California. No appraisershall, at the time of selection or at any time during the preceding ten (10) year period:(i)have an ownership interest in or be employed by either Party orany affiliate Conflicted Parties of aParty (collectively, the “”), except for previous payment for services as an appraiser,(ii)have had direct financial ties to the Conflicted Parties or any one thereof,or (iii)have had close professional or personal relationships with any key member of any Conflicted Party. In addition, no appraisershall, during his or her tenure as an appraiserengage in a discussion or make an agreement with any Conflicted Party regarding employment during the pendency of or after completion of the appraisal. 6.2.3The Parties agree that neither Party would be inbreach of its obligation to negotiate in good faith if it shall determine, in its sole discretion, that the fair market value of the City Parcel determined in accordance with Section 6.2.1render the Project economically infeasible to SchoolsFirst or constitute inappropriate consideration to the City and accordingly such Party determines to terminate this Agreement pursuant to Section 4.2.7. Terms of Transaction Documents .The Parties agree that it is their intent, upon entry into this Agreement, to negotiate TransactionDocuments, which shall be agreed upon and executed only if satisfactory to each Party in its sole discretion,which are anticipated to address the following terms and conditions: Development. 6.3.1SchoolsFirstshall design and, following acquisition of the City Parcel, shall construct the development on the Development Parcels at its own cost and expense in accordance with a scope of development and a schedule of performance to be negotiated as part of the DDA,and in accordance with plans and specifications prepared by SchoolsFirst and approved by the City in accordance with such schedule of performance and in compliance with all requirements and regulations of the City including, without limitation, applicablezoning. SchoolsFirsthas proposed to construct the initial phase of its Project on the City Parceland on adjoining property as identifiedon the Conceptual Site Plan attached as Exhibit “C”. Applications. 6.3.2SchoolsFirst shall prepare and process applications for and obtain from the City and other federal, state and local jurisdictions, all applicable land use, planning and zoning approvals for the proposed development with the support of the City. These approvals will be required to be consistent with the Specific Plan, unless, as part of approval of Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 13 City of Tustin/SchoolsFirst Credit Union any application, modifications to the Specific Plan or any development standards are granted by the City. Project Costs; Local Infrastructure. 6.3.3Project costs and revenues will be separately analyzed.Funding of all Project costs will be the responsibility of SchoolsFirst without any cost or liability whatsoever to the City.Project costs for which the SchoolsFirst will be responsible shall include, without limitation, all costs of planning, designing, entitlingand constructing the Project and all costs of any necessary local infrastructure improvements and in- tract improvements required in connection with development of the Project.Closing costs shall be shared equally by the Parties. Development Fees and Processing Fees. 6.3.4In connection with its development of the Development Parcels, SchoolsFirst acknowledges that the Development Parcels will be subject to applicable development fees, including, without limitation, those required by the City of Tustin, or other jurisdictions such as the Transportation Corridor Agencies (TCA) Foothill/Eastern Corridor Fee, school impact fees by the Tustin Unified School District (TUSD), currentOrange County School Facility Bonds (Measure G and Measure L), utility meter and connection fees. Further, prior to the Effective Date, the City Council has authorized an analysis of City impact and processing fees and the City hereby provides notice that its current impact and processing fees are subject to change. Unless otherwise agreed by the Parties in the DA, SchoolsFirst shall pay all City impact fees and Processing Fees at the time due in accordance with standard City requirements and nothing herein shall limit the applicability of any increases in development fees or Processing Fees toSchoolsFirst.Following completion of environmental impact review and as part of theDA, the Parties will seek to agree upon aspecific amount of impact fees to be paid by and specific on-site and off-site improvements to be provided by SchoolsFirst. The Parties agree that SchoolsFirst would not breach its obligation to negotiate in good faith if it shall determine, in its sole discretion, that the specific amount of impact fees to be paid by SchoolsFirst and/or the specific on-site and off-site improvements to be provided by SchoolsFirstrender the Project economically infeasible and accordingly determines to terminate this Agreement pursuant to Section4.2.7. Purchase Price Deposit. 6.3.5SchoolsFirstacknowledges that the DDA shall requireadeposit of ten percent (10%) of the agreed upon Purchase Price to be deposited into escrow upon execution by both Parties of the DDAas security for the performance of SchoolsFirst’s obligations under the DDA, including, without limitation, acquisition of the City Parcel.At the expiration of the Due Diligence Period, if SchoolsFirst has not provided the City with written notice of its intent to terminate the DDA, then in addition to any other provisions contained in the DDA, the Purchase Price Deposit shall become non-refundable and shall be retained by the City if the Parties do not consummate the sale of the City Parcel in accordance with the terms of the DDA for any reason other than default under the DDA by the City. In the event of a default under the DDA by the City with respect to the Close of Escrow, then SchoolsFirst shall be entitled to pursue specific performance but shall not be entitled to any other remedies, including, without limitation,monetary remedies or damages. Transfer and Assignment Restrictions. 6.3.6SchoolsFirst acknowledges that the Transaction Documents shall contain limitations on transfer and assignment of the rights of SchoolsFirst including, among other things, the right of the City to approve in its sole discretion Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 14 City of Tustin/SchoolsFirst Credit Union all assignments and transfers by SchoolsFirst of ownership interests in SchoolsFirst, the Transaction Documents, the Project and the Development Parcels. Remedies and Termination Rights. 6.3.7SchoolsFirst acknowledges that the Transaction Documents shall contain remedies and termination rights in favor of the City for breach of the Transaction Documents, which shall include, without limitation, rights of reverter in conveyed land. Financing. 6.3.8Project costs and revenues will be separately analyzed and funding of all project costs will be the responsibility of SchoolsFirst. SchoolsFirst anticipates implementation of the Project without the need forany expenditure by or loan from the City to SchoolsFirst. Additional Components. 6.3.9The Project shall include the following additional components, as shall be further described in the Transaction Documents: (a)SchoolsFirst hereby agrees to accommodate “Tustin Gateway signage (Welcome to Tustin)” on the Triangle piece at location and specifications to be agreed upon in the DA and/or DDA and atno cost to SchoolsFirst,for City signage. (b)SchoolsFirst will enhance the portion of the Development Parcels commonly known as RH4 (APNS430-253-19 & 430-253-20)with landscaping and paint per specifications and timing to be mutually agreedin the DDA. Schedule of Performance . The DDA shall include terms concerning the timing of the sale of the City Parcel to SchoolsFirst. The timing of the commencement and completion of construction of the Project and the relocation of SchoolsFirst’s Headquarters to the Development Parcels shall be carried out in accordance with a schedule to be agreed upon by the Parties and set forth in the DDA. SchoolsFirst’s Responsibilities. During the period of negotiation, SchoolsFirst shall prepare and submit to the City the following: Status Reports . SchoolsFirstagrees to make monthly oral and/or written reports advising the City and/or its staff of all matters and studies being made, including, without limitation,SchoolsFirst’s progress in analyzing the feasibility of the Project as may be reasonably requested by the City or its staff. Development Team . SchoolsFirst shall, within thirty (30) calendar daysof execution of this Agreement, submit in writing to the City (a) full disclosure of the names of employees of SchoolsFirst designated by it as lead negotiators and having authority to make recommendations to the officers authorized to make decisions on behalf of SchoolsFirst;(b)the company names and key individuals providingreal estate and development advisory services in a professional capacity to SchoolsFirst with respect to the Project;and(c)other relevant information concerning the above, such as addresses, emails and telephone numbers. Within ninety (90) calendar daysfollowing the Effective Date, SchoolsFirst shall deliver to the City the name of the Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 15 City of Tustin/SchoolsFirst Credit Union architectural and landscape planning firms retained by it in connection with the Project, together with the names of the lead professionals and their respective contact information. Financial Status . SchoolsFirst shall continue to be responsible for demonstrating to the City the financial capacity and capability to perform its obligations under this Agreement and the proposed Transaction Documents. Subject to the Confidentiality Protocols (as defined below), shall submit any additional financial information required to demonstrate SchoolsFirst’s financial capacity and capability to performits obligations under this Agreement and the proposed Transaction Documentsas requested by the City within thirty (30) calendar daysof a requestby the City. Assignment .SchoolsFirst shall inform theCity if SchoolsFirst decided thatit intends to form an acquisition and development entity that shall be whollyownedby SchoolsFirst for purposes of acquisition and development of the Development Parcels. City hereby consents to such wholly owned entity as the entity that enters into the DDA and the DA and acquires and develops the Development Parcels. If SchoolsFirst determines to joint venture or partner development of the Development Parcels, or if SchoolsFirst determines to form any other new legal entity to develop the Development Parcels, SchoolsFirst shall promptly inform the City of such determination and submit to the City thejoint venture’s or partner’s most recent financial statements and the financial statements of its key principals. The assignment of SchoolsFirst’s rights under this Agreement to any new entity, partnership or joint venture may be approved in writing by the City, provided that City is satisfied in its sole discretion, that the new entity, partnership, or joint venture has the financial capability to perform under this Agreement and the proposed Transaction Documents. Design Review/Entitlements . It is understood and agreed to by SchoolsFirst that the quality, character and uses proposed for the Project are of particular importance to the City and that planning and design review approval and other entitlements by the City will be required for the developmentof the Project on the Development Parcels. SchoolsFirst and its proposed architect, landscape architectand engineer for the Project shall meet with representatives of the City to review and come to a clear understanding of the planning and design criteria required by the City. As part of the negotiations to agree upon the Transaction Documents,the Parties shall strive to agree upon a schedule for entitlement processing, including, without limitation,any necessary Pacific Center East Specific Plan amendments, site plan and design review, the DAand further anticipated environmental evaluation of the Project, if any, with the understanding that the Parties intend that the entitlements be approved by theCity, if at all, substantially concurrently with approvalby the City, if any, of the DDA and DA and accordingly within the ENA Negotiating Period(as the same may be extended by the Offer Period).The DDA shall include a requirement that, in addition to all matters required for entitlement of the Projectby the City in its governmental capacity, SchoolsFirst shall submit for approval by the City, preliminary concept design drawings and related documents for development of the Project including, without limitation,the following: preliminary site plan showing building layout and dimensions, multilevel parking structure dimensions, landscaping, and access on or related to each individual parcel, preliminary conceptual building and landscaping renderings and a development schedulefor review by the City in its proprietary capacity. All floor plans, parking, landscaping and material call outs shall be submitted by SchoolsFirst in accordance with the City and other appropriate governmental rules and Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 16 City of Tustin/SchoolsFirst Credit Union regulations and within a time frame to be mutually agreed uponby the Parties as part of the Transaction Documents. Sources and Uses of Funds .SchoolsFirst has received approval from its Board to execute this Agreement and the Board’spreliminary commitment on behalf of SchoolsFirst to pursue development of the Project, including, without limitation,by funding its predevelopment costsand negotiations, and preliminarily committing the necessary funds to purchase the land and construct the office building and parking structure.Prior to the Effective Date, SchoolsFirst has provided to the City a copy of its current balance sheet. Within thirty (30) calendar daysfollowing thecompletion of the appraisaldescribed in Section 6.2, SchoolsFirst shall provide to the City more detailed financial information describing its sources and uses of funds for the proposed Project, including, without limitation,a preliminary budget for design, entitlement and construction of the Project.The financial information will have been approved by the Board. Concurrently with execution of the DDA and DA by the Parties, SchoolsFirst shall demonstrate to the City that it has and has set aside sufficient funds, without requirement to procure third party construction financing requiring a lien, deed of trust,mortgageor similar instrument to be recorded againstthe Development Parcels, in order to fund the entitlement, design, development and construction of the Project (consistent with any phasing plan approved by the Parties). Additional Information . SchoolsFirst understands and agrees that the City’s negotiating team reserves the right at any time to reasonably request from SchoolsFirst additional information, including,without limitation, information, data and commitments to ascertain the depth of SchoolsFirst’s capability,financialcapability and desire to develop the project expeditiously. The City’s negotiating team will provide a reasonable time in which SchoolsFirst may obtain and submit to the City such additional information. Contacts During Negotiation . SchoolsFirst shall only negotiate with the City’s negotiating team as defined in writing by the City Manager, or his or her designated representative, and with no other persons unless expressly authorized to do so by the City’s negotiating team. During the period ofnegotiations, SchoolsFirst shall make no statements to the media about the proposed Project without the approval of the City Manager or his or her designated representative. SchoolsFirst’s failure to comply with the provisions of this Sectionshall be conclusive evidence that SchoolsFirst has not “negotiated in good faith.” Environmental and Other Studies; Survey . Environmental Requirements. 7.9.1Compliance with CEQA is a legal precondition to any final City action to approve and execute the Transaction Documents and to approve any entitlements requested by SchoolsFirst for the Project. While the City has agreed to process and reflect the terms ofa proposed transaction in Transaction Documents to be considered by the City for approval, the Parties agree that no obligation to enter into such Transaction Documents, or transaction, shall exist and no project nor Transaction Document shall be approved or deemed to be approved on the part of any Party, until after the Project is reviewed by the City in accordance with the requirements of CEQA. SchoolsFirst shall cooperate with the City and abide by the City’s environmental compliance procedures and environmental compliance procedure feerequirements, which include but are not limited to the obligation to deposit funds to Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 17 City of Tustin/SchoolsFirst Credit Union pay all of the City’s costs of preparing any additional required environmental studies as may be determined. SchoolsFirst Plans, Reports, Studies and Investigations. 7.9.2SchoolsFirst shall provide the City, without cost or expense to the City, copies of all plans, reports, studies or SchoolsFirst Plans investigations (collectively, “”) prepared by or on behalf of SchoolsFirst with respect tothe Development Parcels and the Project. All Plans shall be prepared at SchoolsFirst’s sole cost and expense. Survey. 7.9.3Within twenty (20) calendar daysfollowing the Effective Dateand prior tothe appraisaldescribed in Section 6.2,the City shall causea survey of the City Parcel to be performed at its sole cost and expense. SchoolsFirst. Nature of SchoolsFirst . SchoolsFirst will take title to the City Parcel as SchoolsFirstor such other business entity (such as another limited liability company or corporation) as the City may approve, in its sole discretion, upon terms and conditions as the City may request and the Parties may agree, as specified in the Transaction Documents. Should another business entity be desired by SchoolsFirst, subject to approval of the City, SchoolsFirst shall submit a copy of the applicable formation documents relating to SchoolsFirst and any corporate members of SchoolsFirst ([[848,1477,947,1534][12][,I,][Times New Roman]]i.e. [[909,1477,1270,1534][12][,,][Times New Roman]], as applicable: [[1259,1477,2059,1534][12][,,][Times New Roman]]articles of incorporation; partnership [[2028,1477,2300,1534][12][,,][Times New Roman]]agreement; and/or limited liability corporation articles of incorporation, statement of information and operating agreement). Offices of SchoolsFirst . The principal offices of SchoolsFirst are located at 2115 N. Broadway, Santa Ana, CA 92706. Principalsand Employees of SchoolsFirst .The principalsof SchoolsFirst who will be directly involved in the development are as follows: Bill Cheney, President/CEO Francisco Nebot, SVP/CFO Christina Quintero, Manager –Facilities Services And others chosenand designated by SchoolsFirst to the City in writing from time to time during the term of this Agreement. SchoolsFirst’Consultants and Professionals . SchoolsFirst shall make full disclosure to the City of any changes to its principals, officers, stockholders, partners, joint venturers, Project employees, and other associates and all other pertinent information concerning SchoolsFirst and its associates during the term of this Agreement. SchoolsFirst agrees to substitute orsupplement any of its consultants and professionals as reasonably requested by the City. SchoolsFirst’s Financial Capacity. Financial Statement . Any additional financial statements of SchoolsFirst, if requested, shall be submitted to the City or its consultant as requested by the City for the purposes of this Agreement. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 18 City of Tustin/SchoolsFirst Credit Union Guaranty .SchoolsFirst shall guaranty completion of the Project upon terms and conditions to be agreed upon by SchoolsFirst and City. Construction Financing .SchoolsFirsthas sufficient equity to acquirethe City Parceland develop the Projectwithout the need to obtain financing (whether from a bank group, other institutional lenderor otherwise) that is secured by a lien, mortgage, deed of trust or similar instrument recorded against the Development Parcelsor any portion thereof and does not intend to utilize any such financing for the Project. Bank and Other Financial References .SchoolsFirst shall submitrelevant financial reference information, as reasonably requestedby Cityto demonstrate to the satisfaction of the City, in its sole discretion, that SchoolsFirst has the ability to carry out the Project including, without limitation,as described in Section 9.3,and, prior to the approval by the City of the DDA and DA, to demonstrate that the Board has approved the Project and has allocated funds sufficient to finance the entitlement, design, development, construction,use and maintenancethereofas the SchoolsFirst Headquarters. Full Disclosure . SchoolsFirstdoes not intend to do any financing of the development. City’s Responsibilities. Environmental Requirements . A final Environmental Impact Report for the Pacific Center East Specific Plan and a Supplemental Environmental Impact Report have been EIR prepared and certified (collectively, the “”). City shall provide to SchoolsFirst a copy of the EIR on or before the Effective Date. SchoolsFirst will pay for and supply information and otherwise reasonably assist the City as requested to enable the City to determine the environmental impact of the proposed development under the DDA and the DA and for any necessary Pacific Center East Specific Plan amendmentsandother entitlements required for the Project, including, without limitation, payment of Processing Fees in connection with same and the cost of preparation of any addendum or supplement to the environmental documents as may be needed to be completed in connection with City approval of the Transaction Documents or the Project. Assistance and Cooperation .The City shall cooperate fully in providing SchoolsFirst with appropriate information and assistance. Financial Information; Confidentiality Protocols. Financial Information . SchoolsFirstshall continue to be responsible for demonstrating to the City SchoolsFirst’s financial capacity and capability to perform its obligations under this Agreementand the proposed Transaction Documents. Subject to the Confidentiality Protocols (as defined below), SchoolsFirstshall submit any additional financial information required to demonstrate SchoolsFirst’sfinancial capacity and capability to perform its obligations under this Agreementand the proposed Transaction Documents as requested by the City within thirty (30) calendar daysof a request. Confidentiality Protocols . SchoolsFirstacknowledges that documents or other CPRA “records”(as that term is defined in the California Public Records Act (“”)) related to the Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 19 City of Tustin/SchoolsFirst Credit Union Project may be required to be made public upon request. Government Code Section 6253(a) provides that “Public records are open to inspection at all times during the office hours”of the City. If SchoolsFirstbelieves that any documents or other records requested by the City are exempt from the CPRA, SchoolsFirstshall state in writing the legal basis for SchoolsFirst’s belief that such documents or other records are exempt from the CPRA, SchoolsFirstand City shall meet and confer about exemption of such documents or other records, and City shall evaluate the asserted basis for the exemption(s) in good faith. If City determines that the requested documents or other records qualify for an exemption, SchoolsFirstshall conspicuously mark the documents and other records “Confidential”and shall submit them to City, and City will not make the records public except as otherwise required by law or by court order. City’s failure to correctly determine the applicability or inapplicability of an exemption to the CPRA shall not constitute a breach of this Agreementor the Transaction Documents. City will endeavor to notify SchoolsFirstof any request made for records related to the Project when the request for the records allows adequate time to provide such notice.SchoolsFirstagrees to defend, indemnify and hold harmless the City and the City Parties fromany claims for damages, costs, court costs, attorney fees, or related claims in all lawsuits and writ proceedings seeking to make records public that SchoolsFirsthas marked “Confidential”hereunder. (The provisions of this Section 11.2are hereinafter referred to as the Confidentiality Protocols “”.) Confidentiality .Except as otherwise required by law or court order, the City and SchoolsFirst represent and warrant that each shall keep this Agreement and all information and/or reports obtained from the other, or related to or connected with the Development Parcels, the other Party, this Agreement, the DDA, or any other documents negotiated by the Parties, confidential and will not disclose any such information to any person or entity without obtaining the prior written consent of the other Party, except that(a)the City shall have the rightto(i)disclose any information contained in any third party reports obtained by SchoolsFirst,and (ii)make disclosures to City’s employees and independent contractors, including, without limitation,to consultants, financial planners, outside counsel, contractors and experts as necessary in order to determine if the Projectis feasible and financeable, provided such persons and entities are made aware the information is confidential;and (b)SchoolsFirstshall have the right to make disclosures to SchoolsFirst’s potential lenders, and SchoolsFirst’sand their respective employees, partners, members, affiliates and independent contractors, including,without limitation,consultants, financial planners, outside counsel, and experts as necessary in order to determine if the Project is feasible and financeable, provided such persons and entities are made aware the information is confidential.Notwithstanding the foregoing, this Agreement, the draftDDAand DA, and all other material relating to this Agreement are subject to the provisions CPRA. The City's use and disclosure of its agreements and records are governed by theAct and nothing herein limits the City’s right and obligation to comply with the Act or with lawsmandating public noticeor disclosure ofpublic records, including,without limitation,agendas, public hearings, staff reports and minutes produced in connection therewith, including, without limitation, the Ralph M. Brown Act.The City makes no representations nor warranties that writings and materials provided to or generated by the Cityduring negotiations will be exempt from the Public Records Act; provided however that nothing in the foregoing shall relieve the City of its obligation to abide by the Confidentiality Protocols. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 20 City of Tustin/SchoolsFirst Credit Union Miscellaneous. Real Estate Commissions . The City shall not be liable for any real estate commission, finder’s fee or any broker’s fees which may arise from this Agreement. The City represents that it has not engaged any broker, agent, or finder in connection with this Agreement and SchoolsFirst agrees to hold the City and its representatives harmless from any losses and liabilities arising from or in any way related to any claim by any broker, agent, or finder retained by SchoolsFirst regarding this Agreement or development of the City Parcelor the SchoolsFirst Parcel. No City Duty; No City Liability .Notwithstanding any other provision of this Agreementto the contrary, the City shall have no obligations or duties hereunder and no liability whatsoever in the event the Parties fail to timelyexecute any one or more of the Transaction Documents. The sole remedy of the SchoolsFirst, regardless of the breach or default by the City under this Agreement, shall be to terminate this Agreement. Non-Liability of City Officials and Employees . No member, official, representative, director, staff member, attorney or employee of the City shall be personally liable to SchoolsFirst or any successor in interest in the event of any default or breach by the City or for any amount which may become due to SchoolsFirst or to its successor, or on any obligations under the terms of this Agreement. Entire Agreement; Attorneys’ Fees . This Agreement represents the entire agreement of the Parties with respect to the matters set forth herein and supersedes any prior negotiations or contemporaneous writings or statements. This Agreement may not be amended except in writing signed by each of the Parties hereunder. If any Party brings an action or files a proceeding in connection with the enforcement of its respectiverights or as a consequence of any breach by the other Party of its obligations hereunder, then the prevailing Party in such action or proceeding shall be entitled to have its reasonable attorneys’ fees and out-of-pocket expenditures paid by the losing Party. Covenant Against Discrimination . SchoolsFirst shall not discriminate against nor segregate, any person or group of persons on account of sex, race, color, age, marital status, religion, handicaps, creed, national origin or ancestry in the sale, lease,sublease, transfer, use, occupancy, tenure or enjoyment of the Development Parcels, nor shall SchoolsFirst establish or permit any such practice or practices of discrimination or segregation in the selection, location, number, use or occupancy of tenants,lessees, subtenants, sublessees or vendees of the Development Parcels. Notices/Submittals . All notices or submittals required or permitted hereunder shall be delivered in person, by overnight courier, or by registered or certified mail, postage prepaid, return receipt requested to such Party at its address shown below, or to any other place designated in writing by such Party. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 21 City of Tustin/SchoolsFirst Credit Union City:Jeffrey C. Parker, City Manager John Buchanan, Director of Economic Development Jerry Craig, Development & Housing Manager City of Tustin 300 Centennial Way Tustin, CA 92780 And with a copy to:David E. Kendig City Attorney Woodruff Spradlin & Smart 555 Anton Blvd. Suite 1200 Costa Mesa, CA 92626 SchoolsFirst:Bill Cheney, President/CEO Francisco Nebot, SVP/CFO Christina Quintero, Manager –Facilities Services Robert Osterholt-Senior Vice President, Rick Management Kari Hanson-Project Manager Care of SchoolsFirst Federal Credit Union 1200 Edinger Avenue Tustin, CA 92780 And with a copy to:Jeffrey P. Walsworth Walsworth Law Firm 1 City Blvd., Fifth Floor Orange, CA 92868 Any such notice or submittal shall be deemed received upon delivery if delivered personally, one (1) day after delivery by the courier if delivered by courier and three (3) calendar daysafter deposit into the United States mail if delivered by registered or certified mail. Prohibition Against Assignments . Except as may be permitted under Section7.4, this Agreement shall not be assigned by SchoolsFirst without the consent of the City in its sole discretion. Any attempted or purported assignment by SchoolsFirst of this Agreement without the consent of the City as aforesaid shall be void and a breach by SchoolsFirst of its obligation to negotiate in good faith under this Agreement and grounds for immediate termination of this Agreement by the City. No Third Party Beneficiaries .Execution of this Agreement is not intended to create or confirm any third party beneficiary rights in or create any liability on the part of either the City or SchoolsFirst to any third parties. Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 22 City of Tustin/SchoolsFirst Credit Union Supersession by Disposition and Development Agreement . Following mutual execution by the Parties of a DDAand a DA, this Agreement shall be of no further force or effect, except as set forth in Section 5.4.In the eventof any conflict between the provisions of this Agreement and any DDA and/or DA approved by the Parties, the provisions of the DDA and/or DA, as applicable, shall for all purposes prevail. Governing Law/Exclusive Venue . The Agreement shall beinterpreted in accordance with California law. The Parties agree that in the event of litigation, exclusive venue shall be in Orange County, California. Counterparts . This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement. IN WITNESS WHEREOF , the Parties hereto have executed this Agreement as of the Effective Date set forth above. [[576,1247,1870,1304][12][,I,][Times New Roman]]{remainder of page is blank/signatures commence on following [[1851,1247,2005,1304][12][,I,][Times New Roman]]page} Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 23 City of Tustin/SchoolsFirst Credit Union “CITY” City of Tustin Dated: ______________________ By: _______________________________ Jeffrey C. Parker City Manager APPROVED AS TO FORM By: _____________________________ David Kendig City Attorney “SCHOOLSFIRST” SCHOOLSFIRST FEDERAL CREDIT UNION, a federally chartered credit union Dated: ______________________ By: ___________________________________ Name: Bill Cheney Title: President/CEO Tustin Schoolsfirst ENA 2-1-2017(Agd).Docx 24 City of Tustin/SchoolsFirst Credit Union LIST OFEXHIBITS EXHIBIT “A”Old Del Amo Avenue and New Old Del Amo Avenue EXHIBIT “B”SchoolsFirst Parceland City Parcel Depictions EXHIBIT “C”Conceptual Site Plan and Conceptual Phasing Plan Tustin Schoolsfirst ENA 2-1-25 City of Tustin/SchoolsFirst Credit Union 2017(Agd).Docx Branch :F32,User :W019Comment:Station Id :RT89 ORANGE,CAPage 1 of 1Printed on 10/30/2013 11:05:01 AM Document: ASSESSOR_MAP 430.25 184,676 square foot building with parking structure for 988 cars