HomeMy WebLinkAbout06-ATTACHMENT E (ORDINANCE NO. 1501)ATTACHMENT E
Ordinance No. 1501
ORDINANCE NO. 1501
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUSTIN, APPROVING DEVELOPMENT AGREEMENT 2018-
00001 BETWEEN THE CITY OF TUSTIN AND
SCHOOLSFIRST FEDERAL CREDIT UNION TO FACILITATE
THE DEVELOPMENT OF AN OFFICE CAMPUS FACILITY
WITH A 180,000 SQUARE FOOT OFFICE BUILDING, A 5,000
SQUARE FOOT RETAIL BANK BRANCH BUILDING, FOUR (4)
LEVEL PARKING STRUCTURE AND ASSOCIATED SITE
IMPROVEMENTS WITHIN PLANNING AREAS 7, 9, 11 AND 14
OF THE PACIFIC CENTER EAST SPECIFIC PLAN.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1. The City Council finds and determines as follows:
A. That a proper application has been submitted by SchoolsFirst Federal Credit
Union for the development of an office campus facility including a 180,000
square foot office building, a 5,000 square foot retail bank branch building, four
(4) level parking structure and associated site improvements on an approximate
19 -acre site within Planning Areas 7, 9, 11 and 14 of the Pacific Center East
Specific Plan (PCESP).
B. That Development Agreement (DA) 2018-00001 serves to strengthen the public
planning process and provide for the orderly implementation of the General Plan,
PCESP, the phased development and completion in accordance with the
associated Disposition and Development Agreement (DDA), and certain
assurances to the Developer and the City. In compliance with TCC Section 9611,
the Tustin Planning Commission must make a recommendation on the proposed
DA to the City Council.
C. That a public hearing was duly called, noticed, and held on said application
on March 26, 2019, by the Planning Commission. That the Planning
Commission tabled the application to allow for sufficient time to finalize the
DDA and reimbursement agreement.
D. That a public hearing was duly called, noticed, and held on said application
on June 11, 2019, by the Planning Commission. The Planning Commission
adopted Resolution No. 4379 determining that the disposition of Parcel 6 of
Parcel Map No. 2010-127 and portion of abandoned Del Amo Avenue is in
conformance with the adopted General Plan. The Planning Commission
adopted Resolution No. 4380 recommending that the City Council adopt
Ordinance No. 1501 and approve the project.
E. That a public hearing was duly called, noticed, and held on said application
on July 2, 2019, by the City Council
Ordinance No. 1501
DA -2018-00001
Page 2
F. On December 18, 1990, the City Council certified Final Environmental Impact
Report (FEIR) 90-1 for the PCESP. On May 5, 2003, the City Council approved
Supplement #1 to FEIR 90-1 for the Pacific Center East Specific Plan. The
FEIR, along with its supplement, is a Program EIR under the California
Environmental Quality Act (CEQA). The FEIR considered the potential
environmental impacts associated with the development of the PCESP.
An Environmental Checklist has been prepared and concluded that these
actions do not result in any new significant environmental impacts or a
substantial increase in the severity of any previously identified significant
impacts in the FEIR. Moreover, no new information of substantial importance
has surfaced since certification of the FEIR.
G. That the DA can be supported by the following findings:
1. That the Planning Commission determined that that the location, purpose,
and extent of the disposition of Parcel 6 of Parcel Map No. 2010-127 (APN
430-251-28) and portion of abandoned Del Amo Avenue for the
development an office campus including 180,000 square feet of office,
5,000 square feet of a retail bank branch, four (4) level parking structure
and associated site improvements is in conformance with the approved
General Plan.
2. The project is consistent with the objectives, policies, general land uses
and programs specified in the General Plan and the PCESP in that office
and retail bank uses are permitted uses within Planning Areas 7, 9, 11
and 14.
3. The project is compatible with the uses authorized in the district in which
the real property is located (Planning Areas 7, 9, 11 and 14) in that similar
and compatible uses exist and are envisioned within the close proximity
of the project site.
4. The project is in conformity with the public necessity, public convenience,
general welfare and good land use practices in that the agreement
incorporates public benefits in the form of reimbursable public
improvement.
5. The project will not be detrimental to the health, safety, and general
welfare. The project will comply with the PCESP, TCC, and other
regulations to ensure that the project will not be detrimental in any way.
6. The project will not adversely affect the orderly development of the
property in that the proposed project complies with the PCESP and would
complete the applicant's office headquarters campus facility.
Ordinance No. 1501
DA -2018-00001
Page 3
7. That the office headquarters campus will be limited to a maximum
451,715 square feet of building floor area, consistent with the floor -area
ratios identified within the PCESP. That the proposed parking structure
does not contain building floor area and is not included in floor area
calculations.
8. The project will have a positive fiscal impact on the City in that the
provisions of the proposed DA and conditions of approval will ensure that
the project will have a positive fiscal impact on the City.
SECTION 2. The City Council hereby approves DA -2018-00001 attached hereto as
Exhibit A and subject to final approval of the City Attorney.
SECTION 3. Severability. If any section, subsection, sentence, clause, phrase, or
portion of this ordinance is for any reason held to be invalid or
unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this
ordinance. The City Council of the City of Tustin hereby declares that it
would have adopted this ordinance and each section, subsection,
sentence, clause, phrase, or portion thereof irrespective of the fact that
any one or more sections, subsections, sentences, clauses, phrases, or
portions be declared invalid or unconstitutional.
PASSED AND ADOPTED, at a regular meeting of the City Council for the City of Tustin
on this 16th day of July, 2019,
CHARLES E. PUCKETT
Mayor
ERICA N. YASUDA
City Clerk
Ordinance No. 1501
DA -2018-00001
Page 4
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1501
ERICA N. YASUDA, City Clerk and ex -officio Clerk of the City Council of the City of
Tustin, California, does hereby certify that the whole number of the members of the
City Council of the City of Tustin is 5; that the above and foregoing Ordinance No. 1501
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on the 2nd day of July, 2019, and was given its second reading, passed, and adopted
at a regular meeting of the City Council held on the 16th day of July, 2019, by the
following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
ERICA N. YASUDA
City Clerk
Published:
EXHIBIT A OF ATTACHMENT E
Development Agreement 2018-00001
CITY OF TUSTIN OFFICIAL
BUSINESS REQUEST DOCUMENT
TO BE RECORDED AND TO BE
EXEMPT FROM RECORDING
FEES PER GOVERNMENT CODE
6103 AND 27383.
Recording requested by and
When recorded mail to:
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Attn: Citv Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
SCHOOLSFIRST DEVELOPMENT AGREEMENT
THIS SCHOOLSFIRST DEVELOPMENT AGREEMENT ("Agreement") is
entered into effective as of the Effective Date (as defined below) by and between the CITY OF
TUSTIN, a California municipal corporation ("City") and SCHOOLSFIRST FEDERAL
CREDIT UNION (as further defined in Section 1.1.10, "Developer").
RECITALS
A. To strengthen the public planning process, encourage private participation in
comprehensive planning, and reduce the economic risk of development, the Legislature of the
State of California adopted the "Development Agreement Statute," Sections 65864, et seq., of the
California Government Code ("Government Code"). The Development Agreement Statute
authorizes City to enter into an agreement with any person having a legal or equitable interest in
real property and to provide for development of such property and to establish certain development
rights therein.
B. City and Developer intend, substantially concurrently with the execution of this
Agreement, to enter into that certain Disposition and Development Agreement for SchoolsFirst
Headquarters Project, as the same may be amended from time to time ("DDA") pursuant to which
City shall agree to sell, and Developer shall agree to buy the City Property (as defined below) and
develop the Property (as defined below) all as more specifically set forth in the DDA. Pursuant to
the DDA, Developer has a legal and equitable interest in the Campus in that Developer owns the
Campus other than the City Property and has an equitable interest in the City Property in that it
has the contractual right to purchase the City Property from City for development of the Project
(as defined below).
C. Pursuant to Government Code Section 65864, the State legislature has found and
determined that:
"(a) The lack of certainty in the approval of development projects can result
in a waste of resources, escalate the cost of development to the consumer, and discourage
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investment in and commitment to comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval
of the project, the applicant may proceed with the project in accordance with existing policies,
rules and regulations, and subject to conditions of approval, will strengthen the public planning
process, encourage private participation in comprehensive planning, and reduce the economic
costs of development."
In accordance with the legislative findings set forth in Government Code Section 65864,
City wishes to attain certain public objectives that will be furthered by this Agreement. This
Agreement will provide for the orderly implementation of the General Plan of the City ("General
Plan"), and the phased development and completion of the Project in accordance with the DDA
and the Specific Plan (as defined below). This Agreement will further a comprehensive planning
objective contained within the City's General Plan.
D. The DDA and development of the Project in accordance with the Specific Plan
require a substantial early investment of money and planning and design effort by Developer.
Without the protection provided by this Agreement, uncertainty that the Project may be completed
in its entirety could result in a waste of public resources, escalate the cost of public improvements,
and discourage Developer's participation in those certain public improvements specified in the
DDA and the Specific Plan. Developer's participation in the implementation of the DDA and the
Specific Plan will result in a number of public benefits. These benefits require the cooperation
and participation of City and Developer and could not be secured without mutual cooperation in
and commitment to the comprehensive planning effort that has resulted in the DDA and the
Specific Plan.
E. Developer wishes to avoid certain development risks and uncertainties that would,
in the absence of this Agreement, deter and discourage Developer from making a commitment to
implement the DDA and the Specific Plan. These are as follows:
1. It is generally the law in California that, absent extraordinary circumstances
or the approval of a vesting subdivision map, an owner of the land does not obtain a vested right
to improve land until the issuance of a building permit for the improvements and commencement
of substantial construction pursuant to that permit. The result is a disincentive for landowners to
invest monies in the early completion of major infrastructure and other public improvements as
part of any project or in early comprehensive planning and design studies.
2. Development under the DDA and the Specific Plan requires a substantial
early investment of money and planning and design effort by Developer. Uncertainty about City's
land use policies, rules and regulations could result in a waste of private resources, escalate the
cost of certain public improvements, and escalate costs of proposed commercial land uses.
F. The following assurances are of vital concern to Developer to offset or remove the
disincentives and uncertainties set forth in Recital E:
1. Assurance to Developer that, in return for Developer's commitment to the
development of the Property as described in the DDA and any approved entitlements and to
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complete the Public Benefit Improvements (as defined below) and the other obligations of
Developer under this Agreement, City will in turn remain committed to the Existing Entitlement
Approvals and the Maximum Campus Square Footage allocation (each as defined below);
2. Assurances to Developer that as Developer becomes obligated for the costs
of designing and constructing the public and private improvements included in the DDA and the
Specific Plan, Developer will become entitled to rely upon the Vested Rights (as defined below)
in the development of the Property and in the Maximum Campus Square Footage allocation for
the Campus; and
3. Assurances to Developer that in City's administration of the Existing
Entitlement Approvals, Developer will be allowed, consistent with the DDA and the Specific Plan
to develop the commercial land uses and intensities identified in the DDA and the Specific Plan.
These assurances provide for cooperation and participation of City and Developer and could not
be secured without mutual cooperation in and commitment to the comprehensive planning effort
that has resulted in the DDA and the Specific Plan.
G. The Development Agreement Statute authorizes local agencies to enter into binding
development agreements with persons having legal or equitable interests in real property for the
development of such property. City wishes to enter into a development agreement with Developer
to secure the Public Benefits (as defined below) and additional consideration described in this
Agreement, and Developer wishes to enter into a development agreement with City to avoid
development risks and uncertainties and to obtain the assurances described above.
H. This Agreement is intended to be, and shall be construed as, a development
agreement within the meaning of the Development Agreement Statute. This Agreement is
intended to augment and further the purposes and intent of the Parties in the implementation of the
DDA and the Specific Plan. This Agreement, as a device for the implementation of the Existing
Entitlement Approvals, will eliminate uncertainty in planning for and secure the orderly
development of the Project, ensure a desirable and functional community environment, provide
effective and efficient development of public facilities, infrastructure, and services appropriate for
the development of the Project, assure attainment of the maximum effective utilization of resources
within the City, and provide other significant public benefits to City and its residents by otherwise
achieving the goals and purposes of the Development Agreement Statute. In exchange for these
benefits to City, Developer desires to receive the assurance that it may proceed with development
of the Project in accordance with the terms and conditions of this Agreement and the Applicable
Rules (as defined below), all as more particularly set forth herein.
I. City has determined that this Agreement and the Project are consistent with the
General Plan and the Specific Plan and that this Agreement complies with the findings established
and required by the Tustin City Code, in that the Agreement:
1. Is consistent with the objectives, policies, general land uses and programs
specified in the General Plan and the Specific Plan.
2. Is compatible with the uses authorized by the Specific Plan.
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3. Is in conformity with the public necessity, public convenience, general
welfare, and good land use practices. Note: the Project will enhance community development,
provide employment opportunities and support economic development activity in the vicinity of
the Project.
4. Will not be detrimental to the health, safety, and general welfare. Note:
compliance with the Specific Plan, Tustin City Code, and other regulations will ensure that the
Project will not be detrimental.
5. Will not adversely affect the orderly development of property and will
assure that the proposed Project is orderly and well designed.
6. Will have a positive fiscal impact on the City. Note: the provisions of the
DDA will ensure that the Project will have a positive fiscal impact on the City.
J. On , 2019, the Planning Commission held a public hearing on this
Agreement, made certain findings and determinations with respect thereto, and recommended to
the City Council of City that this Agreement be approved. On , 2019, the City Council
held a public hearing on this Agreement, considered the recommendations of the Planning
Commission, introduced and had a first reading of Ordinance No. with the second
reading and adoption at the 2019 City Council meeting, approving this
Agreement and authorizing its execution.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals, which are incorporated
herein by this reference, and for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions.
Any capitalized word or term used in this Agreement shall have the definition or meaning
ascribed to such word or term as provided in the DDA, unless the word or term is expressly
provided in this Section 1.13 in which event such word or term shall have the definition or
meaning as provided herein. All capitalized terms not specifically defined in the DDA or this
Agreement shall be interpreted by the Director of Community Development of the City. The
following terms when used in this Agreement shall be defined as follows:
I.I.I. "Action" is defined in Section 8.10.
1.1.2. "Administrative Amendment" is defined in Section 2.6.2.
1.1.3. "Agreement" is defined in the introductory paragraph of this Agreement.
1.1.4. "Applicable Rules" means (a) the Existing Land Use Regulations of the City,
(b) the Future Rules that are not in conflict (as defined in Section 3.6.2) with the Vested Rights;
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(c) the Future Rules made applicable to the Project and/or the Property pursuant to Section 3.10;
(d) the Existing Entitlement Approvals; (e) the Maximum Campus Square Footage; and (f) the
Subsequent Entitlement Approvals to which the Project and/or the Property or development and
use thereof are made subject to pursuant to the terms of this Agreement. For avoidance of doubt,
the term Applicable Rules applies only to development of the Project on the Property and does not
apply to the remainder of the Campus.
1.1.5. "Applications" is defined in Section 3.11.1.
1.1.6. "Assignment" is defined in Section 2.4.1(a).
1.1.7. "Business Day(s)" means any day on which City Hall is open for business and shall
specifically exclude, Saturday, Sunday and each legal holiday observed by the City.
1.1.8. "Campus" means the real property legally described and depicted on Exhibit A-4
and is comprised of the City Property legally described and depicted on Exhibit A-1 and the
SchoolsFirst Parcels legally described and depicted on Exhibit A-2.
1.1.9. "Campus Improvements" means the improvements existing upon or to be
constructed by Developer upon the Campus and shall include the Project and such other
improvements as may be constructed by Developer from time to time.
1.1.10. "CEQA" is defined in Section 3.5.2(d).
1.1.11. "Certificate" is defined in Section 4.4.
1.1.12. "Certificate of Compliance" means that certain Certificate of Compliance to be
issued by the City to Developer pursuant to the DDA only upon satisfaction of all conditions
precedent thereto set forth in the DDA.
1.1.13. "City" is defined in the introductory paragraph of this Agreement.
1.1.14. "City Costs Deposit" is defined in Section 3.13.1(b).
1.1.15. "City Processing Fees" means (a) all fees and charges imposed by the City under
the then current regulations for processing applications and requests for permits, approvals, and
other actions and monitoring compliance with any permits issued or approvals granted, including
all applicable processing and permit fees to cover the reasonable cost to the City of (i) processing
and reviewing applications and plans for any Entitlement Approvals, site review and approval,
administrative review, and similar fees imposed to recover the City's costs associated with
processing, reviewing, and inspecting applications, plans and specifications for the Project,
(ii) inspecting the work constructed or installed by or on behalf of Developer, and (iii) monitoring
compliance with any requirements applicable to development of the Project, and (b) all costs
incurred by the City in the performance of necessary studies and reports in connection with the
foregoing and its obligations under this Agreement.
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1.1.16. "City Property" means the real property legally described and depicted as the City
Property on Exhibit A-1 to this Agreement and comprises the portion of the Property owned by
City as of the Effective Date.
1.1.17. "Claiming Party" is defined in Section 8.11.3.
1.1.18. "Costs" is defined in Section 8.10.
1.1.19. "Damages" is defined in Section 5.3.
1.1.20. "DDA" is defined in the Recital B.
1.1.21. "Decision" is defined in Section 8.10.
1.1.22. "Defaulting Party" is defined in Section 5.1.
1.1.23. "Developer" is defined in the introductory paragraph of this Agreement and
includes each and every Successor in Interest.
1.1.24. "Development Agreement Statute" is defined in Recital A.
1.1.25. "Development Permits" means all ministerial permits, certificates and approvals
which may be required by City or other governmental authority for the development and
construction of the improvements for the Project, in each case in accordance with this Agreement,
the DDA, the Applicable Rules and any required environmental mitigation, including any
engineering permits, grading permits, foundation permits, construction permits and building
permits.
1.1.26. "Effective Date" means the date that is thirty-one (3 1) calendar days after the
approval (second reading) by the City Council of the City's ordinance approving this Agreement.
1.1.27. `BIR" means the Final Environmental Impact Report for the Pacific Center East
Specific Plan adopted by the City Council on December 17, 1990 and Supplement #1 adopted on
May 5, 2003.
1.1.28. "Entitlement Approvals" means all discretionary land use approvals and
entitlements for the Project including the Development Agreement, tentative and final parcel and
tract maps, Lot Line Adjustments, Conditional Use Permits, the Concept Plans and Design Review
approvals as may be applicable for proposed specific uses(s) in connection with development of
the Project, and all conditions of approval legally required by City and any other Governmental
Authority as a condition to subdivision of or lot line adjustment for the Property, and construction
of the improvements in accordance with this Agreement. Entitlement Approvals shall be
comprised of the Existing Entitlement Approvals and the Subsequent Entitlement Approvals.
1.1.29. "Existing Entitlement Approvals" means all Entitlement Approvals approved or
issued prior to the Effective Date with respect to the Property and including the following, which
are a matter of public record on the Effective Date: (a) Development Agreement (DA) 2018-
00001; (b) Design Review (DR) 2018-00023; (c) Conditional Use Permit (CUP) 2018-00015 and
(d) Lot Line Adjustment (LLA) 2018-00003.
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1.1.30. "Existing Land Use Regulations" means the Land Use Regulations in effect on the
Effective Date, including the General Plan, the Tustin City Code, the Specific Plan, and all other
ordinances, resolutions, rules, and regulations of the City governing development and use of the
Property and the Project in effect as of the Effective Date.
1.1.31. "Final Date" is defined in Section 3.13.1(b).
1.1.32. "Force Majeure Delay" is defined in Section 8.11.1.
1.1.33. "Future Rules" is defined in Section 3.6,2.
1.1.34. "General Plan" is defined in Recital C.
1.1.35. "Government Code" is defined in Recital A.
1.1.36. "Land Use Regulations" means all laws, statutes, ordinances, resolutions, codes,
orders, rules, regulations and official policies of City governing the development and use of land,
including the permitted uses of the Campus, the density or intensity of use, subdivision
requirements, timing and phasing of development, the maximum height and size of proposed
buildings, and the provisions for reservation or dedication of land for public purposes.
1.1.37. "Maximum Campus Square Footage" is defined in Section 3.6.4.
1.1.38. "Non -Defaulting Party" is defined in Section 5.1.
1.1.39. "Non -Reimbursable Improvements" means those Public Benefit Improvements
identified on Exhibit C as "Non -Reimbursable Improvements" and is comprised of the Non -
Reimbursable Public Improvements and the Non -Reimbursable Private Improvements.
1.1.40. "Non -Reimbursable Public Improvements" means those Public Benefit
Improvements Developer has agreed to construct on City -owned right of way, which
improvements will be owned by the City.
1.1.41. "Non -Reimbursable Private Improvements" means those Public Benefit
Improvements Developer has agreed to construct on the Property, which improvements will be
owned by Developer.
1.1.42. "Parties" means City and Developer, collectively.
1.1.43. "Party" means either City or Developer, individually.
1.1.44. "Plan Check and Inspection Fees" means the fees and costs incurred by the City
with respect to its provision of Plan Check and Inspection Services for the Project, which shall be
billed to Developer by City and paid by Developer to City in accordance with Section 3.13.1(b).
1.1.45. "Plan Check and Inspection Services" means the services performed by City staff
and its third party inspectors, engineers and consultants, if any, to carry out and complete plan
check, perform inspections, and monitor Developer compliance with the Applicable Rules, as
needed for review and issuance of encroachment permits, excavation permits, grading permits,
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mechanical, electrical and plumbing permits and building permits requested by Developer in
connection with the Project.
1.1.46. "Prevailing Party" is defined in Section 8.10.
1.1.47. "Project" means the development of the Property contemplated by the Existing
Entitlement Approvals as modified by Subsequent Entitlement Approvals, if any, that may further
define, enhance or modify the Existing Entitlement Approvals pursuant to the provisions of this
Agreement.
1.1.48. "Property" means the real property legally described and depicted on Exhibit A-3
comprising the "Development Parcels" as such term is defined in the DDA.
1.1.49. "Public Benefits" means those public benefits to be provided by the Developer and
the Project as described in Section 3.1 that comprise enforceable additional consideration to City
for this Agreement.
1.1.50. Public Benefits Improvements" means the improvements listed on Exhibit C
including both the Reimbursable Improvements and Non -Reimbursable Improvements listed
thereon, collectively.
1.51. "Recorded" is defined in Section 8.1.
1.1.52. Reimbursable Improvements" means those Public Benefit Improvements identified
on Exhibit C as "Reimbursable Improvements".
1.1.53. "Reimbursement Agreement" means the Reimbursement Agreement attached
hereto as Exhibit D to be entered into by City and Developer at the Close of Escrow, pursuant to
which City shall, on the terms and conditions set forth therein, reimburse Developer for the Actual
Costs (as defined therein) of the Reimbursable Improvements.
1.1.54. "Reservation of Authority" means the rights and authority excepted from the
assurances and rights provided to Developer under this Agreement and reserved to City under
Section 3.10.
1.1.55. "Schools First Affiliate" is defined in Section 2.4.1(b).
1.1.56. "SchoolsFirst Parcels" means the real property legally described and depicted as
the SchoolsFirst Parcels on Exhibit A-2 to this Agreement and comprises the portion of the
Campus owned by Developer as of the Effective Date.
1.1.57. "Second Party" is defined in Section 8.11.3.
1.1.58. "Specific Plan" means the City's Pacific Center East Specific Plan, as amended,
and as the same maybe further amended from time to time.
1.1.59. "State" means the State of California.
1.1.60. "Subsequent Entitlement Approvals" means Entitlement Approvals, if any,
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approved by City subsequent to the Effective Date in connection with development of the Project
on the Property and specifically excludes entitlement approvals, including any such approvals by
the City following the Effective Date, for portions of the Campus other than the Property.
1.1.61. Successor In Interest" or "Successors In Interest" means respectively, any one or
all, of the successors in interest of Developer holding a legal or equitable interest in the whole of
the Campus, or any portion thereof, by or through Developer (including by or through Developer's
successors in interest holding legal or equitable interest therein).
1.1.62. "Term" is defined in Section 2.3.
1.63. "Tustin City Code" means the municipal code of the City of Tustin.
1.1.64. "Vested Rights" means the rights granted to Developer pursuant to this Agreement
upon its acquisition of the City Property (a) to develop the Property with the Project in accordance
with, and subject to the terms and conditions of this Agreement and the Applicable Rules and
(b) with respect to the portions of the Campus other than the Property, solely to establish the
Maximum Campus Square Footage, and for no other purpose.
1.2. Exhibits. The following documents are attached to, and by this reference made a
part of, this Agreement:
Exhibit A-1 Legal Description and Depiction of City Property
Exhibit A-2 Legal Description and Depiction of SchoolsFirst Parcels
Exhibit A-3. Legal Description and Depiction of Property
Exhibit A-4 Legal Description and Depiction of Campus
Exhibit B Map showing Specific Plan Planning Areas and Maximum
Campus Square Footage
Exhibit C Public Benefit Improvements
Exhibit D Reimbursement Agreement
2. GENERAL PROVISIONS.
2.1. Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out only in
accordance with the terms of this Agreement. Notwithstanding any other provision of this
Agreement, unless otherwise agreed by the Parties in writing, this Agreement shall be null and
void if the associated DDA is not approved by the City Council of the City and Developer and
executed by authorized representatives of the City and Developer within one hundred and eighty
(180) calendar days following the Effective Date. In addition, the portions of the Campus other
than Property are made subject to this Agreement as to the Maximum Campus Square Footage
allocation only.
2.2. Interests in Propertv. City and Developer agree that Developer's ownership of
portions of the Campus and right to acquire the City Property pursuant to the DDA creates a
sufficient legal and/or equitable interest in order to enter into this Agreement.
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2.3. Term. Subject to Section 2. 1, the term of this Agreement shall commence on the
Effective Date and shall continue for a term of five (5) years unless this term is terminated,
modified, or extended by circumstances set forth in this Agreement or by mutual written consent
of the Parties. Notwithstanding the foregoing, the term of this Agreement shall be automatically
extended during the term of any Force Majeure Delay, provided that the maximum term of this
Agreement as extended by Force Majeure Delay shall be six (6) years. Notwithstanding any other
provision of this Agreement, concurrently with any termination of the DDA occurring prior to
Close of Escrow, unless otherwise requested by the City, this Agreement will terminate and
Developer will cooperate with City and will execute, in form permitting it to be Recorded, such
instruments as may be reasonably requested by the City to effect such termination. In addition,
this Agreement shall automatically terminate upon the date upon which Developer's rights to
acquire the City Property under the DDA expire, if Developer fails on or before such date to
acquire the City Property.
2.4. Sale, Assignment, Transfer.
2.4.1. Assignment and Notification. The rights, interests and obligations
conveyed and provided herein to Developer benefit and are appurtenant to the Campus. Developer
has the right to sell, assign and/or transfer any and all of its rights and interests in and to the Campus
and this Agreement and to delegate any and all of its duties and obligations hereunder; provided,
however, that such rights and interests may not be sold, assigned or transferred except in strict
compliance with the following conditions:
(a) Until the Certificate of Compliance has been Recorded, prior and as
a condition to any sale, assignment or transfer of this Agreement and any portion of the Campus
("Assignment"):
(i) as to an Assignment including all or any portion of the
Property, Developer shall secure the prior written consent of the City when and if such Assignment
triggers a requirement for City consent to a Transfer or Transfer of Control (each as defined in the
DDA) under Article 2 of the DDA and in such case, City consent to the Assignment of this
Agreement shall be subject to the provisions, standards and requirements set forth in Article 2 of
the DDA (which are incorporated herein by this reference as though fully set forth in this
Agreement) applicable to a Transfer or Transfer of Control, as applicable, thereunder; provided
that if such Transfer or Transfer of Control is a Permitted Transfer (as defined in the DDA), no
City consent shall be required; and
(ii) as to an Assignment only as to a portion of the Campus other
than the Property, Developer shall secure the written consent of City, in its reasonable discretion,
prior and as a condition to any such Assignment;
(b) After the Certificate of Compliance is Recorded, Developer shall
secure the written consent of City, in its reasonable discretion, prior and as a condition to any
Assignment of this Agreement and all or any portion of the Campus, provided that,
notwithstanding anything to the contrary set forth in this Section 2.4, Developer may assign this
Agreement to a SchoolsFirst Affiliate (as defined below) without the requirement of obtaining the
City's prior written consent but any Assignment to a SchoolsFirst Affiliate shall be subject to all
other requirements of this Section 2.4. The term "SchoolsFirst Affiliate" shall mean only a credit
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union service organization Controlled by SchoolsFirst Federal Credit Union.
(c) In all cases, said rights and interests may be sold, assigned or
transferred only as an incident of the Assignment of the portion of the Campus to which they relate,
including any Assignment pursuant to a foreclosure of a Mortgage or a deed in lieu of a
foreclosure;
(d) Prior to any Assignment, Developer shall notify City in writing of
such Assignment, the portions of the Campus to which the Assignment will be appurtenant, and
the name and address (for purposes of notices hereunder) of the assignee or transferee, and
Developer and the assignee or transferee shall notify City whether the assignee or transferee will
assume any or all of Developer's obligations under this Agreement and, if only a portion, which
of Developer's obligations will be assumed; and
(e) The assignee or transferee shall have entered into an Assignment
Agreement if required by the DDA.
Any attempt to assign or transfer any right or interest in this Agreement except in strict
compliance with this Section 2.4 shall be null and void and of no force and effect.
2.4.2. Subject to Terms of Agreement. Following an Assignment of any of the
rights and interests of Developer set forth in this Agreement in accordance with Section 2.4.1, the
assignee's exercise, use, and enjoyment of the Campus shall be subject to the terms of this
Agreement to the same extent as if the assignee or transferee were Developer.
2.4.3. Release of Developer Upon Transfer. Notwithstanding an Assignment of
portions or all of the Campus or the rights or interests under this Agreement, Developer shall
continue to be obligated under this Agreement unless released or partially released by City with
respect to Developer's obligations and the other duties and obligations of Developer under this
Agreement, pursuant to this Section, which release or partial release shall apply only with respect
to obligations of Developer following the effective date of the Assignment. Such release or partial
release shall be provided by City upon the full satisfaction by Developer of each and every one of
the following conditions:
(a) Developer is not then in default under this Agreement;
(b) If required pursuant to Section 2.4.1, City has consented to the
Assignment utilizing the procedures and apply the standard of City approval set forth in such
Section;
(c) The Assignment is not a Transfer to an Affiliate or other Transfer or
Transfer of Control for which the DDA expressly provides that Developer shall not be released
from its obligations under the DDA;
(d) The Assignment is an assignment of all of Developer's interest in
the Campus (or portion of the Campus) being transferred, and, if a portion of the Property is
assigned or transferred, such Assignment shall include all of Developer's rights in the DDA, this
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Agreement and the remaining Other Agreements applicable to the Property being assigned or
transferred;
(e) An assignee or transferee has assumed all duties and obligations as
to which Developer is requesting to be released pursuant to an assignment and assumption
agreement approved by City; and
(f) The assignee or transferee is financially able to assume the
obligations proposed for Assignment and has demonstrated to the reasonable satisfaction of City
that adequate resources have been committed to the full performance of such obligations.
City shall cooperate with Developer, at no cost to City, in executing in recordable form any
document that City has approved to confirm the release of Developer pursuant to this Section 2.4.
2.5. No Release. In the absence of specific written agreement by City, pursuant to
which City expressly releases the Developer under the applicable provisions of the DDA and this
Agreement, no Transfer shall constitute a release of Developer from any of its obligations under
this Agreement and the Developer shall retain such obligations and remain jointly and severally
liable for such obligations.
2.6. Amendment or Cancellation of Agreement.
2.6.1. Generally. This Agreement may be amended or cancelled in whole or in
part only in the manner as provided for in the Government Code and the Tustin City Code. This
provision shall not limit any remedy of City or Developer as provided by this Agreement.
Developer or City may propose an amendment to or cancellation, in whole or in part, of this
Agreement. Any amendment or cancellation shall be by mutual consent of City and Developer
except as provided otherwise in this Agreement, in compliance with any applicable requirements
established by the Government Code and/or the Tustin City Code.
2.6.2. Administrative Amendments; Authori, of City Manager. Any amendment
to this Agreement which does not relate to the Term of this Agreement, permitted uses of the
Project, provisions for the reservation or dedication of land or the conditions, terms, restrictions
and requirements relating to Subsequent Entitlement Approvals of City, revisions to Public
Benefits (other than to the time for performance of the Public Benefits Improvements) or monetary
exactions of Developer, shall be considered an "Administrative Amendment". Any modification
to the Maximum Campus Square Footage or affecting portions of the Campus other than the
Property shall not be an Administrative Amendment. The City Manager or assignee is authorized
to execute Administrative Amendments on behalf of City and no action by the Planning
Commission or the City Council (e.g. noticed public hearing) shall be required before the Parties
may enter into an Administrative Amendment. However, if in the judgment of the City Manager
or assignee a proposal is not an Administrative Amendment or a proposed Administrative
Amendment should be considered by the approval bodies of the City, then in either case, the City's
Planning Commission shall conduct a noticed public hearing to consider whether the amendment
should be approved or denied and shall make a recommendation to the City Council on the
amendment. The City Council shall conduct a noticed public hearing to consider the request and
the Planning Commission's recommendation on the matter. At the conclusion of the public
hearing, the City Council may approve, deny, or conditionally approve the amendment.
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2.6.3. Consent to Amendments. In the case of amendments affecting portions of
the Campus, only the consent of the owner of such portion of the Campus shall be required so long
as the amendment does not diminish the rights appurtenant to or increase the burdens upon any
other portion of the Campus. Any Future Rule applicable to the Project or the Property pursuant
to this Agreement and any amendment of City Land Use Regulations including to the General
Plan, applicable Specific Plan or City's zoning ordinance, shall not require amendment of this
Agreement.
2.6.4. Termination. This Agreement shall be deemed terminated and of no further
effect upon the occurrence of any of the following events:
(a) Expiration of the Term of this Agreement as set forth in Section 2.3;
(b) Entry of a final court judgment not subject to further appeal setting
aside, voiding or annulling the adoption of the City ordinance approving this Agreement;
(c) The adoption of a referendum measure overriding or repealing the
City ordinance approving this Agreement;
(d) Completion of the Project and the Public Benefits in accordance
with the terms of this Agreement, the DDA, the Entitlement Approvals and the Applicable Rules,
including issuance of all required occupancy permits and acceptance by City or applicable public
agency of all required public improvements, and recording of a Certificate of Compliance with the
Orange County Clerk Recorder when required pursuant to the DDA;
Article 5; or
(e) Due to termination by City in accordance with Section 4.3 or
(f) Upon mutual written agreement of City and Developer.
In addition, City shall have the right, but not the obligation, to terminate this Agreement as to the
portion of the Property reacquired by it pursuant to any rights for such termination that may or
may not exist under the DDA. Termination of this Agreement shall not constitute termination of
any other Entitlement Approvals for the Property. Upon the termination of this Agreement, no
Party shall have any further right or obligation hereunder except with respect to any obligation to
have been performed prior to such termination or with respect to any default in the performance
of the provisions of this Agreement which has occurred prior to such termination or with respect
to any obligations which are specifically set forth as surviving this Agreement.
2.7. Notices, Demands and Communications between the Parties. All notices, demands,
consents, requests and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed conclusively to have been duly given (a) when
hand delivered to the other Party; (b) three (3) Business Days after such notice has been sent by
United States mail via certified mail, return receipt requested, postage prepaid, and addressed to
the other Party as set forth below; or (c) the next Business Day after such notice has been deposited
with a national overnight delivery service reasonably approved by the Parties (Federal Express,
United Parcel Service and U.S. Postal Service are deemed approved by the Parties), postage
prepaid, addressed to the Party to whom notice is being sent as set forth with next Business -Day
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delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the
delivery service provider. Unless otherwise provided in writing, all notices hereunder shall be
addressed as follows:
If to City:
City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: City Manager and Director of Community Development
With a copy to:
City Attorney, City of Tustin
Woodruff Spradlin & Smart
555 Anton Boulevard, #1200
Costa Mesa, CA 92626
Attention: David Kendig, Esq.
If to Developer, then separate notices shall be sent to each of the following:
SchoolsFirst Federal Credit Union
1200 Edinger Avenue
Tustin, CA 92780
Bill Cheney, President/CEO
Francisco Nebot, Chief Financial Officer
Christina Quintero, Vice President Facilities Services
With a copy to:
Jeffrey P. Walsworth and Cindy Hughes
1 City Boulevard, 5h Floor
Orange, CA 92868
Any Party may by written notice to the other Party in the manner specified in this
Agreement change the address to which notices to such Party shall be delivered.
3. DEVELOPMENT OF THE PROPERTY.
3.1. Public Benefits. This Agreement provides assurances that the Project described by
this Agreement will be achieved and developed in accordance with the Applicable Rules and this
Agreement. The Parties believe that such orderly development of the Project will provide the
benefits to the City and additional regional public benefits, including: increased tax revenues,
installation of on-site and off-site improvements, and creation and retention of jobs. In addition,
Developer will complete the Public Benefit Improvements listed on Exhibit C within the time
periods set forth for completion in the Schedule of Performance attached to the DDA.
Notwithstanding anything to the contrary in this Agreement, if any payment under this Article 3
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is not made or any obligation requiring performance is not performed by Developer, the City may
withhold further issuance of building permits and other approvals, including final maps, for the
Project until such time as Developer has made the required payment or undertaken the required
performance.
3.2. Developer Objectives. In accordance with the legislative findings set forth in the
Government Code, the Developer wishes to obtain reasonable assurances that the Project may be
developed in accordance with the Applicable Rules and with the terms of this Agreement and
subject to the City's Reservation of Authority. To the extent of Project development, and as
provided by Section 3.5.2, Developer anticipates making capital expenditures or causing capital
expenditures to be made in reliance upon the DDA and this Agreement. In the absence of this
Agreement, Developer would have no assurance that it can complete the Project for the uses and
to the density and intensity of development set forth in this Agreement and the Existing Entitlement
Approvals. This Agreement, therefore, is necessary to assure Developer that the Project will not
be (a) reduced or otherwise modified in density, intensity, maximum square footage or use from
what is set forth in the Existing Entitlement Approvals, or (b) subjected to new rules, regulations,
ordinances or official policies or plans except for Future Rules made applicable pursuant to the
terms of this Agreement.
3.3. Mutual Objectives. Development of the Project in accordance with this
Development Agreement will provide for the orderly development of the Property in accordance
with the objectives set forth in the General Plan. Moreover, a development agreement for the
Project will eliminate uncertainty in planning for and securing orderly development of the
Property, assure installation of necessary improvements, assure attainment of maximum efficient
resource utilization within the City at the least economic cost to its citizens and otherwise achieve
the goals and purposes established by the Government Code. Additionally, although development
of the Project in accordance with this Agreement will restrain the City's land use or other relevant
police powers, this Agreement provides City with sufficient reserved powers during the term
hereof to remain responsible and accountable to its residents. In exchange for these and other
benefits to City, the Developer will receive assurance that the Project may be developed during
the term of this Agreement in accordance with the Applicable Rules, and subject to the City's
Reservation of Authority and the terms and conditions of this Agreement.
3.4. Applicability of the Agreement. This Agreement does not: (a)(i) grant
development capacity for the Property or the Project in excess of that established in the Existing
Entitlement Approvals or (ii) except as set forth in clause (a)(i) above, grant development capacity
or development rights for the Campus except with respect to establishment of the Maximum
Campus Square Footage; (b) eliminate future discretionary actions relating to the Project that are
either required by the Applicable Rules or requested by Developer pursuant to applications
initiated and submitted by Developer after the Effective Date; (c) eliminate the requirement that
Developer obtain all entitlement approvals required by the City pursuant to then -effective Land
Use Regulations with respect to development on the Property of any project other than the Project
or development on portions of the Campus other than the Property; (d) guarantee that Developer
will receive any profits from the Project or any other development on the Campus; (e) amend the
DDA, the Specific Plan or the General Plan or (f) protect the Developer, the Project or the Campus
from the applicability of any increases in development fees or City Processing Fees.
Notwithstanding any other provision of this Agreement: (i) except as specifically set forth in
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Sections 3.6.2 and 3.10, this Agreement does not protect the Developer, the Projector the Property
from the applicability of any Future Rules (1) imposed pursuant to the City's Reservation of
Authority or (2) if not imposed pursuant to the City's Reservation of Authority, adopted by the
City and not in conflict (as defined in Section 3.6.2) with Existing Land Use Regulations and
(ii) does not protect the Campus other than the Property or the Campus Improvements other than
the Project from the applicability of any Future Rules or provide Vested Rights to the portions of
the Campus other than the Property or the Campus Improvements other than the Project except by
establishing an allocation to the Campus of the Maximum Campus Square Footage in accordance
with Table 4 of the Specific Plan. For avoidance of doubt, the inclusion or failure to include a
reference to the remainder of the Campus or to the Maximum Campus Square Footage in any
Section of this Agreement granting or limiting rights applicable to the Property or the Project shall
not be construed to create additional rights in Developer associated with the development of such
portions of the Campus or Campus Improvements thereon.
3.5. Agreement and Assurance on the Part of the Developer. In consideration for City
entering into this Agreement, and as an inducement for City to obligate itself to carry out the
covenants and conditions set forth in this Agreement, and in order to effectuate the premises,
purposes and intentions set forth in this Agreement, Developer hereby agrees as follows:
3.5.1. Project Development. Developer agrees that it will use commercially
reasonable efforts, in accordance with its own business judgment and taking into account market
conditions and economic considerations, to undertake any development of the Project in
accordance with the terms and conditions of the DDA, this Agreement and the Existing Entitlement
Approvals.
3.5.2. Additional Obligations of Developer as Consideration for this Agreement.
In addition to the obligations identified in Section 3. 1, the development assurances provided by
Developer in this Agreement and the resulting construction of the Project will result in the
following:
(a) Construction of an office complex comprised of (i) a three-story,
180,000 square foot office building, (ii) a one-story, 5,000 square foot retail credit union branch,
and (iii) a four -level parking structure with approximately 920 parking spaces consistent with this
Agreement, the Applicable Rules and the DDA, including in accordance with the schedule of
performance set forth in the DDA.
(b) Construction of all Improvements identified in the DDA in
accordance with the schedule of performance set forth in the DDA.
(c) Completion of all Public Benefit Improvements identified on
Exhibit C in accordance with the schedule of performance set forth in the DDA and this
Agreement.
(d) Compliance with the DDA, the Applicable Rules, State and federal
law, all mitigation measures, including measures imposed pursuant to the California
Environmental Quality Act ("CEQA"), all Development Permits and all conditions of approval
associated with the foregoing.
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(e) Payment of all required development related fees, including all
required processing fees, pursuant to the terms and conditions set forth in the DDA and this
Agreement.
3.6. Agreement and Assurances on the Part of CitX. In consideration for Developer
entering into this Agreement, as an inducement for Developer to obligate itself to carry out the
covenants and conditions set forth in this Agreement, and in order to effectuate the purpose of this
Agreement, City hereby agrees as follows:
3.6.1. Applicable Regulations, Vested Right to Develop. To the maximum extent
permitted by law, Developer has the vested right for the term of this Agreement to develop the
Project on the Property subject to the terms and conditions of this Agreement, the Applicable
Rules, State and federal law, in each case subject to City's Reservation of Authority and subject
to the additional terms and conditions set forth in the DDA. Other than as expressly set forth in
this Agreement, during the Term, the terms and conditions of development applicable to the
Property, including the permitted uses of the Property, the density and intensity of use, maximum
height and size of proposed buildings, the design, improvement and construction standards and
specifications applicable to the development of the Property, including any changes authorized
pursuant to Section 3.6.2, the requirements for infrastructure and public improvements and the
provisions for the reservation and dedication of land as needed for public purposes pursuant to
Governmental Requirements, shall be those set forth in the DDA and the Applicable Rules. In
connection therewith and subject to the terms of this Agreement including the Reservation of
Authority, Developer shall have the Vested Right to carry out and develop the Property in
accordance with the Applicable Rules and the provisions of this Agreement. In addition, by
executing this Agreement, the City confirms the Maximum Campus Square Footage for the
Campus but provides no other Vested Rights with respect to the development of portions of the
Campus other than the Property or with respect to Campus Improvements other than the Project.
3.6.2. Changes Authorized by City. To the extent any changes in the Existing
Land Use Regulations, or any provisions of future General Plans, Specific Plans, Tustin City Code
or other rules, regulations, ordinances or policies of City (whether adopted by means of ordinance,
initiative, referenda, resolution, policy, order, moratorium, or other means, adopted by the City
Council, Planning Commission, or any other board, commission, agency, committee, or
department of City, or any officer or employee thereof) following the Effective Date (collectively,
"Future Rules") are not in conflict with the Vested Rights, such Future Rules shall be applicable
to the Project. For purposes of this Section 3.6.2, the word "conflict" means Future Rules that
would (a) frustrate in a more than insignificant way the intent or purpose of the Applicable Rules
in relation to the Project; (b) materially increase the cost of performance of, or preclude compliance
with, any provision of the Vested Right; (c) delay in a more than insignificant way development
of the Project; (d) limit or restrict the availability of public utilities, services, infrastructure of
facilities (for example, but not by way of limitation, water rights, water connection or sewage
capacity rights, sewer connections, etc.) to the Project, or (e) impose limits or controls in the rate,
timing, phasing or sequencing of development of the Project.
Notwithstanding the foregoing, a Future Rule that conflicts with the Applicable Rules shall
nonetheless apply to the Property if, and only if one of the following apply: (i) it is consented to
in writing by Developer; (ii) it is determined by City and evidenced through findings adopted by
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the City Council that the change or provision is reasonably required in order to prevent a condition
dangerous to the public health or safety as set forth in Section 3.10.3; (iii) required by changes in
State or federal law as set forth in Section 3.10.2; (iv) it consists of revisions to, or new building
regulations permitted by Section 3.10.4; or (v) it is otherwise expressly permitted by this
Agreement.
3.6.3. Availability of Public Services. To the maximum extent permitted by law
and consistent with its authority, City shall use commercially reasonable efforts to assist Developer
in reserving such capacity for sewer and water services as may be necessary to serve the Project,
at no cost or expense to City.
3.6.4. Allocation of Development Rights Under Specific Plan; Effect of
Agreement on Development of Campus. City hereby acknowledges that based on the actual net
acreages for the Campus, the Specific Plan (pursuant to Table 4 of the Specific Plan) allocates to
the Campus and reserves for development of the Project and additional Campus Improvements a
total of 451,715 square feet of office and commercial square footage from the total Specific Plan
Planning Areas 7, 9, 11, and 14 (as shown on Exhibit B) authorization of office and commercial
square footage, which shall be allocated as set forth on Exhibit B ("Maximum Campus Square
Footage") unless otherwise approved by the City. The foregoing is a maximum allocation for all
existing and future buildings, and improvements on the Campus (but excludes parking structures,
which shall not be counted toward the Maximum Campus Square Footage). Except with respect
to the foregoing allocation of square footage, this Development Agreement does not provide
Vested Rights to Developer with respect to portions of the Campus other than the Property or to
development of improvements other than the Improvements. Notwithstanding any other provision
of this Agreement, if Developer desires to develop the remainder of the Campus, other than the
Project, with Campus Improvements in accordance with the Specific Plan such development shall
be contingent upon consideration and approval by the City, in accordance with then -applicable
Land Use Regulations, and the other then -applicable laws, rules and regulations of the City,
without restriction, following public hearings as required by law, of concept plan and design
review, conditional use permits and other permits and approvals required by the Specific Plan and
the Tustin City Code to be issued as a condition to such development, and in carrying out such
development, the Vested Rights protections under this Agreement shall not apply except to the
extent of vesting of the commercial square footage allocations shown on Exhibit B.
3.7. Intentionally Omitted.
3.8. Timing of Development. The timing of development will be as set forth in the
DDA. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo
(1984) 37 Cal. 3d 465, that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of development to prevail
over such parties' agreement, it is the Parties' intent to cure that deficiency by acknowledging and
providing that Developer will adhere to the terms of the DDA regarding the timing of development.
3.9. Subsequent Entitlement Approvals; Changes and Amendments. The Parties
acknowledge that refinement and further development of the Project may require Subsequent
Entitlement Approvals and may demonstrate that changes are appropriate and desirable in the
Existing Entitlement Approvals. Entitlement Approvals (except for this Agreement, the
amendment process for which is set forth in Section 2.6) may be amended or modified from time
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to time, but only at the written request of Developer or with the written consent of Developer (at
its sole and absolute discretion). All amendments to the Entitlement Approvals shall automatically
become part of the Applicable Rules. In the event Developer finds that a change in the Existing
Entitlement Approvals is necessary or appropriate, Developer shall apply for a Subsequent
Entitlement Approval to effectuate such change and City shall process and act on such application
in accordance with the Applicable Rules, except as otherwise provided by this Agreement,
including the Reservation of Authority. If approved, any such change in the Existing Entitlement
Approvals shall thereafter be deemed to be an Existing Entitlement Approval and a Vested Right
for all purposes of this Agreement without requiring an amendment to this Agreement and may be
further changed from time to time as provided in this Section.
3.10. Reservation of Authority. Notwithstanding any other provision of this Agreement
to the contrary, the Future Rules described in this Section 3.10 shall apply to and govern
development of the Property and Project unless otherwise set forth in this Agreement. Except as
set forth in Section 3.6.4 with respect to the Maximum Campus Square Footage, nothing in this
Agreement shall limit the right of the City to apply Future Rules, then -existing laws and Land Use
Regulations with respect to development of the portions of the Campus other than the Property
and the limitations with respect to Future Rules set forth in this Section 3.10 apply solely to the
Property and the Project (and the Future Rules shall apply to all development on the Campus other
than the development of the Project on the Property).
3.10.1. Consistent Future Cily Regulations. Future Rules shall apply to and govern
development of the Property, provided that any Future Rules which reduce the density or intensity
of the Project below that permitted by the Existing Land Use Regulations or the Existing
Entitlement Approvals, alter the permitted uses of the Property, reduce the maximum height or
size of any permitted buildings, impose additional obligations in connection with the reservation
of land for public purposes beyond the requirements identified in the DDA, or limit the rate, timing,
or sequencing of development of the Property from that required in the DDA or in any Entitlement
Approvals, shall be deemed inconsistent with this Agreement and shall not be applicable to the
development of the Property and Project.
3.10.2. Overriding State and Federal Laws. City shall not be precluded from
adopting and applying Future Rules to the Property and the development of the Project to the extent
that such Future Rules are required to be applied by State or federal laws or regulations and which
would override Developer's Vested Rights as set forth in this Agreement, provided however, that
(a) Developer does not waive its right to challenge or contest the validity of such State or federal
rules or regulations; and (b) such Future Rules, if otherwise in conflict with the Vested Rights (as
described in Section 3.6.2) shall only be applied to the Project and development of the Project to
the extent necessary to comply with such new State or federal law or regulation. In the event that
such State or federal law or regulation (or Future Rules undertaken pursuant thereto) prevents or
precludes substantial compliance with one or more provisions of the Existing Land Use
Regulations or this Agreement, the Parties agree to consider in good faith amending or suspending
such provisions of this Agreement as may be necessary to comply with such State or federal laws
(or Future Rules), provided that no Party shall be bound to approve any amendment to this
Agreement unless this Agreement is amended in accordance with the procedures applicable to the
adoption of development agreements as set forth in the Development Agreement Statute and
Tustin City Code and each Party retains full discretion with respect thereto.
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3.10.3. Public Health and Safetv. Nothing in this Agreement shall preclude the City
Council from adopting and applying Future Rules that the City Council finds are reasonably
necessary to protect persons on the Property or in the immediate community, or both, from
conditions dangerous to their health or safety notwithstanding that the applications of such Future
Rules or other similar limitation would result in the impairment of Developer's Vested Rights
under the Agreement or the Existing Land Use Regulations. In determining whether any such
Future Rules are reasonably necessary to protect persons as set forth above, the City Council shall
make findings, based on evidence presented to and accepted by the City Council that the changes
are reasonably necessary to protect the public health or safety. The provisions of this
Section 3.10.3 do not apply to any measure adopted by initiative.
3.10.4. Uniform Construction Codes and Regulations. Policies and rules governing
engineering and construction standards and specifications applicable to public and private
improvements; including all uniform codes adopted by City and any local amendments to those
codes adopted by City in the future shall apply to the Project and Property.
3.10.5. Police Power. In all respects not provided for in this Agreement, City shall
retain full rights to exercise its police powers to regulate development of the Project and Property.
Any uses or development requiring a concept plan, design review, tentative tract map, conditional
use permit, variance, or other Entitlement Approvals in accordance with Existing Land Use
Regulations shall require a permit or approval pursuant to this Agreement and notwithstanding any
other provision set forth herein, this Agreement is not intended to vest Developer's right to
issuance of such permit or approval.
3.11. Processing.
3.11.1. Subsequent Entitlement Approvals. City shall employ all lawful actions
capable of being undertaken by City to promptly (a) accept all complete applications for
Subsequent Entitlement Approvals (collectively, "Applications") and (b) process and take action
upon Applications in accordance with the Applicable Rules with a goal of completing the review
within time frames identified in the DDA; provided however, that City shall not be deemed in
default under this Agreement should such time frame(s) not be met. To the extent that Developer
desires that City plan check or process an Application on an expedited basis and to the extent that
it requires an additional expense beyond the customary expense applicable to the general public,
City shall inform Developer of such additional expense, including the cost of overtime and private
consultants and other third parties. If acceptable to Developer, Developer shall pay the additional
cost and City shall use good faith efforts to accelerate the processing time utilizing overtime and
the services of private consultants and third parties to the extent available. Upon the written
request of Developer, City shall inform Developer of the necessary application requirements for
any requested City approval or requirement relating to the Project. At such time as a Subsequent
Entitlement Approval applicable to the Property is approved by City, then such Subsequent
Entitlement Approval shall become subject to all of the terms and conditions of this Development
Agreement and shall be treated as an Existing Entitlement Approval under this Agreement.
3.11.2. Filings. Developer shall exercise reasonable efforts to file applications for
Development Permits and Entitlement Approvals within the time frames and schedules as
generally outlined in the DDA and shall exercise reasonable efforts to attempt to obtain
Development Permits and Entitlement Approvals within the time frames identified in the DDA;
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provided, however, that failure solely to comply with such time frame(s) shall not be deemed to
be a default under this Agreement.
3.11.3. Cooperation. City and Developer shall cooperate in processing all
applications for permits and approvals for the Project, provided, however, that such cooperation
shall not include any obligation of City to incur any un -reimbursed expense, and City shall be
entitled, subject to the terms of this Agreement, the DDA and Developer's rights hereunder, to
exercise all discretion to which it is entitled by law in processing and issuing any permits and
approvals for the Project.
3.11.4. Approvals. Notwithstanding any administrative or judicial proceedings,
initiative or referendum concerning any of the Entitlement Approvals, City shall process
applications for permits and approvals as provided herein to the fullest extent allowed by law and
Developer may proceed at its sole risk with development of the Project pursuant to the DDA and
the Applicable Rules to the fullest extent allowed by law. Notwithstanding the foregoing,
Developer acknowledges and agrees that City reserves its discretion in the same manner as it
exercises its discretion under its police powers, including the Reservation of Authority, to approve
or disapprove all Subsequent Entitlement Approvals for the Project and/or the Property and any
subsequent entitlement approvals sought by Developer with respect to the remainder of the
Campus, and that nothing in this Agreement will be construed as circumventing or limiting City's
discretion with respect thereto or with respect to the environmental review required by CEQA.
Such reservation of discretion will apply to all contemplated legislative and quasi-judicial actions
including approval of land use entitlements, CEQA compliance, code enforcement and the making
of findings and determinations required by law and the City may, in its sole and absolute discretion,
elect not to approve, adopt or certify any requested subsequent entitlement approval based on
CEQA review or other discretionary factors.
3.12. CEQA. This Agreement does not modify, alter or change the City's obligations
pursuant to CEQA. Developer acknowledges that City is required by State law to comply with
CEQA in the consideration and approval of any Subsequent Entitlement Approval and/or any
amendment to this Agreement. The EIR, which has been certified by City as being in compliance
with CEQA, addresses the potential environmental impacts of the entire Project as it is described
in the Existing Entitlement Approvals. Nothing in this Agreement shall require or be construed to
require CEQA review of ministerial approvals. It is agreed that, in acting on any discretionary
Subsequent Entitlement Approvals for the Project, City shall rely on the EIR to satisfy the
requirements of CEQA to the extent permissible by CEQA. In the event that any additional CEQA
documentation is legally required for any discretionary Subsequent Entitlement Approval for the
Project, then the scope of such documentation shall be focused, to the extent possible consistent
with CEQA, on the specific subject matter of the Subsequent Entitlement Approval and City shall
conduct such CEQA review as expeditiously as possible, at Developer's expense. Nothing herein
shall restrict or limit the obligation of Developer to pay for and implement any additional
mitigation measures or conditions of approval imposed as a result of such CEQA and any
Subsequent Entitlement Approval process.
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3.13. Fees.
3.13. 1. Processing Fees and Charges.
(a) The City shall have the right to charge and Developer shall be
required to pay all City Processing Fees which shall, except as otherwise specifically set forth in
Section 3.13.1(b), be paid at the generally applicable rates in effect at the time such City Processing
Fees are due.
(b) With respect to Plan Check and Inspection Services only, the City
shall be entitled to charge and Developer shall reimburse the City for its costs to make available
City staff, including the City Attorney, and third party engineers and consultants, if any, as required
to complete, process, and review plans and applications, complete plan check, perform inspections,
and monitor Developer compliance with the requirements of this Agreement and the Applicable
Rules. Not later than ten (10) Business Days following approval by the City of this Agreement,
and as a condition to the effectiveness of this Agreement, Developer shall deliver to the City in
cash or cash equivalent funds, a deposit in an amount reasonably requested by City which shall be
based on the City's estimate of staff and third party consultant time required to complete and
perform plan check and inspections ("City Costs Deposit"). The City Costs Deposit shall be
deposited by the City in an account in a bank or trust company selected by the City and with no
requirement that such account be interest bearing. If any interest is paid on such account, such
interest shall accrue to any balances in the account for the benefit of the City. If at any time prior
to the latest to occur of (i) issuance of the final Certificate of Compliance for the Project; (ii) the
issuance of the final certificate of occupancy for a building on the Property; or (c) termination of
the DDA ( "Final Date"), the amount of funds in the City Costs Deposit account is depleted below
Ten Thousand Dollars ($10,000), then Developer shall be required to pay to the City each time an
additional Twenty Thousand Dollars ($20,000) or such other amount as the City may specify as
required in City's estimation to cover the cost of Plan Check and Inspection Fees, which shall be
credited to the City Costs Deposit. Each such payment shall be deposited by the City into the City
Costs Deposit account and shall be applied to reduce the amount of Plan Check and Inspection
Fees incurred by the City. The City Costs Deposit has been established to fund the Plan Check
and Inspection Fees incurred by the City and may be used by the City for such purpose, and shall
be depleted accordingly. Immediately upon incurring any Plan Check and Inspection Fees or costs
or receipt of an invoice from third parties for same, the City shall have the right to deduct the
amounts due it on account thereof from the City Costs Deposit. A monthly accounting of
deductions documenting staff time spent to process and review plans and applications, complete
plan check, perform inspections, and monitor Developer compliance, along with documentation
evidencing any other deductions from the City Costs Deposit shall be provided by City to
Developer. The City Costs Deposit shall be retained by the City until the Final Date specified
above and the remaining amount of the City Costs Deposit then held by the City, if any, shall be
promptly returned by the City to Developer thereafter, provided that the return of such funds shall
not terminate the obligations of Developer to pay all City Processing Fees arising or incurred prior
to the Final Date. Developer shall pay any outstanding amounts due with respect to the City
Processing Fees to the City within thirty (30) calendar days following receipt of an invoice from
the City therefor, provided that the City shall first apply the amount of the City Costs Deposit, if
any, then held by it in satisfaction of such invoice, and shall reflect the amount of such credit on
the invoice.
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3.13.2. Development Fees. City shall have the right to impose, and Developer shall
pay, all development fees adopted by City at the time of issuance of building permits for the
Project.
3.14. Dedications. Developer and City acknowledge and agree that there are no
dedications by Developer to City and/or other public agencies required by this Agreement and the
DDA.
3.15. Regulation by Other Public Agencies. It is acknowledged by the Parties that other
public agencies not within the control of City possess authority to regulate aspects of the Project
and development of the Property (and the remainder of the Campus) separately ftom or jointly
with City and this Agreement does not limit the authority of such other public agencies. City
agrees to cooperate fully, at no out of pocket cost to City, with Developer in obtaining any required
permits or compliance with the regulations of other public agencies provided such cooperation is
not in conflict with any laws, regulations or policies of City.
3.16. Lot Line Adjustment. Developer shall take all actions required to be taken by it,
including assuring that the appropriate instruments and deeds are Recorded, to cause the lot line
adjustment to the Property described in the DDA pursuant to Lot Line Adjustment (LLA) 2018-
00003 ("Lot Line Adjustment") to be completed at and as a condition to Close of Escrow.
3.17. Certain Restrictions on Building Permit Issuance. The Developer acknowledges
and agrees that City will not issue a grading or building permit for the Project or any building
comprising a portion of the Improvements, until such time as the Close of Escrow under the DDA
has taken place, City has issued a certificate of compliance with respect to the Lot Line Adjustment
and Developer has posted with the City all bonds and other guaranties of performance required by
the City. Notwithstanding the foregoing, Developer will be allowed to apply for grading and/or
building permits for work being performed solely on property owned by Developer prior to Close
of Escrow under the DDA which shall be subject to consideration and approval by the City.
3.18. Ouimby Fees and Park Fees. City has determined that there are no fees required in
connection with the Project pursuant to the Quimby Act, Government Code Section 66477, and
Developer shall not have any additional liability on account thereof.
3.19. Compliance with Legal Requirements. Prior to the issuance of any certificate of
occupancy for the Project or any portion thereof, Developer shall satisfy all applicable
requirements of the Tustin City Code, Specific Plan, and conditions of approval of the Entitlement
Approvals relating to or necessary for the issuance of the requested certificate of occupancy,
including compliance with the Americans with Disabilities Act and necessary horizontal
Improvements to support the improvements for which the certificate of occupancy is requested.
3.20. Required Completion of Horizontal Improvements. Prior to issuance of the first
grading or building permit for the Project, Developer shall bond for all grading and horizontal
(infrastructure) Improvements required by each of the DDA, this Agreement, the conditions of
approval of the Entitlement Approvals and standard City requirements. Prior to the issuance of
the certificate of occupancy for the first building on the Property (excluding parking structures)
(a) Developer shall complete all horizontal Improvements other than the Reimbursable
Improvements and the Landscape Improvements (as defined in the Landscape Installation and
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Maintenance Agreement) and (b) shall bond for all Reimbursable Improvements and Landscape
Improvements.
3.21. Required Landscaping and Irrigation Improvements. Developer shall complete all
landscaping and irrigation improvements that have been assured through the provision of bonds,
guarantees, cash collateral, or other instruments. Developer shall enter into a Landscape
Installation and Maintenance Agreement with the City for the construction, maintenance, repair,
and replacement of the Landscape Improvements described in the DDA and in such Landscape
Installation and Maintenance Agreement including for the maintenance of parkway improvements
within public rights-of-way on Newport Avenue and Del Amo Avenue adjacent to the Project.
4. ANNUAL REVIEW.
4.1. Timing and Annual Review. The City Council shall review Developer's
performance under this Agreement at least every twelve (12) months from the Effective Date until
expiration of the Agreement. In connection with such review, both City and Developer shall have
a reasonable opportunity to assert matters which either believes have not been undertaken in
accordance with this Agreement, to explain the basis for such assertion, and to receive from the
other Party a justification of its position on such matters.
4.2. Review Procedure. City shall provide notice to Developer and deliver to Developer
a copy of all public staff reports, documents and related exhibits concerning City's review of
Developer's performance hereunder at least thirty (30) calendar days prior to any date proposed
for City Council review of performance under the Agreement.
4.2.1. Good Faith Compliance. Developer shall demonstrate good faith
compliance with the terms of this Agreement and shall furnish such evidence of good faith
compliance, as City, in its reasonable exercise of its discretion, may require. Evidence of good
faith compliance may include the following:
(a) conformance with the DDA, including the Scope of Development
and Schedule of Performance;
(b) conformance with the requirements of the Specific Plan; and
(c) conformance with provisions of this Agreement identified by City.
4.2.2. Response. Developer or its Successor In Interest shall have the opportunity
to be heard and respond to City's evaluation of Developer's performance, either orally or in a
written statement, at Developer's election.
4.2.3. Non -Compliance. If, as a result of its periodic review as described in
Section 4.1, the City Council finds and determines, on the basis of substantial evidence, that the
Developer has not complied in good faith with the terms or conditions of this Agreement, the City
Council may commence proceedings to enforce, modify, or terminate this Agreement.
4.2.4. Referral. The City Council may refer the matter to the Planning
Commission for further proceedings or for a report and recommendation.
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4.3. Modification or Termination. If the City Council determines to proceed with
modification or termination of this Agreement, the City Council shall give notice to Developer or
Successor In Interest thereto of its intention to do so. The Notice shall contain all information
required by Tustin City Code Section 9618. At the time and place set for the hearing on
modification or termination, the City Council may refer the matter back to the Planning
Commission for further proceedings or for a report and recommendation. The City Council may
take such action as it deems necessary to protect the interests of City, including the receipt of
additional evidence as to Developer's compliance with the terms of this Agreement. The decision
of the City Council shall be final, subject only to judicial review pursuant to California Code of
Civil Procedure Section 1094.5(b).
4.4. Certificate of Agreement Compliance. If, at the conclusion of a periodic review,
Developer is found to be in compliance with this Agreement, City shall, upon request of the
Developer, issue a Certificate ("Certificate") to Developer stating that after the most recent
periodic review and based upon the information known or made known to the City Council that:
(a) this Agreement remains in effect, and (b) Developer is not in default. The Certificate shall be
in recordable form, shall contain information necessary to communicate constructive record notice
of the finding of compliance, and shall state the anticipated date of commencement of the next
periodic review. Developer may record the Certificate with the Orange County Clerk Recorder. If
City does not find Developer to be in compliance with this Agreement, it shall not be obligated to
issue the Certificate.
5. DEFAULT. REMEDIES. AND TERMINATION.
5.1. Default Procedure. A non -defaulting Party ("Non -Defaulting Party") at its
discretion may elect to declare a default under this Agreement in accordance with the procedures
hereinafter set forth for any failure or breach of any other Party ("Defaulting Party") to perform
any material duty or obligation of said Defaulting Party in accordance with the terms of this
Agreement. However, the Non -Defaulting Party must provide written notice to the Defaulting
Party setting forth the nature of the breach or failure and the actions, if any, required by the
Defaulting Party to cure such breach or failure. The Defaulting Party shall be deemed to be in
"default" of its obligations set forth in this Agreement if the Defaulting Party has failed to take
action and cure the default within ten (10) calendar days after the date of delivery of such notice
(for monetary defaults) or within thirty (30) calendar days after the date of delivery of such notice
(for non -monetary defaults). If, however, a non -monetary default cannot be cured within such
thirty (30) calendar day period, as long as the Defaulting Party does each of the following:
(a) provides the Non -Defaulting Party in writing a reasonable explanation as to
the reasons the asserted default is not curable within the thirty (30) calendar day period;
(b) notifies the Non -Defaulting Party in writing of the Defaulting Party's
proposed course of action to cure the default;
(c) promptly commences to cure the default within the thirty (30) calendar day
period;
(d) makes periodic written reports to the Non -Defaulting Party as to the
progress of the program of cure; and
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(e) diligently prosecutes such cure to completion, then the Non -Defaulting
Party shall grant in writing the Defaulting Party such additional time as determined by the Non -
Defaulting Party as reasonably necessary to cure such default.
5.2. City's Remedies. In the event of an uncured default by Developer under this
Agreement, the City, at its option, may institute legal action to cure, correct or remedy such default,
enjoin any threatened or attempted violation, enforce the terms of this Agreement by specific
performance, or pursue any other legal or equitable remedy. Furthermore, City, in addition to or
as an alternative to exercising the remedies in this Section 5.2, in the event of a material default by
Developer, may give notice of its intent to terminate or modify this Agreement pursuant to
Section 4.3, in which event the matter shall be scheduled for consideration and review by the City
Council in the manner set forth in Tustin City Code Section 9618. The decision of the City Council
shall be final, subject only to judicial review pursuant to California Code of Civil Procedure
Section 1094.5(b).
5.3. Developer's Remedies. Developer acknowledges that the City would not have
entered into this Agreement if the City could be held liable for Damages for any default or breach
arising out of this Agreement and that Developer has adequate remedies other than Damages to
secure the City's compliance with its obligations under this Agreement. In the event of an uncured
default of City under this Agreement, Developer shall be entitled to any or all of the following
remedies: (a) seeking mandamus or special writs, injunctive relief, or specific performance of this
Agreement; (b) in the event of a material default by the City, modification or termination of this
Agreement; or (c) seeking any other remedy available at law or in equity, provided, however,
except as provided in Section 8.10, the Developer agrees and covenants on behalf of itself, its
Successors In Interest and their respective successors and assigns, (a) not to sue City for Damages
for any breach of this Agreement or arising out of or connected with any dispute, controversy or
issue regarding the application or effect of this Agreement or for Damages arising out of or
connected with any dispute, controversy, or issues regarding the application or effect of this
Agreement, the DDA, the Applicable Rules, any Development Permits with respect to the Project
or the Property, or any portion thereof, or any entitlement approvals sought in connection with
development or use of the remaining portions of the Campus or the Campus Improvements or any
portion thereof and (b) that the City, its elected and appointed officials, employees and agents shall
not be liable for any Damages. The term "Damages" means monetary relief of any kind, including
general, special, compensatory, expectation, anticipation, indirect, consequential, exemplary, or
punitive damages.
5.4. Third Party Legal Challenges. In the event of any legal action instituted by a third
party challenging the validity or enforceability of any provision of this Agreement, the Applicable
Rules or the DDA with respect to the Project, the Property, the Campus, the Maximum Campus
Square Footage or the approval of any CEQA document prepared in connection with any of the
foregoing, Developer agrees, at its sole cost and expense, to defend (with counsel reasonably
acceptable to City), indemnify, and hold harmless City, its elected and appointed officials,
employees, agents, and consultants, from any claim, action, or proceeding against City, its elected
and appointed officials, agents, and employees, which seeks to attack, set aside, challenge, void,
or annul an approval of the City Council, the Planning Commission, or any other decision-making
body, including staff, concerning the Project. City agrees to promptly notify Developer of any
such claim or action filed against City and to cooperate in the defense of any such action.
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Developer shall also indemnify and hold harmless City and its agents, officials and employees
from and against all claims, losses, or liabilities assessed or awarded against City by way of
judgment, settlement, or stipulation. City at its own cost may elect to participate in the defense of
any such action under this condition.
6. INDEMNITY BY DEVELOPER.
Developer agrees to indemnify, defend, and hold harmless City, City's designees, and
their respective elected and appointed officials, hoards, commissions, agents, contractors, and
employees from and against any and all actions, suits, claims, liabilities, losses, damages,
penalties, obligations and expenses (including attorney's fees and costs) which may arise,
directly or indirectly, from the acts, omissions, or, operations of Developer or Developer's agents,
contractors, subcontractors, agents, or employees pursuant to this Agreement, but excluding any
loss resulting from the intentional or active negligence of City, City's designee, or each of their
respective elected and appointed officials, boards, commissions, officers, agents, contractors,
and employees. Developer shall select and retain counsel reasonably acceptable to City to defend
any action or actions and Developer shall pay the cost thereof. The indemnity provisions set
forth in this Agreement shall survive termination of the Agreement.
7. MORTGAGEE PROTECTION.
The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any
manner, from encumbering the Campus or any portion thereof or any improvement thereon by
any Mortgage securing financing with respect to the Project or the Campus Improvements;
provided that nothing herein shall modify or amend the restrictions set forth in the DDA with
respect to Mortgages. Any Mortgagee holding a Mortgage that is not prohibited by the DDA
shall be entitled to the following rights and privileges:
(a) This Agreement shall be superior and senior to any lien placed upon the
Campus or any portion thereof after the date of recording of this Agreement, including the lien of
any Mortgage. Notwithstanding the foregoing, neither entering into this Agreement nor a breach
of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage on the
Campus made in good faith and for value, unless otherwise required by law, and any acquisition
or acceptance of title or any right or interest in or with respect to the Campus or any portion thereof
by a Mortgagee (whether pursuant to foreclosure, trustee's sale, deed in lieu of foreclosure, lease
termination or otherwise) shall be subject to the terms and conditions of this Agreement and any
such Mortgagee who takes title to the Campus or any portion thereof shall be entitled to benefits
arising under this Agreement.
(b) Each Mortgagee of any Mortgage encumbering the Campus, or any part
thereof, and which is not securing the interest of a lessee shall upon written request in writing to
City, be entitled to receive written notice from City of results of the Annual Review and of any
default by Developer in the performance of Developer's obligations under this Agreement
concurrently with delivery of same to Developer and shall have the right, but not the obligation,
to cure the default during the remaining cure period allowed such Party under this Agreement
(including any extended cure period necessary in order to allow the Mortgagee to obtain title to
the Campus and cure the default). Notwithstanding the foregoing, the failure of City to deliver a
concurrent copy of such notice of default to a Mortgagee shall not affect in any way the validity
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of the notice of default as it relates to the Developer, and provided, further, the giving of any notice
of default or the failure to deliver a copy to any Permitted Mortgagee shall in no event create any
liability on the part of the Person so declaring a default.
(c) Any Mortgagee who comes into possession of the Campus, or any part
thereof, pursuant to foreclosure of the Mortgage or deed in lieu of such foreclosure, shall take the
Campus, or part thereof, subject to the terms of this Agreement. Notwithstanding any other
provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under
this Agreement to perform any of Developer's obligations or other affirmative covenants of
Developer hereunder, or to guarantee such performance; except that (i) the Mortgagee shall have
no right to develop the Project or the Property without fully complying with the terms of this
Agreement, the DDA, the Applicable Rules, (ii) the Mortgagee shall have no right to develop the
remainder of the Campus (i.e., other than the Property) or Campus Improvements other than the
Project without fully complying with the terms of the Specific Plan, the then -existing laws and
Land Use Regulations, and (iii) to the extent that any covenant to be performed by Developer is a
condition precedent to the performance of a covenant by City, the performance thereof shall
continue to be a condition precedent to City's performance hereunder.
Notwithstanding anything to the contrary contained above in this Section, any Mortgagee
shall be subject to all of the terms of the DDA, to the extent applicable pursuant to the DDA to
such Mortgagee.
MISCELLANEOUS PROVISIONS.
8.1. Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the Orange County Clerk Recorder ("Recorded")
by the City Clerk within ten (10) calendar days after City executes this Agreement, as required by
Government Code Section 65868.5. If City and Developer amend or cancel this Agreement as
provided for herein and in Government Code Section 65868, or if City terminates or modifies this
Agreement as provided for herein and in Government Code Section 65865.1 for failure of
Developer to comply in good faith with the terms or conditions of this Agreement, the City Clerk
shall have notice of such action recorded with the Orange County Clerk Recorder.
8.2. Entire Agreement. This Agreement and the DDA set forth and contains the entire
understanding and agreement of the Parties with respect to the matters set forth herein, and there
are no oral or written representations, understandings or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein. No testimony or evidence of
any such representations, understandings or covenants shall be admissible in any proceeding of
any kind or nature to interpret or determine the terms or conditions of this Agreement.
8.3. Severability. If any term, provision, covenant or condition of this Agreement shall
be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected
thereby to the extent such remaining provisions are not rendered impractical to perform taking into
consideration the purposes of this Agreement.
8.4. Interpretation and Governing Law. This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the internal laws of the State
without reference to choice of law or conflicts of law provisions. This Agreement shall be
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construed as a whole according to its fair language and common meaning to achieve the objectives
and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to
be resolved against the drafting Party shall not be employed in interpreting this Agreement, all
Parties having been represented by counsel in the negotiation and preparation hereof. The decision
of the City Council shall be final, subject only to judicial review pursuant to California Code of
Civil Procedure Section 1094.5(b).
8.5. Intentionally Omitted.
8.6. Construction.
8.6.1. Section Headings. All Section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
8.6.2. References to Sections, Clauses and Exhibits. Unless otherwise indicated,
references in this Agreement to articles, recitals, paragraphs, sections, clauses and exhibits are to
the same contained in or attached to this Agreement and all exhibits referenced in this Agreement
are incorporated in this Agreement by this reference as though fully set forth in this Section.
8.6.3. Singular and Plural. As used herein, the singular of any word includes the
plural and vice versa.
8.6.4. Includes and Including. As used in this Agreement the words "include" and
"including" mean, respectively, "include, without limitation" and "including, without limitation".
8.6.5. Recitals Incorporated by Reference. The provisions of the Recitals above
are incorporated in this Agreement by this reference as though fully set forth in this Section.
8.7. Time of Essence. Subject to the following sentence, time is of the essence in the
performance of each provision of this Agreement. Whenever action must be taken (including the
giving of notice or the delivery of documents) under this Agreement during a certain period of
time or by a particular date that ends or occurs on a non -Business Day, then such period or date
shall be extended until the immediately following Business Day.
8.8. Waiver. Failure by a Party to insist upon the strict performance of any of the
provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon
the default of the other Party, shall not constitute a waiver of such Party's right to insist and demand
strict compliance by the other Party with the terms of this Agreement thereafter.
8.9. No Third Party Beneficiaries. This Agreement is made and entered into for the sole
protection and benefit of the Parties and their successors and assigns. No other person shall have
any right of action based upon any provision of this Agreement.
8.10. Attorneys' Fees. If any Party to this Agreement institutes any action, suit,
counterclaim or other proceeding for any relief against another Party, declaratory or otherwise
(collectively an "Action"), to enforce the terms hereof or to declare rights hereunder or with
respect to any inaccuracies or material omissions in connection with any of the covenants,
representations, warranties or obligations on the part of the other Party to this Agreement, then the
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Prevailing Party in such Action shall be entitled to have and recover of and from the other Party
all costs and expenses of the Action, including (a) the Prevailing Party's reasonable attorneys' fees
which shall be payable at the actual contractual hourly rate for City's litigation counsel at the time
the fees were incurred, but in no event less than $200 per hour and (b) costs actually incurred in
bringing and prosecuting such Action and/or enforcing any judgment, order, ruling or award
(collectively, a "Decision") granted therein, all of which shall be deemed to have accrued on the
commencement of such Action and shall be paid whether or not such Action is prosecuted to a
Decision. Any Decision entered in any final judgment shall contain a specific provision providing
for the recovery of all costs and expenses of suit, including reasonable attorneys' fees and expert
fees and -costs (collectively "Costs") incurred in enforcing, perfecting and executing such
judgment. For the purposes of this Section, Costs shall include in addition to Costs incurred in
prosecution or defense of the underlying action, reasonable attorneys' fees, costs, expenses and
expert fees and costs incurred in the following: (a) post judgment motions and collection actions;
(b) contempt proceedings; (c) garnishment, levy, debtor and third party examinations;
(d) discovery; (e) bankruptcy litigation; and (f) appeals of any order or judgment. "Prevailing
Party" within the meaning of this Section 8.10 includes a Party who agrees to dismiss an Action
in consideration for the other Party's payment of the amounts allegedly due or performance of the
covenants allegedly breached or obtains substantially the relief sought by such Party.
8.11. Force Majeure.
8.11.1. "Force Majeure Delay" shall have the meaning set forth in the DDA, is
limited to the matters listed in the DDA and specifically excludes the matters excluded from the
definition of Force Majeure Delay in the DDA.
8.11.2. If any Party ("Claiming Party") believes that an extension of time is due
to Force Majeure Delay, it shall notify the other Party ("Second Party") in accordance to the terms
and conditions of the DDA.
8.11.3. Time periods for performance of any obligations under this Agreement may
be extended for Force Majeure Delay, except that in no event shall the Term of this Agreement be
extended by an event of Force Majeure Delay beyond the time period set forth in Section 2.3.
8.12. Successors In Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all Successors In Interest of Developer and all
successors and assigns of the City. All provisions of this Agreement shall be enforceable as
equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain
from doing some act hereunder with regard to development of the Campus or any portion thereof
(a) is for the benefit of and is a burden upon every portion of the Campus; (b) runs with the Campus
and each portion thereof, and (c) is binding upon each Party and each Successor In Interest during
ownership of the Campus or any portion thereof.
8.13. Counterparts. This Agreement may be executed by the Parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the Parties had
executed the same instrument.
8.14. Jurisdiction and Venue. Any action at law or in equity arising under this Agreement
or brought by a Party hereto for the purpose of enforcing, construing or determining the validity
Tustin - SchoolsFirst - Development 30 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
of any provision of this Agreement shall be filed and tried in the Superior Court of the County of
Orange, State of California, or the United States District Court for the Central District of
California, Santa Ana Division, and the Parties hereto waive all provisions of law providing for
the filing, removal or change of venue to any other court.
8.15. Project as a Private Undertaking. It is specifically understood and agreed by and
between the Parties hereto that the development of the Project is a private development, that neither
Party is acting as the agent of the other in any respect hereunder, and that each Party is an
independent contracting entity with respect to the terms, covenants and conditions contained in
this Agreement. No partnership, joint venture or other association of any kind is formed by this
Agreement. The only relationship between City and Developer with respect to this Agreement is
that of a government entity regulating the development of private property and the developer of
such property.
8.16. Further Actions and Instruments. Each of the Parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the performance
of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.
Upon the request of either Party at any time, the other Party shall promptly execute, with
acknowledgment or affidavit if reasonably required, and file or record such required instruments
and writings and take any actions as may be reasonably necessary under the terms of this
Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or
consummate the transactions contemplated by this Agreement.
8.17. Estoppel Certificate. Any Party hereunder, may at any time, deliver a written notice
to the other Party requesting such first Party to certify in writing that, to the best knowledge of the
certifying Party: (a) this Agreement is in full force and effect and a binding obligation of the Party;
(b) this Agreement has not been amended or modified either orally or in writing, or if so amended,
identifying the date and nature of the amendments to this Agreement, and, in each case, that the
Agreement remains in full force and effect (including as amended or modified if applicable), and
a continuing binding obligation of the Party; and (c) the requesting Party is not in default in
performance of its obligations set forth in the Agreement, or if the Party is in default, provide a
description of the nature of such default(s). A Party receiving a request hereunder shall execute
and return such certificate within thirty (30) calendar days following receipt thereof. The party to
whom such certificate is addressed, including any third party or Mortgagee, shall be entitled to
rely on the certificate. Developer shall pay to City all costs incurred by City in connection with
the issuance of estoppel certificates.
8.18. Authority to Execute. The person or persons executing this Agreement on behalf
of each Party warrants and represents that he or she/they have the authority to execute this
Agreement on behalf of such Party and warrants and represents that he or she/they has/have the
authority to bind such Party to the performance of its obligations hereunder.
(Signatures on following page)
Tustin - SchoolsFirst - Development 31 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the day and
year set forth below.
CITY OF TUSTIN:
Dated: By:
ATTEST:
By:
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM
By:
David E. Kendig
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
LI -M
Amy E. Freilich
Matthew S. West
City Manager
SCHOOLSFIRST FEDERAL CREDIT UNION,
a federally chartered credit union
By:
Name: Bill Cheney
Title: President and Chief Executive Officer
By:
Name: Francisco Nebot
Title: Chief Financial Officer
Tustin - SchoolsFirst - Development S-1 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin - SchoolsFirst - Development S-2 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me, ,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin - SchoolsFirst - Development S-2 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
CALIFORNIA ALL PURPOSE ACKNOWLEDGEMENT
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of
On
Date
personally appeared
before me,
(Insert Name and Title of the Officer)
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Place Notary Seal and/or Stamp above Signature:
Signature of Notary Public
Tustin - SchoolsFirst - Development S-2 City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Federal Credit Union
EXHIBIT A-1
TO DEVELOPMENT AGREEMENT
Legal Description and Depiction of the City Property
(comprising portion of Campus owned by City as of the Effective Date)
(attached)
Tustin - SchoolsFirst - Development Exhibit A-1 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
EXHIBIT A-1 TO
DEVELOPMENT AGREEMENT
CITY PARCEL.
BEING ALL OF PARCEL 6, OF PARCEL MAP NO. 2010-127, IN THE CITY OF TUSTIN, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 371, PAGES 25 THROUGH
29 INCLUSIVE, OF PARCEL MAPS, RECORDS OF THE COUNTY RECORDER OF SAID COUNTY,
TOGETHER WITH A PORTION OF THE "OL0" DEL AMO AVENUE EASEMENT ABANDONED AND VACATED
BY THE CITY OF TUSTIN PER RESOLUTION NO, 17-20, 'RECORDED DECEMBER 11, 2017 AS
INSTRUMENT NO, 2017000530760, OF OFFICIAL RECORDS, ALL MORE PARTICULARLY DESCRIBED AS
FOLLOWS; -
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 5, SAID POINT ALSO BEING ON THE
EASTERLY LINE OF NEWPORT AVENUE AND THE SOUTHERLY LINE OF DEL AMO AVENUE AS SHOWN
ON SAID PARCEL MAP; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 6, NORTH 52725'08"
EAST 36.61 FEET TO THE BEGINNING OF A NON-TANGNE.T CURVE CONCAVE NORTHERLY HAVING A
RADIUS OF 520,72 FEET, A RADIAL LINE TO SAID PRINT BEARS SOUTH 06°4740" WEST; THENCE
EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 318,85 FEET THROUGH A CENTRAL AN OF
29°25'55" TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS
OF 542.42 FEET, A RADIAL UNE TO SAID POINT SOUTH 21°28'27" EAST; THENCE EASTERLY ALONG
SAID CURVE AN ARC DISTANCE OF 10.32 FEET THROUGH A CENTRAL ANGLE OF 01005'26' TO A
POINT ON THE CENTERLINE OF SAID "OLD: DEL AMO AVENUE, A RADIAL LINE TO SAID POINT BEARS
SOUTH 22°3353" EAST; THENCE WESTERLY ALONG SAID CENTERLINE, SOUTH 39049'09" WEST
759,72 FEEL' TO A POINT ON A :NON --TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF
1512.30 FEET, SAID CURVE BRING SAID EASTERLY LINE OF NEWPORT AVENUE, A RADIAL LINE TO
SAID POINT BEARS SOUTH 66°00`5'1' EAST; THENCE NORTHERLY ALONG SAID CURVE AN ARC
DISTANCE OF 374.22 FEET THROUGH A CENTRAL ANGLE OF 14°10'41 THENCE NORTH 09°4822"
EAST 159.02 FEET TO THE POINT OF BEGINNING.
CONTAINS; 77,117 FT. - 1,770 ACRES
ALDEN & CIVIL LNGINEERS • LAND SURVEYORS -PLANNERS
S SO CIATE S 2152 WRITE ROAD, SUITE B • IRVINA, CA, 92614.6236
(999)660-D 110 FAX: 60-0418 SHEET 1 OF 2
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-I-
EXHIBIT A-1 TO
150 75 0 150
SCALE 'IN FEET
-1 INCH = 150 FEET
POINT OF BEGINNING
t
kov
-4
c,.
,-�
-,' p ,
VACA75D oLD t)8L AM
CURVE TABLE
CURVE
RELTA
RADIUS
LENGTH
01
29025'55"
620,72"
318,85'
C2
01"05'25"
542.42'
10.32'
C3
14°10'41
1512.30'
1 374.22'
LINE TABLE
LINE
BEARING
DISTANCE
Li
L2
N 52°25'08" E
N 109'48'22" E
36.81'
159,02'
M
CITY PARCEL
77,11'7 SQ, FT.
1.770 ACRES
A V,ENJ5
410
N 39°49'09 E 759,72' uA
Ile
/r
01
Int$
A. T. & S. F. RAILROAD
I I I V ALDEN & CIVIIL ENGINEERS - LAND SURVEYORS . PLANNERS
SSOCTATE5 4112 WWM ROAD, SUITE B+IRV1NE,CA 92614.6236
(949) 6600110 FAX 660-0418 SHEET 2 OF 2
Tustin - SchoolsFirst - Development Exhibit A-1 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-2-
EXHIBIT A-2
TO DEVELOPMENT AGREEMENT
Legal Description and Depiction of SchoolsFirst Parcels
(comprising portions of Campus owned by Developer as of the Effective Date)
(attached)
Tustin - SchoolsFirst - Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
EXHIBIT A-2 TO
DEVELOPMENT AGREEMENT
BEING ALL OF PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO, 2013-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED JULY 31, 2014 AS INSTRUMENT NO. 2014000307038, OF OFFICIAL RECORDS.
TOGETHER WITH ALL OF PARCELS 3 AND 4 OF LOT LINE ADJUSTMENT NO. 90-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED AUGUST 31, 1990 AS INSTRUMENT NO. 90-466900, OF OFFICIAL RECORDS.
TOGETHER WITH A PORTION OF "OLD DEL AMO AVENUE" RIGHT OF WAY EASEMENT AS ABANDONED
AND VACATED BY THE CITY OF TUSTIN PER RESOLUTION NO, 17-20, RECORDED DECEMBER 11,
2017 AS INSTRUMENT NO. 2017000530760, OF OFFICIAL RECORDS.
CONTAINS: 752,946 SO. FT. -- 17.285 ACRES MORE OR LESS
VWDEN &
SOCIATES
CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
2552 WHITE ROAD, SUITE B • IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418 SHEET 1 OF 2
Tustin - SchoolsFirst - Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-1-
EXHIBIT A-2 TO
DEVELOPMENT AGREEMENT
PARCEL 4lift
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PARCEL 1
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VALENCIA AVENUE
ALDEN & CIVM ENGINEERS - LAND SURVEYORS - PLANNERS
SOCIATES 2552 WHITE ROAD, SUITEB•1RVM,CA 926I4-6236
(949) 660-0110 FAX: 660.0418 SHEET 2 OF 2
Tustin - SchoolsFirst - Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-2-
EXHIBIT A-3
TO DEVELOPMENT AGREEMENT
Legal Description and Depiction of the Property
(comprising the Development Parcels (as defined in the DDA))
(attached)
Tustin - SchoolsFirst - Development Exhibit A-3 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
EXHIBIT A-3 TO
DEVELOPMENT AGREEMENT
HEADQUARTERS PARCEL;
BEING ALL OF PARCEL 6, OF PARCEL MAP NO. 2010-127, IN THE CITY OF TUSTIN, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 371, PAGES 25 THROUGH 29 INCLUSIVE, OF
PARCEL MAPS, RECORDS OF THE COUNTY RECORDER OF SAID COUNTY,
TOGETHER WITH PORTIONS OF PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO. 2013-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED JULY 31, 2014 AS INSTRUMENT NO. 2014000307038, OF OFFICIAL RECORDS.
TOGETHER WITH A PORTION OF PARCEL 3 OF LOT LINE ADJUSTMENT NO. 90-03, IN THE CITY OF TUSTIN,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT RECORDED
AUGUST 31, 1990 AS INSTRUMENT NO. 90-466900, OF OFFICIAL RECORDS,
TOGETHER WITH A PORTION OF THE "OLD" DEL AMO AVENUE EASEMENT ABANDONED AND VACATED BY THE
CITY OF TUSTIN PER RESOLUTION NO. 17-20, RECORDED DECEMBER 11, 2017 AS INSTRUMENT NO.
2017000530760, OF OFFICIAL RECORDS, ALL MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 6, SAID POINT ALSO BEING ON THE EASTERLY
LINE OF NEWPORT AVENUE AND THE SOUTHERLY LINE OF DEL AMO AVENUE AS SHOWN ON SAID PARCEL MAP;
THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 6, NORTH 52°25'08" EAST 36.61 FEET TO THE
BEGINNING OF A NON-TANGNET CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 620.72 FEET, A RADIAL
LINE TO SAID POINT BEARS SOUTH 06047'40" WEST; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE
OF 318.85 FEET THROUGH A CENTRAL ANGLE OF 29025'55" TO THE BEGINNING OF A NON -TANGENT CURVE
CONCAVE NORTHERLY HAVING A RADIUS OF 54242 FEET, A RADIAL LINE TO SAID POINT SOUTH 21"28'27'
EAST; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 32.52 FEET THROUGH A CENTRAL ANGLE
OF 03°26'07'; THENCE SOUTH 24°54'35" EAST 46,55 FEET; THENCE SOUTH 50011'11" EAST 84.43 FEET;
THENCE SOUTH 39048'49" WEST 156.13 FEET; THENCE SOUTH 50°11'11" EAST 10.67 FEET; THENCE SOUTH
39048'49" WEST 321.58 FEET; THENCE NORTH 50011'11" WEST 10.67 FEET; THENCE SOUTH 39°4849" WEST
260.36 FEET; THENCE NORTH 65029'30" WEST 137,29 FEET TO A POINT ON A NON -TANGENT CURVE
CONCAVE WESTERLY HAVING A RADIUS OF 1512.30 FEET, SAID CURVE BEING SAID EASTERLY LINE OF
NEWPORT AVENUE, A RADIAL LINE TO SAID POINT BEARS SOUTH 65°26'31" EAST; THENCE NORTHERLY ALONG
SAID CURVE AN ARC DISTANCE OF 389.38 FEET THROUGH A CENTRAL ANGLE OF 14°45'07'; THENCE NORTH
09048'22" EAST 159.02 FEET TO THE POINT OF BEGINNING.
CONTAINS: 184,283 SQ. FT. - 4,230 ACRES
PARKING PARCEL:
BEING A PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT NO. 2013-03, IN THE CITY OF TUSTIN, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT RECORDED JULY 31, 2014
AS INSTRUMENT NO. 2014000307038, OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING A POINT ON THE EASTERLY LINE OF SAID PARCEL 2, SAID POINT BEING NORTH 3904849" EAST
25.74 FEET FROM THE SOUTHEASTERLY CORNER OF SAID PARCEL 2; THENCE NORTH 50011'11" WEST 250.67
FEET; THENCE NORTH 39°48'49" EAST 52.21 FEET; THENCE SOUTH 50°11'11" EAST 10.67 FEET; THENCE
NORTH 39048'49" EAST 321.58 FEET; THENCE NORTH 50011'11" WEST 10.67 FEET; THENCE NORTH 39°48'49"
EAST 52.21 FEET, THENCE SOUTH 50°11'11" EAST 250.67 FEET TO A POINT ON SAID EASTERLY LINE OF SAID
PARCEL 2; THENCE SOUTHERLY ALONG SAID EASTERLY LINE, SOUTH 39048'49" WEST 426.00 FEET TO THE
POINT OF BEGINNING.
CONTAINS: 103,365 SQ. FT. - 2.373 ACRES
VWDEN &
SOCIATES
C1VII., ENGINEERS LAND SURVEYORS - PLANNM
2552 WRITE ROAD, SUITE B •IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660.0418
SHEET 1 OF 2
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-I-
EXHIBIT A-3 TO
DEVELOPMENT AGREEMENT
CURVE TABLE
CURVE
DELTA
RADIUS
LENGTH
C1
14°45'07'
1512.30'
389.37'
C2
29025'55"
620.72'
318.85'
C3
03°26'07'
542.42'
32.52'
Y"
150 75 0 150
SCALE IN FEET
1 INCH = 150 FEET
`L E
'S,0 h� 1�
10
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PARG-5L
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r I. 4.230 ACRES f
I
I
15' t'� ., r L7 103.92'1
fV S r,
y IO `oPARKING PARCEL o fir, I
15 103,356 SQ. FT.
2.373 ACRES j x 65 -�
L11 -•
A. T. & S. F. RAILROAD
ALDEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
ASSOCIATES 2552 WRITE ROAD, SUITE I3 -IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418 SHEET 2 OF 2
Tustin-
coos i st - eve
Agreement - 5-1419 FINAL
Development Agreement
-2-
Federal Credit Union
LINE TABLE
LINE
BEARING
DISTANCE
L1
N
09°48'22"
E
159.02'
L2
N
52025'08"
E
36.61'
L3
N
24054'35"
W
46.55'
L4
N
50011'11"
W
84.43'
L5
N
39048'49"
E
156.13'
L6
N
50°11'11"
W
10.67'
L7
N
39048'49"
E
321,58'
L8
N
39.48'49"
E
260.36'
L9
N
65°29'30"
W
137,29'
L10
N
50°11'11"
W
250.67'
L11
N
3949'30"
E
426.00'
L12
N
80042'32"
W
116.69'
10
Npo!�'
PARG-5L
rpt,
1.,
_ AGAT8D) OLD Ute! _AM0 A,NU�_ _ f%
HEADQUARTERS PA EL
r I. 4.230 ACRES f
I
I
15' t'� ., r L7 103.92'1
fV S r,
y IO `oPARKING PARCEL o fir, I
15 103,356 SQ. FT.
2.373 ACRES j x 65 -�
L11 -•
A. T. & S. F. RAILROAD
ALDEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
ASSOCIATES 2552 WRITE ROAD, SUITE I3 -IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418 SHEET 2 OF 2
Tustin-
coos i st - eve
Agreement - 5-1419 FINAL
Development Agreement
-2-
Federal Credit Union
EXHIBIT A-4
TO DEVELOPMENT AGREEMENT
Legal Description and Depiction of the Campus
(comprising the City Property and the SchoolsFirst Parcels)
(attached)
Tustin - SchoolsFirst - Development Exhibit A4 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
EXHIBIT A-4 TO
DEVELOPMENT AGREEMENT
CITY PARCEL:
BEING ALL OF PARCEL 6, OF PARCEL MAP NO. 2010-127, IN THE CITY OF TUSTIN, COUNTY OF
ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 371, PAGES 25 THROUGH
29 INCLUSIVE, OF PARCEL MAPS, RECORDS OF THE COUNTY RECORDER OF SAID COUNTY.
TOGETHER WITH A PORTION OF THE "OLD" DEL AMO AVENUE EASEMENT ABANDONED AND VACATED
BY THE CITY OF TUSTIN PER RESOLUTION NO. 17-20, RECORDED DECEMBER 11, 2017 AS
INSTRUMENT NO. 2017000530760, OF OFFICIAL RECORDS, ALL MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 6, SAID POINT ALSO BEING ON THE
EASTERLY LINE OF NEWPORT AVENUE AND THE SOUTHERLY LINE OF DEL AMO AVENUE AS SHOWN
ON SAID PARCEL MAP; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 6, NORTH 52°25'08"
EAST 36.61 FEET TO THE BEGINNING OF A NON-TANGNET CURVE CONCAVE NORTHERLY HAVING A
RADIUS OF 620.72 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 06047'40" WEST; THENCE
EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 318.85 FEET THROUGH A CENTRAL ANGLE OF
29°25'55" TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE NORTHERLY. HAVING A RADIUS
OF 542.42 FEET, A RADIAL LINE TO SAID POINT SOUTH 21°2827" EAST; THENCE EASTERLY ALONG
SAID CURVE AN ARC DISTANCE OF 10.32 FEET THROUGH A CENTRAL ANGLE OF 0100525" TO A
POINT ON THE CENTERLINE OF SAID "OLD" DEL -AMO AVENUE, A RADIAL LINE TO SAID POINT BEARS
SOUTH 22033'53" EAST; THENCE WESTERLY ALONG SAID CENTERLINE, SOUTH 3949'09" WEST
759.72 FEET TO A POINT ON 'A NON -TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF
1512.30 FEET, SAID CURVE BEING SAID EASTERLY LINE OF NEWPORT AVENUE, A RADIAL LINE TO
SAID POINT BEARS SOUTH 66°00'5-/' EAST; THENCE NORTHERLY ALONG SAID CURVE AN ARC
DISTANCE OF 374.22 FEET THROUGH A CENTRAL ANGLE OF 14010'41"; THENCE NORTH 09°48'22"
EAST 159.02 FEET TO THE POINT OF BEGINNING.
CONTAINS: 77,117 FT. - 1.770 ACRES
SCHOOLSFIRST PARCEL:
BEING PORTIONS OF PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO. 2013-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE
DOCUMENT RECORDED JULY 31, 2014 AS INSTRUMENT N0, 2014000307038, OF OFFICIAL
RECORDS.
TOGETHER WITH A PORTION OF PARCEL 3 AND ALL OF PARCEL 4 OF LOT LINE ADJUSTMENT NO.
90-03, IN THE CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND
SHOWN ON THE DOCUMENT RECORDED AUGUST 31, 1990 AS INSTRUMENT NO. 90-466900, OF
OFFICIAL RECORDS.
TOGETHER WITH A PORTION OF THE "OLD" DEL AMO AVENUE EASEMENT ABANDONED AND VACATED
BY THE CITY OF TUSTIN PER RESOLUTION NO. 17-20, RECORDED DECEMBER 11, 2017 AS
INSTRUMENT NO. 2017000530760, OF OFFICIAL RECORDS, ALL MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHEASTERLY CORNER OF SAID PARCEL 1, SAID POINT ALSO ON THE
NORTHERLY UNE OF VALENCIA AVENUE AS SHOWN ON SAID PARCEL MAP; THENCE WESTERLY
ALONG THE SOUTHERLY LINE OF SAID PARCEL 1, NORTH 50009'55" WEST 271.20 FEET; THENCE
NORTH 06039'10" WEST 73.19 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE
WESTERLY HAVING A RADIUS OF 1865.00 FEET, SAID CURVE ALSO BEING THE EASTERLY LINE OF
*7SSOCIATE
EN & CIVIENGINEERS - LAND SURVEYORS - PLANNERS
S 2552 WHITE ROAD, SUITE B• IRVINE;, CA 92614-6236
(949) 660-0110 FAX 660-041.8 SHEET 1 OF 2
Tustin - SchoolsFirst - Development Exhibit A4 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-I-
EXHIBIT A-4 TO
DEVELOPMENT AGREEMENT
NEWPORT AVENUE, AS SHOWN ON SAID PARCEL MAP, A RADIAL LINE TO SAID POINT BEARS SOUTH
52°52'56" EAST; THENCE NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 247.03 FEET
THROUGH A CENTRAL ANGLE OF 07°35'21", A RADIAL LINE TO SAID POINT BEARS SOUTH 60028'17"
EAST; THENCE SOUTHERLY ALONG SAID EASTERLY LINE, SOUTH 39049'09" WEST 32.27 FEET TO THE
BEGINNING OF A NON -TANGENT CURVE CONCAVE WESTERLY HAVING A RADIUS OF 1512.30 FEET, A
RADIAL LINE TO SAID POINT BEARS SOUTH 60003'08" EAST; THENCE NORTHERLY ALONG SAID
CURVE AN ARC DISTANCE OF 157.41 FEET THROUGH A CENTRAL ANGLE OF 05057'49", TO A POINT
ON THE CENTERLINE OF SAID "OLD" DEL AMO AVENUE, A RADIAL LINE TO SAID POINT BEARS
SOUTH 66000'57" EAST; THENCE EASTERLY ALONG SAID CENTERLINE, NORTH 39°49'09" EAST 759.72
FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE NORTHERLY HAVING A RADIUS OF
542.42 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 22033'53" EAST, SAID CURVE ALSO
BEING THE SOUTHERLY LINE OF DEL AMO AVENUE, AS SHOWN ON SAID PARCEL MAP; THENCE
NORTHERLY ALONG SAID CURVE AN ARC DISTANCE OF 172.93 FEET, THROUGH A CENTRAL ANGLE
OF 18016'01", A RADIAL LINE TO SAID POINT BEARS SOUTH 40049'54" EAST; THENCE SOUTH
50°10'50" EAST 21.32 FEET; THENCE NORTH 39°4910" EAST 62.59 FEET; THENCE NORTH
02°13'01" WEST 25.25 FEET TO THE BEGINNING OF A NON -TANGENT CURVE CONCAVE WESTERLY
HAVING A RADIUS OF 554.66 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 44°13'37" EAST;
THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 57.83 FEET THROUGH A CENTRAL
ANGLE OF 05058'24"; THENCE NORTH 39049'09" EAST 621.47 FEET; THENCE NORTH 85°5347'
EAST 37.56 FEET TO A POINT ON THE SOUTHERLY LINE OF EDINGER AVENUE, AS SHOWN ON SAID
PARCEL MAP; THENCE EASTERLY ALONG SAID SOUTHERLY LINE, SOUTH 50010'50" EAST 50.00 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 41.00 FEET;
THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 10.13 FEET THROUGH A CENTRAL
ANGLE OF 14009'13";THENCE SOUTH 36001'37" EAST 36.66 FEET TO THE BEGINNING OF A TANGENT
CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 59.00 FEET; THENCE EASTERLY ALONG SAID
CURVE AN ARC DISTANCE OF 14.57 FEET, THROUGH A CENTRAL ANGLE OF 14°09'13"; THENCE
SOUTH 50010'50" EAST 60.00 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY
HAVING A RADIUS OF 59.00 FEET; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF
14.57 FEET THROUGH A CENTRAL ANGLE OF 14009'13"; THENCE SOUTH 6920'30" EAST 36.64
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE SOUTHERLY HAVING A RADIUS OF 41.00
FEET; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 10.13 FEET THROUGH A
CENTRAL ANGLE OF 14009'40"; THENCE SOUTH 50°10'50" EAST 81.95 FEET; THENCE SOUTH
39048'49" WEST 395.01 FEET; THENCE NORTH 50°10'50" WEST 14.00 FEET; THENCE SOUTH
39048'49" WEST 1731.49 FEET TO THE POINT OF BEGINNING.
CONTAINS: 752,946 FT. - 17.285 ACRES
PREPARED BY ME OR UNDER MY DIRECTION,
l.7
---
or. WALDEN P.L.S. 7914
r:.` T�
DATE
ALDEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
S S O CIATE S 2112 WHITE ROAD, SUITE B • IRVINE, CA 92614-6236
`, (949) 660-0110 FAX: 660-0418 SHEET 2 OF 2
Tustin - SchoolsFirst - Development Exhibit A4 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-2-
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EXHIBIT A-4 TO
DEVELOPMENT AGREEMENT
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NOTE: SEE SHEET 3 FOR
LINE & CURVE TABLES.
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VALENCIA AVENUE
CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
2552 WHITE ROAD, SUITE B • IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418
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SHEET 1 OF 3
Tustin - SchoolsFirst - Development Exhibit A4 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-3-
150 75 0 150
SCALE IN FEET
1 INCH = 150 FEET
NOTE: SEE SHEET 3 FOR
LINE & CURVE TABLES.
N 44°13`37" W
EXHIBIT A-4 TO
DEVELOPMENT AGREEMENT
EDINGER AVENUE
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CIVIL, ENGINEERS - LAND SURVEYORS - PLANNERS
2552 WHITE ROAD, SUITE B • IRVINE, CA 92614-6236
(949) 660-01.10 FAX; 660-0418 SHEET 2 OF 3
Tustin - SchoolsFirst - Development Exhibit A4 to City of Tustin / SchoolsFirst
Agreement - 5-14.19 FINAL Development Agreement Federal Credit Union
-4-
EXHIBIT A-4 TO
DEVELOPMENT AGREEMENT
CURVE TABLE
CURVE
LINE TABLE
RADIUS
LINE
C1
BEARING
1865.00'
DISTANCE
Ll
N
50°09' 55"
W
271.20'
L2
N
06°39' 10"
W
73.19'
L3
N
39049'09"
E
32.27'
L4
N
09°48'22"
E
159.02'
L5
L6
N
N
52025'08"
50°10'50"
E
W
36.61'
21.32'
L7
N
39°49' 10"
E
62.59'
L8
N
02°13'01"
W
25.25'
L9
N
85°53'47"
E
37.56'
L10
N
50010'50"
W
50.00'
L11
N
36001'37"
W
36.66'
L12
N
50°10'50"
W
60.00'
L13
N
64°20'30"
W
36.64'
L14
N
50°10'50"
W
81.95'
L15
N
50°10'50"
W
14.00'
CURVE TABLE
CURVE
DELTA
RADIUS
LENGTH
C1
7°35'21"
1865.00'
247.03'
C2
20008'30"
1512.29'
531.63'
C3
29025'55"
620.72'
318.85'
C4
19021'26"
542.42'
183.26'
C5
5058'24"
554.66'
57.83'
C6
14009'1 S'
41.00'
10.13'
C7
14°09' 13"
59.00'
14.57'
C8
14°09' 13"
59.00'
14.57'
C9
14°09'40"
41.00'
10.13'
C10
14010'41"
1512.30'
374.22'
C11
5057'49"
1512.30'
157.41'
C12
18016'01"
542.42'
172.93'
C13
1°05'25"
542.42'
10.32'
ALDEN & CIVIL ENGINEERS . LAND SURVEYORS • PLANNERS
SSOCIATES 2552 WHITE ROAD, SUITE Do IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418
SHEET 3 OF 3
Tustin - SchoolsFirst - Development Exhibit A-4 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
-5-
EXHIBIT B
TO DEVELOPMENT AGREEMENT
Map showing Specific Plan Planning Areas and Maximum Campus Square Footage
(attached)
Tustin - SchoolsFirst - Development Exhibit B to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
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EXHIBIT C
TO DEVELOPMENT AGREEMENT
PUBLIC BENEFIT IMPROVEMENTS
Developer shall design, construct and complete the following improvements comprising the
"Public Benefit Improvements" under the Agreement. The Public Benefit Improvements fall
into 3 categories: (1) the Reimbursable Public Improvements, which are subject to
reimbursement by City to Developer in accordance with the terms and conditions of the
Reimbursement Agreement; (2) the Non -Reimbursable Public Improvements, which are not
reimbursable by the City but are subject to the terms and conditions of the Reimbursement
Agreement; and (3) the Non -Reimbursable Private Improvements. Initially capitalized terms
used in this Exhibit C have the meanings set forth in the Development Agreement to which
this Exhibit C is attached.
Reimbursable Public Improvements
TRAFFIC SIGNAL
Facility
#
Description
Reimbursement
1
Traffic signal at intersection of Property driveway and
Newport Ave. with associated apparatus
50%
2
Left turn pocket on Newport Ave. into Property
50%
3
Double left turn pocket on Newport Ave. into APN 430-251-23
50%
4
Driveway improvements on APN 430-251-23
100%
5
Relocation of catch basin on Newport Ave., installation of new
24" RCP storm drain line
100%
6
Re -design of existing medians on Newport Ave. due to signal
and turning enhancements
50%
MEDIAN IMPROVEMENTS
Facility
#
Description
Reimbursement
7
Landscaping (incl. irrigation and laterals) of Newport Ave.
medians adjacent to Property 2 total
50%
8
Landscaping (incl. irrigation and laterals) of Newport Ave.
medians adjacent to APN 430-251-25 2 total
100%
9
Landscaping (incl. irrigation and laterals) of Del Amo Ave.
median I total
50%
SIDEWALK IMPROVEMENTS
Facility
#
Description
Reimbursement
10
New sidewalk and landscaping on Newport Ave. from Valencia
to Del Amo
50%
11
New sidewalk on Del Amo from Newport Ave. to existing
SchoolsFirst driveway
50%
Tustin - SchoolsFirst - Development Exhibit C to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
1
Non -Reimbursable Public Improvements
1. Water laterals (domestic and fire) from point of connection in Newport Avenue and
Del Amo Avenue to water meters on the Property.
Non -Reimbursable Private Improvements
1. Landscaping along the Del Amo Avenue and Edinger Avenue frontages of the 1200
Edinger Avenue building and parking area (within 3 years of the Effective Date).
Landscaping shall consist of above -ground planters on Del Amo Avenue and in ground
landscaping along Edinger Avenue.
2. Painting of 1200 Edinger Avenue building (within 3 years of the Effective Date).
3. Other 1200 Edinger Avenue building requirements:
a. The building is currently a legal nonconforming use. Any vacancies of the building
within the term of this Agreement will trigger the requirement for a Specific Plan
conforming use.
b. Developer is prohibited from subleasing to a Specific Plan nonconforming use. Any
subleases must be a Specific Plan conforming use.
c. Proposals to redevelop the property at 1200 Edinger Avenue shall be designed to
comply with applicable City, State and federal requirements at the time of submittal
and/or permit issuance.
Tustin - SchoolsFirst - Development Exhibit C to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
2
EXHIBIT D
TO DEVELOPMENT AGREEMENT
REIMBURSEMENT AGREEMENT
(attached)
Tustin - SchoolsFirst - Development Exhibit D to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Development Agreement Federal Credit Union
EXHIBIT D
INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT
by and between
THE CITY OF TUSTIN,
SCHOOLSFIRST FEDERAL CREDIT UNION
Dated , 20
Tustin - SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
TABLE OF CONTENTS
INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT
RECITALS...................................................................................................................................................
3
ArticleI DEFINITIONS...............................................................................................................................
5
Section1.1
Definitions.........................................................................................................................
5
Article II CONSTRUCTION OF FACILITIES..........................................................................................14
Section 2.1
Preparation of Plans........................................................................................................14
Section 2.2
Duty of SchoolsFirst to Construct...................................................................................15
Section 2.3
Contract Requirements....................................................................................................16
Section2.4
Changes...........................................................................................................................19
Section2,5
Bonding Requirements....................................................................................................
20
Section 2.6
Inspection; Completion of Construction.........................................................................
21
Section 2.7
Maintenance of Facilities; Transfer of Interest; Transfer of Warranties to all Public
Improvements
22
Section2.8
Insurance Requirements..................................................................................................
23
Section 2.9
Liens and Stop Payment Notices....................................................................................
24
Section 2.10
Public Improvement Project Coordination......................................................................
25
Section 2.11
Encroachment Permit; Access........................................................................................
25
Section 2.12
Warranties and Guarantees for Public Improvements....................................................
25
Section 2.13
Disclaimer of Responsibility ...........................................................................................
26
Article III ACQUISITION
OF PUBLIC IMPROVEMENTS....................................................................
26
Section 3.1
Transfer of Ownership of Public Improvements.............................................................
26
Section 3.2
City Final Acceptance Process........................................................................................
27
Section3.3
Release of Bonds.............................................................................................................
29
Article IV PAYMENTS, REIMBURSEMENT PROCEDURES AND RECONCILIATION FOR
PUBLICIMPROVEMENTS......................................................................................................................
30
Section 4.1
Final Accounting; Payment for Public Improvements....................................................
30
Section4.2
Maintenance....................................................................................................................
30
Section4.3
Payee; Time for Payment................................................................................................
30
Section 4.4
Survival of Provisions.....................................................................................................
30
Article V REPRESENTATIONS,
WARRANTIES AND COVENANTS; INDEMNIFICATION...........
31
Section 5.1
Representation and Warranties of SchoolsFirst..............................................................
31
Section 5.2 Covenants of SchoolsFirst and Contractor...................................................................... 32
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
1
Section 5.3 Representations and Warranties of the City.................................................................... 33
Section 5.4 Indemnification by SchoolsFirst.....................................................................................
34
Article VI REMEDIES; TERMINATION; DAMAGES............................................................................
35
Section6.1 Termination for Cause by City........................................................................................
35
Section6,2 Time is of the Essence....................................................................................................
38
Section 6.3 Remedies in General; Damages Limited.........................................................................
38
Section6.4 Survival...........................................................................................................................
38
ArticleVII MISCELLANEOUS.................................................................................................................
38
Section 7.1 Independent Contractor................................................................................................... 38
Section 7.2 Binding on Successors and Assigns; Restrictions on Assignment .................................. 39
Section7.3 Amendments...................................................................................................................
39
Section7.4 Counterparts....................................................................................................................
39
Section 7,5 Incorporation of DDA Provisions by Reference.............................................................
39
Section 7.6 Notices, Demands and Communications between the Parties ........................................
40
Section 7.7 Force Majeure Delay.......................................................................................................
41
Section7.8 Entire Agreement........................................................................................................42
EXHIBIT A-1 — Legal Description of Development Parcels...................................................................
A-1
EXHIBIT A-2 — Legal Description of Additional Property Owned by SchoolsFirst
............................... A-1
EXHIBIT B - Description of the Facilities..............................................................................................B-1
EXHIBITC - Form of Concurrence Letter...............................................................................................0-1
EXHIBIT D - Form of Assignment Agreement.......................................................................................
D-1
EXHIBIT E - Form of Request for Acceptance........................................................................................
E-1
EXHIBIT F - Construction Schedule.......................................................................................................
F-1
EXHIBIT G - SchoolsFirst Bid and Award Procedures..........................................................................
G-1
EXHIBIT H - Form of Potential Change of Work..................................................................................
H-1
EXHIBITI - Construction Contract Terms...............................................................................................1-1
EXHIBIT J - Contractor Insurance Requirements.....................................................................................J-1
EXHIBIT K - Professional Insurance Requirements...............................................................................
K-1
EXHIBIT L - Lien Release Requirements................................................................................................L-1
EXHIBIT M - Form of Payment Bond....................................................................................................M-1
EXHIBIT N - Form of Performance Bond..............................................................................................
N-1
EXHIBIT O — Covenants of Contractor.................................................................................................
0-1
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-1.4-19 FINAL Development Agreement
Federal Credit Union
2
INFRASTRUCTURE CONSTRUCTION
AND REIMBURSEMENT AGREEMENT
THIS INFRASTRUCTURE CONSTRUCTION AND REIMBURSEMENT AGREEMENT
("Agreement") is entered into as of , 20_ ("Effective Date"), by and between the
CITY OF TUSTIN, a California municipal corporation ("City") and SCHOOLSFIRST
FEDERAL CREDIT UNION, a federally chartered credit union ("SchoolsFirst"). City and
SchoolsFirst are sometimes referred to in this Agreement individually as a "Party" and
collectively as the "Parties."
RECITALS
A. The City and SchoolsFirst have entered into (a) that certain Disposition and
Development Agreement for SchoolsFirst Headquarters Project dated as of , 20_
(as the same may be amended from time to time, "DDA") with respect to certain real property
legally described on Exhibit A-1 ("Development Parcels") and (b) that certain Development
Agreement with an effective date of , 201_, recorded in the Official Records of
Orange County, California on as Instrument No. ("DA") with respect to the
Development Parcels and certain additional real property owned by SchoolsFirst, collectively
legally described on Exhibit A-2. As of the Effective Date, the property legally described on
Exhibit A-1 and Exhibit A-2 is owned by SchoolsFirst. Unless otherwise indicated, initially
capitalized terms used and not defined herein shall have the meanings set forth in the DDA.
B. The DDA and DA set forth the agreement of the City and SchoolsFirst with respect
to development of the SchoolsFirst Headquarters Project (as defined in the DDA and sometimes
referred to herein as the "Project") and the construction by SchoolsFirst of certain infrastructure
improvements comprising the Public Benefit Improvements (as defined in the DA).
C. The DA and this Agreement set forth various obligations of SchoolsFirst with
respect to the design, construction, completion and maintenance of the Public Benefit
Improvements described in Exhibit C of the Development Agreement. Pursuant to the DA, (1) the
costs incurred by SchoolsFirst with respect to design, engineering, construction, completion and
maintenance of the portion of the Public Benefit Improvements designated as "Reimbursable
Improvements" on Exhibit C to the DA and on Exhibit B to this Agreement (referred to herein as
"Reimbursable Improvements") are to be reimbursed in full or in part by the City to SchoolsFirst
as further set forth in this Agreement, and (2) the costs incurred by SchoolsFirst with respect to
design, engineering, construction, completion and maintenance of the portion of the Public Benefit
Improvements described in Exhibit C of the DA as Non -Reimbursable Improvements (referred to
herein as "Non -Reimbursable Improvements"), to be constructed and paid for by SchoolsFirst
without reimbursement of any kind or nature from the City, and which are comprised of (a) the
Non -Reimbursable Private Improvements (referred to herein as the "Non -Reimbursable Private
Improvements") to be owned, following completion, by SchoolsFirst, which are not a subject of
this Agreement, and the Non -Reimbursable Public Improvements (referred to herein as the "Non -
Reimbursable Public Improvements") described on Exhibit B to this Agreement, to be owned
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
by the City. The Reimbursable Improvements and the Non -Reimbursable Public Improvements
(individually, each a "Public Improvement" and collectively "Public Improvements") are to be
maintained by SchoolsFirst until the Final Acceptance of such completed improvements, as set
forth in this Agreement. Each item listed on Exhibit B is referred to herein individually as a
"Facility" and collectively as "Facilities." The Facilities are described more specifically in the
Approved Project Plans.
D. Pursuant to this Agreement, SchoolsFirst agrees to cause the construction of all of
the Facilities in accordance with the Approved Project Plans, and with respect to such Work to
comply with all other requirements of this Agreement, for the benefit of SchoolsFirst and the City,
all as more particularly described herein.
E. . This Agreement is entered into by the City and SchoolsFirst in order to, among
other things, (1) establish certain obligations regarding the construction of the Facilities by
SchoolsFirst in accordance with the Schedule of Performance attached to the DDA and the
Construction Schedule attached hereto; (2) establish the procedures under which the City shall
reimburse SchoolsFirst for the construction of the Reimbursable Improvements in the percentages
and as further set forth on Exhibit B; (3) establish the rights of the City to review and approve the
Construction Contract and amendments thereto to ensure consistency with this Agreement and to
confirm, in City's sole discretion, that the applicable requirements of this Agreement are included
in the Construction Contract; and (4) provide a process for Final Acceptance of the Public
Improvements.
F. It is the intent of the Parties that upon Completion and Final Acceptance by the City
of the Public Improvements, the City will take title thereto in accordance with the terms of this
Agreement, through the process for City approval and acceptance described in this Agreement. In
addition, SchoolsFirst is also causing Completion, pursuant to this Agreement, of the Non -
Reimbursable Private Improvements described on Exhibit B which are located on real property
owned by SchoolsFirst which shall be retained by SchoolsFirst following Completion thereof.
Accordingly, wherever the terms "Request for Acceptance," or "Final Acceptance" are used in
this Agreement, they shall mean, with respect to the Public Improvements upon real property
which the City owns or with respect to public facilities that are to be conveyed to the City, the
City's agreement to take title to such Public Improvements in accordance with the terms of this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual premises and covenants
contained herein, the Parties hereto agree as follows:
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Unless the context otherwise requires, the following terms utilized in this Agreement shall
have the meanings herein specified:
"Acceptance Date" has the meaning set forth in Section 3.2.1(c).
"Actual Cost" means the following costs of SchoolsFirst with respect to a Reimbursable
Improvement: (a) the Construction Cost with respect to such Reimbursable Improvement; (b) any
fees to Governmental Authorities in order to obtain permits, licenses or other necessary
governmental inspections, approvals and reviews for such Reimbursable Improvement, including
but not limited to City Processing Fees, Plan Check and Inspection Fees, and Plan Check and
Inspection Services (as such terms are defined in the DA); (c) the actual cost of professional
services directly related to the construction of such Reimbursable Improvement, which services
are provided pursuant to any Professional Services Agreement approved by the City pursuant to
Section 2.3.3, or otherwise approved by the City, including, without limitation, surveying,
architectural work, design, engineering, inspection, materials testing and similar professional
services, and insurance required in connection with such services; (d) costs of obtaining and
maintaining the Payment Bond and Performance Bond and insurance (which, as to professional
services, shall be only if required in connection with such services) as required under this
Agreement in connection with construction of such Reimbursable Improvement; and (e) costs of
maintaining such Reimbursable Improvement between completion thereof and the Acceptance
Date; provided, however, that each item of cost shall include only amounts actually paid by
SchoolsFirst to the Contractor and Professionals shall not include costs of SchoolsFirst, overhead
or other internal expenses of SchoolsFirst and shall not include costs of Work required to be
corrected, removed, repaired or replaced due to failure of such Work to comply with Governmental
Requirements or to meet City or other Governmental Authority's inspection and/or acceptance
requirements.
"Approved PCOW" has the meaning set forth in Section 2.4.1.
"Approved Project Plans" has the meaning set forth in Section 2.1.2.
"Assignment Agreement" means the agreement provided by SchoolsFirst to the City
pursuant to Section 2.7 under which SchoolsFirst, with respect to each Reimbursable
Improvement, (a) transfers to the City all right, title and interest in a Completed Public
Improvement; and (b) assigns to the City the Warranties for such Completed Public Improvement.
The Assignment'Agreement shall be in the form of Exhibit D attached hereto.
"Authorized Extension" has the meaning set forth in Section 2.2.3.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
"Business Day" means any day on which City Hall is open for business and shall
specifically exclude Saturday, Sunday and legal holidays.
"Cause" has the meaning set forth in Section 6.1.1 and 6.1.2.
"City" means the City of Tustin, a general law city organized and existing under the laws
of the State.
"City Indemnitees" has the meaning set forth in Section 5.4.1.
"City Representative" means the individual or individuals authorized by the City to act
and coordinate with SchoolsFirst on behalf of the City with respect to the matters described in
Section 2.10 and elsewhere in this Agreement.
"Claim" or "Claims" means any and all claims, actions, causes of action, demands, orders,
or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including
attorneys' fees, fees of expert witnesses and consultants and court and litigation costs), costs and
expenses attributable to compliance with judicial and regulatory orders and requirements, fines,
penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or
unknown, foreseen or unforeseen.
"Complete," "Completed" and "Completion" with respect to each Facility means that:
(a) construction of the Facility is complete in substantial conformity with the Plans, this Agreement
and the Construction Contract, as determined by the City, with all systems (including mechanical,
electrical, structural, communication and other systems, as applicable) in good and proper
operating condition and ready for use such that the Facilities may be utilized for their intended
purpose; (b) all Work required by this Agreement and the Construction Contract with respect to
such Facility, including minor corrective work and minor deficient or incomplete work is
complete, as evidenced by a certification by the project engineer(s) for the Facility that such
Facility has been completed in a good and workmanlike manner; (c) SchoolsFirst shall have
obtained fully executed conditional waiver and release forms from Contractor and Contractor's
Subcontractors and all other SchoolsFirst Parties performing Work on the Facility that have lien
rights pursuant to California law, in the form required by California Civil Code Section 8136; and
(d) any and all mechanic's liens that have been recorded or stop payment notices that have been
delivered with respect to the Facility have been paid, settled or otherwise extinguished, discharged,
released, waived, or bonded (such bonding to be by the provision of bonds satisfying the provisions
of Section 2.9).
"Concurrence Letter" shall mean a letter in the form of Exhibit C attached hereto under
which SchoolsFirst notifies the City of a bid requiring approval by the City in connection with the
construction of a Reimbursable Improvement.
"Construction Contract" means the contract for construction of the Facilities awarded by
SchoolsFirst to Contractor meeting the requirements set forth for such contract in this Agreement
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
which shall, unless otherwise agreed by the Parties, be in the form and substance of the
Construction Contract attached hereto as Exhibit G.1 The Parties acknowledge that in addition to
construction of the Public Improvements, the Construction Contract may also include construction
of the Non -Reimbursable Private Improvements.
"Construction Cost" means the cost for constructing each Reimbursable Improvement,
including without limitation labor, material and equipment costs, and costs of obtaining and
maintaining the Payment Bond and Performance Bond and insurance, established in the
Construction Contract approved by the City for such Reimbursable Improvement, which amount
shall only be modified by an Approved PCOW.
"Construction Schedule" has the meaning set forth in Section 2.2.3.
"Contract Price" has the meaning set forth in Section 2.3.6.
"Contractor" means C.W. Driver, LLC, a California limited liability company, which
entity is a licensed contractor in the State and which shall construct the Facilities in accordance
with the procedures set forth in Sections 2.3.2 and 2.3.3, or at the election of SchoolsFirst and with
the approval of City pursuant to Section 7.2, another licensed contractor in the State qualified to
perform the work described by the Construction Contract and this Agreement.
"DA" has the meaning set forth in Recital A.
"DDA" has the meaning set forth in Recital A.
"Development Parcels" has the meaning set forth in Recital A.
"Director" means the City's Director of Public Works and any designee of said City
Director of Public Works.
"Effective Date" means the first date set forth on page 1 of this Agreement.
"Environmental Claim" shall have the meaning set forth in Section 5.4.1.
"Reimbursable Improvement" has the meaning set forth in Recital C.
"Facilities" has the meaning set forth in Recital C.
"Final Acceptance" means, as to each Public Improvement that is the subject of a Request
for Acceptance, that (a) the conditions to approval by the City of the Request for Acceptance set
forth in Section 3.2.1 have been fully satisfied, (b) Acceptance of such Public Improvement has
been made by the Director pursuant to Section 3.2, and (c) if the subject of such Request for
1 To be approved by the City and attached to this Reimbursement Agreement as a condition for the benefit of the
City at Close of Escrow under the DDA.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
Acceptance is a Public Improvement, approval by the City has been obtained for Acceptance of
the Public Improvement (it being understood that with respect to all Public Improvements
constructed upon property owned by the City, the City will own such Public Improvements upon
the installation thereof), and in all cases assignment of Warranties (and title as to Public
Improvements) pursuant to an Assignment Agreement executed by SchoolsFirst for such Public
Improvements.
"Final Approved Cost" means for each Reimbursable Improvement for which a Request
for Acceptance is submitted by SchoolsFirst, the product of (a) the final Actual Cost of such
Reimbursable Improvement, as approved and determined by the Director in accordance with the
procedures set forth in Section 3.2.1 of this Agreement and (b) the percentage shown on Exhibit B
as allocable to the City (and therefore as reimbursable to SchoolsFirst) for such Reimbursable
Improvement.
"First Party" has the meaning set forth in Section 7.7.
"Force Majeure Delay" means the occurrence of any of the following events when such
event is beyond the control of the First Party and such Party's officers, directors, employees,
contractors, consultants, agents and representatives and is not due to an act or omission of such
Party or its officers, directors, employees, contractors, consultants, agents or representatives,
which directly, materially and adversely affects (a) the ability of the First Party to meet its non -
monetary obligations under this Agreement, including the deadlines imposed by the Schedule of
Performance attached to the DDA, or (b) the ability of SchoolsFirst to cause Contractor to
Complete the Work, and which events (or the effect of which events) reasonably could not have
been avoided by due diligence and use of commercially reasonable efforts by the Party claiming
Force Majeure Delay:
(a) Civil Unrest. An epidemic, blockade, quarantine, rebellion, war,
insurrection, act of terrorism, strike or lock -out, riot, act of sabotage, civil commotion, act of a
public enemy, freight embargo, or lack of transportation;
(b) Unforeseeable Conditions. Reasonably unforeseeable physical
condition of the Property including the presence of Hazardous Materials;
(c) Casual . Fire, earthquake or other casualty, in each case only if
causing material physical destruction or damage to the Work or the Site;
(d) Liti ag tion. Any lawsuit seeking to restrain, enjoin, challenge or
delay any issuance of any Entitlement or seeking to restrain, enjoin, challenge, or delay
construction of the Project, which is defended by the First Party which restricts the ability of the
First Party to perform its material obligations hereunder or which results in an injunction against
the First Party restricting its ability to so perform during the pendency of such litigation and which
directly impairs the ability of the First Party to perform despite the best efforts of the First Party
to do so;
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
(e) Change of Law. The passage of a referendum or initiative that
results in the inability of the First Party to perform its material obligations hereunder;
(f) Change in Governmental Requirements. Any change in
Governmental Requirements or adoption of any new Governmental Requirements affecting the
Project which is materially inconsistent with Governmental Requirements in effect as of the
effective date of the DDA and which applies to the Project after taking into account any vested
rights with respect to the Project set forth in the Development Agreement; and
(g) Weather. Unusually severe weather conditions not reasonably
anticipatable for the City of Tustin, based upon U.S. Weather Bureau climatological reports for
the months included plus a report indicating average precipitation, temperature, etc. for the last ten
(10) years from the nearest reporting station.
Notwithstanding any other provision of this Agreement to the contrary, the term "Force
Majeure Delay" shall be limited to the matters listed above and, further, specifically excludes the
following matters which might otherwise be considered Force Majeure Delay:
(1) Entitlements. The suspension, termination, interruption, denial or
failure to obtain or nonrenewal of any Entitlement, permit, license, consent, authorization or
approval which is necessary for the development of the Project, except for any such matter
resulting from a lawsuit or referendum as described in clauses (4) or 5) this definition;
. (2) Previously Proposed Changes in Governmental Requirements. Any
change in Governmental Requirements other than as set forth in clause of this definition;
(3) Failure to Perform Obligations. Failure of any of SchoolsFirst, any
Successor Owner, Contractor, Subcontractor or other Person to perform any obligation to be
performed by it as the result of adverse changes in the financial condition of SchoolsFirst, any
Successor Owner, Contractor, Subcontractor or other Person, as applicable;
(4) Failure to Provide Financial Security. Failure of SchoolsFirst or any
Successor Owner to provide financial security required by this Agreement when due or to submit
evidence of financing of the Project or to perform any obligation to be performed by SchoolsFirst
or any Successor Owner hereunder as the result of adverse changes in market conditions unless
SchoolsFirst or such Successor Owner demonstrates to the satisfaction of the City Manager or
designee in its sole discretion that (a) SchoolsFirst or such Successor Owner was unable to obtain
such financing despite making best efforts to do so, and (b) such financing is unavailable on terms
which are commercially feasible because of generally applicable economic conditions affecting
the credit market which then exist;
(5) Failure to Submit Required Documentation. Failure of the First
Party to submit documentation as and when required by this Agreement;
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
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(6) Failure to Submit Basic Concept Plan or Other Plans and
Entitlements. Failure to submit a Basic Concept Plan and Concept Plan and Design Review
submittals, and/or submittals for other Entitlements required for construction of the Facilities
and/or development of the Project on the Property when required pursuant to the Schedule of
Performance;
(7) Failure to Maintain Required Insurance. Failure to acquire,
maintain and submit evidence of insurance policies as required by the DDA or this Agreement;
(8) Failure to Execute Documents. Failure of the First Party to execute
documents; and
(9) All Other Matters. All other matters not caused by the Second Party
and not specifically described in this definition.
"General Prevailing Wage Rates" means those rates determined by the Director of the
Department of Industrial Relations of the State of California to be "prevailing wage" rates for each
of the trades and workers to which prevailing wage rates apply, as such rates are set from time to
time by such director for the region in which the City is located.
"Governmental Authority" means any and all federal, State, county, municipal and local
governmental and quasi -governmental bodies and authorities or departments (including the United
States of America, the State of California and any political subdivision, public corporation, district,
joint powers authority or other political or public entity) or departments thereof having or
exercising jurisdiction over the Parties, the Development Parcels, the Site or other property upon
which SchoolsFirst or the City are obligated to construct, or cause construction of, the Facilities.
"Governmental Capacity" means the exercise by the City of its governmental authority
with respect to any matter related to this Agreement, including without limitation, the regulation
of the Development Parcels and the Site pursuant to Governmental Requirements, including
enacting laws, inspecting structures, reviewing and issuing permits, and all other legislative,
administrative or enforcement functions of each pursuant to federal, state or local law.
"Governmental Requirements" means all laws, statutes, codes, ordinances, rules,
regulations, standards, guidelines and other requirements issued by any Governmental Authority
having jurisdiction over, governing, applying to or otherwise affecting the Parties, the
Development Parcels, the Site and/or other property upon which SchoolsFirst or the City are
obligated to construct, or cause construction of, the Facilities or any component thereof, including
without limitation building permits related to construction of such improvements.
"Hazardous Materials" shall mean and include the following:
(a) "Hazardous Substance", "Hazardous Material', "Hazardous Waste",
or "Toxic Substance" under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980,42 U.S.C. subsection 9601, et seq., the Hazardous Materials Transportation
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
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Act, 49 U.S.C. subsection 5101, et seq., or the Resource Conservation and Recovery Act, 42
U.S.C. subsection 6901, et seq.;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a
"Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7 of the California
Health and Safety Code, or is listed or identified pursuant to subsection 25140 or 44321 of the
California Health and Safety Code;
(c) "Hazardous Material', "Hazardous Substance", "Hazardous Waste",
"Toxic Air Contaminant", or "Medical Waste" under subsections 25281, 25316, 25501,
25501.1, 117690 or 39655 of the California Health and Safety Code;
(d) "Oil' or a "Hazardous Substance" listed or identified pursuant to
Section 311 of the Federal Water Pollution Control Act, 33 U.S.C. Section 1321, as well as any
other hydro carbonic substance or by-product;
(e) A material listed or defined as a "Hazardous Waste", "Extremely
Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter 11 of Title 22 of the
California Code of Regulations;
(f) A material listed by the State of California as a chemical known by the State
to cause cancer or reproductive toxicity pursuant to Section 25249.8(a) of the California Health
and Safety Code;
(g) A material which, due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to damage, health,
safety, or the environment, or is required by any law or public agency to be remediated, including
remediation which such law or public agency requires in order for the property to be put to any
lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank Field Manual,
whether or not the presence of such material resulted from a leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. subsection 136 et seq.;
0) Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection 2601 et seq.;
(k) Any radioactive material including any "source material', "special nuclear
material', "by-product material', "low-level wastes", "high-level radioactive waste", "spent
nuclear fuel' or "transuranic waste", and any other radioactive materials or radioactive wastes,
however produced, regulated under the Atomic Energy Act, 42 U.S.C. subsection 2011 et seq., the
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
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Nuclear Waste Policy Act, 42 U.S.C. subsection 10101 et seq., or pursuant to the California
Radiation Control Law, California Health and Safety Code Section 114960 et seq.;
(1) A material regulated under the Occupational Safety and Health Act,
29 U.S.C. subsection 651 et seq., or the California Occupational Safety and Health Act, California
Labor Code subsection 6300 et seq.; and/or
(m) A material regulated under the Clean Air Act, 42 U.S.C. subsection 7401
et seq. or pursuant to Division 26 of the California Health and Safety Code.
"Lien Release Bond" is defined in Section 3.2.1.
"Notice of Completion" means a valid notice of completion as defined in California Civil
Code Section 8180 et seq.
"Non -Reimbursable Improvements" has the meaning set forth in Recital C.
"Non -Reimbursable Private Improvements" has the meaning set forth on Exhibit B.
"Non -Reimbursable Public Improvements" has the meaning set forth in Recital C.
"Payment Bond(s)" means the bond or bonds issued by a surety authorized to do business
in the State of California that guarantees the payment in full by Contractor as the principal of all
Contractor's Subcontractors, laborers, material suppliers and other Persons performing Work
which shall be in the form attached as Exhibit M.
"PCOW" has the meaning set forth in Section 2.4.1.
"Performance Bond(s)" means the bond or bonds issued by a surety authorized to do
business in the State of California and guaranteeing due and punctual performance and completion
(within the respective times provided in the Construction Schedule) of the Work in accordance
with the applicable Approved Project Plans that specifically describe the Work to be performed in
sufficient detail for the issuance of such Performance Bond, and including all obligations of
Contractor as the principal, Subcontractors and other Persons with respect to the Work covered by
such bond, with the City as the sole oblige which shall be in the form attached as Exhibit N.
"Person" means an individual, a corporation, a partnership, an association, a limited
liability company, a joint stock company, a trust, any unincorporated organization or a government
or political subdivision thereof.
"Plans" means the plans and specifications for all of the Facilities, which plans and
specifications shall have been prepared and approved pursuant to Section 2.1.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
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"Professional" means a professional consultant to whom a Professional Services
Agreement is awarded by SchoolsFirst in accordance with the procedures set forth in
Sections 2.3.2 and 2.3.3 or is otherwise accepted by the City in writing in its sole discretion.
"Professional Services Agreement" means the agreement for the provision of
professional services related to the construction of each Reimbursable Improvement awarded by
SchoolsFirst to each Professional in accordance with the procedures and meeting the requirements
set forth in Section 2.3 and the insurance requirements in Section 2.8 or is otherwise accepted by
the City in writing in its sole discretion.
"Project" has the meaning set forth in Section 1.2.2 of the DDA.
"Public Improvement" and "Public Improvements" have the meaning set forth in
Recital C.
"Reimbursable Improvements" means the portions of the Improvements within the
public right-of-way identified as such on Exhibit B to this Agreement, for which SchoolsFirst
shall be eligible to receive reimbursement, in the applicable percentages indicated on Exhibit B
of its Actual Cost, from the City, in accordance with the terms and conditions set forth in this
Agreement.
"Release" (with respect to Hazardous Materials) shall mean any releasing, or threat of
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, migrating, disposing or dumping into the environment.
"Request for Acceptance" has the meaning set forth in Section 3.2.1.
"SchoolsFirst" means SchoolsFirst Federal Credit Union, a federally chartered credit
union, and its successors and assigns as permitted in accordance with the terms and provisions of
the DDA.
"SchoolsFirst Parties" has the meaning set forth in Section 2.3.6.
"SchoolsFirst Representative" means the individual or individuals authorized by
SchoolsFirst to act and coordinate with the City on behalf of SchoolsFirst with respect to the
matters described in Section 2.10 and elsewhere in this Agreement, including but not limited to
execution of any Request for Acceptance signed by SchoolsFirst and delivered to the City. Each
Request for Acceptance shall contain an original signature of at least one SchoolsFirst
Representative.
"Second Party" has the meaning set forth in Section 7.7.
"Site" has the meaning set forth in Section 2.4.3.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
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"Special Restrictions" means the Declaration of Special Restrictions that will be recorded
against the Development Parcels concurrently with SchoolsFirst's acquisition of the City Parcel.
"State" means the State of California.
"Subcontract" shall mean a contract between Contractor and a Subcontractor.
"Subcontractor" or "Subcontractors" means each and every entity retained to perform
a portion of the Work that does not have a direct contractual relationship with SchoolsFirst and
shall include entities retained by Contractor at any tier to perform a portion of the Work under the
Construction Contract. Subcontractors shall be retained pursuant to and in accordance with the
requirements of this Agreement.
"Subcontracts" shall mean each and every Subcontract, collectively.
"Warranty" or "Warranties" means all warranties and guarantees provided by Contractor
and Subcontractors, vendors and material manufacturers and suppliers under the Construction
Contract, Subcontracts and other agreement with respect to any Public Improvement.
"Work" means the design, engineering, construction, installation, maintenance and
services required by the Plans, and includes without limitation all labor, services, equipment or
materials provided or to be provided by SchoolsFirst or Contractor to fulfill SchoolsFirst's
obligations with respect to each Facility constructed under this Agreement; provided, however,
that with respect to the Construction Contract, the responsibility of Contractor for the Work may,
at the discretion of SchoolsFirst, exclude design, engineering and, outside of the warranty period,
maintenance.
ARTICLE II
CONSTRUCTION OF FACILITIES
Section 2.1 Preparation of Plans
2.1.1 SchoolsFirst shall cause the Plans for each Facility to be prepared
by licensed engineers in the State in a competent, professional and satisfactory manner in
accordance with (a) all standards prevalent in the industry and (b) all applicable laws, ordinances,
resolutions, statutes, rules and regulations of applicable Governmental Authorities in effect at the
time the Improvements Plans were prepared. SchoolsFirst shall provide the Director with two (2)
paper copies of the complete set of the Plans for each Facility, together with an electronic copy of
the Plans in PDF and Autocad format. SchoolsFirst shall obtain the approval of the Director, in
his sole discretion, of the Plans prior to the commencement of construction.
2.1.2 Plans for each Facility prepared in accordance with this Section 2. 1,
approved by the City (and if an Approved PCOW has been obtained for such Plan, including such
Approved PCOW) are referred to herein as the "Approved Project Plans" for such Facility.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
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Section 2.2 Duty of SchoolsFirst to Construct
2.2.1 General Contractor. SchoolsFirst shall retain Contractor pursuant to
a Construction Contract in the form and substance of the Agreement attached as Exhibit G or with
such modifications to such Construction Contract as are approved (in writing) in advance by the
City in its reasonable discretion; provided that if any such proposed modification would diminish
the rights of City, the obligations of SchoolsFirst to City under this Agreement, or the obligations
of Contractor or any Subcontractor that are required by this Agreement to be imposed upon such
Contractor or Subcontractor and enforced by SchoolsFirst, approval of such modifications shall be
in the sole discretion of the City. SchoolsFirst shall cause Contractor to construct each Facility
substantially in accordance with the Approved Project Plans therefor, as applicable, the Schedule
of Performance and the Construction Schedule. SchoolsFirst shall cause Contractor to construct
the Facilities in accordance with the terms of the Construction Contract, the Schedule of
Performance and Construction Schedule. SchoolsFirst shall, and shall cause Contractor to, provide
all labor, materials, equipment, supplies, tools, permits, supervision, transportation, services, sales
tax and all other Work to complete the Facilities in accordance with the Approved Project Plans
therefor, as applicable, including all Work expressly specified therein and reasonably inferred from
the Approved Project Plans. Wherever this Agreement provides that SchoolsFirst shall cause the
Contractor to act, or refrain from acting in some manner, SchoolsFirst shall (a) include such
requirement in the Construction Contract as an obligation of Contractor and (b) shall make the
City an express third party beneficiary of such obligation, which shall be coupled with an interest.
2.2.2 Quality and Care. SchoolsFirst shall perform its obligations
hereunder and shall cause Contractor to, perform the Work under the Construction Contract and
conduct all operations with respect to such Work in a good, workmanlike and commercially
reasonable manner, with the standard of diligence and care normally employed by duly qualified
Persons utilizing commercially reasonable efforts in the performance of comparable work and in
accordance with generally accepted practices in Orange County, California, appropriate to the
activities undertaken. Unless otherwise specified in the Approved Project Plans, all materials shall
be new and of good quality and SchoolsFirst shall, if requested by the City, cause Contractor to
furnish satisfactory evidence to the City and SchoolsFirst as to the kind and quality of materials.
The Work shall be performed in a manner that complies with the requirements of any
manufacturers' warranties applicable to equipment or materials included in any of the Facilities.
2.2.3 Construction Schedule. The "Construction Schedule" is set forth
on Exhibit F and sets forth the final day for commencement of construction and the final day for
Completion of construction of each Facility for which SchoolsFirst shall be and shall cause
Contractor to responsible. The commencement and Completion dates established for each Facility
for Work to be performed by or on behalf of SchoolsFirst in the Construction Schedule shall be
subject to extension only for (x) "Authorized Extensions" requested pursuant to a PCOW and
approved by the Director in writing in accordance with the procedure set forth in Section 2.4.1
below, (y) a Force Majeure Delay or (z) any other reason permitted by this Agreement.
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2.2.4 Repairs. In connection with construction of the Facilities, as
between SchoolsFirst and the City, City shall not be responsible for any damage caused by
SchoolsFirst, Contractor or any of Contractor's Subcontractors to any property of City, and
SchoolsFirst shall, within ten (10) Business Days of receipt of substantiation from City of any such
damage caused by SchoolsFirst, Contractor or Contractor's Subcontractors, meet and confer with
City to confirm the extent of the damage and to identify the parties responsible for making repairs.
Thereafter, SchoolsFirst shall either promptly cause the repair of such damage without cost to the
City or after City's repair of any such damage, shall reimburse the City for the actual cost of the
repairs paid for by City together with the costs of staff (billed at then current hourly rates) and
costs of third party consultants incurred by the City in connection with such repairs within thirty
(30) calendar days of receipt of City's invoice and backup information substantiating such costs
or such costs may be retained by the City from any monies due to SchoolsFirst under this
Agreement.
Section 2.3 Contract Requirements
SchoolsFirst shall, and shall require Contractor to, comply with and, at such
intervals and in such form as the City may reasonably require, provide proof to the City that the
following requirements have been satisfied as to each of the Facilities. SchoolsFirst shall cause
the provisions of this Section 3 and Exhibit G to be attached to and incorporated into the
Construction Contract and shall cause Contractor to attach and incorporate into any Subcontract
under which Subcontractor will solicit bids for performance of Work in connection with the
construction of any Reimbursable Improvement. SchoolsFirst shall comply with the terms of the
Construction Contract and in the case of Contractor default, shall promptly enforce the terms of
the Construction Contract against Contractor. The Construction Contract and each such
Subcontract shall make City an express third party beneficiary with the right to enforce the
requirement of SchoolsFirst, Contractor and Subcontractors, if any, to comply with the provisions
of this Section 2.3 and Exhibit G.
2.3.1 Bidding Requirements. SchoolsFirst shall cause the Contractor's
construction contract with each Subcontractor for the construction of each Facility comprising a
Reimbursable Improvement (a) to be awarded to a prequalified Subcontractor that is the
responsible bidder submitting the lowest responsive bid for such Reimbursable Improvement in
accordance with the provisions of this Section 2.3 and (b) to incorporate the Contractor's
Construction Contract with SchoolsFirst.
2.3.2 Bid/RFP Process. Following completion of Approved Project Plans
for each Facility, SchoolsFirst shall, or shall cause Contractor to, solicit bids from at least three (3)
prequalified bidders selected by SchoolsFirst and Contractor in accordance with Exhibit G
attached hereto for construction of each Facility comprising a Reimbursable Improvement (or in
the case of services, proposals related to the construction of such Facility) in a timely manner to
ensure compliance with the commencement date for such Facility set forth in Construction
Schedule. The bid and award procedures to be followed by Contractor in connection with the
construction of each Reimbursable Improvement are described on Exhibit G attached hereto.
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Nothing in this Agreement shall prohibit SchoolsFirst or Contractor from soliciting bids either for
an individual Reimbursable Improvement or for multiple Reimbursable Improvements at one time.
If the Work is bid for multiple Reimbursable.Improvements at one time, SchoolsFirst shall, or shall
cause Contractor to, require all bidders to specify the cost of each Reimbursable Improvement
separately, and shall require in any Subcontract(s) awarded to the successful Subcontractor
bidder(s) that all final payment applications submitted by it to the Contractor will break out
separately the cost of constructing each Reimbursable Improvement.
2.3.3 Award of Contract or Professional Services Agreement. Promptly
after Contractor's receipt and opening of all bids for Reimbursable Improvements, SchoolsFirst
will submit to the City a spreadsheet showing all Subcontractor bidder(s)' bids received. The City
shall have a period of five (5) Business Days from receipt of the bid results for review and approval
of same. After receipt of the City's approval of the responsible Subcontractor bidder(s) submitting
the lowest responsive bid(s) for the construction of each Reimbursable Improvement or portion of
a Reimbursable Improvement (which approval shall be confirmed in a Concurrence Letter in the
form of Exhibit C attached hereto), SchoolsFirst shall or shall cause Contractor to award the
construction contract(s) to the Subcontractor(s) so approved by the City. Likewise, as to all
Professional Services Agreements in connection with the Construction of each Reimbursable
Improvement which SchoolsFirst intends to include as part of the Actual Costs, SchoolsFirst shall
provide the City with a spreadsheet showing all proposals received from consultants, after which
the City shall have a period of five (5) Business Days from receipt of the spreadsheet to review
and approve of same. After receipt of City's approval of the professional consultant with the
lowest responsive proposal to perform the services (which approval shall be confirmed in a
Concurrence Letter in the form of Exhibit C attached hereto), SchoolsFirst shall enter into a
Professional Services Agreement with the approved consultant. Each professional services
agreement awarded after bidding as set forth in this Section 2.3.3, are each hereinafter referred to
as the "Professional Services Agreement," and each winning bidder for such services is referred
to as a Professional. Promptly after the award of each such Construction Contract or Professional
Services Agreement, SchoolsFirst shall furnish the City with a copy of (a) the bid package received
from the Subcontractor(s) to whom the Contractor has awarded a construction contract, and/or
(b) with respect to professional services, the fully executed Professional Services Agreement and
one copy of the proposal received from the Professional to whom the Professional Services
Agreement was awarded. In addition, in order to expedite commencement of construction of the
Reimbursable Improvements and provided the City Manager or his or her designee has consented
to the specifics thereof in writing, SchoolsFirst may commence the bid and award process for
Subcontractors for the Reimbursable Improvements prior to the Effective Date. City agrees that
so long as such bid and award procedures for such Subcontractors complied with the requirements
of Exhibit C and Exhibit G of this Agreement, the Actual Costs shall include, without limitation,
Construction Costs for Reimbursable Improvements under Contractor's contracts with such
Subcontractors.
2.3.4 Public Works Contract Requirements; Prevailing Wages. The
specifications and bid and contract documents shall require that SchoolsFirst comply with and
cause Contractor, all Subcontractors and all Professionals to which such requirements apply, to
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comply with all applicable provisions of the California Labor Code, the California Government
Code and the California Public Contract Code relating to public works projects of cities. In
addition, but without limitation of the foregoing, SchoolsFirst shall require in the Construction
Contract that Contractor shall and shall cause all Subcontractors engaged to perform Work on each
Public Improvement: (a) to pay at least General Prevailing Wage Rates to all workers employed
in the performance of the Construction Contract or any Subcontract, (b) to post a copy of the
General Prevailing Wage Rates at the job -site in a conspicuous place available to all employees
and applicants for employment, (c) to otherwise comply with applicable laws relating to public
works projects of cities including without limitation, pursuant to Labor Code § 1771.1(a), (d) to
ensure that Contractor and all Subcontractors are currently registered and qualified to perform
public work pursuant to Labor Code § 1725.5, and (e) to ensure that Contractor, all Subcontractors,
and all Professionals (if any) contracted through Contractor to which such requirements apply,
prepare and submit Certified Payroll Records directly to the California Labor Commissioner in
compliance with the requirements set forth in Labor Code Sections 1771.4 and 1776, including
but not limited to the form, content and frequency of the submittal of the Certified Payroll Records.
SchoolsFirst shall require in its Construction Contract that Contractor and all Subcontractors
comply with all applicable laws for public works projects, including without limitation, California
Labor Code Sections 1771, 1774, 1775, 1776, 1777.5, 1813 and 1815, and shall attach copies of
such Labor Code provisions in an exhibit attached to the Construction Contract and each
Subcontract and each Professional Services Agreement to which such requirements apply.
2.3.5 Compliance With Law. In connection with construction of each
Facility, SchoolsFirst shall, and shall cause Contractor and all SchoolsFirst Parties to, comply with
all applicable laws, ordinances and regulations and with the applicable building codes of applicable
Governmental Authorities, Neither SchoolsFirst nor Contractor nor any Subcontractors or
Professionals shall discriminate in its employment practices against any employee, or applicant
for employment, because of such individual's race, religion, national origin, ancestry, sex, sexual
orientation, age, physical handicap, marital status or medical condition and SchoolsFirst shall
cause a provision prohibiting such discrimination to be included in the Construction Contract, each
Subcontract and each Professional Services Agreement.
2.3.6 Contract Requirements; City Rights. The Construction Contract
shall include, among other provisions, the terms and conditions set forth on Exhibit J attached
hereto and neither the Construction Contract nor any Subcontract shall include any provisions that
diminish the rights of the City or the obligations of Contractor or any Subcontractors thereunder.
The price for the Work set forth in the Construction Contract as adjusted pursuant to such
Construction Contract ("Contract Price") shall be established as a "cost plus guaranteed
maximum price" contract as determined in accordance with the procedures set forth in Exhibit G.
Notwithstanding any other provision of this Agreement, City shall not be responsible for (a) costs
under the Construction Contracts in excess of the established Contract Price (except as modified
by an Approved PCOW), and (b) any loss incurred by the City as a result of the breach of a
Construction Contract by Contractor or a defect in the Work or faulty workmanship (unless
covered by Contractor's Warranty assigned to the City on the Acceptance Date for the applicable
Public Improvement). Nothing contained in this Agreement shall create any contractual
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relationship between the City and Contractor or any of Contractor's Subcontractors, vendors,
material suppliers, laborers or any other Person retained by SchoolsFirst or retained by any of the
foregoing, at any tier, or their respective officers, employees or agents (collectively, and expressly
excluding SchoolsFirst, the "SchoolsFirst Parties').
2.3.7 Contractor Insurance. SchoolsFirst shall cause Contractor and all
Subcontractors engaged to perform Work on a Facility to provide proof of insurance coverage
satisfying the requirements of Section 2.8 throughout the term of the construction of such Facility.
2.3.8 Compliance with City Requirements. SchoolsFirst shall cause
Contractor and each Subcontractor, vendor, material supplier, equipment operator and owner
operator, to the extent each such Person is engaged to perform Work, to comply with such
requirements relating to the Work as the City may impose by written notification delivered to
SchoolsFirst to the extent legally required as a result of Governmental Requirements or changes
in applicable federal, State or City laws.
Section 2.4 Changes
2.4.1 Preliminary Change of Work Request. SchoolsFirst shall provide
the City with a preliminary change of work request in the form of Exhibit H (each, a "PCOW")
within ten (10) Business Days of initiation of changed conditions to the Construction Contract or
in connection with any request for an extension of time (i.e., for an Authorized Extension), which
PCOW shall be subject to City approval in its sole discretion. The Director shall provide written
approval or disapproval of any such PCOW within ten (10) Business Days of the Director's receipt
of same from SchoolsFirst. Each PCOW approved by the City in writing is referred to herein as
an "Approved PCOW." If the Director fails to respond within such ten (10) Business Day period,
such failure to respond shall be deemed to constitute disapproval of the PCOW. With respect to
each and every Public Improvement, there shall be no change to the Construction Schedule, the
Plans, the Approved Project Plans, the scope of the Work, the Actual Cost of a Public Improvement
or amount due to SchoolsFirst and no extension of time unless such change in time, Plans,
Approved Project Plans, scope of the Work or cost is set forth on an Approved PCOW for such
Public Improvement. A design revision or construction change order or increase in the quantity
of any unit price item over the bid quantity involving the Reimbursable Improvements shall be
considered null and void for purposes of reimbursement hereunder unless approved in writing by
both the Director and the SchoolsFirst Representative.
2.4.2 Changes to Approved Project Plans. City and SchoolsFirst
acknowledge that following approval by the City and the other required Governmental Authorities
of the Plans for a Public Improvement the City or any such Governmental Authority may, during
design or construction, request or revisions to the Approved Project Plans that may result in
increases in costs. City and SchoolsFirst agree that if, during design or construction, the City
requests a revision to the Approved Project Plans for any Public Improvement following approval
by the City and the other required Governmental Authorities of the Plans for such Public
Improvements for purposes other than requiring Work to be corrected, removed, repaired or
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replaced due to failure of such Work to comply with Governmental Requirements or to meet City
or other Governmental Authority's inspection and/or acceptance requirements, then the cost of any
such revision to the Approved Project Plans shall be an Approved Cost and SchoolsFirst shall have
the right to consent to such revision or to any such to a Non -Reimbursable Public Improvement
for which SchoolsFirst will incur increased out-of-pocket costs (after taking into account, if
applicable, the reimbursement of Actual Costs by the City applicable to the specific Public
Improvement). The cost of all other requested revisions to the Approved Project Plans for any
Public Improvement by any Governmental Authority shall be an Actual Cost if and to the extent
that City has approved such revisions to the Plans pursuant to Section 2.1 of this Agreement. In
each case, SchoolsFirst shall promptly cause the proposed design revisions to be made to the
Approved Project Plans for any Public Improvement and the Parties shall process a PCOW to
address the impacts of any such change in the Approved Project Plans on the cost of Work and the
Construction Schedule. SchoolsFirst shall not modify the Approved Project Plans for any Public
Improvement without first obtaining the City's prior approval of such modification. In the event
of any changes to the Approved Project Plans for any Public Improvement, SchoolsFirst shall
provide a copy of the proposed change to the Approved Project Plans to City for review and
approval prior to initiating any Work related to such change.
2.4.3 Constructability Review. SchoolsFirst represents and warrants that
it has visited and examined and shall cause Contractor to visit and examine the land upon which
the Work will be performed including property owned by SchoolsFirst and property owned by the
City which shall be made available to SchoolsFirst pursuant to City issued encroachment permit
("Site"); that each has examined all physical conditions that are surface conditions that are not
concealed, legal conditions, and other conditions affecting the Work, and that each has become
sufficiently familiar therewith to perform the Work. In addition, SchoolsFirst has and shall cause
Contractor to have reviewed the Plans and shall, prior to commencement of construction of any
Facility, review the Approved Project Plans for such Facility for the constructability thereof from
a cost and schedule perspective. SchoolsFirst shall rely on its own design Professionals to ensure
that the Plans, including without limitation, the Approved Project Plans for each and every Facility
conform to Site conditions and engineering practices consistent with the standard of care followed
by licensed engineers in the design of similar improvements in Orange County, California.
Section 2.5 Bonding Requirements
2.5.1 Provision of Bonds: Terms. Prior to the commencement of
construction of any Public Improvement, SchoolsFirst shall cause the Contractor to (a) secure and
provide to the City and to SchoolsFirst a Payment Bond for the Facilities to ensure payment of all
Subcontractors, laborers and material suppliers with respect to the Public Improvements, which
shall meet the requirements above and be substantially in the form of Exhibit N to this Agreement
unless otherwise agreed by the City in its sole discretion and (b) secure and provide to the City
and to SchoolsFirst a Performance Bond to ensure completion of the performance of the Work
which shall be substantially in the form of Exhibit M to this Agreement unless otherwise agreed
by the City in its sole discretion. Nothing in this Agreement shall limit or restrict the right of the
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City to require performance and payment bonds for other work performed by SchoolsFirst with
respect to the Project.
2.5.2 Additional Requirements. Any bond for the Public Improvements
shall be (a) in an amount that is at least equal to 100% of the amount of the bid approved by the
City pursuant to Section 2.3.3, or (b) if bids have not been received, in an amount equal to the
amount of the engineer's estimate for the Public Improvements being bonded, including reasonable
contingency. Each bond for the Public Improvements provided shall, unless otherwise agreed by
the City in its sole discretion, be issued by a surety company duly authorized to issue such bonds
in the State of California and rated "A" or better by A.M. Best and name the City as the sole obligee
thereunder. Without the prior written approval of the City in its sole discretion, each Payment
Bond and Performance Bond delivered by Contractor with respect to the Facilities shall not be
terminated or modified in any respect prior to the Acceptance Date of the Public Improvement for
which it was provided.
2.5.3 Increase in Security. To the extent that the cost of the Public
Improvements is determined at any time by the Director to have increased such that the Payment
Bond or any Performance Bond provided pursuant to this Section 2.5 is less than the then -
estimated cost to complete the Public Improvements, the City may, in its sole discretion, require
SchoolsFirst to (or to cause Contractor to) : (a) post a replacement Payment Bond (or provide a
Rider to the original Payment Bond increasing the amount thereof) to secure such estimated
additional costs, or (b) post a replacement Performance Bond (or provide a Rider to the original
Performance Bond increasing the amount thereof) to secure such estimated additional costs.
2.5.4 Bond Costs. Actual Costs for each Public Improvement, shall
include, without limitation, the cost of the Payment Bond procured by Contractor for such Public
Improvements and the cost of Performance Bonds procured by Contractor for such Public
Improvements and shall not include the cost of any additional performance or payment bonds that
may be required by SchoolsFirst, unless otherwise agreed by the City in its sole discretion.
2.5.5 Release of Bonds. Any Payment and Performance Bonds for any
Public Improvements shall be released (or reduced in amount) only as provided in Section 3.3
below.
Section 2.6 Inspection; Completion of Construction
2.6.1 Inspection. The City shall be entitled to inspect the Facilities as it
deems necessary to assure compliance with the Approved Project Plans, in each case including
shop drawing review and material inspection thereof. The City shall have access to all phases of
the Work for the Facilities for the purpose of such inspection. The City's personnel shall have
access to the Site in accordance with the provisions of Section 8.8 of the DDA, for the purpose of
accomplishing such inspections. The City will promptly notify SchoolsFirst of any portion of the
Work on any Facility that appears not to conform to the Approved Project Plans for the relevant
Facility. In addition, within five (5) Business Days following receipt of an inspection request from
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SchoolsFirst, the City shall have its inspectors inspect the Work to confirm that such Work is
accomplished in accordance with the Approved Project Plans for the relevant Facility. The
determination of the City as to conformity of each Facility on the Site with the Approved Project
Plans for each such Facility shall be made in the City's sole and absolute discretion.
2.6.2 Notice of Completion. Within fifteen (15) calendar days after the
Acceptance Date of each Public Improvement pursuant to the procedures set forth in Section 3.2
below, SchoolsFirst shall file with the Orange County Clerk Recorder a Notice of Completion, in
form acceptable to the Director, pursuant to the provisions of Section 8180 et seq. of the California
Civil Code.
Section 2.7 Maintenance of Facilities; Transfer of Interest; Transfer of
Warranties to all Public Improvements
2.7.1 Maintenance of Facilities. Prior to the Acceptance Date of each
Public Improvement, SchoolsFirst shall be responsible for maintaining (or causing the
maintenance of) such Public Improvement in good and proper operating condition, and shall
perform (or cause to be performed) such maintenance on such Public Improvement as the Director
reasonably determines to be necessary. Except as otherwise set forth in this Agreement,
SchoolsFirst shall have no maintenance responsibility with respect to any Completed Public
Improvement after the Acceptance Date thereof. SchoolsFirst shall be responsible for the
maintenance of each Non -Reimbursable Private Improvement following Completion at its sole
cost and expense, and without reimbursement of any kind by the City.
2.7.2 Request for Acceptance of All Public Improvements. SchoolsFirst
hereby acknowledges and agrees that title to the Public Improvements located on the Development
Parcels or City owned property, including without limitation, right-of-way, shall be owned by the
City upon installation thereof. Accordingly, at such time as SchoolsFirst delivers the Request for
Acceptance to the Director, SchoolsFirst shall (a) execute three (3) duplicate originals of an
Assignment Agreement, substantially in the form of Exhibit D, and (b) cause Contractor to
execute three (3) duplicate originals of the consent to the Assignment Agreement in the form and
substance of the consent attached thereto, which SchoolsFirst shall cause to be delivered to the
City. Under the Assignment Agreement, among other things, SchoolsFirst shall assign to the City,
and Contractor shall consent to the assignment by SchoolsFirst of, SchoolsFirst's right, title and
interest, if any, in such Completed Public Improvement, and all warranties, express or implied,
with respect to such Public Improvement, including without limitation all Warranties provided
pursuant to the Construction Contract and Subcontracts for such Public Improvement effective as
of the Acceptance Date, all in accordance with the procedures set forth in Section 3.2.1. The
Warranties for each Public Improvement and all other warranty rights made in favor of or assigned
to the City shall be consistent with the terms set forth on Exhibit I unless otherwise agreed by the
City in its sole discretion and shall be in effect for a term of one year from the Acceptance Date of
each Public Improvement accepted by the City. Any assignment of Warranties to the City shall
be non-exclusive and shall not preclude SchoolsFirst from pursuing its own claims against
Contractor and/or any Subcontractors, vendors, material manufacturers and suppliers with respect
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to such Public Improvement. SchoolsFirst shall cause the provisions of this paragraph to be
included in the Construction Contract for the express benefit of the City.
Section 2.8 Insurance Requirements
2.8.1 Insurance Types and Levels of Coverage. SchoolsFirst shall either
obtain and maintain for the term of this Agreement or shall cause Contractor to maintain from the
effective date of the Construction Contract until the Acceptance Date of the Public Improvements,
the insurance specified on Exhibit J in accordance with all requirements specified on said Exhibit.
Likewise, each Professional shall be required to maintain from the effective date of the
Professional Services Agreement until the Acceptance Date of the applicable Public Improvement
for which services were performed, the insurance specified on Exhibit K in accordance with all
requirements specified in said Exhibit. SchoolsFirst shall not in the Construction Contract, nor
allow the Contractor in any Subcontract to, reduce or eliminate the insurance coverages required
by Exhibit J and Exhibit K of this Agreement, including without limitation, by reducing the
amounts of coverage, increasing the permitted self-insured retention or deductibles or reducing
any requirements relating to the insurance carriers, ratings or types of insurance required without
the prior written approval of the City, in its sole discretion.
2.8.2 Subcontractors' Insurance Requirements. SchoolsFirst shall not
permit Contractor or any Subcontractor or other Persons to work on any Public Improvement or
on the portions of the Site owned by the City until that Contractor, Subcontractor or other Person
has complied with the general liability, automobile liability, and workers compensation insurance
requirements specified in Section 5 of Exhibit J, including without limitation, the requirement
that Contractor and each Subcontractor or other Person obtain endorsements naming the City and
the other parties specified in said Exhibit as additional insureds on its general liability and auto
liability insurance policy. Likewise, SchoolsFirst shall require in its Professional Services
Agreement with each Professional that provides services in connection with a Public Improvement
the requirement that, in addition to the insurance the Professional must maintain, Professional will
not permit any subconsultants or other Persons who provide any portion of such services to
commence such services until each subconsultant or other Person obtains and maintains the levels
of insurance in accordance with the requirements set forth in Exhibit K.
2.8.3 Cijy Right to Procure Insurance. If SchoolsFirst fails to maintain or
cause Contractor to maintain any insurance required hereby, the City may, upon ten (10) calendar
days' prior written notice to SchoolsFirst, but shall not be obligated to, procure such insurance and
recover the amount of the premiums therefor from SchoolsFirst or retain such amount from any
monies due to SchoolsFirst under this Agreement. The failure of the City to procure any such
insurance shall in no way relieve SchoolsFirst of its obligations under this Agreement nor shall it
relieve SchoolsFirst of its obligation to enforce the obligations of Contractor under the
Construction Contract.
2.8.4 No Limitation. Maintenance of insurance as required by this
Agreement shall not be construed to limit the liability of SchoolsFirst or any Contractor or
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Subcontractor to the coverage provided by such insurance, or otherwise limit the City's recourse
to any remedy available at law or equity.
Section 2,9 Liens and Ston Payment Notices
2.9.1 No Liens. SchoolsFirst shall keep the Site and all other property
owned by the City free from any and all liens relating to the Work. SchoolsFirst shall obtain
conditional and unconditional lien releases in accordance with applicable provisions of the
California Civil Code from Contractor and all Contractor's Subcontractors, vendors, material
supplier and other Persons performing any portion of the Work in accordance with the procedures
specified on Exhibit L attached hereto. SchoolsFirst shall promptly notify the City in the event
Contractor or any of its Subcontractors, vendors or material suppliers or other Persons refuse to
deliver any such conditional and/or unconditional waiver and lien release.
2.9.2 Removal of Liens. SchoolsFirst shall, within thirty (30) calendar
days following receipt of notice thereof (a) cause to be removed or bonded against (with bonds
satisfying California statutory requirements), any and all mechanic's liens, stop payment notices
and bonded stop payment notices that are recorded or served by SchoolsFirst, Contractor or other
SchoolsFirst Parties in connection with the construction of any Facility, the Work or other work
performed by or on behalf of SchoolsFirst, Contractor or the SchoolsFirst Parties, and (b) provide
to the Director written evidence acceptable to the Director in his or her sole discretion of the
withdrawal of any lien or lis pendens and/or notice of action that has been recorded against the
Site as well as against any other property owned by the City in connection with such mechanic's
lien claim. Notwithstanding the foregoing, SchoolsFirst may contest the amount, validity or
application, in whole or in part, of any such mechanic's liens, stop payment notices and bonded
stop payment notices; subject, however, to the further requirement that neither the Facility nor the
Site nor any part or interest in either thereof would be in any danger of being sold, forfeited,
attached or lost pending the outcome of such proceedings. If any such contest is finally resolved
against SchoolsFirst, SchoolsFirst shall promptly pay the amount required to be paid, together with
all interest and penalties accrued thereon.
2.9.3 Stop Payment Notices. If a stop payment notice is served upon the
City, the City may, until the discharge or bonding thereof, withhold from the moneys under its
control so much of said moneys due or to become due to SchoolsFirst under this Agreement as
shall be equal to one hundred twenty-five percent (125%) of the amount stated in such stop
payment notice. Any bond filed pursuant to this Section 2.9.3 shall comply with the provisions of
California Civil Code Section 9364 and the requirements of Section 2.9.4.
2.9.4 Bond Requirements. Any bond filed with the City to satisfy the
requirements of this Section 2.9 shall be issued by a corporate surety authorized to issue security
bonds in the State of California in an amount equal to one hundred twenty-five percent (125%) of
the claim stated in the mechanics' lien, material supplier's lien, stop payment notice or notice to
withhold.
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Section 2.10 Public Improvement Proiect Coordination
With respect to communications regarding PCOWs, bonding, and/or Requests for
Acceptance and all other matters relating to construction of each Public Improvement (collectively
"Coordination Communications"), the City and SchoolsFirst designate the following individuals
as their respective Project Coordinators. All Coordination Communications shall go through the
SchoolsFirst Representative.
(a) City Representative. Ken Nishikawa, telephone: (714) 573-
3389, e-mail: knishikawaAtustinca.org shall be the City's representative and contact person.
(b) SchoolsFirst Representative. Christina Quintero, Vice
President of Facilities Services, telephone: (714) 258-7444,
e-mail: cquintero ,schoolsfirstfcu.org shall be SchoolsFirst's representative and primary contact
person.
The City and SchoolsFirst may, at any time, change their respective representatives by
providing written notice to the other Party.
Section 2.11 Encroachment Permit; Access
Prior to commencement of Work in any public right of way, SchoolsFirst shall, or shall
cause Contractor to, obtain an encroachment permit for such Work from the City, which shall be
issued by the City upon satisfaction of the standard requirements for issuance by the City of such
encroachment permits. Access to such City -owned property shall be permitted only upon issuance
of such encroachment permit.
Section 2.12 Warranties and Guarantees for Public Improvements
SchoolsFirst shall include in the Construction Contract as an obligation of Contractor and
shall cause Contractor to include in each Subcontract, a requirement for a written guarantee for
each Public Improvement against defects in workmanship and materials for the periods specified
in Section 2.7 in the, form and substance of the guarantee and warranty provisions set forth in
Exhibit J or as otherwise approved by the City in its sole discretion. SchoolsFirst shall not reduce
or modify the guarantee or Warranty coverage provided by such provisions or the time period in
which such guarantees or warranties remain in effect, nor permit Contractor to do the same with
respect to any Subcontract, without the prior written approval of the Director. The Warranties as
to each Public Improvement shall remain in effect for a period of one (1) year commencing from
the date of Final Acceptance of the Work on such Public Improvement by the City (or, in the case
of landscape improvements included in any Public Improvement, if any, one hundred and twenty
(120) calendar days from Completion thereof). Prior to the Acceptance Date of each Public
Improvement, SchoolsFirst shall provide all Warranty paperwork, if any, to the City. No Final
Acceptance by the City of any Public Improvement shall operate as a waiver or release with respect
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to any warranties (including without limitation, any Warranties) applicable to the Work, or the
Public Improvements, or any rights or remedies pertaining to any of the foregoing.
Section 2.13 Disclaimer of Responsibility
With respect to the Plans and any Approved Project Plans with respect thereto, the
City hereby disclaims all responsibility therefor, including, without limitation, any duty to
SchoolsFirst or any other Person to review or inspect any matter in connection with the design,
development or construction of such Work whether regarding the quality, adequacy or suitability
of improvement plans, any labor, service, equipment or material furnished for development of the
Work, any Person furnishing same, or otherwise. The review by the City of any design submittals
shall not constitute the assumption of any responsibility by, or impose any liability upon, the City
as to the accuracy, efficacy, sufficiency or legality thereof nor decrease or diminish any liability,
duties, responsibilities, or obligations of SchoolsFirst under this Agreement or of Contractor or
any Subcontractor under their respective construction contracts, or otherwise. The provisions of
this Section shall survive the termination of this Agreement.
ARTICLE III
ACQUISITION OF PUBLIC IMPROVEMENTS
Section 3.1 Transfer of Ownership of Public Improvements
3. 1.1 Transfer. Upon Completion of each Public Improvement,
SchoolsFirst shall transfer such Public Improvement to the City in accordance with the terms and
conditions of this Article III. Ownership of each Public Improvement shall be transferred to the
City as of the "Acceptance Date" of such Public Improvement, which shall be memorialized in the
Assignment Agreement provided by SchoolsFirst to the City in accordance with the requirements
of Section 2.7 and Section 3.2.1. SchoolsFirst shall be responsible for maintenance of each Public
Improvement in a good and operable condition until the Acceptance Date. SchoolsFirst shall
deliver each Public Improvement to the City in good and operable condition. Notwithstanding the
fact that some or all of the Public Improvements may be constructed in dedicated street rights-of-
way or on property that is not owned by SchoolsFirst, each Public Improvement shall be and
remain the property of SchoolsFirst until title thereto or ownership thereof is conveyed as provided
herein.
3.1.2 Public Improvements located within the Public Right of WgY or on
Property Owned by the City. With respect to Public Improvements that are located in the public
right-of-way or on other real property owned by the City, the City will have title to such Public
Improvement and each component thereof upon installation thereof due to the City's interest in
the real property on which such Public Improvement is located. Upon the Acceptance Date for
each such Public Improvement, SchoolsFirst shall provide the City with an assignment of all
Warranties with respect to such Public Improvement which have received Final Acceptance in
accordance with the requirements of Section 2.7 and Section 3.2.1. In addition, SchoolsFirst shall
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cooperate with the City and shall execute such other instruments as the City may request to confirm
City's ownership of such Facilities and related improvements.
3.1.3 Public Improvements located on Property Owned by SchoolsFirst.
With respect to each Public Improvement that is located on property owned by SchoolsFirst, if
any, the City shall not have title to such Public Improvement until the conveyance of such Public
Improvement to the City following the Acceptance Date, but shall receive an assignment of all
Warranties with respect to such Public Improvement thereof in accordance with the requirements
of Section 2.7 and Section 3.2.1.
Section 3.2 City Final Acceptance Process
3.2.1 Request for Acceptance. Pursuant to Section 2.6.1, at such time as
the City's inspectors are satisfied that a Public Improvement has been completed substantially in
accordance with the Approved Project Plans therefor, SchoolsFirst shall provide written notice to
the Director in the form of a "Request for Acceptance" substantially in the form of Exhibit E, in
accordance with the following process; provided that, notwithstanding any other provision of this
Agreement, in no event shall SchoolsFirst request or City be required to take title (as opposed to
an assignment of Warranties) to any Public Improvement unless: (a) such Public Improvement is
located in the public right-of-way or upon real property owned by the City; (b) the City takes title
to the Development Parcels pursuant to Section 15.3 or Section 15.4 of the DDA; or (c) otherwise
agreed by City and SchoolsFirst, each in its sole discretion.
(a) Information Provided with Request. SchoolsFirst shall
deliver to the Director: (i) a complete fully executed Request for Acceptance of each Public
Improvement, together with all attachments referenced therein to be included with such request;
(ii) a final accounting of the Actual Cost incurred in constructing the Reimbursable Improvement
comprising the Public Improvement for which Acceptance is sought, if any, together with
supporting receipts and documentation; (iii) lien releases in accordance with the procedures set
forth on Exhibits E and L attached hereto; (iv) three duplicate originals of the Assignment
Agreement for the Public Improvement signed by SchoolsFirst, with the effective date left blank
in Section 2 of said Assignment Agreement for completion as provided in Section 3.2.1(c), and
(v) as -built drawings and one (1) copy of the Contractor's redlined set of "record" drawings
(showing all revisions as required by the City) and one (1) copy of the compaction reports and
certificate for the Public Improvement trench zones, survey notes and cut sheets.
(b) Review of Information by Director: Final Approved Cost. If
a Request for Acceptance is incomplete, City shall have ten (10) Business Days to provide
SchoolsFirst with written notice thereof, including an itemized list of materials or information
needed for the Request for Acceptance to be considered complete. Upon receipt of a complete and
fully executed Request for Acceptance (and accompanying documentation and such other
documentation related to the Work as the Director may reasonably request) for a Public
Improvement, the Director, acting in a Governmental Capacity, shall conduct a final review of the
Request for Acceptance and accompanying documentation specified in subsection (a) above and
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this subsection (b) in order to: (i) confirm that such Public Improvement was constructed
substantially in accordance with the Approved Project Plans and has been Completed; (ii) examine
the final accounting provided by SchoolsFirst and verify and approve the Actual Cost and the Final
Approved Cost of any component of such Public Improvement comprising a Reimbursable
Improvement; (iii) confirm that all information provided with the Request for Acceptance is
accurate; (iv) confirm that any mechanic's and material supplier's liens filed in connection with
construction of such Public Improvement have been removed and the statutory time periods for
filing of any such liens has expired, or provide evidence that a lien release bond has been filed in
an amount equal to 125% of the amount of the claim of lien and otherwise complying with the
requirements of the California Civil Code for release of a mechanic's or material supplier's lien
("Lien Release Bond"); and (v) confirm that the lien releases as described in Sections 2.9.1 and
3.2.1 fahave been delivered by SchoolsFirst or Lien Release Bonds delivered by SchoolsFirst or
Contractor. SchoolsFirst agrees to cooperate with the Director in conducting each such review
and to provide the Director with such additional information and documentation as is reasonably
necessary for the Director to conclude each such review. The City agrees to cause the Director to
commence such review within ten (10) Business Days of receipt of such Request for Acceptance
and to thereafter complete such review without unreasonable delay (and in any event, within ten
(10) Business Days of the Director's receipt of a fully complete and executed Request for
Acceptance together with all attachments referenced therein to be included with such request). If
the Director determines that the Actual Cost specified in such Request for Acceptance for a
Reimbursable Improvement exceeds SchoolsFirst's actual costs to construct the Reimbursable
Improvement as verified by the supporting information provided by SchoolsFirst or contains any
amounts not included in the definition of Actual Cost contained in Section 1.1 (e.g., the
Construction Cost of the Reimbursable Improvement exceeds the Contract Price for such
Reimbursable Improvement as modified by any cost changes as set forth in any Approved PCOW),
then SchoolsFirst shall either (a) meet with the Director to provide information why SchoolsFirst
believes the Director's determination is in error and resolve such discrepancy to the Director's
satisfaction, in the Director's sole discretion or (b) resubmit such Request for Acceptance with the
Actual Cost specified therein modified so as to take into account such determination by the
Director. With respect to Reimbursable Improvements, the final Actual Cost approved by the
Director for such Reimbursable Improvement shall be used to calculate the Final Approved Cost
under this Agreement, which shall be used in connection with Final Acceptance of any
Reimbursable Improvement included in the Reimbursable Improvements and for all other purposes
set forth in this Agreement. The Director shall notify SchoolsFirst of the Final Approved Cost in
the executed Request for Acceptance returned to SchoolsFirst which shall be executed upon
satisfaction of the conditions set forth in Section 2.7 and this Section 3.2.
(c) Final Acceptance by City: Acceptance Date. With respect
to Public Improvements only, upon (x) approval by the Director of the items specified in
Section 3.2.1 (b) and (y) approval by the City of the Request for Acceptance with respect to each
such Public Improvement, the Director shall execute and issue the Request for Acceptance
countersigned by the Director to evidence the Final Acceptance applicable thereto. The
"Acceptance Date" of each Public Improvement shall be the date when all of the following have
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been deemed complete to the satisfaction of the Director acting in a Governmental Capacity: (i) the
Director has completed its review of the Request for Acceptance and accompanying
documentation; (ii) the Director has confirmed that all information provided with the Request for
Acceptance is accurate and that the Public Improvement has been constructed substantially in
accordance with the Approved Project Plans therefor and is Completed; (iii) the Director has
verified the final accounting provided by SchoolsFirst and provided the Final Approved Cost for
any Reimbursable Improvement to SchoolsFirst; (iv) any mechanic's and material supplier's liens
filed in connection with construction of the Public Improvement have been removed and the
statutory time periods for filing of any such liens has expired, or Lien Release Bonds have been
filed; (v) the Director has confirmed that the lien releases as described in Sections 2.9.1 and
3.2.1 a have been delivered by SchoolsFirst or bonds have been filed; (vi) the Director has
approved the Assignment Agreement for the Completed Public Improvement, and (vii) the City
has approved the Request for Acceptance with respect to such Public Improvement and agreed to
take ownership of such Public Improvement. Upon the Acceptance Date with respect to each
Public Improvement, the Director shall (a) sign the Request for Acceptance and insert the
Acceptance Date of the Public Improvement and, with respect to Reimbursable Improvements
only, insert the Final Approved Cost, in the "Approval by City" section of the signed Request for
Acceptance, (b) sign the three duplicate originals of the Assignment Agreement and insert the
Acceptance Date in Section 2 thereof, and (c) return the fully completed and signed Request for
Acceptance and two fully completed and signed duplicate originals of the Assignment Agreement
to SchoolsFirst.
(d) SchoolsFirst Actions Upon Receipt of Approved Request.
Upon SchoolsFirst's receipt of the documentation described in clause (c) above from the City, as
to each Public Improvement, SchoolsFirst shall, within ten (10) days of receipt of such documents,
return one fully signed duplicate original of the Assignment Agreement to the City.
(e) Maintenance Expenses for Reimbursable Improvements.
Within thirty (30) days of City's Final Acceptance of any Reimbursable Improvement,
SchoolsFirst and the City will meet and review the actual costs of maintenance incurred that were
not paid by the City as part of the Final Approved Cost, after which the City shall promptly
reimburse SchoolsFirst for any shortfall in the cost of maintenance paid to SchoolsFirst or if the
City has overpaid for any such maintenance costs when the payment was paid, SchoolsFirst shall
promptly reimburse the City for the amount of any such overpayment.
3.2.2 Reimbursable Improvement Modifications. SchoolsFirst shall not
make modifications in the composition of any Public Improvement without the City's prior written
approval.
Section 3.3 Release of Bonds
Notwithstanding any other provision of this Agreement, any Performance
Bonds and Payment Bonds provided by Contractor or any other Person as security under this
Agreement for the construction of any Public Improvement will be released (or reduced) upon the
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Acceptance Date of such Public Improvement, provided that the City shall have the right to retain
ten percent (10%) of the Performance Bond (or accept, in its sole discretion, a separate replacement
bond to cover the Warranty) to guarantee such Public Improvement will be free from defects due
to faulty workmanship or materials for one year from Final Acceptance of such Public
Improvement; provided however that, such one year period shall not shorten the period of any
Warranty assigned to the City pursuant to an Assignment Agreement as described in Section 3.2.1.
ARTICLE IV
PAYMENTS, REIMBURSEMENT PROCEDURES AND RECONCILIATION FOR
PUBLIC IMPROVEMENTS
Section 4.1 Final Accounting; Payment for Public Improvements
Promptly after Completion of each Public Improvement, SchoolsFirst shall
complete a Request for Acceptance and submit such request, along with a final accounting of the
Actual Costs incurred in Completing the Reimbursable Improvements, if any, comprising part of
its Request for Acceptance and all other supporting documentation, to the City in accordance with
the procedures set forth in Section 3.2.1. In the final accounting of the Actual Costs of any
Reimbursable Improvement, SchoolsFirst shall include the costs incurred (or reasonably
anticipated to be incurred) in connection with maintenance of such Reimbursable Improvement
between the date of Completion of same and the Acceptance Date.
Section 4.2 Maintenance.
The maintenance of the Public Improvements shall not be the responsibility
of the City prior to the Acceptance Date and shall be the responsibility of SchoolsFirst at
SchoolsFirst's sole expense. Following the Acceptance Date, maintenance of the Public
Improvements shall be the responsibility of City unless otherwise provided by the Landscape
Installation and Maintenance Agreement.
Section 4.3 Payee; Time for Payment
All payments by the City to SchoolsFirst pursuant to this Agreement shall
be paid within thirty (30) calendar days [INSERT TIMEFRAME], made payable to
" and sent to at
attn:
Section 4.4 Survival of Provisions
The provisions of this Article IV shall survive the termination of this Agreement.
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ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS; INDEMNIFICATION
Section 5.1 Representation and Warranties of SchoolsFirst
5.1.1 SchoolsFirst makes the following representations and warranties for
the benefit of the City:
(a) Organization. That it is a federally chartered credit union duly
organized, validly existing and in good standing under federal regulations regulating charters, is
authorized to conduct business and is in good standing under the laws of the State, and has the
power and authority to own its properties and assets and to carry on its business as now being
conducted and as now contemplated.
(b) Authori . That it has the power and authority to enter into this
Agreement, and has taken all actions necessary to cause this Agreement and the Construction
Contract to be executed and delivered, and this Agreement has been duly and validly executed and
delivered on behalf of SchoolsFirst.
(c) Binding Obli ag tion. That this Agreement is a valid and binding
obligation of SchoolsFirst and is enforceable against SchoolsFirst in accordance with its terms,
subject to bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement
of creditors' rights in general and by general equity principles.
(d) No Legal Impediment. That it is not aware of any legal impediment
that would make infeasible SchoolsFirst's proceeding with and completing the construction of the
Facilities.
5.1.2 In the Construction Contract, SchoolsFirst shall cause Contractor to
make the following representations and warranties in favor of SchoolsFirst and the City, which
shall be an express third party beneficiary with respect to Contractor's representations and
warranties in such Construction Contract:
(a) Organization. That it is a California limited liability company duly
organized, validly existing and in good standing under the laws of the State of California, is
authorized to conduct business and is in good standing under the laws of the State, is a licensed
general contractor in good standing under the laws of the State and has the power and authority to
own its properties and assets and to carry on its business as now being conducted and as now
contemplated.
(b) Authority. That it has the power and authority to enter into this the
Construction Contract, and has taken all actions necessary to cause the Construction Contract to
be executed and delivered, and this Agreement has been duly and validly executed and delivered
on behalf of Contractor.
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(c) Binding Obligation. That the Construction Contract is a valid and
binding obligation of Contractor and is enforceable against Contractor in accordance with its
terms, subject to bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights in general and by general equity principles.
(d) No Legal Impediment. That it is not aware of any legal impediment
that would make infeasible proceeding with and completing the construction of the Facilities.
Section 5.2 Covenants of SchoolsFirst and Contractor
SchoolsFirst hereby makes the following covenants for the benefit of the City:
(a) Completion of Facilities. It will use its reasonable and diligent
efforts to do all things that may be lawfully required of it in order to cause the Facilities to be
completed in accordance with this Agreement.
(b) Compliance with Laws. In carrying out its obligations under this
Agreement and in causing the construction of the Facilities, SchoolsFirst shall, and shall cause
Contractor to, comply with all applicable Governmental Requirements. During the period while
the Facilities are owned by SchoolsFirst or required to be maintained by SchoolsFirst pursuant to
this Agreement, SchoolsFirst will not commit, suffer or permit any of its agents, employees or
Contractor to commit any act to be done in, upon or to the Facilities in violation of any applicable
Governmental Requirement. In addition, with respect to any Work performed on the Development
Parcels, SchoolsFirst shall comply with the applicable provisions of the Special Restrictions, the
DA and the DDA and shall cause Contractor to comply with and cause each of its Subcontractors
to comply with the applicable terms of the DA and the DDA and the terms of the Special
Restrictions pertaining to construction period maintenance.
(c) Request for Acceptance. It will not submit a request for payment
under this Agreement for the costs of any improvements that are not part of the Reimbursable
Improvements; and it will diligently follow all procedures set forth in this Agreement with respect
to each Request for Acceptance for a Completed Public Improvement.
(d) Financial Records. Until the Acceptance Date of each Reimbursable
Improvement, (i) it will maintain proper books of record and account for each such Reimbursable
Improvement and all costs related thereto, (ii) it shall have a right to access the books of record
and account of Contractor relating to each such Reimbursable Improvement and all costs related
thereto, and (iii) its books of record and account for each such Reimbursable Improvement and
all costs related thereto and the books of record and account of Contractor relating to the same will
be available for inspection by the City within ten (10) calendar days after the City submits a written
request to SchoolsFirst requesting that such books of record and account be made available for
inspection.
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(e) Environmental Matters Relating to Public Improvements. With
respect to each Public Improvement, it will not use, generate, manufacture, procure, store, release,
discharge or dispose of (whether accidentally or intentionally) at any time on or prior to the later
of the Acceptance Date of such Public Improvement by the City, any Hazardous Materials on,
under or in such Public Improvement or the Site of any such Public Improvement, or transport
(whether accidentally or intentionally) any Hazardous Materials to or from such Public
Improvement or such Site, in violation of any federal, State or local law, ordinance, regulation,
rule or decision regulating Hazardous Materials in effect at the time of such use, generation,
manufacturing, procurement, storage, release, discharge, disposal or transportation, other than for
any Hazardous Materials that may be contained in the materials or components of such Public
Improvement as required by the Approved Project Plans or incidental uses of Hazardous Materials
by SchoolsFirst, Contractor or other Persons retained by SchoolsFirst that are in full compliance
with all Environmental Laws and all other Governmental Requirements. In addition to the
foregoing, SchoolsFirst hereby agrees that all covenants contained in this Section 5.2.2,
subdivision(e) shall be included in the Construction Contract and Contractor shall therein make
such covenants for the benefit of City. In addition, the Construction Contract shall require that
Contractor include such covenants in all contracts between Contractor and Subcontractors for the
Project and shall require each Subcontractor to make such covenants for the benefit of the City
and SchoolsFirst. SchoolsFirst hereby covenants and agrees that it shall cause Contractor to make
the City an express third party beneficiary of each such Subcontract with respect to such covenants
and provisions.
(f) Permits. It shall obtain all governmental or other permits required
to proceed with the construction of the Facilities and that, with respect to Public Improvements
only it will pay all fees relating thereto that are required to be paid, which permit fees shall be
included in the Actual Cost of each Reimbursable Improvement for which the City is responsible
to reimburse SchoolsFirst.
(g) Contractor Covenants. It shall cause the Contractor, in the Construction
Contract, to make the covenants set forth in Exhibit O in favor of SchoolsFirst and the City, and
shall make City an express third party beneficiary with respect to Contractor's covenants in such
Contract:
Section 5.3 Representations and Warranties of the City
The City represents and warrants for the benefit of SchoolsFirst that the City has the power and
authority to enter into this Agreement, and has taken all action necessary to cause this Agreement
to be executed and delivered, and this Agreement has been duly and validly executed and delivered
on behalf of the City and that it is a valid and binding obligation of the City and is enforceable
against the City in accordance with its terms.
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Section 5.4 Indemnification by SchoolsFirst
5.4.1 Indemnification and Other Obli ations. SchoolsFirst shall, to the
maximum extent permitted by law, indemnify, protect, defend (with counsel reasonably acceptable
to the City), assume all responsibility for and hold harmless the City, the Successor Agency to the
City of Tustin Redevelopment Agency, the Tustin Finance Authority and their respective elected
and appointed officials, employees, consultants, contractors, affiliates, attorneys, representatives
and agents ("City Indemnitees") from and against any and all Claims resulting or arising from or
in any way connected with; (a) the construction, installation or maintenance of the Work or any
portion thereof by SchoolsFirst, Contractor or any of the SchoolsFirst Parties; (b) the terms of any
Construction Agreement or Subcontract; (c) the untruth or inaccuracy of any representation or
warranty made by SchoolsFirst in this Agreement, in any Request for Acceptance or in any
certifications delivered by SchoolsFirst pursuant thereto; (d) the Release, threatened release,
storage, treatment, transportation or disposal of any Hazardous Materials on, under, in, from or to
the Site or any other property through the negligent act or omission to act of SchoolsFirst,
Contractor or the SchoolsFirst Parties (provided, however, that (i) any material or component
required by the Approved Project Plans to be installed in connection with the construction of any
Public Improvement shall not be considered to be Hazardous Materials even if said Approved
Project Plans specified material or component contains Hazardous Materials and (ii) SchoolsFirst
shall not be obligated under this Section 5.4.1 for the disposal of Hazardous Materials that are
taken to a disposal site chosen by the City, which disposal site shall be appropriate for the material
to be disposed of and shall, to the extent possible, be a reasonable distance from the Site)
(collectively, the types of Claims described in subpart (d) are "Environmental Claims"); (e) any
act or omission of SchoolsFirst, Contractor or the SchoolsFirst Parties in connection with the
construction, installation or maintenance of the Work or any portion thereof, including without
limitation noncompliance with any covenants made by SchoolsFirst in this Agreement and (f) any
breach by SchoolsFirst of any of its representations, warranties, covenants or obligations set forth
in this Agreement. If SchoolsFirst fails to defend any Claim pursuant to its obligations hereunder,
the City shall have the right, but not the obligation, to defend the same and charge all of the direct
or incidental costs of such defense, including any third party fees or costs paid for by the City
(including but not limited to bills from the City's contract City Attorney related to this Agreement),
to and recover the same from SchoolsFirst. Nothing contained herein shall limit the right of
SchoolsFirst to pursue any remedies at law or in equity against Contractor for reimbursement if
SchoolsFirst is required to indemnify the City hereunder.
5.4.2 Local, State and Federal Laws. SchoolsFirst shall carry out the
construction of the Project, including all Improvements, in conformity with all Governmental
Requirements, including all applicable federal and State labor laws and regulations and shall
investigate the applicability of and, if and to the extent applicable, pay prevailing wages meeting
the requirements of such laws and regulations; provided, however, that SchoolsFirst reserves the
right to reasonably contest such laws and regulations. SchoolsFirst hereby agrees that, with respect
to the Project, SchoolsFirst shall be fully responsible for determining whether the foregoing wage
requirements are applicable and agrees to indemnify, defend and hold the City and its elected and
appointed officials, employees, agents, attorneys, affiliates, representatives, contractors,
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successors and assigns free and harmless from and against any and all Claims arising from or
related to compliance by SchoolsFirst or SchoolsFirst's officers, directors, employees, agents,
representatives, consultants and/or contractors (at every tier) in construction of the Project with
the prevailing wage requirements imposed by any applicable federal and State labor laws.
5.4.3 Limitations on Section 5.4.1 Obligations. Notwithstanding the
foregoing, SchoolsFirst shall not have any obligations under Section 5.4.1 or Section 5.4.2 to the
extent that any Claim arises out of, is related to or by reason of or as a consequence of: (a) the use
or operation of a Public Improvement after the Acceptance Date of such Public Improvement
determined in accordance with this Agreement, unless such Claim results from (i) defective Work
or the defective or improper construction or installation of the Work on such Public Improvement
or (ii) maintenance of the Work prior to the Acceptance Date thereof (except that with respect to
any Public Improvement, nothing herein shall limit or restrict the indemnity or maintenance
obligations of SchoolsFirst or any other Person pursuant to the DDA or any Other Agreement);
(b) to the extent required by California Civil Code Section 2782, the active negligence or willful
misconduct of any of the City Indemnitees; (c) any breach by the City of any of its representations,
warranties, covenants or obligations set forth in this Agreement or any representations, warranties,
covenants or obligations set forth in the DDA, DA or the Other Agreements relating directly to
any environmental matters giving rise to any Environmental Claim; or (d) any pre-existing
condition, pre-existing circumstance or pre-existing Hazardous Material on the Site or any
adjoining property; provided that SchoolsFirst, Contractor and/or the SchoolsFirst Parties do not
cause any additional Release of such pre-existing Hazardous Material.
5.4.4 Survival. The provisions of this Section 5.4 shall survive the
termination of this Agreement until the expiration of the applicable statute of limitations for such
Claims.
ARTICLE VI
REMEDIES; TERMINATION; DAMAGES
Section 6,1 Termination for Cause by City
6. 1.1 Grounds for Termination for Cause b,�Citv_. The following events
shall be deemed "Cause" for termination and shall constitute grounds for the City, at its option, to
terminate this Agreement for Cause:
(a) Voluntary Bankruptcy Filing. SchoolsFirst shall voluntarily
file for reorganization or other relief under any Federal or State bankruptcy or insolvency law;
(b) Involuntary Bankruptcy Filing. SchoolsFirst shall have any
involuntary bankruptcy or insolvency action filed against it which is not dismissed within ninety
(90) calendar days, or shall suffer a trustee in bankruptcy or insolvency or receiver to take
possession of the assets of SchoolsFirst where possession is not restored to SchoolsFirst in ninety
(90) calendar days;
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(c) Abandonment of Construction. Except to the extent that
SchoolsFirst's obligation to construct the Facilities is suspended by an Authorized Extension,
Force Majeure Delay , SchoolsFirst shall abandon or substantially suspend construction of the
Facilities for a period of one hundred and eighty (180) consecutive calendar days;
(d) Material Breach of Agreement. SchoolsFirst shall breach
any material covenant or default in the performance of any material' obligation required of it under
this Agreement, or any representation or warranty of SchoolsFirst set forth herein or in any
certifications delivered by SchoolsFirst hereunder shall prove to have been false or misleading in
any material respect when made or deemed made;
(e) Failure to Commence Construction or Diligently Prosecute
to Completion. SchoolsFirst shall fail to commence construction of each Facility in accordance
with the Construction Schedule attached as Exhibit F, or, subject to a Force Majeure Delay or an
Authorized Extension, SchoolsFirst shall fail to diligently prosecute the construction of each
Facility to completion in accordance with the Construction Schedule and the Approved Project
Plans;
(f) Default or Failure to Pay under Construction Contract.
SchoolsFirst shall be in default in its obligations under the Construction Contract or Contractor
shall fail to pay Subcontractors, vendors and/or material suppliers or manufacturers for labor or
materials in a timely manner in accordance with the Construction Contracts;
(g) Assignment Without Consent. SchoolsFirst shall not
transfer any of its rights or obligations under this Agreement, without the prior written consent of
the City.
(h) Failure to Complete. SchoolsFirst or Contractor shall fail to
Complete the Facilities by the time set forth in the Construction Schedule as the same may be
extended for the reasons provided in subsection (e) above.
6.1.2 Termination for Cause, Cure Rights. If the City intends to terminate
this Agreement as a result of the occurrence of any event listed in Section 6. 1.1 (i.e., for "Cause"),
the City shall first notify SchoolsFirst in writing of such intention and of the grounds for such
termination. With respect to any notice of termination for Cause delivered by the City pursuant to
Section 6.1.1(c) through <h), SchoolsFirst shall have thirty (30) calendar days after the date such
notice is received or deemed to be received to eliminate or mitigate to the satisfaction of the City
the grounds for such termination or if such cure cannot be reasonably accomplished within such
thirty (30) day period, shall have a total of ninety (90) calendar days after the date the notice of
default is received or deemed to have been received by SchoolsFirst to complete such cure, but
only if SchoolsFirst has commenced such cure within such thirty (30) day period and diligently
pursues such cure to completion, or shall have such longer period of time as may be expressly
agreed by the City in its sole discretion. If an event listed in Sections 6.1.1(d) through -h) of this
Agreement occurs due to action or inaction by Contractor, and such event is not caused by action
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or inaction on the part of SchoolsFirst, after notice and passage of the applicable cure periods, such
event shall be a default by SchoolsFirst as well, provided that SchoolsFirst may cure such event
by terminating its Construction Contract with Contractor, replacing the then Contractor with a
licensed contractor in the State approved by City and SchoolsFirst, each in its sole discretion,
replacing the Payment Bond and Performance Bond provided under this Agreement and otherwise
eliminating or mitigating such event to the satisfaction of the City no later than ninety (90) calendar
days after the date the notice of default is received or deemed to have been received by
SchoolsFirst, or such longer period of time as may be expressly agreed by the City in its sole
discretion; it being understood that any costs related to such cure shall not be included in Actual
Costs unless otherwise approved by the City in its sole discretion. If, at the end of the applicable
cure period (or any extension thereof), SchoolsFirst has not eliminated or completely mitigated
such grounds for termination to the satisfaction of the City, the City may then terminate this
Agreement for Cause by delivering a written notice of such termination to SchoolsFirst. The City
shall have the right to terminate this Agreement for Cause upon provision of written notice to
SchoolsFirst upon the occurrence of either of the events described in Section 6.1.1(a) or (b) and
without cure period provided to SchoolsFirst.
6.1.3 City Termination Rights. Upon termination for Cause, the City
may, but shall not be obligated to, do any or all of the following: (a) with respect to Facilities
located upon property owned by the City, take possession of the Site on which the Facilities are
being constructed and all of the materials, equipment, tools and construction thereon; (b) acquire
any Facility that has not been Completed prior to the termination date, and/or (c) Complete the
Work related to any Facility or any portion thereof by whatever reasonable method the City may
deem expedient or complete the acquisition, construction and installation of any Facilities not
theretofore acquired from SchoolsFirst pursuant to Section 3.2.1 and the City may use all or any
portion of funds it receives as a result of calling Performance Bonds to pay for such construction
and installation.
6.1.4 City Remedies in Event of SchoolsFirst Default. If this Agreement
is terminated for Cause by the City pursuant to this Section 6. 1, SchoolsFirst shall have no claim
or right to any payments for any portion of the Work performed after the termination date, and the
City may, at its election, Complete all or any portion of the Public Improvements, in which event
it may use whatever services, materials and equipment it deems appropriate to Complete the Public
Improvements. In addition, if the expense to the City of Completing any Public Improvement
(together with the amount previously paid to SchoolsFirst for performance of Work on any such
Facility comprising a Reimbursable Improvement pursuant to this Agreement, if applicable)
exceeds the Contract Price for such Facility, then SchoolsFirst shall be liable for (a) the actual cost
to Complete such Work relating to such Facility together with the costs of staff (billed at then
current hourly rates) and third party consultants incurred by the City in connection with such Work
in excess of the Contract Price as amended by PCOW and all other amounts due to the Contractor
and Subcontractor(s) with respect to such Work and not then paid and (b) all additional actual
damages, including attorneys', experts' and consultants fees and costs together with the costs of
staff (billed at then current hourly rates) in connection with the foregoing, but excluding
anticipatory or unearned profits, suffered by the City in connection with the Public Improvements
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
37
as a result of the termination for Cause by the City. The performance of the Work on the Public
Improvements shall be secured by the Performance Bonds and Payment Bonds. The City shall
have all rights and remedies available at law or equity and nothing in this Agreement is intended
to limit . any legal or equitable rights or remedies of the City in the event of any failure by
SchoolsFirst to perform the Work as required under this Agreement. Notwithstanding anything to
the contrary in this Agreement, City hereby expressly waives, releases and relinquishes any and
all rights to any expectation, anticipation, indirect, consequential, exemplary or punitive damages
or losses.
Section 6.2 Time is of the Essence
SchoolsFirst acknowledges that time is of the essence with respect to this Agreement and
the commencement and completion of construction of the Work.
Section 6.3 Remedies in General; Damages Limited
SchoolsFirst acknowledges that the City would not have entered into this Agreement if the
City could become liable for significant damages under or with respect to this Agreement and the
Other Agreements. Consequently, and notwithstanding any other provision of this Agreement,
except for the payment of attorneys' fees and court costs due pursuant to Section 7.5 of this
Agreement, the City shall not be liable in damages under this Agreement to SchoolsFirst or to any
Successor Owner and SchoolsFirst hereby waives any and all rights to claim damages under this
Agreement of any kind or nature from the City except as may be specifically set forth in this
Section. The limitations on damages set forth in this Section shall not preclude SchoolsFirst from
seeking specific performance of the City or from seeking reimbursement of amounts owed by the
City to SchoolsFirst pursuant to this Agreement; provided, however, that SchoolsFirst shall not be
entitled to any damages in addition to the actual amounts owed by the City to SchoolsFirst as set
forth in this Agreement. The City shall in no event be liable for any expectation, anticipation,
indirect, consequential, exemplary or punitive damages or losses.
Section 6.4 Survival
The provisions of this Article VI shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Independent Contractor
In performing under this Agreement, it is mutually understood that SchoolsFirst is acting
as an independent contractor is not an agent of the City. The City shall not have any responsibility
for payment directly to Contractor, or payment to any Subcontractor, material supplier, material
manufacturer or vendor, or other Persons engaged by SchoolsFirst or Contractor or Subcontractors
at any tier and shall have no responsibility for any debt or obligation of SchoolsFirst.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
38
Section 7.2 Binding on Successors and Assigns; Restrictions on
Assignment
Neither this Agreement nor the duties and obligations of SchoolsFirst hereunder may be
assigned to any Person except in connection with an assignment of all of SchoolsFirst's right, title
and interest under the DDA and in such event only to the assignee of SchoolsFirst with respect to
such interest; provided, however, that the foregoing is not intended to prohibit SchoolsFirst
entering into the Construction Contract or other construction or consulting contracts in connection
with the construction of the Facilities that are in compliance with all requirements of this
Agreement or the collateral assignment of this Agreement to the Permitted Mortgagee under the
Construction Loan encumbering the Development Parcels. Such assignment shall be subject to
consent of the City in accordance with the requirements and standards set forth in the DDA. This
Agreement may be assigned by the City to any agency or instrumentality of the City, including the
Tustin Public Financing Authority or to the community facilities district issuing public finance
bonds for the Facilities, if any, without the prior consent of SchoolsFirst, with written notice of
such assignment provided to SchoolsFirst within thirty (30) calendar days of such assignment. The
agreements and covenants included herein shall be binding on and inure to the benefit of the
permitted assigns and successors -in -interest of the Parties hereto. The qualifications of Contractor
are very important to SchoolsFirst and City and, except in connection with a default by Contractor
under this Agreement or the Construction Contract, SchoolsFirst shall not terminate C.W. Driver,
LLC, as Contractor or retain any other contractor or subcontractor to perform the Work without
the prior written consent of the City in its sole discretion.
Section 7.3 Amendments
This Agreement may be amended only by an instrument in writing executed and delivered
by the City and SchoolsFirst.
Section 7.4 Counterparts
This Agreement may be executed in three or more separate counterparts, each of which,
when so executed, shall be deemed to be an original. Such counterparts shall, together, constitute
and shall be one and the same instrument. This Agreement may be executed and delivered by
facsimile or other electronically transmitted signatures.
Section 7.5 Incorporation of DDA Provisions by Reference
The provisions of the DDA contained in Section 16.1 (except that the reference to
Section 16.6 in the next to last sentence of Section 16.1 shall be deemed to refer to Section 7.6 of
this Agreement), Section 16.2, Section 15.5.1 (except that the reference to Section 15.5.2
contained in the second sentence of said section shall be deemed to refer to Section 6.3 of this
Agreement); Section 16.8, Section 16.9, Section 16.13, Section 16.14, Section 16.16,
Section 16.17 (except that the words "Authorized Extension" shall be deemed to be inserted after
the words "cure period" in the first sentence of said Section 16.17), Section 16.22, Section 16.23,
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
39
and Section 16.25.3 are hereby incorporated into this Agreement as though fully set forth in this
Article VII and shall be in full force and effect with respect to interpretation of this Agreement,
except that any references in said Sections to (a) the term "Agreement" used therein in reference
to the DDA shall mean this Agreement; (b) the term "SchoolsFirst" shall mean SchoolsFirst as
defined in this Agreement; (c) the term "Schedule of Performance" shall mean the specific time
periods for performance of an act as set forth herein; (d) the term "City Manager or designee" shall
mean City Manager, the Director, or either of their respective designees; (e) the term "Effective
Date" shall mean the date first set forth on page 1 of this Agreement, and (f) the term
"Attachments" shall mean the Attachments attached to this Agreement.
Section 7.6 Notices, Demands and Communications between the Parties
All notices, demands, consents, requests and other communications required or permitted
to be given under this Agreement shall be in writing and shall be deemed conclusively to have
been duly given (a) when hand delivered to the other Party; (b) three (3) Business Days after such
notice has been sent by U.S. Postal Service via certified mail, return receipt requested, postage
prepaid, and addressed to the other Party as set forth below; (c) the next Business Day after such
notice has been deposited with an overnight delivery service reasonably approved by the Parties
(Federal Express, Overnite Express, United Parcel Service and U.S. Postal Service are deemed
approved by the Parties), postage prepaid, addressed to the Party to whom notice is being sent as
set forth below with next Business Day delivery guaranteed, provided that the sending Party
receives a confirmation of delivery from the delivery service provider; or (d) when received by the
recipient Party when sent by facsimile transmission or email at the number or email address set
forth below; provided, however, that notices given by facsimile or email shall not be effective
unless either (i) a duplicate copy of such notice is promptly sent by any method permitted under
this Section 16.6 other than by facsimile or email, or (ii) the receiving Party delivers a written
confirmation of receipt for such notice either by facsimile, email or any other method permitted
under this Section. Any notice given by facsimile or email shall be deemed received on the next
Business Day if such notice is received after 5:00 p.m. (recipient's time) or on a non -Business
Day. Unless otherwise provided in writing, all notices hereunder shall be addressed as follows:
If to the City: Tustin City Hall
300 Centennial Way
Tustin, CA 92780
Attention: Matthew West, City Manager
Fax: 714-838-1602
Email: mwest a iustinca.org
With a copy to: City of Tustin City Attorney
Woodruff Spradlin & Smart
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
Attention: David E. Kendig, Esq.
Fax: (714) 415-1183
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
40
Email: dkendig_(&wss-law.com
If to Bill Cheney, President/CEO
SchoolsFirst: Francisco Nebot, Chief Financial Officer
Christina Quintero, Manager —Vice President Facilities
Services
c/o SchoolsFirst Federal Credit Union
1200 Edinger Avenue
Tustin, CA 92780
Emails: bcheney6Dschoolsfirstfcu.org
fnebot ,schoolsfirstfcu.org
cquintero m schoolsfirstfcu org
Fax: (714) 258-7444
With a copy to: Jeffrey P. Walsworth
Walsworth, WFBM, LLP
One City Blvd. West Fifth Floor
Orange, CA 92868
Email: jwalsworth@wfbm.com
Fax: (714) 634-0686
Any Party may by written notice to the other Party in the manner specified in this Agreement
change the address to which notices to such Party shall be delivered.
Section 7.7 Force Maieure Delay
If the City or SchoolsFirst (either, the "First Party") believes that it is entitled to an
extension of time due to Force Majeure Delay, it shall notify the other Party ("Second Party") in
writing within thirty (30) calendar days from the date upon which the First Party becomes aware
of such Force Majeure Delay, describing the Force Majeure Delay, when and how the First Party
obtained knowledge thereof, the date the event commenced, the steps the First Party anticipates
taking to respond to such Force Majeure Delay, and the estimated delay resulting from such Force
Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied
in the Second Party's sole discretion. If the First Party fails to notify the Second Party in writing
of its request for a given Force Majeure Delay within the thirty (30) calendar days specified above,
any extension for such Force Majeure Delay shall be in the sole discretion of the Second Party.
Any request for Force Majeure Delay shall be made by SchoolsFirst.
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
41
Section 7.8 Entire Agreement
This Agreement, including the Exhibits attached hereto and the specific sections of the
DDA referenced herein, constitutes the entire agreement between the City and SchoolsFirst with
respect to the subject matter hereof.
{Signature Page Follows}
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
42
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
ATTEST
Erica N. Yasuda
City Clerk
APPROVED AS TO FORM:
By:
David Kendig,
City Attorney
Armbruster Goldsmith & Delvac LLP
Special Real Estate Counsel to the City
By:
Amy E. Freilich
"CITY"
CITY OF TUSTIN,
a California municipal corporation
By:
Matthew S. West
City Manager
SCHOOLSFIRST FEDERAL CREDIT
UNION, a federally chartered credit union
By:
Name: Bill Cheney
Title: President and Chief Executive
Officer
By:
Name: Francisco Nebot
Title: Chief Financial Officer
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Development Agreement Federal Credit Union
S-1
EXHIBIT A-1
LEGAL DESCRIPTION OF
DEVELOPMENT PARCELS
[Attached]
Tustin — SchoolsFirst — Development Exhibit A-1 to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT A-1 TO
REIMBURSEMENT AGREEMENT
HEADQUARTERS PARCEL:
BEING ALL OF PARCEL 6, OF PARCEL MAP N0, 2010-127, IN THE CITY OF TUSTIN, COUNTY OF ORANGE,
STATE OF CALIFORNIA, AS SHOWN ON THE MAP FILED IN BOOK 371, PAGES 25 THROUGH 29 INCLUSIVE, OF
PARCEL MAPS, RECORDS OF THE COUNTY RECORDER OF SAID COUNTY,
TOGETHER WITH PORTIONS OF PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO. 2013-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED JULY 31, 2014 AS INSTRUMENT NO, 2014000307038, OF OFFICIAL RECORDS.
TOGETHER WITH A PORTION OF PARCEL 3 OF LOT LINE ADJUSTMENT NO. 90-03, IN THE CITY OF TUSTIN,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT RECORDED
AUGUST 31, 1990 AS INSTRUMENT NO. 90-466900, OF OFFICIAL RECORDS.
TOGETHER WITH A PORTION OF THE "OLD" DEL AMO AVENUE EASEMENT ABANDONED AND VACATED BY THE
CITY OF TUSTIN PER RESOLUTION NO, 17-20, RECORDED DECEMBER 11, 2017 AS INSTRUMENT NO.
2017000530760, OF OFFICIAL RECORDS, ALL MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWESTERLY CORNER OF SAID PARCEL 6, SAID POINT ALSO BEING ON THE EASTERLY
LINE OF NEWPORT AVENUE AND THE SOUTHERLY LINE OF DEL AMO AVENUE AS SHOWN ON SAID PARCEL MAP;
THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 6, NORTH 52°25'08" EAST 36.61 FEET TO THE
BEGINNING OF A NON-TANGNET CURVE CONCAVE NORTHERLY HAVING A RADIUS OF 620.72 FEET, A RADIAL
LINE TO SAID POINT BEARS SOUTH 06047'40" WEST; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE
OF 318.85 FEET THROUGH A CENTRAL ANGLE OF 29025'55' TO THE BEGINNING OF A NON -TANGENT CURVE
CONCAVE NORTHERLY HAVING A RADIUS OF 542,42 FEET, A RADIAL LINE TO SAID POINT SOUTH 21°28'27'
EAST; THENCE EASTERLY ALONG SAID CURVE AN ARC DISTANCE OF 32.52 FEET THROUGH A CENTRAL ANGLE
OF 03°26'07'; THENCE SOUTH 2954'35" EAST 46.55 FEET; THENCE SOUTH 50°11'11" EAST 84.43 FEET;
THENCE SOUTH 39048'49" WEST 156.13 FEET; THENCE SOUTH 50'11'11" EAST 10.67 FEET; THENCE SOUTH
39048'49" WEST 321.58 FEET; THENCE NORTH 50°11'11" WEST 10.67 FEET; THENCE SOUTH 39°48'49" WEST
260.36 FEET; THENCE NORTH 65°29'30" WEST 137.29 FEET TO A POINT ON A NON -TANGENT CURVE
CONCAVE WESTERLY HAVING A RADIUS OF 1512.30 FEET, SAID CURVE BEING SAID EASTERLY LINE OF
NEWPORT AVENUE, A RADIAL LINE TO SAID POINT BEARS SOUTH 65°26'31" EAST; THENCE NORTHERLY ALONG
SAID CURVE AN ARC DISTANCE OF 389.38 FEET THROUGH A CENTRAL ANGLE OF 14°45'07'; THENCE NORTH
09048'22" EAST 159.02 FEET TO THE POINT OF BEGINNING.
CONTAINS: 184,283 SQ. FT. -- 4.230 ACRES
PARKING PARCEL:
BEING A PORTION OF PARCEL 2 OF LOT LINE ADJUSTMENT NO. 2013-03, IN THE CITY OF TUSTIN, COUNTY
OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT RECORDED JULY 31, 2014
AS INSTRUMENT NO. 2014000307038, OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING A POINT ON THE EASTERLY LINE OF SAID PARCEL 2, SAID POINT BEING NORTH 39048'49" EAST
25.74 FEET FROM THE SOUTHEASTERLY CORNER OF SAID PARCEL 2; THENCE NORTH 50011'11" WEST 250.67
FEET; THENCE NORTH 39°48'49" EAST 52.21 FEET; THENCE SOUTH 50011111" EAST 10.67 FEET; THENCE
NORTH 3904849" EAST 321.58 FEET; THENCE NORTH 50011'11" WEST 10.67 FEET; THENCE NORTH 39°48'49"
EAST 52.21 FEET; THENCE SOUTH 50011'11" EAST 250.67 FEET TO A POINT ON SAID EASTERLY LINE OF SAID
PARCEL 2; THENCE SOUTHERLY ALONG SAID EASTERLY LINE, SOUTH 39048'49" WEST 426.00 FEET TO THE
POINT OF BEGINNING. -.01�
CONTAINS: 103,365 SQ. FT. - 2.373 ACRES
VWDEN &
SOCIATES
CIVIL ENGINEERS - LAND SURVEYORS - PLANNER,'
2552 WHITE ROAD, SUITE 13 • IRVINE, CA 92614.623E
(949) 660-0110 FAX: 660-0418
SHEET 1 OF 2
Agreement - 5-1419 FINAL Reimbursement Agreement Federal Credit Union
-I-
EXHIBIT A-1 TO
REIMBURSEMENT AGREEMENT
CURVE TABLE
CURVE
DELTA
RADIUS
LENGTH
C1
14045'07'
1512.30'
389.37'
C2
29025'55"
620.72'
318.85'
C3
03°26'07'
542.42'
1 32,52'
150 75 0 150
SCALE IN FEET
1 INCH = 150 FEET
p O RAor4� '5 `01
_PMS 371/25,29
- ACAT8D) OLD, D5 -L AMD AV-'— �_.
HEADQUARTERS PARCEL
—1: , 3 W Fi'_
i
4.230 ACRES
L8 10
y - 1', L7 .' y i
N N
�� (o `r' PARKING PARCEL "'
19 �U 103,356 $Q. FT, o
2,373 ACRES
A. T. & S. F. RAILROAD
ALDEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
LSSOCIATES 2552WINTEROAD, SUITE B•IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418
coos ust -
•.. rb
401
o'NO
SHEET 2 OF 2 1
Agreement - 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
-2-
LINE TABLE
LINE
BEARING
DISTANCE
L1
N
09048'22°
E
159.02'
L2
N
52025'08"
E
36,61'
L3
N
24054'35°
W
46.55'
L4
N
50°11' 11"
W
84,43'
L5
N
3904849"
E
156.13'
L6
N
50011"11"
W `
10.67'
L7
N
39"48-49"
E
321.58'
L8
N
39048'49"
E
260.36'
L9
N
65°29'30"
W
137.29'
L10
N
50011'11"
W
250,67'
L11
N
39°49'30"
E
426.00'
L12
N
8(°42'32"
W
116.69'
p O RAor4� '5 `01
_PMS 371/25,29
- ACAT8D) OLD, D5 -L AMD AV-'— �_.
HEADQUARTERS PARCEL
—1: , 3 W Fi'_
i
4.230 ACRES
L8 10
y - 1', L7 .' y i
N N
�� (o `r' PARKING PARCEL "'
19 �U 103,356 $Q. FT, o
2,373 ACRES
A. T. & S. F. RAILROAD
ALDEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
LSSOCIATES 2552WINTEROAD, SUITE B•IRVINE, CA 92614-6236
(949) 660-0110 FAX: 660-0418
coos ust -
•.. rb
401
o'NO
SHEET 2 OF 2 1
Agreement - 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
-2-
EXHIBIT A-2
LEGAL DESCRIPTION OF CAMPUS
[Attached]
Tustin — SchoolsFirst — Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT A-2 TO
REIMBURSEMENT AGREEMENT
BEING ALL OF PARCELS 1 AND 2 OF LOT LINE ADJUSTMENT NO, 2013-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED JULY 31, 2014 AS INSTRUMENT NO. 2014000307038, OF OFFICIAL RECORDS.
TOGETHER WITH ALL OF PARCELS 3 AND 4 OF LOT LINE ADJUSTMENT NO. 90-03, IN THE CITY OF
TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA, AS DESCRIBED AND SHOWN ON THE DOCUMENT
RECORDED AUGUST 31, 1990 AS INSTRUMENT N0, 90-466900, OF OFFICIAL RECORDS,
TOGETHER WITH A PORTION OF "OLD DEL AMO AVENUE" RIGHT OF WAY EASEMENT AS ABANDONED
AND VACATED BY THE CITY OF TUSTIN PER RESOLUTION NO, 17--20, RECORDED DECEMBER 11,
2017 AS INSTRUMENT NO. 2017000530760, OF OFFICIAL RECORDS,
CONTAINS: 752,946 SQ. FT. - 17.285 ACRES MORE OR LESS
ALDEN & CIVIL ENGINEERS • LAND SURVEYORS • PLANNERS
1 S S 0 C TATE S 2552 WHITE ROAD, SUITE B - IRVINE, CA 92614-6236
i' (949) 660-0110 FAX: 660-0418 SHEET 1 OF 2
Tustin - SchoolsFirst - Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
4-
EXHIBIT A-2 TO
REIMBURSEMENT AGREEMENT
i PARCEL 4
W W
oQ
Z g
C5
W to M o
0-1
CD C)
orn�Y
CO C:) .
_z o 0
J z
4< z_
is PARCEL 8
PARCEL 2
d
o
I. W
C M
LU
`z z N
:3 O
1— z
O
z
1
PARCEL 1
VALENCIA AVENUE
,,DEN & CIVIL ENGINEERS - LAND SURVEYORS - PLANNERS
ssociATEs 2552 WHITE ROAD, SUM, B -IRVINE, CA 926I4-6236
(949) 660-0110 FAX: 660-0418 SHEET 2 OF 2
Tustin - SchoolsFirst - Development Exhibit A-2 to City of Tustin / SchoolsFirst
Agreement - 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
-2-
EXHIBIT B
DEVELOPMENT AGREEMENT
FACILITIES
Developer shall design, construct and complete the following improvements comprising the "Facilities"
under the Agreement. Initially capitalized terms used in this Exhibit B have the meanings set forth in the
Reimbursement Agreement to which this Exhibit B is attached and incorporated by reference.
Reimbursable Improvements
The Reimbursable Improvements are set forth in the table below and are part of the scope of Work
SchoolsFirst is to cause to be performed pursuant to this Agreement and the Construction Contract.
Construction tasks associated with accomplishing the line items will vary as needed; however, the
attributable reimbursement responsibility or proportional share to carry out such improvements will not
change. Should a discrepancy arise pertaining to the required construction tasks necessary to accomplish
the Reimbursable Improvements for which SchoolsFirst requests reimbursement pursuant to this
Agreement and the DA, the City shall have final authority, in its sole discretion, to approve reimbursable
expenses. Percentages (%) shown below for each Reimbursable Improvement comprise the percentage
of the Actual Cost that is reimbursable to SchoolsFirst. The City will provide reimbursement to
SchoolsFirst for portions of the Reimbursable Improvements in accordance with the terms and provisions
of this Agreement. As described in this Agreement, for certain Reimbursable Improvements, only a
portion of the Actual Costs are subject to reimbursement under this Agreement, with the balance of the
costs paid by SchoolsFirst. Regardless of such proportional payment, the terms and provisions of this
Agreement apply to all Facilities.
Reimbursable Improvements and Reimbursement Percentages are follows:
TRAFFIC SIGNAL
Facility #
Description
Reimbursement
1
Traffic signal at intersection of Property driveway and Newport
Ave. with associated apparatus
50%
2
Left turn pocket on Newport Ave. into Property
50%
3
Double left turn pocket on Newport Ave. into APN 430-251-23
50%
4
Driveway improvements on APN 430-251-23
100%
5
Relocation of catch basin on Newport Ave., installation of new
24" RCP storm drain line
100%
6
Re -design of existing medians on Newport Ave. due to signal and
turning enhancements
50%
Tustin — SchoolsFirst — Development Exhibit B to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
1
MEDIAN IMPROVEMENTS
Facility #
Description
Reimbursement
7
Landscaping (incl. irrigation and laterals) of Newport Ave.
medians adjacent to Property 2 total
50%
8
Landscaping (incl. irrigation and laterals) of Newport Ave.
medians adjacent to APN 430-251-25 2 total
100%
9
Landscaping (incl, irrigation and laterals) of Del Amo Ave.
median 1 total
50%
SIDEWALK IMPROVEMENTS
Facility #
Description
Reimbursement
10
New sidewalk and landscaping on Newport Ave. from Valencia to
Del Amo
50%
11
New sidewalk on Del Amo from Newport Ave. to existing
SchoolsFirst driveway
50%
Non -Reimbursable Public Improvements
1. Water laterals (domestic and fire) from point of connection in Newport Avenue and
Del Amo Avenue to water meters on the Property.
Tustin — SchoolsFirst — Development Exhibit B to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
EXHIBIT C
FORM OF CONCURRENCE LETTER
[Attached]
Tustin — SchoolsFirst — Development Exhibit C to City of Tustin / SchoolsFirst
Agreement— 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
[SchoolsFirst Letterhead]
[Date]
City of Tustin
300 Centennial Way
Tustin, CA 92780
Please find enclosed the following Bid/Proposal documents for the [Reimbursable
Improvement(s)] that SchoolsFirst Federal Credit Union ("SchoolsFirst") will cause to be
constructed by , a ("Contractor") pursuant to the Infrastructure
Construction and Reimbursement Agreement between the City of Tustin, SchoolsFirst and Contractor
dated _, 20_ ("Reimbursement Agreement").
1. Bid Summary for Construction
2. One (1) copy of Subcontractor(s)' Bid Submittal
3. One (1) copy of Professional Proposal
SchoolsFirst recommends award of contracts as follows:
CITY PORTION
WORK / SERVICE VENDOR NAME PURCHASE ORDER AMOUNT
Construction
N/A
Award Total:
Please indicate your concurrence of the City's acceptance of the above bid(s) and cost of work/services
and that the above-described work is eligible for reimbursement under the Reimbursement Agreement
by signing below and returning to me.
If you have any questions, please contact me directly at [ ].
Sincerely,
[insert authorized SchoolsFirst signature]
CITY OF TUSTIN CONCURRENCE
By: Douglas S. Stack
Director of Public Works/Engineering
Date:
Copy: Bid File (Task/PC ID: [cmbTaskID].)
Finance,
(once signed by Agency)
Tustin — SchoolsFirst — Development Exhibit C to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
EXHIBIT D
FORM OF ASSIGNMENT AGREEMENT FOR PUBLIC IMPROVEMENTS
[Attached]
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT D
Assignment Agreement
This ASSIGNMENT AGREEMENT is made as of , 20_, by and
between SchoolsFirst Federal Credit Union, a federally chartered credit union ("Assignor"), to the
CITY OF TUSTIN, a California municipal corporation ("Assignee") based upon the following
recitals:
A. Assignor and Assignee have previously entered into that certain Infrastructure
Construction and Reimbursement Agreement by and between SchoolsFirst Federal Credit Union
and the City of Tustin dated as of , 20 ("Reimbursement Agreement").
B. Assignor has previously entered into that certain construction contract relating to
construction of ("Public
Improvement") by and between Assignor and
("Contractor"), a copy of which contract is
attached hereto as Attachment 1 ("Construction Contract").
C. Assignee desires to acquire (for Completed Public Improvements only:
(i) Assignor's right, title and interest in and to the Public Improvement constructed under the
Construction Contract, and (ii)} the Warranty rights of Assignor as to the Public Improvement
under the Construction Contract, and Assignor desires to assign such rights to Assignee.
NOW, THEREFORE, in consideration of the foregoing, the covenants and agreements
contained herein and other valuable consideration, receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. ASSIGNMENT. Effective upon the date specified in Section 2 hereof
("Assignment Date"), Assignor assigns and transfers to Assignee all of Assignor's right, title,
claim and interest in and to (for Completed Public Improvements only: (a) the Public
Improvement constructed pursuant to the Construction Contract, and (b)) subject to the following
sentence, the warranties and guarantees of Contractor and all of Contractor's Subcontractors,
vendors, and material manufacturers and suppliers as to the Public Improvement constructed
pursuant to the Construction Contract. The assignment of warranties and guarantees set forth
herein is non-exclusive and shall not preclude Assignor from pursuing its own claims against
Contractor and/or any of Contractor's subcontractors, vendors, material manufacturers and
suppliers with respect to the Public Improvement. This Assignment is made by Assignor pursuant
to the provisions of Section 2.7.2 of the Reimbursement Agreement.
2. ASSIGNMENT EFFECTIVE DATE. The Assignment Date shall be
, 20_, which is the date that the City has entered as the "Acceptance Date"
on the Request for Acceptance referenced in Section 3.2.1(c) of the Reimbursement Agreement.
(signatures follow on next page)
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
IN WITNESS WHEREOF, Assignor and. Assignee have executed this Assignment
Agreement as of the day and year first hereinabove written.
ASSIGNOR:
By: _
Name:
Title:
ACCEPTED BY ASSIGNEE:
CITY OF TUSTIN,
a California municipal corporation
By: _
Name:
Title:
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
3
Contractor Acknowledgment:
By its signature below, , a , the "Contractor" under the
above referenced Reimbursement Agreement acknowledges receipt of notice of this Assignment
Agreement, and agrees that all warranties and guarantees provided by Contractor and
Subcontractors, vendors and material manufacturers and suppliers under the Construction Contract
with respect to the Public Improvements covered by this Assignment Agreement shall be deemed
assigned to, and enforceable by, the City of Tustin, effective on the Effective Date of this
Assignment. Notwithstanding the foregoing, Contractor acknowledges that the assignment of
warranties and guarantees pursuant to the Assignment Agreement is not exclusive and that such
assignment shall not preclude SchoolsFirst from pursuing its own claims against Contractor and/or
any of Contractor's subcontractors, vendors, material manufacturers and suppliers with respect to
the Public Improvement.
"Contractor"
By:
Name:
Title:
Date:
20
Contractor Address and Contact Information:
Telephone:
Contractor's License No.
Tustin - SchoolsFirst - Reimbursement Exhibit D to City of Tustin / SchoolsFirst
Agreement - 5-22-19 FINAL Reimbursement Agreement Federal Credit Union
4
Attachment 1
to
Assignment Agreement
[Attach Copy of Construction Contract]
Tustin — SchoolsFirst — Development Exhibit D to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT E
REQUEST FOR ACCEPTANCE OF PUBLIC IMPROVEMENT
[Attached]
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT E
REQUEST FOR ACCEPTANCE OF PUBLIC IMPROVEMENT
SchoolsFirst Federal Credit Union ("SchoolsFirst") hereby requests that the City of Tustin
("City") accept the Public Improvements described in Attachment A attached hereto in accordance
with the procedures contained in Section 3.2 of the Infrastructure Construction and Reimbursement
Agreement by and between the City and SchoolsFirst and dated , 20_ ("Agreement").
Capitalized undefined terms contained in this Request shall have the meanings ascribed thereto in
the Agreement. In connection with this Request for Acceptance, the undersigned hereby represents
and warrants to the City as follows:
1. SchoolsFirst Representative. The undersigned is a SchoolsFirst Representative,
qualified to execute this request for payment on behalf of SchoolsFirst and knowledgeable as to
the matters set forth herein.
2. Identification of Public Improvement. The Public Improvement for which Final
Acceptance is requested is
3. As -Built Plans. SchoolsFirst has submitted or submits herewith to the Director as -
built drawings or similar plans for the Public Improvement for which Final Acceptance is
requested, and, to the undersigned's actual knowledge, such drawings or plans and specifications,
as applicable, are true, correct and complete.
4. Public Improvement Construction Per Approved Project Plans. To the
undersigned's actual knowledge, each of the Public Improvements described in Attachment A to
this Request is "Complete", has been constructed substantially in accordance with the Approved
Project Plans therefor, and in compliance with all applicable City standards, and all applicable
federal, State and local laws and the requirements of the Agreement, and the as -built drawings or
other plans and specifications referenced in paragraph 2 above.
S. Wnsert if the Request for Acceptance is Made with Respect to a Reimbursable
Improvement only} SchoolsFirst Actual Cost. The true and correct Actual Cost of each
Reimbursable Improvement for which Final Acceptance is requested is set forth in Attachment
A.J
6. Wnsert if the Request for Acceptance is Made with Respect to a Reimbursable
Improvement only} Actual Cost Backup Documentation. In connection with prior Requests, or
with this request, SchoolsFirst has submitted to the Director invoices, receipts, worksheets and
other evidence of costs that are in sufficient detail to allow the Director to verify the cost of each
Reimbursable Improvement for which Final Acceptance is requested In addition to the
maintenance costs reflected in such information, SchoolsFirst estimates (based on prior
maintenance costs or the quoted monthly maintenance cost charge contained in its maintenance
contract for such Reimbursable Improvement) that the ongoing maintenance costs for the
Reimbursable Improvement described herein will cost $ per month until the date of City's
Final Acceptance of the Reimbursable Improvement.]
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
7. No Liens. There has not been filed with or served upon SchoolsFirst notice of any
lien, right to lien or attachment upon, or claim affecting the Public Improvement or the acceptance
thereof by the City that has not been released or will not be released simultaneously with the
payment of such obligation or has not been bonded for in accordance with the requirements of the
Agreement, and all lien releases required pursuant to Exhibit L of the Agreement have been
provided to the City.
8. No Event of Termination. No event listed in the Agreement that would trigger a
default by SchoolsFirst or a right to termination for Cause by the City has occurred and is
continuing or will occur upon the making of this Request by SchoolsFirst to City.
9. Accuracy of Representations and Warranties. The representations and warranties
of SchoolsFirst set forth in Section 5.1.1 of the Agreement are true and correct on and as of the
date hereof with the same force and effect as if made on and as of the date hereof.
10. Hazardous Materials. SchoolsFirst represents and warrants that, prior to the date
of this Request for Acceptance: (a) neither SchoolsFirst, Contractor nor any of the SchoolsFirst
Parties in connection with the Work on any Public Improvement covered by this Request or any
portion thereof, has (i) used, generated, treated, manufactured, procured, stored, transported or
Released any Hazardous Materials (in each case, whether accidentally or intentionally) on, under
or in such Public Improvement or the Site upon which such Public Improvement is located or any
other property, other than for any Hazardous Materials that may be contained in the materials or
components of the Public Improvement as required by the Approved Project Plans or incidental
uses of Hazardous Materials by SchoolsFirst, Contractor and SchoolsFirst Parties that are in full
compliance with all applicable laws, or (ii) transported (whether accidentally or intentionally) any
Hazardous Materials to or from such Public Improvement ,the Site or any other property, in
violation of federal, State or local laws governing Hazardous Materials; (b) there is not present on,
under or in such Public Improvement or the Site upon which such Public Improvement is located,
or any portion thereof, or any other property, any Hazardous Materials Released by SchoolsFirst,
Contractor or any of the SchoolsFirst Parties in connection with construction, installation or
maintenance of the Public Improvement or any portion thereof, except for (x) any types or amounts
that do not require remediation or mitigation under federal, State or local laws, ordinances,
regulations, rules or decisions, (y) those that have been remediated or mitigated in full compliance
with applicable federal, State or local laws, ordinances, regulations, rules or decisions, or (z) those
contained in materials or components of the completed Public Improvement per the requirements
specified in the Approved Project Plans, and (c) SchoolsFirst has not received notice of, and to the
best of SchoolsFirst's knowledge there is not, any proceeding or formal inquiry by any
Governmental Authority with respect to the presence of Hazardous Materials on, under or in the
Site, or any structure, fixtures, equipment, or other objects thereon, or the migration thereof from
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
3
or to other property, arising out of the Work, except as follows:
By signing below, the undersigned certifies that all information provided in this Request
for Acceptance is true, complete and correct.
SCHOOLSFIRST FEDERAL CREDIT
UNION,
a federally chartered credit union
By:
Name:
Title:
Date:
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
4
(Information to be completed by the City upon approval by the Director)
(Insert if the Request for Acceptance is Made with Respect to a Reimbursable
Improvement only3 SchoolsFirst Actual Cost. The Final Approved Cost of each
Reimbursable Improvement listed on Attachment A, as well as the Acceptance Date of
same, is as follows:
Final Approved Cost of Reimbursable Improvement: I
Date:
DIRECTOR OF THE CITY OF TUSTIN
LIM
Name:
Title:
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
5
Attachment A
to
Form of Request for Acceptance
(Information to be completed by SchoolsFirst prior to submittal to the Director)
Description of Completed Reimbursable Improvement:
lMnsert if the Request for Acceptance is Made with Respect to a Reimbursable
Improvement only} SchoolsFirst Actual Cost Actual Cost Incurred by SchoolsFirst:
$ I
Tustin — SchoolsFirst — Development Exhibit E to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
6
EXHIBIT F
CONSTRUCTION SCHEDULE
[Schedule to he attached]
Notes:
Each "Start Date" is the latest start date; earlier starts are allowed
Each "Completion Date" is the latest completion date; earlier completions are allowed
Tustin — SchoolsFirst — Development Exhibit F to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT G
CONTRACTOR'S BID AND AWARD PROCEDURES
The provisions of this Exhibit G shall be attached to and incorporated into the Construction
Contract and any Subcontract under which Subcontractor will solicit bids for performance of Work
in connection with the construction of any Reimbursable Improvement (and the term Construction
Contract as used herein shall mean the Construction Contract or subcontract, as applicable
Construction Contract as used herein shall mean the Construction Contract or subcontract, as
applicable). The Construction Contract and each such Subcontract shall make City an express
third party beneficiary with the right to enforce the requirement of SchoolsFirst, Contractor and
Subcontractors, if any, to comply with the provisions of this Exhibit G.
SchoolsFirst shall and shall cause Contractor and each Subcontractor soliciting bids for
performance of the Work in connection with the construction of any Reimbursable Improvement
to use the following procedures in connection with the award of construction contracts with
Subcontractors for each Reimbursable Improvement:
1. Prequalified Contractor List. Contractor maintains a list of prequalified contractors and
consultants from which it regularly bids construction work. The list of prequalified
contractors and consultants have gone through a prequalification process with Contractor
and been approved by Contractor to bid and construct Work. Contractor shall bid work for
each Reimbursable Improvement off its list of prequalified contractors without advertising
in a newspaper or trade publication.
2. Bid Coordination Meetine. SchoolsFirst and Contractor shall hold a bid coordination
meeting to scope and strategize on contract set-up, bid schedule and Subcontractor and
consultant selection.
3. Bid Packaize. SchoolsFirst and Contractor shall prepare a formal bid package.
4. Pre -Bid Meeting Invitees. Contractor shall invite SchoolsFirst, the City, Engineers of
Record and the Subcontractors (minimum three (3)) and consultants (identified in step 2)
to a pre-bid meeting.
Pre -Bid Meeting. SchoolsFirst and Contractor shall convene a formal pre-bid meeting with
the parties identified in step 4 in attendance, each of whom shall receive a path to the bid
package. Contractor shall chair the pre-bid meeting, and shall have a printed agenda and
have all attendees sign -in. Contractor shall provide the consultants in attendance with a
Request for Proposal (RFP) for their construction support services (e.g., Survey Staking).
The engineer of record shall present a high-level overview of the project. Contractor shall
provide an overview of the administration of the bid process including the bid schedule
(e.g., the date for bidders' questions, date for bid addendum, and date and time for bid
opening) insurance and bonding requirements and prevailing wage requirements.
Tustin — SchoolsFirst — Development Exhibit G to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
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6. Bidders Questions. Subcontractors and Consultants shall submit bidders' questions to
Contractor formally via email in Word format. Contractor shall forward questions to
Engineer of Record, who shall prepare a draft bid addendum and email to SchoolsFirst and
Contractor for review and, if acceptable, for issuance to the Subcontractors and
Consultants.
7. Public Bid Opening. SchoolsFirst and Contractor shall conduct a public bid opening that
prequalified contractors and consultants may attend at , CA in a specified
conference room. Subcontractors and Consultants shall submit their bids / proposals to
Contractor (either via electronic bid submittal of pricing, or by hard copy pricing. If a
bidder submits both electronic and hard copy pricing, then in event of conflict between the
information submitted, the electronic copy shall prevail). The City shall be invited to the
public bid opening, at which time the bids are opened, read out loud and recorded by hand
onto a summary sheet.
8. Bid Summarv. SchoolsFirst and Contractor shall both review the bids and Contractor shall
prepare a bid summary.
9. Review of Bid Summary. SchoolsFirst shall review the bid summary and present the
completed summary to or his designee with lowest responsible
contractor and consultant bids.
10. Bid Approval. or his designee shall review the bids and obtain sign -
off.
11. Notification of Low Bidder. Upon direction from or his designee, the
Contractor shall call the lowest responsive bidder (whether contractors or consultants) to
let them know that they are the lowest responsive bidder.*
12. Notification of Contractors/Consultants. Subsequent to Step 11, Contractor shall send an
email to all contractors and consultants with low bid/proposal results.*
13. Notification of City. Contractor shall email the City the bid summary for initial
concurrence.
14. Concurrence Letter Contractor shall prepare the Concurrence Letter for delivery to the
City and shall assemble copies of bids and bid summary and submit to the City for formal
approval/concurrence.
15. Notice to Proceed. After receipt of City approval or concurrence, Contractor shall prepare
Authorizations to Proceed, Notice to Proceed and Contracts for contractor and all
consultants.
*If requested by the City, this notification shall be delayed until after steps 13 and 14 have been
completed.
Tustin — SchoolsFirst — Development Exhibit G to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
EXHIBIT H
POTENTIAL CHANGE OF WORK FORM
[Attached]
Tustin — SchoolsFirst — Development Exhibit H to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
CITY OF TUSTIN
DATE INITIATED IN FIELD:
POTENTIAL CHANGE OF WORK ("PCOW') ACKNOWLEDGEMENT & VALUE
The purpose of this form is to acknowledge a change in work that may impact the Actual Costs and/or Construction Schedule for a Public
Improvement constructed per the Infrastructure Construction & Reimbursement Agreement among the City of Tustin and SchoolsFirst Federal
Credit Union ("SchoolsFirst"). Upon acceptance, a Change Order will be issued.
City of Tustin Reference No.: PCOW NO:
(SchoolsFirst Original PO No. — CO
No.)
Contractor/Consultant Name:
(CO PO No.)
Project:
Public
Improvement:
Contractor: SchoolsFirst If PCOW is for Consultant services during construction,
SchoolsFirst's fill in the following information otherwise leave blank:
Constr. Mgr: Consultant's Contract No:
Design Firm: Consultant's Name:
POTENTIAL CHANGE OF WORK:
• Work Description:
• What Caused the Change:
• Why is this Change Outside the Original Contract Scope and Previous Change Orders:
• Plan Revision Required? ❑ Y ❑ N If yes, Delta Revision No._ Date Approved:
• Change in Contract Time? ❑ Y ❑ N If yes: +/--Working Days
• Change in Contract Price? ❑ Y ❑ N If yes: +/- $
1. City Inspector: SchoolsFirst's Construction Manager has discussed this potential change of work with me.
(Signature) Date
(Print Name)
2. SchoolsFirst:
Reviewed by:
Owner Representative / Date
3. City of Tustin: In the City of Tustin's opinion the aforementioned work
a. O Does Qualify = Does NOT Qualify as a potential change of work.
b. City of Tustin's comments (required if representative does not concur with the potential change):
c. CHANGE OF WORK VALUE (with detailed backup attached): $
d. Recommended by:
City of Tustin Representative / Date
Tustin — SchoolsFirst — Development Exhibit H to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
EXHIBIT I
CONSTRUCTION CONTRACT TERMS
SchoolsFirst shall cause the provisions of this Exhibit I to be attached to and incorporated into the
Construction Contract and shall cause Contractor to attach and incorporate the following
provisions other than in clause c below in each Subcontract (and the term Construction Contract
as used herein shall mean the Construction Contract or Subcontract, as applicable and the term
Contract Documents shall have the meaning set forth in the contract to which this Exhibit is
attached).
Notwithstanding anything in this Contract to the contrary, the parties to this Contract agree
as follows:
(a) Construction Guidelines. Contractor and all of its employees, representative,
Subcontractors, suppliers and other invitees (collectively, the "Contractor Parties") shall comply
with the construction guidelines and any other rules and regulations of SchoolsFirst and the City
of Tustin ("City") applicable to the site where the Work is to be performed (copies of which
guidelines, rules and regulations will be provided by Contractor to Subcontractors).
(b) Insurance. Prior to any entry onto the Site, Contractor shall obtain, and maintain in
full force and effect during the term of the Construction Contract, insurance coverage as set forth
in the Insurance Requirements Exhibit attached to the Construction Contract, and shall require all
Subcontractors to obtain and maintain the coverages specified in Section 5 of said Insurance
Requirements Exhibit.
(c) Bonds. Contractor shall provide payment and performance bonds in the full amount
of the Contract Price that guarantee the payment of all Subcontractors, laborers, suppliers and
materialmen and that guarantee the performance and completion of the Work on the Reimbursable
Improvements, which bonds shall be issued by a licensed surety in the State of California
acceptable to SchoolsFirst. The bonds shall be in the form provided in the Reimbursement
Agreement with the City. The City shall be the sole obligee under each bond provided by
Contractor.
(d) Indemnification. Contractor agrees to indemnify, defend, protect and hold
harmless SchoolsFirst and the City ("Indemnified Parties") (with counsel reasonably acceptable
to the affected Indemnified Party or Parties) and the City's and SchoolsFirst's elected and
appointed officials, employees, consultants, contractors and agents and all the other indemnified
parties identified in the Construction Contract harmless from and against any all Claims, actions,
causes of action, demands, orders, or other means of seeking or recovering losses, damages,
liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses and consultants and
court and litigation costs), costs and expenses attributable to compliance with judicial and
regulatory orders and requirements, fines, penalties, liens, taxes, or any type of compensation
whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, whether incurred by or
made against or recovered or obtained from any of such parties ("Claim"), to the extent caused
by, resulting or arising from: (i) the construction, installation or maintenance of the Work on the
Tustin — SchoolsFirst — Development Exhibit I to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
1
Facility or any portion thereof by Contractor and the other Contractor Parties; (ii) all other
activities on and use of the Site by Contractor and the other Contractor Parties; (iii) any breach by
Contractor of any of its representations, warranties, covenants or obligations set forth in the
Contract; (iv) the releasing, or threat of releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, migrating, disposing or dumping into the
environment, storage, treatment, transportation or disposal of any Hazardous Materials on, under,
in, from or to the Site or any other property through the act or omission to act of Contractor or the
Contractor Parties, and (v) any act or omission of the Contractor or the Contractor Parties in
connection with the construction, installation or maintenance of the Work or any portion thereof.
If Contractor fails to defend any Claim pursuant to its obligations hereunder, the City and
SchoolsFirst, or either of them, shall have the right, but not the obligation, to defend the same and
each shall have the right to charge all of the costs of such defense, including any third party fees
or costs paid for by it (including but not limited to bills from the City's contract City Attorney
related to this Agreement), to and recover the same from Contractor.
(e) Repair of Damage. Contractor shall repair any damage to the property of the
Indemnified Parties or any other Person caused by Contractor or the Contractor Parties during the
course of Contractor's performance of the Work and any other activities and operations on the
work site.
(f) Third Party Beneficiaries. Contractor acknowledges and agrees that (i) the City,
SchoolsFirst (where it is not a direct contracting party) and the other indemnitees identified in the
indemnification provision of the Construction Contract shall be express third party beneficiaries
of this Construction Contract as to all obligations owed by Contractor as described in this
Addendum, as well as any express or implied warranties of Contractor under this Construction
Contract; (ii) neither SchoolsFirst nor the City shall be deemed to be a guarantor of Contractor's
obligations under this Construction Contract, and (iii) the City shall not be bound by any
obligations owed by SchoolsFirst to Contractor under this Construction Contract.
(g) Compliance with Law. Contractor shall be required to comply with all applicable
laws, ordinances and regulations in its performance of Work on any Facility, including but not
limited to applicable provisions of the California Labor Code regarding public works contracts and
payment of prevailing wages.
(h) Independent Contractor. Contractor shall be deemed to be an independent
contractor retained by SchoolsFirst to perform the Work, and nothing contained in this
Construction Contract shall create any contractual relationship between the City and
Subcontractors, vendor, material supplier or laborer or any other Person retained by Contractor or
by any of the foregoing, at any tier, or their respective officers, employees or agents.
(i) Warranties. Contractor represents and warrants to SchoolsFirst that any materials,
supplies, products and equipment furnished under this Contract will be new unless otherwise
specified, and that any of the Work under the Construction Contract will be of good workmanship
and quality, free from faults and defects and in strict conformance with the Contract Documents,
the standards in the industry, all applicable laws, ordinances and regulations, including without
limitation the Uniform Building Code and any manufacturer's recommendations. Any of the Work
Tustin — SchoolsFirst — Development Exhibit I to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
under the Construction Contract not conforming to same may be considered defective. If required
by SchoolsFirst, in SchoolsFirst's sole discretion, Contractor shall furnish satisfactory evidence as
to the kind and quality of such materials, supplies, products and equipment. If any manufacturer
or supplier of any such materials, supplies, products or equipment furnishes a guarantee or
warranty for a period in excess of one year from final completion, then, Contractor shall require
that such guaranty or warranty be extended for the benefit of SchoolsFirst and the City for the like
period. Prior to final completion of the Work, Contractor shall deliver to SchoolsFirst copies of
any guarantees and warranties relating to the Project, together with duly executed instruments
properly assigning same to SchoolsFirst. Contractor shall bind copies of the guarantees and
warranties together in a single volume, grouped by trade and properly indexed. Contractor shall
assign to SchoolsFirst or any purchaser from or assignee of SchoolsFirst the guarantees and
warranties of Contractor's Subcontractors, suppliers and representatives and any other rights of
any kind against any Persons. Such assignment will not relieve Contractor of any of its other
obligations contained in the Contract Documents. No Final Acceptance by SchoolsFirst or the
City shall operate as a waiver or release with respect to any warranties applicable to the Work or
the Public Improvements or any rights or remedies pertaining thereto.
Contractor warrants that any and all portions of the Work under the Construction Contract
included in the Public Improvements will be free from any defects in material and workmanship
for a period of one year from the Date of Acceptance of the Public Improvement by the City, which
warranty shall survive the expiration or earlier termination of this Contract. As part of the
warranty, Contractor agrees to commence the repair or replacement of any defective material or
equipment and the performance of related labor necessary to correct any such defect in such Work
within seven days after receipt of notice of the defect and thereafter to diligently prosecute any
corrective work to completion, all at Contractor's sole cost and expense. Upon failure of
Contractor to do so, SchoolsFirst may, in SchoolsFirst's reasonable discretion, furnish or secure
any materials and labor necessary to correct any defect. Any loss caused by said failure of
Contractor, including without limitation compensation for additional professional services, shall
be at Contractor's sole cost and expense.
Nothing in the Contract Documents shall in any way limit the right of SchoolsFirst to assert
claims for patent or latent defects in the Work under the Construction Contract or loss caused by
them for the longest applicable period of limitations prescribed by California law. Nothing in the
Contract Documents shall be construed to establish a period of limitation with respect to any other
obligation of Contractor or claim of SchoolsFirst under the Contract Documents.
Contractor acknowledges and agrees that prior to Final Acceptance of any Public
Improvement by SchoolsFirst, that SchoolsFirst shall assign to the City any and all warranties or
guarantees which Contractor is required to provide or obtain pursuant to the Construction Contract
with respect to such Public Improvement, including, but not limited to, Subcontractors and
manufacturers, and Contractor agrees to perform the Work under the Construction Contract on
every Public Improvement in such a manner so as to preserve any and all such warranties.
Contractor acknowledges and agrees that such assignment of warranties and guarantees to the City
is not exclusive and that such assignment shall not preclude SchoolsFirst from pursuing its own
claims against Contractor and/or any of Contractor's subcontractors, vendors, material.
manufacturers and suppliers with respect to the Public Improvement. The above warranties and
Tustin — SchoolsFirst — Development Exhibit I to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
3
guarantees shall remain in effect for a period of one (1) year commencing from the date of Final
Acceptance of the Work on any Public Improvement by the City.
Tustin — SchoolsFirst — Development Exhibit I to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
4
EXHIBIT J
CONTRACTOR INSURANCE REQUIREMENTS
Prior to commencement of any Work under this Contract, Schools First shall, or shall cause
Contractor to comply with the following insurance requirements. SchoolsFirst shall cause the
provisions of this Exhibit J to be attached to and incorporated into the Construction Contract and
shall cause Contractor to include these terms in each Subcontract for performance of Work in
connection with the construction of any Facility (and the term Construction Contract as used herein
shall mean the Construction Contract or Subcontract, as applicable). The Construction Contract
shall make City an express third party beneficiary with the right to enforce the requirement of
SchoolsFirst, Contractor and Subcontractors, if any, to comply with the provisions of this
Exhibit J.
1. General Requirements.
a. Carrier Requirements. All insurance to be carried by Contractor will be maintained
by Contractor at its cost with insurance carriers approved to do business in California, having a
general policyholders rating of not less than an "A-" and financial rating of not less than "VIII" as
currently rated by A.M. Best Company, or such other ratings as agreed upon in writing by
SchoolsFirst in SchoolsFirst's Discretion.
b. Insurance Limits; No Limitation of Liability. Contractor may provide the required
insurance in whole or in part through a policy or policies covering other liabilities and projects of
Contractor; provided, however, that any such policy or policies shall satisfy all of the requirements
set forth in this Insurance Requirements Exhibit, including the endorsements described below. The
required insurance limits stated in this Insurance Requirements Exhibit are minimum limits.
Nothing contained in this Insurance Requirements Exhibit is to be construed as limiting the type,
quality or quantity of insurance Contractor should maintain for its own protection. The carrying
of insurance as specified herein shall not be construed to limit Contractor's liability under the
Construction Contract or as a matter of Law. Nothing in this Insurance Requirements Exhibit shall
be deemed to place any responsibility on SchoolsFirst for ensuring that the required coverages are
sufficient for the conduct of Contractor's business.
C. Evidence of Insurance. As evidence of the insurance required by this Insurance
Requirements Exhibit, and except as otherwise provided below, SchoolsFirst will accept
certificates of insurance from Contractor's insurance broker (and, where required below,
endorsements from Contractor's insurance carrier) and other evidence of insurance acceptable to
SchoolsFirst, showing the required coverages for the applicable insurance required of Contractor
and Contractor's officers, employees, agents, representatives, as. well as any Subcontractors
performing any portion of the Work for or on behalf of Contractor (collectively, "Contractor's
Representatives") in force for the specified periods. SchoolsFirst has the right to obtain certified
policies from Contractor and Contractor's Representatives and their insurance carriers as
SchoolsFirst deems necessary. Such evidence shall be delivered to SchoolsFirst promptly upon
execution of this Contract, or prior to commencement of Work under this Construction Contract,
whichever earliest occurs, and show specifically the amount of the deductible or SIR under each
policy. Each policy, certificate and endorsement shall be subject to approval by SchoolsFirst.
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d. Changes in Coverage. In no event will any insurance required hereunder be
amended or reformed or rescinded or terminated or otherwise changed or allowed to lapse prior to
the earlier of the completion of the Work pursuant to the provisions of this Contract or termination
of the Construction Contract or such longer period as may be specified in this Insurance
Requirements Exhibit. Insurer endorsements (or a copy of the policy binder, if applicable) shall
specifically identify this Contract and shall provide: that said insurance shall not be cancelled
except if Contractor is given at least thirty (30) days advance written notice of any cancellation or
termination of insurance. The foregoing requirement may also be satisfied upon provision of
evidence by the insurer that Contractor has paid for its premium in full for any policy that is
currently in place. In the event (i) any policy expires or is canceled before the expiration of this
Contract or (ii) any policy is amended so that the required coverages are reduced or otherwise
changed to the detriment of SchoolsFirst or any named insured, Contractor shall immediately bring
such insurance into compliance with the requirements of this Contract and deliver new certificates
and endorsements (and policies, if requested by SchoolsFirst) to SchoolsFirst upon the renewal,
replacement or modification of such policy(ies). If Contractor fails to comply with the foregoing
requirements, then SchoolsFirst reserves the right, but shall have no obligation, to procure such
policy(ies) and to deduct the cost thereof from any sum due Contractor under this Contract, and
Contractor shall fully cooperate in the purchase of such insurance.
e. SIRS and Deductibles. SchoolsFirst shall be given the opportunity to approve and,
in SchoolsFirst's Discretion, disapprove, the amount of any proposed self-insured retention
("SIR") or deductible in excess of Fifty Thousand Dollars ($50,000). If Contractor, with
SchoolsFirst's approval, elects to maintain an SIR or deductible with respect to the insurance
required by this Insurance Requirements Exhibit, it shall not apply to the additional insureds listed
below and no such additional insured shall be obligated to reimburse such SIR or deductible or to
pay Contractor as a reimbursable cost, any actual or imputed cost of maintaining such SIR or
deductible. Notwithstanding the foregoing, any additional insured may satisfy the SIR or
deductible on behalf of the Contractor or Contractor's Representative if the additional insured
elects to do so.
2. Required Coverages. Contractor shall maintain the following insurance for the times
provided herein:
a. Workers' Compensation Insurance. Workers' Compensation Insurance, including
Employer's Liability, with a minimum limit of One Million Dollars ($1,000,000) or the current
limit carried by Contractor or the amount required to be carried by California law, whichever is
greater, for all individuals whom Contractor employs in carrying out the Work. This insurance
shall be in strict accordance with the requirements of the most current and applicable Workers'
Compensation Insurance Laws in effect from time to time in California. Prior to the
commencement of the Work under this Construction Contract, Contractor shall cause a waiver of
subrogation endorsement from Contractor's insurance carrier to be delivered to SchoolsFirst in
form satisfactory to SchoolsFirst in its sole discretion.
b. Commercial General Liability Insurance. Commercial General Liability Insurance
on an "occurrence" basis, with a minimum combined single limit for bodily injury, property
damage and personal and advertising injury of Five Million Dollars ($5,000,000) or the current
Tustin — SchoolsFirst — Development Exhibit J to City of Tustin / SchoolsFirst
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limits carried by Contractor, whichever is greater, unless other limits are agreed to in writing by
SchoolsFirst, covering operations, independent contractors, products and completed operations,
blanket contractual liability, broad form property damage, severability of interest and cross
liability clauses, personal injury and explosion, collapse and underground hazards (X,C,U). The
limits of liability specified in this Insurance Requirements Exhibit may be provided by any
combination of primary and umbrella/excess liability insurance policies. Such policies shall be
renewed annually for at least five (5) years after Final Acceptance by the City and completion of
the Work under the Construction Contract. An endorsement to such policy satisfactory to
SchoolsFirst and meeting the requirements set forth in the "Additional Insured Endorsement"
section below shall be delivered to SchoolsFirst as required in the Contract. In addition, this
Commercial General Liability Insurance shall comply with the following:
(i) There shall be no limitation of coverage to vicarious liability and coverage
shall extend to any independent liability of the additional insureds;
(ii) There shall be no exclusionary language or limitations of coverage relating
to soils subsidence or earth movement;
(iii) Intentionally omitted;
(iv) There shall be no exclusionary language or limitations that are applicable to
the additional insured that are not also applicable to the named insured;
(v) Intentionally omitted, and
(vi) There shall be a provision that defense costs are paid in addition to and do
not deplete any policy limits.
C. Automobile Liability Insurance. Automobile liability insurance (including but not
limited to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all
automobiles, trucks and other vehicles and trailers used by Contractor in connection with the
Work, with a minimum combined single limit for bodily injury and property damage of not less
than Two Million Dollars ($2,000,000) and uninsured motorists coverage of Two Million Dollars
($2,000,000), or, in each case, the current limited carried by Contractor, whichever is greater.
d. Pollution Liability Insurance. With the exception of professional services being
performed, Contractor (but not Subcontractors unless performing work involving Hazardous
Materials) shall maintain pollution liability insurance covering liabilities and losses arising out of
the Work. Such insurance shall: (i) provide coverage for, at a minimum, judgments, damages,
settlements, legal fees and costs, bodily injury, property damage, remediation and emergency
response costs arising out of or relating to the Work and all liability assumed under this Contract;
(ii) apply with respect to Work performed at any location and to loading, unloading, transportation
and disposal of any related materials or substances; (iii) be issued on a "claims made" basis, and
provide coverage for liabilities or losses arising from any claim during the period from when the
Work commences until at least five (5) years after the Work is completed; (iv) provide coverage
limits of at least One Million Dollars ($1,000,000) or the limit already carried by Contractor for
similar insurance, whichever is greater; (v) have a deductible of no more than Seventy -Five
Thousand Dollars ($75,000); and (vi) "SchoolsFirst Federal Credit Union" and "the City of Tustin
Tustin — SchoolsFirst — Development Exhibit J to City of Tustin / SchoolsFirst
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and the Successor Agency to the Tustin Community Redevelopment Agency, and their respective
elected and appointed officials, agents, representatives and employees" as additional insureds in
the manner set forth in the "Additional Insured Endorsement" section of this Insurance
Requirements Exhibit (if available in the insurance marketplace). Contractor shall comply with
all policy warranties and shall do nothing to invalidate coverage.
e. Transit Insurance. Contractor shall maintain "all risk" insurance, on a replacement
cost basis covering loss or damage to property (for which it has title or risk of loss) which will
become a final part of the Project, during its off -Project site transit and while stored or worked
upon away from the Project. SchoolsFirst shall be included as a loss payee under such policy as
its interests may appear. Said insurance shall have a self-insured retention or deductible.
f. Rental Equipment. In the event that rental of equipment is undertaken to complete
or perform the Work, Contractor shall be solely responsible for such rental equipment. Such
responsibility shall include, but not be limited to, theft, fire, vandalism and use by unauthorized
Persons. In addition to the other insurance coverage that Contractor is required to maintain under
this Contract, Contractor may elect to obtain a "rental cost reimbursement endorsement" to provide
coverage for any equipment it rents in connection with the Work.
3. Additional Insured Endorsement. SchoolsFirst and the parties described in this Section
shall be included as additional insureds under the Commercial General Liability Insurance and, if
Pollution Liability Insurance is required to be maintained by Contractor under this Insurance
Requirements Exhibit, the Pollution Liability Insurance described above, pursuant to an
endorsement to such policy(ies) in form satisfactory to SchoolsFirst in its sole discretion. The
endorsement shall list the following parties as additional insureds: "SchoolsFirst Federal Credit
union and all persons and entities controlling, controlled by or under common control with such
entities, together with their respective owners, shareholders, partners, members, divisions,
officers, directors, employees, and all of their respective successors and assigns; and the City of
Tustin, the Tustin Finance Authority, the Successor Agency to the Tustin Redevelopment Agency,
and all of their respective elected and appointed boards, officers, and employees."
The policy coverage shall not contain any exclusionary language or limitations that are applicable
to any additional insured that are not applicable to the named insured.
In addition to the listing of additional insureds, the endorsement shall include a provision
substantially conforming to the following: "This insurance is primary and any other insurance
maintained by such additional insureds is excess and shall not be required to contribute with this
insurance as respects claims or liability caused by, arising out of or resulting from the acts or
omissions or work of the named insured, or of others who performed work on behalf of the named
insured. Any of such additional insureds may, at his/her/its election, pay any self-insured retention
or deductible amount in connection with any claim or liability for which coverage is or may be
provided by such insurance notwithstanding any other provision of the policy."
4. Waiver of Subrogation. Contractor's release and waiver as set forth in the Construction
Contract is intended to be binding upon the insurers of Contractor and shall preclude any such
insurer from subrogating to any rights or Claims of Contractor against SchoolsFirst and the City.
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5. Contractor's Representatives' Insurance. Contractor will not permit any of
Contractor's Subcontractors to commence Work on any Facility until each such Contractor's
Subcontractor, as applicable, has complied with all applicable insurance requirements stated in
this Insurance Requirements Exhibit. In each Subcontract, Contractor shall make SchoolsFirst,
the City and the other additional insureds listed above express third party beneficiaries to such
Subcontract for insurance purposes. Each such Subcontract shall also require Contractor's
Representative to comply with each and every requirement of this Insurance Requirements Exhibit
applicable to Contractor, except with respect to the limits of such insurance which, instead, shall
be as follows, unless such Contractor's Representative currently maintains higher limits, in which
case such Contractor's Representative shall be required to maintain such higher limits:
a. Workers' Compensation: Statutory Workers' Compensation and Employer's
Liability with the following limits: (i) bodily injury by accident: One Million Dollars ($1,000,000)
each accident; (ii) bodily injury by disease: One Million Dollars ($1,000,000) each employee; and
(iii) bodily injury by disease: One Million Dollars ($1,000,000) policy limit.
b. Commercial General Liabilitv: Two Million Dollars ($2,000,000) General
Aggregate, One Million Dollars ($1,000,000) Products and Completed Operations Aggregate; One
Million Dollars ($1,000,000) Personal and Advertising Injury Liability; One Million Dollars
($1,000,000). Any Subcontractors responsible for Work involving mass grading or trenching or
other Work over five feet in depth shall carry Five Million Dollars ($5,000,000) per occurrence
and aggregate liability coverages;
Automobile Liability: One Million Dollars ($1,000,000) each occurrence.
Tustin — SchoolsFirst — Development Exhibit J to City of Tustin / SchoolsFirst
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EXHIBIT K
PROFESSIONAL INSURANCE REQUIREMENTS
(Does not apply to construction and installation)
Schools First shall, or shall cause each Professional to comply with the following insurance
requirements. SchoolsFirst shall cause the provisions of this Exhibit K to be attached to and
incorporated into its contracts with each Professional and each such contract shall make City an
express third party beneficiary with the right to enforce the requirement of SchoolsFirst and the
Professional to comply with the provisions of this Exhibit K.
Professional shall not enter on any Site or begin any portion of the Services under any Professional
Services Agreement until it obtains all required insurance. Professional shall not permit any of its
subconsultants to begin any portion of the Services until such subconsultants have complied with
all applicable insurance requirements stated in this Professional Insurance Requirements Exhibit.
1. General Requirements.
a. Carrier Requirements. All insurance to be carried by Professional shall be
maintained by Professional at its expense with insurance carriers authorized to do business in
California, having a general policyholders rating of not less than an "A-" and financial rating of
not less than "VIII" in the most current Best's Key Rating Guide or other such ratings.
b. Insurance Limits; No Limitation of Liability. Professional may provide the
insurance described herein in whole or in part through a policy or policies covering other liabilities
and projects of Professional; provided, however, that any such policy or policies shall satisfy all
of the requirements set forth in this Professional Insurance Requirements Exhibit, including
without limitation the endorsements described below ("Insurance Requirements"). The required
coverage limits amounts stated in these Insurance Requirements are minimum coverage limit
amounts. Nothing contained in these Insurance Requirements is to be construed as limiting the
type, quality or quantity of insurance Professional should maintain for its protection or the extent
of Professional's responsibility for payment of damages resulting from its operations under this
Professional Services Agreement, nor shall anything contained herein be deemed to place any
responsibility on SchoolsFirst for ensuring that the insurance required hereunder is sufficient for
the conduct of Professional's business.
C. Evidence of Insurance. As evidence of specified insurance coverage, and except as
otherwise provided below, SchoolsFirst will accept certificates of insurance from Professional's
insurance broker (and, where required below, endorsements issued by Professional's insurance
carrier) showing such policies in force for the specified periods. SchoolsFirst has the right to
obtain certified policies as reasonably necessary. Such evidence shall be delivered to SchoolsFirst
within five (5) Business Days of execution of the Professional Services Agreement or prior to
commencement of any Services, whichever earliest occurs, and show specifically the amount of
the deductible or SIR under each policy. Each policy, endorsement and certificate shall be subject
to approval by SchoolsFirst in SchoolsFirst's sole discretion. Professional shall also allow
Tustin — SchoolsFirst — Development Exhibit K to City of Tustin / SchoolsFirst
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SchoolsFirst to inspect and obtain such evidence of insurance that Professional obtains from any
of its subconsultants.
d. Changes in Coverage. In no event shall any insurance required under these
Insurance Requirements be amended, reformed, rescinded or otherwise changed or allowed to
lapse prior to termination of this Professional Services Agreement or any Project Agreement with
Professional or such longer period as may be specified herein. Insurer endorsements (or a copy of
the policy binder, if applicable) shall specifically identify this Professional Services Contract and
shall provide that said insurance shall not be cancelled except if Professional is given at least thirty
(30) days advance written notice of any cancellation or termination of insurance. The foregoing
requirement may also be satisfied upon provision of evidence by the insurer that Professional has
paid for its premium in full for any policy that is currently in place. In the event (i) any policy
expires or is canceled before the expiration of this Professional Services Agreement or any Project
Agreement or (ii) any policy of insurance is altered so that the coverage required by this
Professional Services Agreement is reduced or otherwise changed to the detriment of SchoolsFirst
or any named insured, Professional shall immediately bring such insurance into compliance with
the requirements of this Professional Services Agreement and deliver new certificates and
endorsements (and policies if requested by SchoolsFirst) to SchoolsFirst upon the renewal,
replacement or modification of such policy(ies). If Professional fails to comply with the foregoing
requirements, then SchoolsFirst reserves the right, but shall have no obligation, to procure such
insurance and to deduct the cost thereof from any sum due Professional under this Professional
Services Agreement or any Project Agreement.
e. Levels of Coverage, Deductibles. Where a coverage limit amount specified in these
Requirements is less than the current coverage limit generally carried by Professional for such
insurance, Professional shall provide coverage at the higher coverage limit. SchoolsFirst, in
SchoolsFirst's sole discretion, may approve commercially reasonable deductibles for the coverage
limit amounts specified in these Insurance Requirements. If Professional, with SchoolsFirst's
approval, elects to maintain a deductible with respect to insurance required hereunder, SchoolsFirst
shall not be obligated to reimburse such deductible or pay Professional as a reimbursable cost any
actual or imputed cost of maintaining the deductible.
2. Required Coverage. Professional shall maintain the following insurance for the periods
provided herein:
a. Workers' Compensation Insurance. Workers' Compensation Insurance, including
without limitation Employer's Liability, at a minimum limit of One Million Dollars ($1,000,000)
or the amount required to be carried by California law, whichever is greater, for all persons whom
it employs in performing Services under this Professional Services Agreement or any Project
Agreement. The foregoing insurance shall be in strict accordance with the requirements of the
most current and applicable Worker's Compensation Insurance Laws in effect from time to time
in California. Prior to the commencement of any portion of the Services, Professional shall deliver
to SchoolsFirst a waiver of subrogation endorsement from the insurer in form and substance
satisfactory to SchoolsFirst in SchoolsFirst's sole discretion and precluding any such insurer from
subrogating to any rights or claims of Professional against SchoolsFirst and the City of Tustin
("City").
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b. Commercial General Liability Insurance. Commercial General Liability Insurance
on an "occurrence" basis, with deductibles reasonably acceptable to SchoolsFirst, with a combined
single limit for bodily injury and property damage of One Million Dollars ($1,000,000), or current
limit carried, whichever is greater, covering Ongoing Operations, Independent Contractors,
Blanket Contractual Liability, Broad Form Property Damage, Severability of Interest and Cross
Liability clauses, and Personal Injury. An endorsement to such policy satisfactory to SchoolsFirst
in SchoolsFirst's sole discretion and meeting the requirements set forth in the "Additional Insured
Endorsement" section below shall be delivered to SchoolsFirst within five (5) Business Days of
entering into this Professional Services Agreement.
C. Automobile Liability Insurance. Automobile Liability Insurance (including but not
limited to owned and non -owned automobiles, as applicable) on an occurrence basis, covering all
automobiles, trucks and other motor vehicles used by Professional in connection with the
performance of the Services under this Professional Services Agreement and any Project
Agreement, with a combined single limit for bodily injury and property damage of not less than
One Million Dollars ($1,000,000), or current limit carried, whichever is greater, and uninsured
motorists coverage of One Million Dollars ($1,000,000) or limit carried, whichever is greater.
d. Professional Errors and Omissions Liability Insurance. Professional shall maintain
Professional Errors and Omissions Liability Insurance on a "claims made" basis, including but not
limited to contractual and prior acts coverage, sufficient to cover the Services under each Project
Agreement, with a coverage limit of not less than One Million Dollars ($1,000,000) per claim or
current limit carried, whichever is greater, and with a deductible amount not greater than Fifty
Thousand Dollars ($50,000). Such insurance shall be maintained during the term of this
Professional Services Agreement and renewed annually for at least ten years thereafter, so long as
such renewable coverage is available at commercially reasonable rates. Such insurance shall not
contain any limitation or exclusion based upon the type or use of the structure or building, or for
bodily injury or property damage based on subsidence, soil or earth movement, or mold.
e. Pollution Liability Insurance. In the event that all or any portion of the Services
involves inspection, testing, abatement or remediation involving or pertaining to pollution,
environmental hazards or Hazardous Materials, including asbestos, mold, fungi or dry cleaner or
service station materials or operations, then Professional shall maintain pollution liability
insurance covering liabilities and losses arising out of such Services. Such insurance shall:
(i) provide coverage for, at a minimum, judgments, damages, settlements, legal fees and costs,
bodily injury, property damage, remediation and emergency response costs arising out of or
relating to the Services and all liability assumed under this Professional Services Agreement;
(ii) apply with respect to Services performed at any location and to loading, unloading,
transportation and disposal of any related materials or substances; (iii) be issued on a "claims
made" basis, and provide coverage for liabilities or losses arising from any claim during the period
from when the Services commences until at least five (5) years after the Services is completed;
(iv) provide coverage limits of at least One Million Dollars ($1,000,000) or the limit already
carried by Professional for similar insurance, whichever is greater; (v) have a deductible of no
more than Twenty -Five Thousand Dollars ($25,000), and (vi) include SchoolsFirst, the City, the
Tustin Finance Authority and the Successor Agency to the Tustin Redevelopment Agency as
additional insureds in the manner set forth in the "Additional Insured Endorsement" provision of
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this Professional Insurance Requirements Exhibit. Professional shall comply with all policy
warranties and shall do nothing to invalidate coverage. For purposes of this Professional Services
Agreement, the term "Hazardous Material" shall have the meaning set forth at the end of this
Professional Insurance Requirements Exhibit.
3. Other Requirements. The following requirements shall also apply to the Services
performed under this Professional Services Agreement and any Project Agreement:
a. Additional Insured Endorsement. SchoolsFirst and the parties described in this
Section shall be included as additional insureds under the Commercial General Liability Insurance
and, if such insurance is required to be maintained by Professional under this Professional
Insurance Requirements Exhibit, the Pollution Liability Insurance described above, pursuant to
(and Consultant shall provide) an endorsement to such policy(ies) in form approved by
SchoolsFirst in SchoolsFirst's sole discretion. The endorsement shall list the following parties as
additional insureds: "SchoolsFirst Federal Credit Union and all persons and entities controlling,
controlled by or under common control with any of such entities, together with their respective
owners, shareholders, partners, members, divisions, officers, directors, employees, representatives
and agents, and all of their respective successors and assigns; the City, the Tustin Finance
Authority, the Successor Agency to the Tustin Redevelopment Agency and all of their respective
elected and appointed boards, officers, agents and employees."
The policy coverage and endorsement shall not contain any exclusionary language or limitations
that are applicable to any additional insured that are not applicable to the named insured.
In addition to the listing of additional insureds, the endorsement shall also provide: "This insurance
is primary and any other insurance maintained by such additional insureds is excess and shall not
be required to contribute with this insurance as respects claims or liability caused by, arising out
of or resulting from the acts or omissions or work of the named insured, or of others who performed
work on behalf of the named insured. Any of such additional insureds may, at his/her/its election,
pay any self-insured retention or deductible amount in connection with any claim or liability for
which coverage is or may be provided by such insurance notwithstanding any other provision of
the policy."
b. Waiver of Subrogation. Any release and waiver of Professional contained in the
Professional Services Agreement is intended to be binding upon the insurers of Professional and
shall preclude any such insurer from subrogating to any Losses of Professional against
SchoolsFirst or the City.
C. Professional's Subconsultants' Insurance. Professional shall require by contract
that each and every subconsultant shall obtain and maintain insurance equal to that required to be
carried by Professional. Such agreement to provide insurance between Professional and
Professional's subconsultants shall make SchoolsFirst an express third party beneficiary to
Professional's agreement with Professional's subconsultants.
Tustin — SchoolsFirst — Development Exhibit K to City of Tustin / SchoolsFirst
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For purposes of this Professional Insurance Requirements Exhibit, the term "Hazardous
Materials" shall mean and include the following:
(a) "Hazardous Substance", "Hazardous Material', "Hazardous Waste", or
"Toxic Substance" under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. subsection 9601, et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C. subsection 5101, et
seq., or the Resource Conservation and Recovery Act, 42 U.S.C.
subsection 6901, et seq.;
(b) An "Extremely Hazardous Waste", a "Hazardous Waste", or a
"Restricted Hazardous Waste", under subsections 25115, 25117, or 25122.7
of the California Health and Safety Code, or is listed or identified pursuant to
subsection 25140 or 44321 of the California Health and Safety Code;
(c) "Hazardous Material', "Hazardous Substance", "Hazardous Waste",
"Toxic Air Contaminant", or "Medical Waste" under subsections 25281,
25316, 25501, 25501.1, 117690 or 39655 of the California Health and Safety
Code;
(d) "Oil' or a "Hazardous Substance" listed or identified pursuant to
Section 311 of the Federal Water Pollution Control Act, 33 U.S.C.
Section 1321, as well as any other hydro carbonic substance or by-product;
(e) A material listed or defined as a "Hazardous Waste", "Extremely
Hazardous Waste", or an "Acutely Hazardous Waste" pursuant to Chapter
11 of Title 22 of the California Code of Regulations;
(f) A material listed by the State of California as a chemical known by the State
to cause cancer or reproductive toxicity pursuant to Section 25249.8(a) of the
California Health and Safety Code;
(g) A material which due to its characteristics or interaction with one or more
other substances, chemical compounds, or mixtures, damages or threatens to
damage, health, safety, or the environment, or is required by any law or public
agency to be remediated, including remediation which such law or public
agency requires in order for the property to be put to any lawful purpose;
(h) Any material whose presence would require remediation pursuant to the
guidelines set forth in the State of California Leaking Underground Fuel Tank
Field Manual, whether or not the presence of such material resulted from a
leaking underground fuel tank;
(i) Pesticides regulated under the Feral Insecticide, Fungicide and Rodenticide
Act, 7 U.S.C. subsection 136 et seq.;
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(j) Asbestos, PCBs and other substances regulated under the Toxic Substances
Control Act, 15 U.S.C. subsection 2601 et seq.;
(k) Any radioactive material including any "source material', "special nuclear
material', "by-product material', "low-level wastes", "high-level radioactive
waste", "spent nuclear fuel' or "transuranic waste", and any other radioactive
materials or radioactive wastes, however produced, regulated under the Atomic
Energy Act, 42 U.S.C. subsection 2011 et seq., the Nuclear Waste Policy Act,
42 U.S.C. subsection 10101 et seq., or pursuant to the California Radiation
Control Law, California Health and Safety Code Section 114960 et seq.;
(1) A material regulated under the Occupational Safety and Health Act,
29 U.S.C. subsection 651 et seq., or the California Occupational Safety and
Health Act, California Labor Code subsection 6300 et seq.; and/or
(m) A material regulated under the Clean Air Act, 42 U.S.C. subsection 7401
et seq. or pursuant to Division 26 of the California Health and Safety Code.
Tustin — SchoolsFirst — Development Exhibit K to City of Tustin / SchoolsFirst
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EXHIBIT L
LIEN RELEASE REQUIREMENTS
Prior to commencement of any Work under this Contract, Schools First shall, or shall cause
Contractor to comply with the following insurance requirements. SchoolsFirst shall cause the
provisions of this Exhibit L (Sections A and B only) to be attached to and incorporated into the
Construction Contract and shall cause Contractor to include these terms in each Subcontract for
performance of Work in connection with the construction of any Facility (and the term
Construction Contract as used herein shall mean the Construction Contract or subcontract, as
applicable). The Construction Contract and each Subcontract shall make City an express third
party beneficiary with the right to enforce the requirement of SchoolsFirst, Contractor and
Subcontractors, if any, to comply with the applicable provisions of this Exhibit L.
Final Payment Applications to City
With each Final Payment Application, SchoolsFirst will submit to the City:
1. Conditional Lien Release from Contractor and Contractor's Subcontractors as to the
completed work. (Unconditional lien release from Contractor must be given to City within
fifteen (15) Business Days of SchoolsFirst's receipt of final payment from City.)
2. Conditional and Unconditional Lien Releases from Contractor and all of Contractor's
Subcontractors (other than from Subcontractors for which an unconditional lien release has
previously been given to City) in accordance with the "Final Retention Billings"
requirements on page 2 of this Exhibit. SchoolsFirst acknowledges that the City will not
provide a final payment to SchoolsFirst until unconditional lien releases from all
Contractor's Subcontractors have been provided by SchoolsFirst.
Note: Original (wet signature) or fax copies of releases are acceptable for Final Payment
Applications. All lien releases required herein shall be in the applicable statutory forms.
Tustin — SchoolsFirst — Development Exhibit L to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
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SCHOOLSFIRST FEDERAL CREDIT UNION—
Lien Release Requirements for Bonded Construction Contracts
A. Progress Billings:
1. Contractor shall provide and shall obtain conditional and unconditional releases from
Contractor's Subcontractors and will generally be required as follows:
a. Conditional lien releases from itself and from all Contractor's Subcontractors
performing 5% or more of the work as designated on the Exhibits to the Construction Contract;
and
b. Conditional lien releases from itself and from all Contractor's Subcontractors
performing less than 5% of the work as requested by Contractor.
2. Conditional Lien Releases are required from Contractor and from Contractor's
Subcontractors listed on the Contractor's current (PC -4) billing form that have unpaid
invoices at the time the progress billing is submitted by Contractor. If one or more of the
listed Contractor's Subcontractors have no unpaid invoices, Contractor shall submit with
its progress billing package either:
a. A $0 release from such Subcontractor(s); or
b. A letter from Contractor attesting that such Subcontractor(s) have no unpaid invoices
for the current billing period.
B. Final Retention Payment Billings:
Contractor must provide conditional releases for any Subcontractors noted on the PC -4
billing form and others who have filed a California Preliminary Notice. A list of
Subcontractors who have filed a Preliminary Notice can be obtained by contacting
or his designee.
2. In order for the final Request to be considered complete, all requested lien releases must
be provided:
Joint checks will be cut for any Subcontractors whose lien releases show a balance due,
unless Contractor notifies SchoolsFirst in writing that there is a dispute between Contractor
and a Subcontractors, in which event no check will be issued with respect to such
Subcontractors. If Contractor is able to resolve the dispute within 10 Business Days,
SchoolsFirst will issue the joint check to Contractor and the applicable Subcontractors;
otherwise, Contractor must submit the Request again in the next billing cycle.
Tustin — SchoolsFirst — Development Exhibit L to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
EXHIBIT M
FORM OF PAYMENT BOND
- - - [Attached]_- - - - -
Tustin — SchoolsFirst — Development Exhibit M to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
1
Bond No.
Amount .
Premium
CITY OF TUSTIN
PUBLIC CONTRACT
LABOR AND MATERIALS PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS: That {insert Contractor) and
its successors and assigns, as and hereinafter referred to collectively as "Principal', and
a corporation organized and existing under the laws of the State of
and duly authorized to transact surety business in the State of California, as and hereinafter
referred to as, "Surety", are held and firmly bound unto the City of Tustin hereinafter referred to
as the "City" in the sum of $ for payment of which Principal and Surety bind
themselves, their heirs, administrators, successors and assigns, jointly and severally as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS THAT:
WHEREAS, Principal has entered into that certain Construction Contract as defined in that
certain Infrastructure Construction and Reimbursement Agreement by and between the City and
SchoolsFirst dated , to do and perform the following, generally described work,
which is more particularly described in said Construction Contract for the construction of:
[list all Public Improvements]
WHEREAS, Principal shall commence and complete the construction and installation of such
improvements provided in said contract; and
NOW THEREFORE, if Principal shall pay the Subcontractor(s) of all tiers, and all persons
renting equipment or furnishing labor or materials to them for such improvements, for the full cost
of such improvements and submit amounts due under the State Unemployment Insurance Act with
respect to such labor, then this obligation shall be null and void.
PROVIDED, HOWEVER, if Principal shall not pay the Subcontractor(s) of all tiers and all
persons renting equipment or furnishing labor or materials to them for such improvements for the
full cost of such improvements, or if Principal fails to submit amounts due under the State
Unemployment Insurance Act with respect to such labor, then Surety will pay for the same in an
amount not exceeding the sum' set forth above, which amount shall inure to the benefit of all
persons named in Civil Code Section 9100.
PROVIDED FURTHER, HOWEVER, that Surety stipulates and agrees that no change,
extension of time, alteration or modification of the contract documents or of the work to be
Tustin — SchoolsFirst — Development Exhibit M to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
performed there under shall in any way affect its obligation on this bond and it does hereby waive
notice of any such change, extension of time, alteration or modification of the contract documents
or of the work to be performed there under; and
PROVIDED FURTHER, that in case suit is brought upon this bond by the City or SchoolsFirst
or any other person named in Civil Code Section 9100 who may bring an action on this bond, a
reasonable attorney's fee, to be fixed by the Court, shall be paid by Principal and Surety.
IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed
and sealed day of , 20_.
SURETY:
(SEAL)
APPROVED AS TO FORM:
City Attorney
(SEAL)
APPROVED AS TO CONTENT:
Tustin — SchoolsFirst — Development
Agreement — 5-14-19 FINAL
(Name)
Attorney -in -Fact
Address of Surety:
PRINCIPAL:
BY:
(Name)
TITLE:
Address of Principal:
Exhibit M to City of Tustin / SchoolsFirst
Reimbursement Agreement Federal Credit Union
3
Date
City Engineer
Note: Attach proper acknowledgments for both Surety & Principal.
Tustin — SchoolsFirst — Development Exhibit M to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
EXHIBIT N
FORM OF PERFORMANCE BOND
[Attached]
Tustin — SchoolsFirst — Development Exhibit N to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
Bond No
Amount.
Premium
CITY OF TUSTIN
PUBLIC CONTRACT
FAITHFUL PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: That (insert Contractor), as
and hereinafter referred to as "Principal" and a
corporation organized and existing under the laws of the State of and duly
authorized to transact surety business in the State of California, as, and hereinafter referred to as,
"Surety", are held and firmly bound unto the City of Tustin, a California municipal corporation
("City") as and hereinafter referred to as "Obligee", in the sum of $ for
payment of which Principal and Surety bind themselves, their heirs, administrators, successors and
assigns, jointly and severally as follows:
THE CONDITION OF THE ABOVE OBLIGATION IS THAT:
WHEREAS, Principal has entered into that certain Construction Contract as defined in that
certain Infrastructure Construction and Reimbursement Agreement by and between City and
SchoolsFirst dated , to do and perform the following, generally described work,
which is more particularly described in said Construction Contract for the construction of.
[list all Public Improvements)
WHEREAS, all of such improvements are to be constructed and installed in accordance with
the plans and specifications described, referred to and incorporated in said contract; and
WHEREAS, Principal shall commence and complete the construction and installation of such
improvements as provided in said contract; and
NOW, THEREFORE, if Principal shall faithfully perform all agreements contained in the
aforesaid contract, then this obligation shall be null and void.
PROVIDED, HOWEVER, if Principal shall not faithfully perform all agreements contained in
the hereinabove described contract and all obligations, then this obligation shall remain in full
force and effect.
PROVIDED FURTHER HOWEVER, that Surety hereby stipulates and agrees that no change,
extension of time, alteration or modification of the contract documents or of the work to be
performed there under shall in any way affect its obligation on this bond and it does hereby waive
notice of any such change, extension of time, alteration or modification of the contract documents
or of the work to be performed there under; and
Tustin — SchoolsFirst — Development Exhibit N to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2
PROVIDED FURTHER, that in case suit is brought upon this bond by the Obligee or any other
person who may bring an action on this bond, a reasonable attorney's fee, to be fixed by the Court,
shall be paid by Principal and Surety.
IN WITNESS WHEREOF, Principal and Surety have caused these presents to be duly signed and
sealed this _ day of , 20_.
(SEAL)
APPROVED AS TO FORM:
City Attorney
SURETY:
PRINCIPAL:
IM
(Name)
Attorney -in -Fact
Address of Surety:
(Name)
(SEAL) TITLE:
Address of Principal:
APPROVED AS TO CONTENT:
Date
City Engineer
Note: Attach proper acknowledgment for both Surety & Principal.
Tustin — SchoolsFirst — Development Exhibit N to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
3
EXHIBIT O
COVENANTS OF CONTRACTOR
SchoolsFirst hereby agrees that it shall cause the Contractor, in the Construction Contract,
to make the following covenants in favor of SchoolsFirst and the City, and that City shall be an
express third party beneficiary with respect to Contractor's covenants in such Construction
Contract. To effect the above requirement, SchoolsFirst shall (1) cause the provisions of this
Exhibit O to be attached to and incorporated into the Construction Contract, (2) cause Contractor
to make the covenants set forth in this Exhibit O for the benefit of the City and (3) cause
Contractor to include these terms in each Subcontract for performance of Work in connection with
the construction of any Facility (and the term Contract Document as used herein shall mean the
Construction Contract or Subcontract, as applicable, to which this Exhibit is attached). The
Construction Contract and each Subcontract shall make City an express third party beneficiary
with the right to enforce the requirement of SchoolsFirst, Contractor and Subcontractors, if any, to
comply with the applicable provisions of this Exhibit O.
(a) Completion of Facilities. Contractor covenants that it will use its
reasonable and diligent efforts to perform all of its duties and obligations under the Contract
Documents and will provide all labor, materials, equipment, supplies, tools, permits, supervision,
transportation, services, sales tax and all other things necessary to complete the Facilities in
accordance with the Approved Project Plans therefor, as applicable, including all Work expressly
specified therein and reasonably inferred from the Approved Project Plans, the Schedule of
Performance and the Construction Schedule.
(b) Compliance with Laws. Contractor covenants that in carrying out
its obligations under the Contract Documents and in construction of the Facilities, it shall comply
with all applicable Governmental Requirements and with the applicable provisions of the Special
Restrictions pertaining to construction period maintenance. During the period while the Facilities
are required to be maintained by Contractor pursuant to the Construction Contact, Contractor will
not commit, suffer or permit any of its agents, employees or Contractor to commit any act to be
done in, upon or to the Facilities in violation of any applicable Governmental Requirement.
(c) Request for Acceptance. Contractor covenants that it will not
submit a request for payment under the Contract Document for the costs of any improvements that
are not part of the Reimbursable Improvements; and (ii)' it will diligently follow all procedures set
forth in this Agreement with respect to each Request for Acceptance for a Completed Public
Improvement.
(d) Financial Records. Until the Acceptance Date of each Reimbursable
Improvement, Contractor covenants to maintain proper books of record and account for each such
Reimbursable Improvement and all costs related thereto. SchoolsFirst shall have a right to access
the books of record and account of Contractor relating to each such Reimbursable Improvement
and all costs related thereto, and SchoolsFirst covenants that its books of record and account for
each such Reimbursable Improvement and all costs related thereto and the books of record and
account of Contractor relating to the same will be available for inspection by the City within ten
Tustin — SchoolsFirst — Development Exhibit O to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
1
(10) calendar days after the City submits a written request to SchoolsFirst requesting that such
books of record and account be made available for inspection.
(e) Environmental Matters Relating to Public Improvements. With
respect to each Public Improvement, Contractor covenants that will not and will not permit any
Subcontractor to, use, generate, manufacture, procure, store, release, discharge or dispose of
(whether accidentally or intentionally) at any time on or prior to the later of the Acceptance Date
of such Public Improvement by the City, any Hazardous Materials on, under or in such Public
Improvement or the Site of any such Public Improvement, or transport (whether accidentally or
intentionally) any Hazardous Materials to or from such Public Improvement or such Site, in
violation of any federal, State or local law, ordinance, regulation, rule or decision regulating
Hazardous Materials in effect at the time of such use, generation, manufacturing, procurement,
storage, release, discharge, disposal or transportation, other than for any Hazardous Materials that
may be contained in the materials or components of such Public Improvement as required by the
Approved Project Plans or incidental uses of Hazardous Materials by SchoolsFirst, Contractor,
any Subcontractor or other Persons retained by SchoolsFirst that are in full compliance with all
Environmental Laws and all other Governmental Requirements.
(f) Permits. Contractor covenants that it will obtain all governmental
or other permits required to proceed with the construction of the Facilities.
Tustin — SchoolsFirst —Development Exhibit O to City of Tustin / SchoolsFirst
Agreement — 5-14-19 FINAL Reimbursement Agreement Federal Credit Union
2