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CONTRACT 4887 Settlement AgreementM Agreement No. 4887 SETTLEMENT AGREEMENT BETWEEN THE WISEBURN SCHOOL DISTRICT AND THE CITY OF EL SEGUNDO This Agreement ( "Agreement") is made and entered into this 22nd day of May, 2013, by and between the Wiseburn School District, a school district organized in accordance with the California Education Code ( "District ") and the City of El Segundo, a general law city and municipal corporation ( "City "). These parties may also be referred to in this Agreement individually as a "Party" and collectively as "Parties" 1. RECITALS. This Agreement is entered into with reference to the following facts and objectives: A. District's boundaries overlap with City's jurisdictional boundaries. B. District is currently relocating its two charter high schools, Da Vinci Design and Da Vinci Science (the "High School ") to a permanent location. C. District determined that the preferred location for the new high school was the 13.7 acre site located at 201 N. Douglas within City's jurisdiction (the "Property'). The Property is developed with a 335,000 square foot, 4 -story, building that is currently vacant. D. On or about September 13, 2012, District entered into a purchase and sale agreement with CDC Mar Douglas, LLC for the Property, which Agreement required compliance with the California Environmental Quality Act ( "CEQA ") before consummation of the Property sale. E. The project for the High School was defined to include: demolition of approximately 90,000 to 170,000 square feet of the existing building along the east elevation; 54 classrooms for an anticipated enrollment of 1,200 students, media center library, student union/multipurpose cafeteria, gymnasium, 400 seat theater, student services/administration, 12,000 square feet of District office space for 20 staff persons, six basketball courts, six tennis courts, and synthetic athletic 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 fields for soccer and baseball/softball all as more fully set forth in the final environmental impact report described below (the`?mject). F. District hired the Planning Center to prepare the necessary environmental assessment for the Project. A Notice of Preparation was prepared in September 2012. Public review of the Initial Study and Notice of Preparation occurred between September 18, 2012, and October 17, 2012. G. On October 26, 2012, Citys City Attorney sent a letter to District's Superintendent alleging, among other things, that District's approval of the Purchase and Sale Agreement violated CEQA. H. A draft environmental impact report (DEIR) was prepared for the Project. Public review of the DEIR occurred between January 11, 2013 and February 25, 2013. The DEIR concluded that there would not be any significant impacts that could not be mitigated below a level of significance. I. The DEIR concluded that although Grand Avenue is shown in the El Segundo General Plan's Circulation Element to extend through the Property, the Project conformed with the General Plan because that portion of the Property was not being developed with any buildings and the road could still be constructed if required. J. On February 25, 2013, City of El Segundo filed a comment letter regarding District's DEIR raising numerous objections. K. On March 21, 2013, City of El Segundo filed another comment letter regarding the DEIR, the final EIR (FEIR) and District's response to Citys February 25, 2013 comment letter. L. With the exception of the March 21, 2013 City letter, District believes it adequately responded to all comments that were received on the DEIR, in writing, and the responses are incorporated into the FEIR. To the extent that Citys March 2 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 21, 2013 letter raised new issues, the District believes these were addressed at Districts hearing on March 21, 2013. M. On March 21, 2013, the District Board of Trustees (`District Board) certified a FEIR and approved the construction of the Project. Additionally, the District Board exempted District from Citys zoning regulations in accordance with Government Code § 53094 since schools are not a specifically allowed use in the Urban Mixed -Use North zone, as identified by the El Segundo Municipal Code ('ESMC), in which the Project is located. In accordance with the Purchase and Sale Agreement and as authorized by Resolution No. 12/13.27 adopted by the District Board March 21, 2013, the purchase of the Property was consummated. The City disputes the adequacy of the FEIR based upon the issues raised in the various communications prepared by the City and its attorneys as detailed above. N. During Districts search for a site for the High School, and through the review period, City has expressed concerns about the 13.7 acre site. O. Subcommittees of Citys City Council and the District Board have met during the last few months in an effort to try to resolve Citys concerns. P. For purposes of this Agreement, the City s contentions regarding CEQA, including the FEIR, and other concerns expressed during the subcommittee meetings and the issues raised in its correspondence to District is referred to as the `Dispute" Q. District is sensitive to the concerns of City and would like to provide benefits to City to mitigate the concerns raised by the City. Both Parties seek to avoid costly and time - consuming litigation. To this end, District agrees to limit enrollment of the High School at 1200 students and develop a new aquatics center in conjunction with the development of the Project (as described in this Agreement) which may be used by both Parties and City has agreed to operate and maintain the aquatics center. Additionally, District and City are willing to commit to joint 3 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 use of their athletic fields and District is willing to make the Project available as an Emergency Shelter for the American Red Cross to help satisfy the Citys Housing Element needs. R. The District Board and Citys City Council believe that the public interest is served by settling the Dispute on the terms provided in this Agreement. This Agreement is intended by the Parties to resolve the Dispute in all respects. FOR AND IN CONSIDERATION of the above - referenced recitals and the promises and covenants contained in this Agreement, the Parties agree as follows: 2. AQUATICS CENTER. A. As described below, District agrees to design, and, if approved by the District Board, District agrees to cause construction of an`Aquatics Centef'on the Property. If the Aquatics Center is approved before construction of the Project (as previously reviewed by the FEIR), the construction of the Aquatics Center must take place concurrently with the construction of the Project. If the Project is ready to be constructed before final approval of the Aquatics Center, including any third party litigation challenging the Aquatics Center, construction of the Aquatics Center must commence immediately upon final approval or resolution of such litigation. B. At a minimum, the Aquatics Center must encompass approximately two (2) acres at the northwest corner of the Property and include the following: i. An outdoor 50 meter pool for swimming, water polo, and physical education/recreational use. In addition, if the Aquatics Center budget allows (as reasonably determined by District), the Aquatics Center should include a spring board diving board; a snack or small kitchen facility; and a 20 ft. X 40 ft. therapy pool with separate changing facilities for men and women. ii. A moveable bulkhead for short course swim. 4 005093.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 iii. Associated support structures /facilities to include at a minimum locker rooms and restrooms. iv. Separate meters for electricity, water, and gas to be installed to differentiate the Aquatics Center from the rest of the High School facility. V. The Aquatics Center may include solar panels to reduce the cost of utilities. vi. A conceptual design for the Aquatics Center is attached as Exhibit "A;'and incorporated by reference (the "Conceptual Desigd). C. The Final Design. i. The Final Design for the Aquatics Center must be consistent with all requirements of applicable law including, without limitation, the Education Code and California State high school facility requirements. ii. The Final Design for the Aquatics Center will be consistent with, not be materially different from, and not be smaller than the Conceptual Design. iii. District will form a Design Committee for the Aquatics Center and City will be entitled to representatives on this Committee. District will accommodate, to the extent reasonable and feasible, the comments of City. Except as set forth in clause (iv) with respect to equipment choices for the Aquatics Center, the determination of the ultimate Final Design for the Aquatics Center rests with the District Board. iv. With respect to decisions about equipment choices relating to operation efficiencies of the Aquatics Center and the quality of the equipment, District must implement the recommendations of City prcvided that such recommendations do not cause District's total costs for the Aquatics Center to exceed $6,000,000 as specified in Section 6(A) below or City pays for any costs in excess of this amount. 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 V. Should City and District have a dispute regarding matters under clause (iv), District and City agree to submit such a dispute to nonbinding mediation as quickly as is practicable. The mediator must be someone who specializes in construction matters related to public agencies. If agreement can be reached, the Parties agree to enter into a written mediation settlement agreement setting forth the terms and conditions of the issues upon which the parties have come to an agreement. If the Parties enter into a mediation settlement agreement, it may be enforced in any court of competent jurisdiction. Both Parties agree to share the fees and costs of the mediation equally except that legal, witness, and expert costs are the direct responsibility of each individual Party. D. None of the Parties may take any action in using, operating, or running the Aquatics Center that would jeopardize the tax exempt status of the bonds used to construct the Project and the Aquatics Center. E. The Aquatics Center will be named "City of El Segundo — Wisebum Unified School District Aquatics Centef'or "City of El Segundo — Wisebum School District Aquatics Center; as applicable, or such other name as mutually agreed to by District and City. 3. PROCESSING AQUATICS CENTER PROJECT. A. The Final Design must be reviewed in accordance with CEQA. District will pay for such Additional Review. B. The District Board must consider the Final Design following CEQA review and, if required, modify the Final Design to mitigate, to the extent possible, environmental impacts identified by such CEQA review. Any such change to the Final Design must be the minimum needed to conform with CEQA requirements while still conforming with the Conceptual Design and the Final Design. C. If any challenge is brought to the modification of the Project or the Additional 6 005093.00054 11269537.1 SETTLEMENT AGREEMENT Agreement No. 4887 Review by a third party, District will take all steps necessary to remedy any defect in the CEQA documentation and/or vigorously defend the approval and the CEQA documentation in court. D. Timing Milestones/Requirements. i. District must retain an environmental consultant (the "Firm) to perform the Additional Review within 20 working days of final execution of this Agreement. ii. The Firm must make initial recommendations to District as to the level of Additional Review that is required for the Aquatics Center within 6 weeks of being provided with information by District and City sufficient to make this recommendation (`Initial Determination). If there is a reasonable delay in needed information being provided by City, the time period will be extended for the same number of days as any delay by City. iii. If the Additional Review is to be an Addendum, as defined by CEQA, a draft of the document must be provided to City for review and comment within 10 weeks of the Initial Determination and absent any substantial comments on the part of City, must be considered by District Board within 30 days after receiving Citys comments. iv. If the Additional Review is a Subsequent or Supplemental EIR, as defined by CEQA, a draft of the document must be provided to City for review and comment within 16 weeks of the Initial Determination. Absent any substantial comments on the part of City, within 10 working days after receipt of Citys comments, the Additional Review document must be circulated for the appropriate public review period as determined by applicable law. Thereafter, the District Board must consider the Additional Review document and the approval of the Aquatics Center within 30 days after the close of the public review period. 7 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 V. If the Aquatics Center is approved by District Board, District must immediately modify its Project plans to include the Aquatics Center and submit such plans to the Division of State Architect f`DSA) as soon as reasonably practical. vi. Once DSA approves the Aquatics Center plans, District must undertake construction pursuant to its normal procedures in a timely fashion. District must inform City on an ongoing basis regarding Districfs progress and be provided the Notice Inviting Bids, as well as construction schedules submitted by the successful bidder. vii. In no event can District begin actual construction of the Project before rendering a decision on whether to approve the Aquatics Center after the Additional Review is completed. E. District is the lead agency for purposes of CEQA and retains final discretion regarding the Additional Review. For any future change to the Aquatics Center, District will remain lead agency for CEQA purposes. Designation as lead agency does not require District to bear any or all costs of any future modification. 4. AQUATICS CENTER JOINT USE AGREEMENT. A. The Parties agree to separately enter into a Joint Use Agreement (JUA) for use of the Aquatics Center in accordance with the requirements of this Agreement. B. The JUA for the Aquatics Center must, at a minimum, provide as follows: i. The term must be at least 25 years with a 25 year renewal option. ii. The form of the JUA must be substantially similar to existing joint facility use agreements between school districts and cities in California. iii. Unless otherwise provided in the JUA, District and ESUSD will have exclusive (i.e., public use is prohibited during these times) and equal use of the Aquatics Center, including the therapy pool, Monday through Friday, for a maximum of six shared hours per day for the period 8 005098.00054 11269597.1 SETTLEMENT AGREEMENT Agreement No. 4887 commencing one week before the start of the Wiseburn School Year through the end of the Wiseburn School Year, and on select pre - agreed upon, non - school days which days cannot exceed twelve (12) days per year. All remaining eighteen (18) hours will be governed in accordance with Section 4(B)(vi) of this Agreement. The JUA may utilize a method for making changes to this schedule without amending this Agreement. For any such schedule, however, District and ESUSD uses must have priority over other recreational uses. Before the academic year commences, District, ESUSD and City will develop a master calendar for Aquatics Center use. iv. Districfs and ESUSD's use of the Aquatics Center must be equitably determined by the JUA to accommodate, among other things, the El Segundo High School swim teams or water polo teams during times identified by the JUA to which the ESUSD may be a party. V, City will have exclusive use of the Aquatics Center, including the therapy pool, during all days and times that District and/or ESUSD do not have such exclusive use. If District and ESUSD have different exclusive use periods and ESUSD has no objection, City may use the therapy pool during ESUSIys sole exclusive use period. vi. At all times during which City has use of the Aquatics Center, City may utilize its park pennitting regulations as set forth in El Segundo Municipal Code (SSMC) §§ 9 -8 -1, et seq. for purposes of scheduling events at the Aquatics Center with the understanding that all persons residing in the Wisebum School District are considered City residents for purposes of the Aquatics Center only and entitled to use the Aquatics Center on the same terms and conditions as residents of the City. If it is determined that the 9 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 park permitting regulations violate the bond restrictions, appropriate adjustments will be made by the City. vii. City will operate the Aquatics Center for a minimum of one full year after completion and opening of the Aquatics Center. City will also, at a minimum, maintain and repair the pool and therapy pool for use by District students for five years after opening. viii. City will provide as much notice as practicable before terminating the JUA. Such notice may include, without limitation, notice of adoption of any budget for an upcoming fiscal year which does not include funds to operate and maintain the Aquatics Center. ix. The JUA must contain a mutual defense, indemnification and hold harmless provision. X. The JUA must contain a requirement that each Party maintain appropriate levels of insurance to cover their respective use of the Aquatics Center in an amount to be agreed upon in the JUA. xi. The cost of utilities will be allocated between District and City based on their respective exclusive use periods for the Aquatics Center. xii. During the term of the JUA, Districfs share of revenue from the operation of the Aquatics Facility must be allocated to City to offset Citys share of operation and maintenance costs. xiii. ESUSDYs use of the Aquatics Center will be conditioned, at minimum, upon ESUSD agreeing to the mutual defense, indemnification and hold harmless, and providing necessary insurance. C. Replacement Reserve Fund. District and City will establish a replacement reserve fund to be maintained by District. The timing of the payments will be governed by the JUA. The Replacement Reserve funds must be used by District to 10 005098.00054 11369587.1 SETTLEMENT AGREEMENT Agreement No. 4887 make necessary capital improvements. City is not entitled to reimbursement of any such funds if it terminates the JUA, or the JUA expires, before the expenditure of such funds. ii. For the first twenty -five (25) year term of the JUA, City must contribute the sum of $26,000 annually to the Replacement Reserve fund. District is not required to make contributions to the fund until after the fifth year of the operation of the Aquatics Center in order to help offset Districfs development and construction costs. Thereafter, District must contribute the sum of $14,000 annually to the Replacement Reserve fund for the remainder of the first twenty -five (25) year term of the JUA. iii. During the second twenty -five (25) year term of the JUA, District and City must each contribute the sum of $20,000 annually to the Replacement Reserve fund. D. The terms of the JUA for the Aquatics Center must incorporate the deal points set forth above as well as other provisions of this Agreement and neither Party may object to the JUA if it substantially conforms to such terms. Failure of the Parties to agree in the JUA on minor, non - substantive issues and immaterial deviations are not grounds for invalidating this Settlement Agreement. E. The JUA must include a provision requiring the Parties to submit any dispute involving the JUA to arbitration before any party can file a petition with the Los Angeles Superior Court. Any dispute must be resolved by arbitration before a retired judge of the Superior Court of the State of California (the "Arbitrator ") under the auspices of Judicial Arbitration & Mediation Services, Inc. ( "JAMS "). 11 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 ii. The arbitration must be conducted in Los Angeles County, California. Any Party may be represented by counsel or other authorized representative. iii. The decision rendered by the arbitrator will become binding upon the Parties unless appealed to the Los Angeles County Superior Court within thirty (30) days of the decision. If subsequent litigation results in an award to the Party appealing the arbitration that is less than or equal to that of the arbitration decision, or if the litigation results in a decision in favor of the nonappealing Party, then the Party appealing the arbitration will pay the nonappealing Partys attorneys fees and court costs. iv. Should a Party timely object to the arbitration decision, it may file a petition with the Los Angeles County Superior Court in accordance with California Code of Civil Procedure (`CCP) §§ 1285, et seq. Notwithstanding the limitations set forth in CCP § 1286.2, the court may vacate, correct, or adjust an arbitration award, and enter judgment in accordance with CCP § 1287.4, for any legal or equitable basis including, without limitation, error of law. The court will apply the substantial evidence standard of review when considering the appeal of an objecting Party. 5. ATHLETIC FACILITIES JUA. The Parties agree to enter into a JUA for use of the fields at the Project and at Campus El Segundo and cooperate to identify other facilities where joint, and reciprocal, use of athletic facilities may be possible. This JUA may be part of the Aquatics Center JUA or a separate JUA. 6. DISTRICT RESPONSIBILITIES. Without admitting that the FEIR is deficient, the District must undertake the following obligations in response to Citys concerns regarding the FEIR and the Project: A. District must pay up to $6,000,000 for the design, development, planning and 12 005093,00054 1269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 construction of the Aquatics Center. B. District will hold title to the Property and all improvements including, without limitation, the Aquatics Center. C. District will cap daytime high school enrollment at the Property at 1,200 students to ensure a Small Leaming Community. D. District will devote appropriate and sufficient resources to maintain a safe and secure environment on the Property during school hours, including having a full time Security Coordinator on the campus. E. District will implement the mitigation measures set forth in the FEIR to ensure safe student drop -off areas, which do not pose either a pedestrian or a vehicular hazard on the surrounding public streets. If issues develop relating to drop -off and pick -up, District will work with City to resolve such matters. F. District will make the Property available as an Emergency Shelter for the American Red Cross. 7. CITY RESPONSIBILITIES. A. Administrative Determination regarding District Office. i. Within 10 days after this Agreement becomes effective, District will file an application with the El Segundo Planning and Building Safety Department to seek a determination pursuant to ESMC § 15- 5E -2(K) that the use of up to 12,000 square feet of the Project building for office space by the Wiseburn School District and the Da Vinci Charter Schools staff is similar to other allowed uses in the Urban Mixed -Use North zone and may be allowed as a land use. City will process such application in accordance with CEQA and ESMC Chapter 22. City agrees that it will recommend to the Director that Districfs application be approved. 13 005093.00054 11269557.1 SETTLEMENT AGREEMENT Agreement No. 4887 ii. If City does not approve the Districfs application within one hundred twenty (120) days after this Agreement becomes effective, District may act to void this Agreement. If District seeks to void this Agreement, it must provide written notice to City and City then has a new 30 -day statute of limitations period in which to challenge the original approval of the Project based on any timely claims that could have been made at such time. The 30 -day period commences upon receipt of written notice by City. In the event District elects to void this Agreement pursuant to this Section, any remedy for non - performance set forth in Section 9 will be unavailable to City. This Section will survive any voiding of the remaining Agreement. B. Operation and Maintenance. Once the Aquatics Center receives its final certificate of occupancy and is open to the public, City will operate and maintain it in accordance with the JUA. C. Grand Extension. Unless required by law, City will not undertake a public works project to implement an east -west extension of Grand Avenue during the term of the JUA and so long as the Property is operated as a school. 8. NO LIMITATION OF POWERS. A. Nothing in this Agreement is intended to, nor can it, act as a limitation on Citys present or future exercise of municipal powers in accordance with the California Constitution and applicable law. B. Nothing in this Agreement is intended to, nor can it, require the District Board to exercise its discretion in any way when considering whether to approve the Final Design. 14 00098.00054 112G9i87.1 SETTLEMENT AGREEMENT Agreement No. 4887 9. REMEDIES /GUARANTEES OF PERFORMANCE. A. District must build the Aquatics Center in accordance with this Agreement. The Parties agree that failure of District to meet this standard constitutes a default of this Agreement. The Parties agree that this default will result in damage and injury to City. The Parties further agree, however, that actual damages incurred by City as result of such default is difficult if not impossible to ascertain with any degree of certainty or accuracy. Accordingly, the Parties have negotiated and have agreed that District is liable to, and must pay, City for liquidated damages, and not as a penalty, $1.5 million for Districts failure to construct the Aquatics Center. If for any reason District does not approve or construct the Aquatics Center, City is entitled to the sum of $1.5 million in liquidated damages to fully compensate the City for the loss of the ability to use the pool and the impacts on the Citys ability to provide adequate recreational facilities to its citizens. Recovering liquidated damages is the sole and exclusive remedy of City if the District does not approve or does not construct the Aquatics Center. District must give at least 10 business days notice to City of the date and time of the meeting at which the District Board will consider the Aquatics Center. If District does not approve the Aquatics Center within two hundred ten (210) days after this Agreement becomes effective, City is immediately entitled to such funds. The Parties may extend this date for good cause shown and by mutual written agreement. ii. If, after any approval of the Aquatics Center, District decides not to construct the Aquatics Center, District will give City written notice of this decision and City is immediately entitled to liquidated damages. iii. Absent third party litigation which delays the construction of the Aquatics Center, if no formal action is taken by District but the Aquatics Center is not under construction by the time the High School opens, City is entitled to liquidated damages. 15 005098.00054 11269557.1 SETTLEMENT AGREEMENT Agreement No. 4887 iv. A notice of completion for the Aquatics Center must be recorded not later than June 30, 2017. If a notice of completion is not recorded by that date, City is entitled to liquidated damages. Citys entitlement to liquidated damages will be extinguished upon a notice of completion being recorded for the Aquatics Center. B. City guarantees that it will operate the Aquatics Center for one full year and it is anticipated that City will operate and maintain the Aquatics Center for the full term of the JUA. If, however, City terminates the JUA after the first full year, but before the end of the fifth year, City agrees to continue to maintaining and repairing the pool and therapy pool in such condition so that it may be used by District students for District's exclusive use period as defined in the JUA through the end of the fifth year. 10. COMPROMISE, SETTLEMENT, AND RELEASE. Except to the extent that City may exercise its police powers to enforce applicable law after the Aquatics Center is approved, in consideration of the mutual terms and conditions set forth in this Agreement, the Parties compromise and settle any and all past, present, or future claims, demands, obligations, or causes of action for compensatory or punitive damages, costs, losses, expenses, and compensation, whether based on tort, contract, or other theories of recovery, that the Parties have or might accrue arising from the Dispute or the Additional Review. Further, the Parties, on their respective behalves and those of their heirs, executors, administrators, and assigns fully release the other Party, its elected and appointed officials, employees, agents, and all other persons and associations, known or unknown, from any obligation or liability arising from the Dispute or the Additional Review. The Parties agree that this compromise, settlement, and release constitutes a bar to any claim involving the Dispute or the Additional Review. 11. GENERAL RELEASE OF ALL KNOWN OR UNKNOWN CLAIMS. The Parties acknowledge and agree that this Agreement applies to all claims that the Parties may have against each other arising out of the Dispute for injuries, damages, or losses to person and property, real or 16 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 personal, whether those injuries, damages, or losses are known or unknown, foreseen or unforeseen, or patent or latent, including those that may arise from the Additional Review. 12. CIVIL CODE § 1542. The Parties, or their representatives, certify that he or she read Civil Code § 1542, set forth below, and indicates that fact by initialing here: [CITY] rDISTRICT]. `A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor" 13. WAIVER OF § 1542 PROTECTIONS. After reading and understanding Civil Code § 1542, City and District voluntarily waive their application to this Agreement. City and District understand and acknowledge that the significance and consequence of this waiver is that even if City or District should eventually suffer additional damages arising out of the Dispute or the Additional Review, City and District will not be permitted to make any claim against the other Party for those damages. Furthermore, City and District acknowledge that City and District intend these consequences even as to claims for damages that may exist, and which, if known, would materially affect Citys and District's decision to execute this Agreement, regardless of whether Citys or Districfs lack of knowledge is the result of ignorance, oversight, error, negligence, or any other cause. 14. NO ASSISTANCE TO THIRD PARTY LITIGATION. City agrees that it will not directly or indirectly assist in any challenge brought by a third party against the District with respect to the Project, the Dispute or the Additional Review. 15. THIRD PARTY LITIGATION. If litigation is brought by a third party to challenge the construction, development or funding of the Project, District may act to void this Agreement. If District seeks to void. this Agreement, it must provide written notice to City and City then has a new 30 -day statute of limitations period in which to challenge the original approval of the Project based on any timely claims that could have been made as such time. The 30 -day period commences upon 17 005098.00054 1126987.1 SETTLEMENT AGREEMENT Agreement No. 4887 receipt of written notice by District. In the event, the District elects to void this Agreement pursuant to this Section 15, any remedy for non - performance set forth in Section 9 will unavailable to City. This Section will survive any voiding of the remaining Agreement. 16. LEGAL ADVICE. Each Party warrants and represents that in executing this Agreement, each Party sought legal advice from the attorney of their choice, that the terms of this Agreement and its consequences were completely read and explained to each Party by that attorney, and that each Party fully understands the terms of this Agreement. 17. FULL DISCLOSURE. Each Party acknowledges and represents that each Party was apprised of all relevant information and data relevant to the Dispute and this Agreement, including, without limitation, future risks, complications, and costs. Each Party further acknowledges and represents that, in executing this Agreement, the Party has not relied on any inducements, promises, or representations made by the other Party or any representative of the other Party. 18. WAIVER. A waiver by either Party of any breach of any term, covenant, or condition contained in this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained in this Agreement, whether of the same or different character. 19. NOTICES. All communications to either Party by the other Party will be deemed made when received by such Party at its respective name and address as follows: CITY City of El Segundo 350 Main Street El Segundo, California 90245 Attention: City Manager DISTRICT Wiseburn School District 13530 Aviation Boulevard Hawthorne, California 902500 Attention: Superintendent Any such written communications by mail will be conclusively deemed to have been received by the addressee upon deposit thereof in the United States Mail, postage prepaid and properly addressed as noted above. In all other instances, notices will be deemed given at the time of 18 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 actual delivery. Changes may be made in the names or addresses of persons to whom notices are to be given by giving notice in the manner prescribed in this Section. 20. ATTORNEYS' FEES AND COSTS. The Parties each agree to waive any entitlement of attomeyg fees and costs incurred with respect to the Dispute and the negotiation of this Agreement. 21. NO ADMISSION OF LIABILITY. It is understood and agreed that this settlement is a compromise of the Dispute, and that entry into this Agreement cannot be construed as an admission of liability on Distrids behalf. 22. INTERPRETATION. This Agreement was drafted in and will be construed in accordance with the laws of the State of California, and exclusive venue for any action involving this Agreement will be in Los Angeles County. 23. ENTIRE AGREEMENT. This Agreement sets forth the entire understanding of the Parties. There are no other understandings, terms or other agreements, expressed or implied, oral or written. 24. RULES OF CONSTRUCTION. Each Party had the opportunity to independently review this Agreement with legal counsel. Accordingly, this Agreement will be construed simply, as a whole, and in accordance with its fair meaning; it will not be interpreted strictly for or against either Party. 25. SEVERABILITY. If any portion of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, then such portion will be deemed modified to the extent necessary in the opinion of the court to render such portion enforceable and, as so modified, such portion and the balance of this Agreement will continue in full force and effect. 26. CAPTIONS. The captions of the Sections of this Agreement are for convenience of reference only and will not affect the interpretation of this Agreement. 27. TIME IS OF ESSENCE. Time is of the essence for each and every provision of this Agreement. 19 M09s.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 28. FORCE MAJEURE. Should performance of this Agreement be prevented due to fire, flood, earthquake, explosion, acts of terrorism, war, embargo, government action, civil or military authority, the natural elements, or other similar causes beyond the Parties' reasonable control, then the time periods within this Agreement will be automatically extended for the time period during which it is impracticable for the Parties to perform. 29. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which will be deemed an original. [signatures on next page] 20 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written. Dated: Dated: Dated: Approved as to form: Karl H. Berger, Assistant City Attorney Wiseburn School District Nelson Marti trd x, President, 8o of Approved as to form: John W. Dietrich Atkinson, Andel son, Loya, Ruud & Romo, Attorneys for the Wiseburn School District 21 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written. Dated: Dated: May 30, 2013 Dated: Dated: City of El Segundo Bill Fisher, Mayor Wiseburn School District Nelson Martinez, President, Board of Trustees Approved as to form: John W. Dietrich Atkinson, Andelson, Loya, Ruud & Romo, Attorneys for the Wiseburn School District 21 005098.00054 11269587.1 SETTLEMENT AGREEMENT Agreement No. 4887 IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first hereinabove written. Dated: Dated: Dated: Dated: City of El Segundo Bill Fisher, Mayor Approved as to form: Karl H. Berger, Assistant City Attorney Wiseburn School District Nelson Martinez, President, Board of Trustees Approved John ietrich. Atkins n Andelson, Loya, Ruud & Romo, ,., Attorneys for the Wisebum School District 21 005098.00054 11269587.1 SETTLEMENT AGREEMENT